Administrative law – Decisions of administrative tribunals – Review Board – Adult in need of protection – Detention – Danger to public – Fresh evidence – Admissibility – Judicial review – Standard of review – Reasonableness simpliciter
R. v. Owen,  S.C.J. No. 31, Supreme Court of Canada, June 6, 2003, McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.
The Supreme Court of Canada held that the Court of Appeal should have allowed the admission of the fresh evidence by the Crown. The Court of Appeal gave no reason for refusing to admit the fresh evidence. Provisions of the Criminal Code provided that an appeal against a Disposition Order should be based on a transcript of the proceedings and any other evidence that the Court of Appeal finds necessary to admit in the “interests of justice”.
The appeal of a not competent by reason of mental disorder disposition order under part XX.1 of the Criminal Code is not an appeal in an adversarial criminal prosecution, but an inquisitional administrative procedure designed to arrive at the least restrictive regime for the detainee, consistent with public safety. In this context, the “interests of justice” includes not only justice to the detainee, whose liberty is at stake, but also justice to the public, whose protection is sought to be assured. In light of the Court of Appeal’s criticism that the Board had unduly concerned itself with Owen’s failure to control his drug habit without sufficient evidence of a continuing disposition to violent behaviour, the fresh evidence was highly relevant.
In contrast to the decision in Starson v. Swayze,  SCC 32, this case involved a detainee who was showing a propensity for violence. The consequences of a misjudged denial of state intervention would be much more serious in this case than in the case of a patient resisting unwanted medical treatment, and as a result, the interests of justice in these circumstances required a different result.
The Supreme Court of Canada admitted the fresh evidence as part of the record on this appeal.
The majority held that the Court of Appeal should have applied the standard of reasonableness simpliciter in reviewing the decision of the Board.
The Board’s review of the facts and its decision, based on the resumed use of cocaine leading to violence, was squarely within its expertise. The Court of Appeal was of the view that the evidence fell short in this regard, but that was a matter of expertise and weight for the Board, and not for the reviewing court. As a result, the Supreme Court of Canada upheld the Board’s decision.
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