DATE: 20061109
DOCKET: C44995
COURT OF APPEAL FOR ONTARIO
MOLDAVER, SHARPE and JURIANSZ JJ.A.
B E T W E E N :
Denis LePage in person
HER MAJESTY THE QUEEN
Michael Davies (amicus curiae)
Respondent
Grace Choi for the respondent Her Majesty the Queen
- and -
Sonal Gandhi for the respondent Administrator Mental Health Centre,
DENIS LEPAGE
Penetanguishene
Joe Wright for the intervenor Ontario Review Board
Appellant
Heard: October 16, 2006
On appeal against the disposition order of the Ontario Review Board under s. 672.81(1) of the Criminal Code, R.S.C. 1985, c. C-46 dated August 26, 2005, with reasons dated September 30, 2005.
JURIANSZ J.A.:
[1] This is an in person appeal from the disposition of the Ontario Review Board (the “Board”) dated August 26, 2005 ordering that the appellant continue to be detained at the maximum-security Oak Ridge Division of the Mental Health Centre, Penetanguishene (the “Hospital”). He has been detained there since January 19, 1978, except for about a year and a half while he was detained in medium security at the Brockville Psychiatric Hospital (from 1982 to 1983) (from which he eloped) and some three years in the Barrie Jail (from 1992 to 1995) awaiting trial on charges of uttering threats against staff members at the Hospital.
[2] In accordance with his long-standing practice, the appellant refused to appear at the hearing of the Board and indicated he did not wish to be represented by counsel at the hearing. The appellant also indicated he did not wish to be represented by counsel in this court. However, with the agreement of the Crown, this court appointed amicus curiae to assist in dealing with the issues raised by the appellant. In accordance with this court’s order, the amicus curiae filed a factum as well.
[3] As noted, the appellant has long refused to attend the Board hearings and has refused to permit counsel to attend on his behalf. The amicus curiae pointed out that over the course of some 20 previous hearings held by the Board regarding the appellant, there are only two references in the record to counsel representing him (once in 1994 and once in 1999), and no reference that establishes that he was ever personally present at an annual review.
[4] At the commencement of the hearing on August 25, 2005, the Board expressed concern about the long history of proceedings in the absence of the appellant. Dr. Malcolmson, a hospital psychiatrist, expressed his opinion that the appellant’s unwillingness to attend the Board hearing was an attitudinal issue, and that there was no psychiatric or physical illness to explain his decision. Dr. Malcolmson also said that the appellant was not incompetent to decide whether to attend the hearing. Counsel for the Crown and for the Hospital took the position that the Board should proceed in the appellant’s absence. After recessing to consider the matter and noting its express statutory authority to do so, the Board decided to proceed in the appellant’s absence.
[5] It is unnecessary to review the appellant’s long and ongoing record of engaging in violent and threatening behaviour in detail. It is worth noting that the appellant’s criminal record dates back to 1963 and that his most serious conviction was for manslaughter. He had bludgeoned his aunt to death with a rolling pin in 1966 and was sentenced to 12 years incarceration. The index offence which led to his detention at the Hospital in 1978 was possession of a weapon for a dangerous purpose. He was found standing on a street corner near the home of a psychometrist he met in jail with a 12 gauge pump action shotgun, a .357 snub nose Magnum, a box of 12 gauge magnum shells, handcuffs and a large quantity in cash. The appellant was transferred to the Barrie Jail in 1992 after being charged with four counts of uttering threats against hospital staff members. He pled guilty to these charges. Finally, it must be noted that the appellant’s threatening behaviour has been continuous. On July 27, 2005, just two weeks before the Board hearing, he left a telephone message menacing a hospital staff member.
[6] The evidence before the Board was unequivocal that the appellant was a dangerous person from whom the public had to be protected. The Administrator’s Report stated:
The Clinical Team is of the opinion that Mr. LePage’s risk factors, and in particular his history of violence including murder and indecent assault, continue to underscore the necessity for his continued detention in a highly structured and supervised hospital setting in order to ensure the safety of the public, including staff and co-patients. He remains explosive at times in response to external stressors, displays evidence of rigidity, disregard for others, and if left unsupervised, the evidence suggests that he will insist that others do as he wishes.
