A disposition by the Ontario Review Board (the “Board”) allowing an accused found not guilty by reason of insanity and who remained a significant threat to the safety of the public, to be transferred to his country of origin for care and supervision was found unreasonable by the Court of Appeal. In finding that the disposition was unreasonable, the Court held that the existence of a deportation order was irrelevant to the Board’s consideration whether to return a dangerous patient to his native land and should not have been considered.

Administrative law – Prisons – Transfer of inmates – Deportation orders – Statutory provisions – Criminal Code – Public safety – Decisions of administrative tribunals – Review Board – Judicial review – Jurisdiction

R. v. Miller, [2003] O.J. No. 3455, Ontario Court of Appeal, September 10, 2003, Charron, Feldman and Simmons JJ.A.

Miller was found not guilty by reason of insanity on a charge of first degree murder in 1978. He was detained at a Division of the Penetanguishene Mental Health Center (“PMHC”). Since the 1991 enactment of Part XX.I of the Criminal Code, Miller has been detained under the jurisdiction of the Board. Miller was born in Jamaica and came to Canada when he was 15. As part of his rehabilitation process, Miller was granted community access but was convicted of assault on multiple instances. The PMHC Clinical Team agreed that Miller functions relatively well in a secure setting but with less structure and with fewer external controls, finds it difficult to refrain from more menacing behaviour.

On March 12, 1993, the Government of Canada ordered Miller deported to Jamaica as a consequence of his conviction for assault with a weapon. Mr. Miller expressed an interest in returning to Jamaica. On January 22, 2001, the Board decided not to permit Miller to return to Jamaica and ordered that he remain in the Board’s custody until he was absolutely discharged because there was nothing entitling him to an absolute discharge. The Board wrote that Miller would pose a risk to the public in Jamaica and in Canada if he were to return to Canada after the Board had given up its jurisdiction over him.

A second hearing was conducted in September 2001. The Board continued to find Miller to be a significant threat to the safety of the public but included a provision allowing the PMHC to permit Miller to travel to Jamaica in the custody of Immigration Canada and be placed in the custody of the Jamaican authorities for transport to Bellevue Hospital for admission to maximum security. Prior to Miller’s departure, the PMHC learned that Bellevue Hospital in Jamaica was not a maximum security hospital and that there were no maximum security facilities in Jamaica able to receive Miller. A new hearing was held before the Board on July 29, 2002, at which time the Board reaffirmed the disposition of September 21, 2001 except that it deleted the requirement that Miller’s transfer be to a maximum security facility in Jamaica. The Crown appealed the decision of the Board.

With respect to jurisdiction, the Crown argued that under its current legislated mandate, the Board was not entitled to make a disposition detaining an accused who was considered to be a significant threat to the safety of the public and also allow that accused to be transferred to another country, because the effect of such a disposition is that the Board would lose jurisdiction over the accused. The Court of Appeal reviewed past practices of the Board and noted that, historically, the Board has determined that there are circumstances where it is in the best interests of an accused who remains a danger to the public to recover in his country of origin. The Court found that in this instance, the Board’s disposition was based upon three factors: 1) the accused was subject to a deportation order; 2) the accused could safely and securely travel to Jamaica and be transferred to Jamaican authorities; and 3) Jamaican authorities could deal with the accused as they saw fit in accordance with their law.

The Court of Appeal held that the Board’s disposition was unreasonable and could not be supported by the evidence. The Court found that none of the three factors reviewed by the Board dealt with criteria to be considered by the Board under section 672.54 of the Criminal Code (protection of the public, the mental condition of the accused, the reintegration of the accused into society, and the other needs of the accused). The Court further held that there was no legislative mandate for the Board to implement the deportation order just because the order existed. Therefore, the Board erred in considering the deportation order as a factor that gave the Board authority under section 672.54 of the Code to make a custodial order subject to the condition that the accused be permanently transferred to Jamaica. In the result, the appeal was allowed and the order of the Board was set aside.

To stay current with the new case law and emerging legal issues in this area, subscribe here.