The Attorney General of Ontario v. Taylor et al.; The Ontario Review Board, Intervenor [Indexed as: Ontario (Attorney General) v. Taylor]

98 O.R. (3d) 576

Court of Appeal for Ontario,

Winkler C.J.O., Goudge and Watt JJ.A.

January 21, 2010

Criminal law -- Mental disorder -- Review Board -- Jurisdiction -- Review Board not having jurisdiction to order Attorney General or any other party to pay costs of independent psychiatric assessment ordered by Board -- Criminal Code, R.S.C. 1985, c. C-46, s. 672.121.

The Review Board ordered an independent psychiatric assessment under s. 672.121 of the Criminal Code, considering it necessary in order to make the least restrictive and least onerous disposition. The Board stated that if it had to bear the cost of assessments it ordered, there could be perception that budgetary concerns influenced its decision whether to order assessments, which could erode the Board's independence and impartiality in carrying out its quasi-judicial functions. As a result, the Board ordered the Attorney General to bear the reasonable cost of the assessment. The Attorney General applied for an order in the nature of certiorari quashing the order requiring it to pay for the assessment. The application was granted. The Review Board appealed.

Held, the appeal should be dismissed.

The Review Board lacked jurisdiction under Part XX.1 of the Criminal Code to order the Attorney General, or any other party, to pay for an independent psychiatric assessment. The motions judge correctly held that the Board is a creature of statute and that nothing in the case involved Charter values. The Board cannot confer jurisdiction upon itself based on speculative perceptions about its decisions. In any event, it would be improper for the Board's decisions on assessments to be based on budgetary concerns. There was no evidence that the Ministry of Health and Long Term Care, which funds the Board, has ever or intended in future to refuse to cover the costs of assessments ordered by the Board. There was evidence that the Ministry was prepared to cover the costs should the Board prepare a request for a supplementary budget to fund assessments it [page577] orders under s. 672.121. The Board itself was required to bear the cost of the assessment.

APPEAL from the judgment of Marchand J. (2009), 2009 10983 (ON SC), 95 O.R. (3d) 698, [2009] O.J. No. 1053 (S.C.J.) quashing an order of the Ontario Review Board.

Statutes referred to Canadian Charter of Rights and Freedoms Criminal Code, R.S.C. 1985, c. C-46, s. 672.121, Part XX.1

Stephen J. Moreau and Elichai Shaffir, for appellant Ontario Review Board. Robert Gattrell, for respondent Attorney General of Ontario. Michael Davies, for respondent Shauna Taylor. Sara Blake and Fateh A. Salim, for respondent person in charge of the Mental Health Centre Penetanguishene. Anita Szigeti, for intervenor the Empowerment Council.

The judgment of the court was delivered by

[1] WINKLER C.J.O.: -- This appeal arises from the March 13, 2009 ruling of Marchand J. quashing an order of the Ontario Review Board ("Board") requiring the Attorney General of Ontario ("Attorney General") to bear the reasonable costs of an independent psychiatric assessment ordered by the Board under s. 672.121 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] The Empowerment Council ("Council"), a group that advocates on behalf of persons with mental health issues, seeks leave of this court, on short notice, to be added as an intervenor in this appeal. No significant prejudice has been demonstrated and, given the contribution of the Council, leave is granted.

[3] The application judge held that the Board lacked jurisdiction under Part XX.1 of the Criminal Code to order the Attorney General, or any other party, to pay for such an assessment and that the Board itself must bear the cost of the assessment. I agree. However, I would emphasize that the financial considerations associated with such an assessment cannot impede, or in any way affect, the Board in exercising its statutory duty to obtain the information necessary to render a disposition in accordance with its mandate. My reasons follow.

[4] The independent psychiatric assessment at issue pertains to Shauna Taylor. Ms. Taylor has been under the jurisdiction of the Board since 1975 and has been detained at the Mental Health Centre Penetanguishene ("MHCP") since 1995. Ms. Taylor, who is anatomically male, has been living as a female and [page578] takes prescription medication to make her body more feminine. She is seeking surgery to remove both testicles in order to complete her transformation from male to female.

[5] The primary issue at her 2008 annual review was whether or not the Board should make a disposition facilitating her desired transformation. The Board adjourned the matter for the purpose of ensuring that relevant evidence, necessary to make such a disposition, became available. The Board ordered that a psychiatric assessment be completed by Dr. Paul Federoff of the Royal Ottawa Mental Health Centre to ascertain whether or not Ms. Taylor has a gender identity disorder. The Board considered the assessment necessary to make the least restrictive and least onerous disposition, in accordance with its mandate under the Criminal Code, noting that a treatment impasse had developed between the accused and her health care providers.

[6] The assessment order required the MHCP to organize the assessment, and the Attorney General to fund its reasonable costs. The Attorney General objected to its requirement to pay and applied to the Superior Court of Justice for an order in the nature of certiorari quashing the order, naming the Board as a party to the application. The application judge ruled at the outset that the Board could only be named as an intervenor in the proceedings and not as a party. He went on to find that the Board lacked the jurisdiction to order the Attorney General to pay and quashed the order as requested. The Board now appeals to this court.

[7] It is unnecessary for this court to decide three of the issues on this appeal, namely, whether the application judge erred in removing the Board as a party and changing it to the status of intervenor, and incidental to this issue, the standing of the Board to bring this appeal. The third issue is whether, since the order appealed from is a "costs order", leave to appeal is required. None of these issues raise a live concern, as there is no opposition to this court hearing the appeal. All parties agree that it is a matter of public importance for this court to determine the fundamental issue at the centre of this case. Accordingly, I will not address any of the above issues in these reasons.