[7] The Board noted that the following summary of the expert evidence taken from the previous year’s Board Reasons continued to apply:
There has been no variation in the opinion of the many clinicians who have opined on Mr. LePage’s file and his diagnosis and the prospects of successful treatment of the accused’s major mental disorder. Dr. Malcolmson stated that Mr. LePage has no insight into his illness. Further, the doctor noted with alarm that the index offence is in the doctor’s words “mild” when compared with the observed research that Mr. LePage continues to expend in preparation for the perpetration of threats of death, threats of violence and intimidation that continues routinely at Oak Ridge by this accused. In the doctor’s view Mr. LePage’s serious intention to physically harm staff and co-patients by death threats is very real. The doctor could detect no prospect that the accused will ever change with respect to this type of disturbing misconduct.
[8] The assessment of the appellant’s condition and the danger he poses to others has been unchanging. This is illustrated by the fact that Dr. Malcolmson, in his testimony before the Board in 2005, endorsed as still applicable the following assessments of the appellant’s condition as early as 1991.
[9] The Consultation Report of Dr. McDonald dated December 19, 1991 noted:
I do not wish to be unduly dramatic. I am aware there are many patients in this facility who must be regarded as potentially dangerous. I am of the opinion however, that this man stands out among them. He is extremely angry, is untroubled by moral qualms, and he seethes with anger and resentment, a desire for vindictive retaliation at those he perceives to frustrate his desires.
[10] In his Consultation Note dated June 5, 1995, Dr. Menuck said:
Only the identity of his next victim(s) and the timing of his next attack are in question. He should be managed with extreme caution in secure surroundings.
Since Mr. LePage presents clear risks to other people because of an identified mental disorder, he is certifiable under the Ontario Mental Health Act. He is not approachable and will not recover spontaneously. Therefore he will remain dangerous and certifiable for the foreseeable future.
[11] The 1995 assessment note of Dr. Jones said:
In light of this patient’s threats and his threatening, provocative behaviour over the past years in this facility, there is, in my opinion, no evidence that would convince a reasonable person that this man has changed in any significant way since the days when he was found insane in the first place. Not surprisingly, I have very grave concerns about releasing this man to a less secure facility... the prospects are frightening.
[12] Such assessments of the appellant’s condition have resulted in the Hospital Administrator recommending year in and year out that the Board’s detention of the appellant be continued. In the disposition under appeal, the Board held that based on the evidence before it, the appellant continued to suffer from a major mental disorder, that he presented an extreme and substantial threat to the safety of the public and that he refused treatment. For those reasons, the Board concluded that continued detention was the least onerous and restrictive disposition in the circumstances.
[13] I would not be concerned with the Board’s disposition, repeating its previous dispositions and continuing the detention of a dangerous accused, but for two features of the appellant’s circumstances: first, he is receiving no treatment at the Hospital, and second, the Board has repeatedly reached its dispositions on the basis of material introduced only by the Hospital.
[14] Dr. Malcolmson, the appellant’s attending psychiatrist for the last five years, explained that the reason the appellant is receiving no treatment is because he has been completely unwilling to participate in any therapy or treatment for many years. His refusal of treatment is so adamant that he does not enter rooms on the ward where treatments are undertaken. He has threatened legal action against a hospital staff member who casually asked him “how are you doing?” because he interpreted it to be a clinical question. Dr. Malcolmson described the level of interaction he had with the appellant over the previous year as “zero.” He explained that he had been advised in the strongest terms to stay clear of the appellant. He does not even say good morning to him or acknowledge him in the corridor. Dr. Malcolmson testified that he was the appellant’s psychiatrist “theoretically.”
[15] In his oral submissions to the court, the appellant took issue with the Hospital’s suggestion recorded in the 1997 and 1998 dispositions of the Board that his refusal to participate in therapeutic programs is because he has always denied having a mental illness. He stated that he acknowledged he was mentally ill in a letter dated July 14, 1987 to the unit director. Further, alluding to his refusal to participate in Board hearings being a protest to a system which relies on inaccurate documentation, he took issue with the suggestion that he has failed to provide documents to support his long-standing position that there are errors in the documents relied upon by the Board. He stated that in 1999 the addendum to the Hospital Administrator’s report acknowledged that counsel acting for him tendered documents on his behalf, albeit without proper notice.
