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“Least Onerous and Least Restrictive”
Published in the May 2006 issue of Litigation Notes - View Article
On May 16, 2006, the Ontario Court of Appeal released an important decision dealing with the conditions applicable to the detention of mentally disordered offenders.
The Respondent, Mr. Magee, was found not guilty by reason of insanity on a charge of first degree murder in 1977 and on two additional charges of first degree murder, one charge of rape and one charge of indecent assault in 1980. He has been detained continually at the Oakridge Division of the Mental Health Centre, Penetanguishene (“MHCP”). Pursuant to the provisions of the Criminal Code, he is subject to the jurisdiction of the Ontario Review Board (“ORB”). The ORB is required to hold a hearing annually to determine if the accused continues to pose a significant threat to the safety of the public. If he does not, he is to be discharged absolutely. If he continues to pose a significant threat, he may be discharged subject to such conditions as the ORB considers appropriate or detained in custody in a hospital subject to such conditions as the ORB considers appropriate.
In making a disposition, the ORB is required to take into consideration “…the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused to society and the other needs of the accused” and to make the disposition which is the “least onerous and least restrictive to the accused”. At a hearing held in May 2005, the ORB ordered Mr. Magee transferred to the medium secure unit at the Centre for Addiction and Mental Health (CAMH) in Toronto. In doing so, it relied on psychiatric evidence to the effect that Mr. Magee could be safely managed on the medium secure unit at CAMH, both with respect to aggressive behaviour and a risk of escape. The administrator of MHCP appealed to the Court of Appeal.
The Court of Appeal set aside the ORB’s disposition and referred the matter back to the ORB for a rehearing. The Court of Appeal agreed with the ORB that Mr. Magee continues to pose a significant threat to the safety of the public and should continue to be detained in hospital. The question was whether it would be less onerous and less restrictive for him to be detained in the medium secure unit at CAMH or in the maximum security facility at MHCP. Although the Oakridge Division of MHCP is described as maximum security, Mr. Magee was on the most privileged ward of the facility and was free to wander around the hospital relatively freely. There were various vocational, educational and recreational facilities available to him. In particular, he worked in the woodworking shop five hours per day and relied heavily on this activity to provide him with a sense of accomplishment and daytime structure. At the medium secure unit of CAMH, Mr. Magee would be confined to a locked ward and would be allowed out only for necessary medical, dental, legal or compassionate purposes. The focus of the medium secure unit at CAMH is on therapeutic programming and rehabilitation, with the goal of eventually moving a patient to minimum security and then into the community. Mr. Magee’s prognosis is such that this is unlikely to happen. Furthermore, CAMH is not set up to accommodate patients on a long-term basis. The period of detention at CAMH is generally less than one year.
Consequently, the Court of Appeal concluded that the decision of the ORB was concerned less with the treatment of Mr. Magee, his needs or liberty interests, “…but rather with his incapacitation or warehousing to ensure his risk be contained”. Mr. Magee becomes more sexually heightened when subjected to stress and the Court of Appeal concluded that, on balance, his mental condition would be improved in the environment at MHCP and that this would address his “mental condition”and his “other needs”, as well as the need to protect the public from him.
Mental Health Centre, Penetanguishene v. Magee, 2006 CanLII 16077 SCC 18