[8] In the present case, there is no issue as to the jurisdiction of the Board to order an independent assessment. Rather, the issue before the court narrowed abruptly to one question: does the Board have the jurisdiction to order the Attorney General, or any other party, to pay for a Board-ordered independent psychiatric assessment? [page579]

[9] The Board takes the position that it has the authority to make the Attorney General pay for such assessments. In its submissions, the Board relies heavily on its quasi-judicial role within the criminal justice system, and the resulting need for the Board to maintain its independence and impartiality. The Board argues that its operational independence takes on a constitutional dimension given the liberty interests at stake. Therefore, any realistic possibility or perception that the Board will fail to discharge its mandate under the Criminal Code, due to budgetary constraints, is unacceptable. The Board submits that in rejecting these arguments the application judge committed reversible errors.

[10] Ms. Taylor, a respondent on this appeal, is also of the position that the Board should not pay for the independent psychiatric assessments it orders. Ms. Taylor emphasizes the critical role that these assessments play in the Board's ability to maintain public safety, and ensure the fair treatment of the accused, when determining the appropriate disposition in the circumstances. She argues that it is imperative for these assessments to be properly funded either by the Attorney General or the MHCP.

[11] The Council supports the view put forward by Ms. Taylor and the Board. More so, the Council emphasizes the need for independent assessments to provide the Board sufficient information upon which to make the least restrictive and least onerous disposition regarding the accused. The Council raises the issue of the particular needs of long-term detainees, such as Ms. Taylor, for whom independent assessments are essential given the likelihood of a treatment impasse resulting from such long-term detention.

[12] The Attorney General and the MHCP share the position that the absence of express statutory language in the Criminal Code is determinative of the Board's lack of authority to order the Attorney General to pay. And, according to the Attorney General, it is clear that the use by the Board of its own budget for this purpose would not compromise its ability to make independent, impartial decisions. This submission is bolstered by the representations of the MHCP that the Board has been offered funding by the Ministry of Health and Long Term Care ("MOHLTC") to ensure expenses associated with independent psychiatric assessments are covered. The Attorney General and the MHCP submit that the application judge was correct in his reasons and result, and that the appeal ought to be dismissed. [page580]

[13] The application judge held that, in making the assessment order at issue, the Board assumed jurisdiction that it did not have, either expressly or impliedly. In arriving at this result, he found that costs are a substantive matter, that there is no provision under Part XX.1 of the Criminal Code authorizing the Board to order any party to pay the costs of an assessment and that the case did not involve any values under the Canadian Charter of Rights and Freedoms.

[14] Having found that the Board is a "creature of statute", which is not authorized to require a party to pay costs without express statutory authority, the application judge concluded that the Board had the power to hire and pay its own experts. The issue, therefore, distilled further to whether the cost associated with independent assessments should be paid by the Board through its budget allocated by the MOHLTC or directly by the MOHLTC. The application judge captured the point succinctly, at para. 29, when he stated, "[i]n effect, the ORB is asking this court to adjudicate on its own budgetary interests . . ." as opposed to the rights of any party or person subject to the Board's jurisdiction.

[15] There was no evidence that the MOHLTC had refused, or was likely to refuse, the funding of assessments required by the Board to ensure that it was able to meet its statutory mandate under Part XX.1 of the Criminal Code. As such, the application judge found that the Board should deal with the cost of independent assessments through its own budget. I agree.

[16] The standard of review to be applied by this court is correctness. The application judge committed no error in reaching his determination.

[17] I cannot, indeed must not, leave this issue without commenting on the argument of the Board that if required to pay for independent assessments through its own budget, there will be at minimum "a perception" that overall financial concerns may impact on a decision of the Board to order an assessment in a particular case, thus eroding its independence and impartiality.

[18] I make two observations in respect of this submission. First, even if legitimate, a merely speculative perception does not provide a valid basis for conferring jurisdiction on the Board which it does not otherwise have under its enabling statute. Second, if the Board was to decide an individual case and, in doing so, entertained fiscal considerations as they pertain to the Board, it seems to me that an appeal would lie from such a decision. Financial considerations, either in a general sense or more specifically, for example, whether the Board had exceeded its forecasted [page581] budget for assessments in a given year, are not legitimate considerations for the Board to take into account when deciding upon the necessity for an independent psychiatric assessment.

[19] In this regard, the application judge found that funding is available to ensure that the Board is able to meet the obligation of costs incurred as a result of the ordered assessments. He found that the MOHLTC is prepared to fund all Board-ordered assessments, and that such funding will be provided by the MOHLTC through the budgetary process it establishes in consultation with the Board. I repeat, there is no suggestion that any Board-ordered independent assessment would not be paid.

[20] Presently, the Board has no budget line relating to independent assessments. We would urge the Board to submit a supplementary budget to MOHLTC dealing with this item for the current fiscal year, as soon as is practicable.

[21] In conclusion, the critical nature of independent assessments cannot go unacknowledged. It is imperative that there be no impediment to the proper exercise of the Board's inquisitorial powers. The ability of the Board to address insufficiencies in the evidence, prior to making the least restrictive and least onerous disposition necessary, must not be interfered with by budgetary constraints. In order for the Board to be truly impartial and independent, it must decide these very important questions, which involve the liberty of the subject, with the appropriate evidence before it, on the merits of each particular case and free of fiscal considerations.

[22] I would dismiss the appeal. As no costs were asked for, there shall be no order as to costs.

Appeal dismissed.