Issues
[16] The appellant requests an order of this court transferring him to a medium secure facility “to engage in a complete comprehensive psychiatric assessment where all efforts possible are made by the receiving facility to obtain records from other sources during the course of this assessment.”
[17] The amicus curiae submitted that in the circumstances the Board had a duty to inquire into the reasons for the appellant’s long-standing refusal to participate in the annual review of his detention either personally or through counsel, and his refusal of treatment. The Board, it was submitted, was under a duty to make orders that would facilitate or stimulate treatment opportunities for the appellant. The Board should have ordered an independent assessment of the appellant’s situation to be carried out at a medium secure institution.
[18] The Crown took the position that the appeal was moot, and that, in any event, there was a clear evidentiary basis upon which the Board could decide to proceed in the appellant’s absence. The Crown further submitted that “this was not a situation of a true ‘treatment impasse’”; rather, the appellant had simply been refusing for many years to participate in any treatment.
[19] The main issue to be determined is whether, in the face of the appellant’s persistent refusal to participate in Board hearings and in any treatment at the Hospital, the Board was required to do more than it did in order to meet its inquisitorial duties. As a preliminary issue, it must be determined if this appeal is moot. While amicus curiae raised the issue of reasonable apprehension of bias in its factum, this was abandoned at the hearing of the appeal.
Mootness
[20] As the Crown submits, this appeal is in fact moot because the Board held another review hearing on July 25, 2006 and issued another disposition on August 2, 2006. Therefore the August 26, 2005 disposition under appeal has expired. However, we were advised that the 2006 hearing and disposition of the Board largely mirrored the 2005 disposition under appeal. The appellant again refused to participate in the hearing and the Board proceeded in his absence and continued the disposition already in place.
[21] Consequently, issues put into controversy by this appeal continue to be alive. Given the Criminal Code’s requirement that a not criminally responsible (“NCR”) accused’s detention be reviewed annually, as a practical matter, a Board order will have expired or will soon expire by the time any appeal from it is heard. In Borowski v. Attorney-General of Canada (1989), 1989 123 (SCC), 47 C.C.C. (3d) 1 at 15 (S.C.C.), Sopinka J. stated: “In order to ensure that an important question which might independently evade review be heard by the court, the mootness doctrine is not applied strictly.” Further, in Mazzei v. British Columbia (Adult Forensic Psychiatric Services, Director) (2006), 2006 SCC 7, 206 C.C.C. (3d) 161, the Supreme Court held at para. 15 that orders of the British Columbia Review Board were “capable of repetition, yet evasive of review” and that it should exercise its discretion to hear the moot appeal. For these reasons, I conclude that this court should exercise its discretion to hear this appeal.
The Board’s inquisitorial duties
[22] In this case the appellant is not receiving treatment and there is no prospect that he will receive treatment or that his situation will change on the basis of the information currently before the Board. It is not clear what specific actions might conceivably lead to a break in the impasse, or even that the impasse can be broken. However, after 28 years, this case had reached the point where it was incumbent on the Board to consider making further inquiry. As the Supreme Court of Canada explained in Winko v. British Columbia (Forensic Psychiatric Institute) (1999), 1999 694 (SCC), 135 C.C.C. (3d) 129, the regime under Part XX.1 of the Criminal Code departs from the traditional adversarial model. The system is inquisitorial. The Board bears the burden of reviewing all relevant evidence on both sides of the case. The Board has the duty to search out and consider evidence not only favouring restricting the NCR accused, but also evidence in his or her favour “regardless of whether the NCR accused is even present” (para. 54). As the court said at para. 55:
As a practical matter, it is up to the court or Review Board to gather and review all available evidence pertaining to the four factors set out in s. 672.54... The court and the Review Board have the ability to do this. They can cause records and witnesses to be subpoenaed, including experts to study the case and provide the information they require.
[23] More recently, in Mazzei, supra, the Supreme Court stated at para. 7 that the Board has “the power to bind hospital authorities and to impose binding conditions regarding or supervising (but not prescribing or imposing) medical treatment for an NCR accused.” In that case, the Supreme Court found that the Board had jurisdiction to order the Hospital director to undertake a comprehensive review of the NCR accused’s diagnosis and current treatment so as to develop “an integrated treatment approach which considers the current treatment impasse and the accused’s reluctance to become an active participant in his rehabilitation.”
