C.J.M. was found not criminally responsible on account of mental disorder on two counts of committing mischief. A year later the Nova Scotia Review Board (the “Board”) ordered a disposition which continued a conditional discharge granted to him some months earlier. C.J.M. appealed the conditional discharged contained in the disposition order. C.J.M. alleged that the Board committed certain errors in law, including the failure to follow the principles concerning the duties of a review board in interpreting section 672.54 of the Criminal Code (the “Code”) as set out in Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625.

R. v. C.J.M., [2004] N.S.J. No. 175, Nova Scotia Court of Appeal, May 6, 2004, Boland J.A.

The Capital District Health Authority (“CDHA”) sought leave to intervene in C.J.M.’s appeal. The Crown opposed the intervention.

The Crown argued that CDHA could have appealed the Review Board’s Order in its capacity as a party to the disposition hearing pursuant to Section 672.1 and 672.5 of the Code. CDHA acknowledged that it was a party to the disposition hearing, but maintained that the Code did not provide a procedure whereby a party with a broad and institutional interest could appeal to advance arguments pertaining to those interests.

The Court agreed that Section 672.72 of the Code limited any ground of appeal to a question of law or fact alone or of mixed facts and law arising out of the disposition itself, and that this restricted CDHA’s ability to bring forward its concerns.

The Crown made a further submission that interventions in criminal matters should rarely be allowed. The Court did not accept this caution as being applicable to a Disposition Order. Under Section 672.5 of the Code, the procedure at a Disposition Hearing is directed towards obtaining and presenting all relevant information and argument, and is therefore less adversarial and more inclusive than the majority of criminal proceedings where the fairness of the process might be adversely affected by intervention.

The Court then moved on to consider CDHA’s interests in the Appeal and held that CDHA had an administrative interest. This encompassed concerns surrounding its budget and the health care resources needed to fulfil its statutory obligation to maintain and improve the health of residents of the Capital Health District. The Court went on to say:

It is not necessary that I decide whether an interest confined to administrative and resource issues would be a sufficient basis for granting intervener status. I am satisfied that the CDHA’s interest in the appeal involves these but extends further. I accept that the appellant’s several grounds of Appeal raise the same implied question; namely, under what circumstances is an accused “a significant threat to the safety of the public” according to the Winko decision which, among other things, engaged the Charter. In that circumstance, the CDHA would have a direct interest in how Winko is given practical effect and applied. The appeal decision could affect its policies, standards and directives, in particular those which affect persons detained or treated at the forensic hospital. In my view, the CDHA has the requisite interest to be considered for intervener status.

In closing, the Court considered whether the proposed intervener brought with it something additional that the parties themselves were unable to supply in the appeal. CDHA’s broad and institutional perspective was held to be one which could assist the Court in balancing the interests in this particular appeal, as well as those mentally ill accused who are or who would in future be treated and/or detained at a forensic hospital.

The CDHA’s application for leave to intervene was granted on certain terms.

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