A man who was found not criminally responsible (“NCR”) on account of mental disability for the offence of murder (“Wiebe”) successfully appealed from a disposition review and order of the Manitoba Review Board (the “Board”) that he should be detained without treatment

Manitoba (Attorney General) v. Wiebe, [2004] M.J. No. 247, Manitoba Court of Appeal, June 25, 2004, Scott C.J.M., Hamilton and Freedman JJ.A.

Wiebe was found to be NCR in December of 2001. At trial, a psychiatrist, a psychologist and a forensic psychiatrist gave opinion evidence that Wiebe had a borderline personality disorder (BPD), and had committed the murder during a psychotic episode.

The Board conducted a disposition hearing pursuant to Section 672.38 of the Criminal Code (the “Code”). A forensic psychiatrist, Dr. Stanley Yaren (“Dr. Yaren”) reviewed the earlier reports and agreed with the diagnosis offered at trial. Dr. Yaren recommended a transfer at first to the forensic unit of the Health Sciences Centre and then to long-term care at Selkirk Mental Health Centre (“Selkirk”). The Board ordered that Wiebe be retained in custody without the ability to leave the ward unless supervised. They continued these conditions in orders dated November 18, 2002 and February 2003.

After Wiebe’s transfer to Selkirk in August 2002, Dr. Willows was appointed as his treating psychiatrist. Dr. Willows diagnosed Wiebe as having both BPD and an anti-social personality disorder. Dr. Willows expressed the view that persons with these disorders who commit crimes are better dealt with in the prison system. Dr. Willows testified at the February 2003 review hearing that Wiebe had threatened to kill people in the ward and had extorted money, while exhibiting no symptoms of psychosis or post-traumatic stress. Dr. Willows testified that he disagreed with the Court’s NCR finding, and opined that treatment was not going to assist.

At that time a police investigation initiated by Dr. Willows resulted in Wiebe being arrested, charged with additional offences and taken into custody at Headingly Provincial Jail.

In Reasons arising out of the February 2003 hearing, the Board requested a further report from Dr. Willows in three months, to address the issue of psychotherapy or other long-term treatment for Wiebe. The Board held that it lacked the authority to order specific treatment or transfer to another mental health facility, but that it could recommend it. The Board received and confirmed Dr. Willows’ evidence.

Wiebe appealed the Board’s decision, seeking a new hearing and a direction that the Board reconsider Wiebe’s continuing detention in custody. The standard of review to be applied to the Board’s decision was held to be reasonableness generally, and correctness on questions of law.

On appeal, Wiebe successfully applied to introduce new evidence in the form of a recent opinion of the forensic psychiatrist who had testified at trial, wherein he agreed with the diagnosis from the trial, and concluded that Wiebe should be exposed to both educational and psychotherapeutic opportunities.

Wiebe argued that the Board failed to consider the “least onerous and least restrictive” requirement set out in s. 672.54 of the Code, and that it erred in concluding that it lacked the jurisdiction to deal with Wiebe’s treatment.

The Court held that the Board is essentially inquisitorial, and that there is no onus of proof on the detainee to demonstrate that they do not constitute a risk to the public. Wiebe’s counsel referred to the Supreme Court of Canada decisions in Pinet and Penetanguishene, and argued that they reiterated the obligation to provide the least onerous and least restrictive disposition with respect not only to the three potential dispositions listed in s. 672.54 of the Code, but also to particular conditions forming part of the disposition, including prescribing treatment.

Appellant’s counsel submitted that the Board should have sought further information on the treatment of BPD, and that it should have commissioned an outside assessment given the intractability of Dr. Willow’s contrary opinion to that of the other specialists who had seen Wiebe.

Counsel for the Respondent conceded that, given the unusual circumstances of this case, a further review was desirable. The Board argued that the Penentanguishene decision should not extend to prescribing treatment. The Board viewed issues relating to care and treatment of the mentally ill as matters within provincial jurisdiction.

The Court held that the case was unusual, in that the treating physicians disagreed with the NCR finding and was of the view that Wiebe’s condition was untreatable and that he should be placed in a secure facility outside the provisions of s. 672.54 of the Code. The treatment plan before the Board was for “no treatment”.

The Court held that it is “…no business of a court or the Board in fulfilling its mandate under s.672.54 of the Code to prescribe a specific course of medical treatment.” (para. 31) However, the Court also held that the Board erred in making a decision adversely affecting the liberty interest of the appellant without having an adequate factual foundation with which to do so. The matter was remitted to the Board with a direction that other expert testimony could be adduced to enable the Board to properly fulfil its obligation both to Wiebe and to the public.

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