[24] In this case, after 28 years it is clear that the high level of danger the appellant poses to the public is unchanging, he is receiving no treatment, his attending psychiatrist describes his role as “theoretical”, and the institution has no treatment plan with prospects of leading to a different situation. Rather than simply recapitulating the static situation and ordering that the appellant continue to be detained, an exercise of the Board’s inquisitorial role may have resulted in the appellant’s continued detention being subject to a condition ordering a comprehensive review of his situation as in Mazzei.
[25] There is nothing in the record to indicate that the Board adverted to the inquisitorial nature of its process. In the particular facts of this case it was an error of law for the Board to fail to recognize its inquisitorial role and to consider making further inquiries. Consequently, the resulting disposition was “based on a wrong decision on a question law” and appellate intervention is appropriate under s. 672.78(1)(b). Had the Board’s reasons explained why it decided not to make further inquiry in this case, the court would have to show deference to that decision. It and the resulting disposition would have been reviewable on a reasonableness standard under s. 672.78(1)(a).
[26] Consequently, I would allow the appeal and order a new hearing. While I would leave to the Board the question of how best to pursue its duty of inquiry, it seems to me that the Board would have benefited by appointing amicus curiae at the hearing, as the Board has done in other cases: see for example Condruz (Re), [2005] O.R.B.D. No. 1786 and Schutzman (Re), [2005] O.R.B.D. No. 1841.
[27] The Board’s jurisdiction to appoint amicus curiae was contested in this appeal. Section 672.5(8) provides as follows:
If an accused is not represented by counsel, the court or Review Board shall, either before or at the time of the hearing, assign counsel to act for any accused
(a) who has been found unfit to stand trial; or
(b) wherever the interests of justice require.
[28] The Crown submitted that this section does not provide authority to the Board to appoint amicus curiae as it contemplates assigning counsel “to act for any accused.” Further, the Crown submitted that it would be futile to appoint counsel for the appellant given that he has clearly indicated that he will not communicate with any counsel assigned to him. Rather, the Crown submits the choices the appellant makes in exercising his personal autonomy must be respected.
[29] In my view, the words of s. 672.5(8) do not preclude the Board from appointing amicus curiae when the interests of justice so require. I would not adopt an unduly technical approach to the question. Certainly, amicus curiae appointed by the court have no solicitor-client relationship with the accused, and may be described as counsel to the court. However, the role of amicus curiae is not strictly defined and continues to evolve. One of the roles of amicus curiae has been recognized as being an assistant to the court when “there is a failure to present the issues (as, for example, where one side of the argument has not been presented to the Court)”: Clark et al. and Attorney-General of Canada (1977), 1977 1084 (ON SC), 17 O.R. (2d) 593 (H.C.J.). When NCR accused are involved, there is an elevated possibility that all issues may not be presented. In my view, amicus curiae may be appointed by the Board and assigned the role of presenting the issues favouring the accused which otherwise might not be raised. I am satisfied that an amicus curiae who is assigned this role may be said to “act for the accused”.
[30] Further, I do not think that appointing amicus curiae to represent the interests of the appellant could have been regarded as inevitably futile. The appellant’s past refusals to communicate with any counsel assigned to him may not necessarily predict his future behaviour. As the amicus curiae on appeal pointed out, he may well communicate with and instruct counsel if one were appointed. It is notable that amicus curiae was appointed to assist with this appeal contrary to the appellant’s wishes, yet it appears he has co-operated with amicus curiae in the preparation and presentation of this appeal.
[31] Even if the appellant refuses to cooperate, amicus curiae has a role to play both in representing his interests and in assisting the Board. If indeed the appellant has refused to participate in Board hearings because he believes that the Board is operating on the basis on faulty information, amicus curiae could have reviewed documents the appellant attempted to place before the Board in 1999, and if they were relevant, could have introduced them in a procedurally correct manner.
[32] For these reasons, I would allow the appeal. The 2005 disposition no longer has any operative effect as it has been overtaken by the Board’s 2006 disposition, but as the procedure followed on that disposition mirrored what occurred in 2005, I would order the Board to conduct a new hearing under s. 672.82 in accordance with these reasons as soon as practically possible.
“R.G. Juriansz J.A.”
“I agree M.J. Moldaver J.A.”
“I agree Robert J. Sharpe J.A.”