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Supreme Court Considers Powers of Review Boards
Published in the April 2006 issue of Litigation Notes - View Article
On March 16, the Supreme Court of Canada released a decision with important implications for the provincial Review Boards which supervise individuals who have been found Not Criminally Responsible (“NCR”) for an offence by reason of mental disorder.
When an accused has been found NCR, the Court must make a disposition with respect to the accused or, alternatively, cause the accused to become subject to the supervisory authority of the Review Boards which exist in each province and territory for that purpose. The Court or the Review Board can discharge the accused absolutely if it is thought that the accused does not pose a significant threat to the safety of the public. If it is thought that the accused does pose a significant threat to the safety of the public, he or she may be detained in custody in a hospital “subject to such conditions as the court or Review Board considers appropriate”, or granted a conditional discharge, also “subject to such conditions as the court or Review Board considers appropriate”.
Mr. Mazzei, an aboriginal person, is an NCR accused who was being held in custody at the Forensic Psychiatric Hospital in British Columbia. He expressed a desire to attend a First Nations rehabilitation centre for his drug and alcohol addiction. At a Board hearing in April, 2002, the Board felt that Mr. Mazzei’s treatment had reached an impasse and expressed concerns over the inadequate information provided by his case manager and treatment team. It was also concerned with the accused's reluctance to cooperate with his treatment team. The Board ordered the continued detention of the accused, but required the Director of the Hospital to 1) provide an independent evaluation of the accused's diagnosis, treatment, and clinical progress; and 2) provide an independent evaluation of his public safety risk in light of a new, refocused treatment plan; and 3) undertake assertive efforts to enroll the accused in a culturally appropriate treatment program. The Director appealed to the B.C. Court of Appeal which struck the conditions imposed on the Director, holding that the Board did not have jurisdiction to make an order imposing medical treatment or to make conditions binding on anyone other than the accused.
In the Supreme Court of Canada the Hospital Director argued that the Board has no power over the medical services provided to an NCR accused. It should concern itself only with obtaining information to assess the risk posed by the accused. “It cannot interfere with the doctor-patient relationship established between the hospital and the accused. Conditions in an order bind the accused and no one else, since they can only touch on issues of security, hospital privileges and/or community access, and cannot address medical treatment issues.”
Mr. Mazzei argued that “… Review Boards have the power to make conditions binding on hospital authorities, and specifically to prescribe or impose medical treatment. This power is derived from the Director's status as a participant in the Review Board disposition process and in fostering the rehabilitation and community reintegration of an accused.”. The B.C. Review Board argued that it has “…a statutory duty to ensure that an NCR accused is provided with appropriate treatment opportunities [which] includes the need to question current approaches and explore new options… the Board must have the power to bind persons other than the accused... while the Board may not make conditions imposing treatment (outside of limited and narrow exceptions), it must have the power to scrutinize the current treatment plan and require the Director to explore alternative approaches.”
The Supreme Court of Canada ruled that Review Boards have the power to impose conditions which are binding on parties other than the accused, including hospital administrators.
Firstly, this is evident from the wording of Section 672.54 of the Criminal Code, which refers to the accused being "detained in custody in a hospital, subject to such conditions as the court or Review Board considers appropriate" According to the Court, this wording “…does not suggest, explicitly or implicitly, that the conditions refer to the accused's conduct and obligations. If Parliament had intended to ensure that conditions in disposition orders could only target and bind the accused, the statutory language would have been much more explicit. For example, the text could have indicated that the accused be discharged or detained "and be subject to such conditions ...". This wording would clearly indicate that it is the accused, and only the accused, who is targeted by the conditions imposed. The absence of such wording leaves the target of the Board's conditions open and indeterminate, such that orders and conditions may also bind other persons such as hospital authorities…”. It is also supported by the French version of the text.
Secondly, the legislative scheme as a whole also supports the conclusion that s. 672.54 grants Review Boards the authority to make orders and conditions binding on hospital authorities. “…It would be illogical…for the Board to order the hospital detention of an accused without the ability to bind the person in charge of the hospital, and the treatment team and administrative staff involved in implementing this detention….” The Court considered the legislative scheme in light of the jurisprudence since the introduction of Part XX.1 of the Criminal Code. Part XX.1 was a response to the decision of the Supreme Court in R. v. Swain, which identified a “…lack of procedural protections and assurances of dignity and fairness for mentally ill offenders” in the former legislative scheme. As has been identified by the Supreme Court in R. v. Winko, the legislative scheme introduced by Part XX.1 introduces an “assessment-treatment” model, whereby “…NCR accused persons are assessed according to their level of risk or threat to public safety; they are then placed or managed accordingly, the measures taken being designed to impinge on their liberty interests as little as possible.” In order to fulfill their statutory mandate to oversee this assessment-treatment model, Review Boards must have the authority and power to make their orders and conditions binding on the accused as well as on other parties involved.
The court went on to say that Review Boards cannot prescribe a particular form of treatment.
Since only one member of the Board is required to be a psychiatrist, it would be possible for an order respecting treatment to be made by a majority of the Board members, none of whom was trained in psychiatry, and that would not make sense. However Review Boards do have the power to make orders and conditions "related to" or "regarding" an accused's medical treatment. This would include the power to ensure that the accused is provided with “…opportunities for appropriate and effective medical treatment, in order to help reduce the risk to public safety and to facilitate rehabilitation and community reintegration”. This power would include the power “…to require hospital authorities and staff to question and reconsider past or current treatment plans or diagnoses, and explore alternatives which might be more effective and appropriate.”
Consequently, the Court reversed the B.C Court of Appeal, ruling that all three of the orders made by the Review Board were within its jurisdiction.
Mazzei v British Columbia., 2006 SCC 7