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Inquisitorial Role of ORB Confirmed
Published in the November 2006 issue of Litigation Notes - View Article
In 1966 Dennis LePage bludgeoned his aunt to death with a rolling pin. In 1978 he was arrested standing outside the home of a psychometrist whom he had met in jail with a twelve gauge pump- action shotgun, a .357 snub-nosed Magnum, a box of 12 gauge magnum shells, handcuffs, and a large quantity of cash. He was charged with possession of a weapon for a dangerous purpose and was found not guilty of that offence by reason of insanity. The Criminal Code of Canada has since amended the terminology and an accused would now be found to be not criminally responsible by reason of mental disorder (“NCR”).
Since 1978, Mr. LePage has been detained almost continuously at the maximum-security Oakridge Division of the Mental Health Centre, Penetanguishene (“Hospital”). As required by the Criminal Code, his detention there is reviewed on an annual basis by the Ontario Review Board (“ORB” or “Board”). Mr. LePage has consistently refused to attend hearings of the ORB or to allow counsel to represent him. In the 20 hearings held between 1994 and 2004 he did not attend a single a hearing and allowed counsel to represent him on only two occasions.
A hearing of the Board was held in August of 2005. As usual, Mr. LePage did not attend and was not represented. Evidence was led by staff for the hospital to the effect that Mr. LePage continues to represent a significant risk to the safety of the public. He “seethes with anger and resentment” and routinely threatens staff and co-patients with death or violence. As one psychiatrist testified: “Only the identity of his next victim(s) and the timing of his next attack are in question.” Predictably the Board upheld his existing disposition and ordered that he continue to be detained at Oak Ridge.
Mr. LePage appealed to the Ontario Court of Appeal, where he gave evidence and was assisted by counsel acting as amicus curiae to the Court. The Court of Appeal said that it would not have a problem with the Board’s disposition, continuing the detention of a dangerous accused, but for the fact that Mr. LePage had not been receiving any treatment and the fact that the Board had repeatedly reached its dispositions based exclusively on evidence proffered by the Hospital.
Mr. LePage’s attending psychiatrist testified that he has been instructed in no uncertain terms to steer clear of Mr. LePage and that he is the appellant’s attending psychiatrist only in a “theoretical” sense. Mr. LePage refuses to participate in any therapy or treatment and is so adamant that he will not even enter rooms on the ward where treatments are undertaken.
The Crown argued that the appeal was moot because Mr. LePage had had a subsequent hearing in August of 2006. The Court of Appeal dismissed this argument because, given that there is an annual review, it is practically inevitable that a new disposition will be issued before an appeal can be heard. Where there are important issues to be decided, the Court should exercise its discretion to hear the appeal.
The Court of Appeal went on to refer to the inquisitorial duties imposed on the Board and described in the Supreme Court’s decision in the in the Winko case, stating that 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’”. The court also referred to the Supreme court’s decision in Mazzei, where it was found that the Board has jurisdiction to order a hospital director to undertake a comprehensive review of the accused’s diagnosis and treatment with a view to developing “an integrated treatment approach which considers the current treatment impasse and the accused’s reluctance to become an active participant in his rehabilitation”.
The Court of Appeal went on to say that in this case the Board had failed to consider the inquisitorial nature of its process and to consider making further inquiries. This was an error of law and a new hearing was ordered. The Court did not specify how the Board might best pursue its duty of inquiry but did state that it would have benefitted from having an amicus curiae at the hearing. The Crown argued that there is no jurisdiction to appoint an amicus curiae at the ORB, as the jurisdiction specified in section 672.5(8) of the Criminal Code provides only that, where the accused is not represented by counsel, the Board may “assign counsel to act for any accused”. An amicus curiae, said the Crown, does not act for the accused but advises the court. The Court of Appeal held that this was an unduly technical approach and that the role of amicus curiae is not strictly defined and continues to evolve. When an NCR accused is involved there is “an elevated possibility that all issues may not be presented”. Consequently it is appropriate for the Board to appoint an amicus who can be assigned the role of presenting issues favouring the accused which might not otherwise be raised. In this sense the amicus could be said to “act for the accused”.
R. v. LePage, 2006 CanLII 37775