The Court allowed an appeal by an accused from a Disposition of the Ontario Review Board ordering that he continue to be detained at a maximum security psychiatric institution. The Court held that the Board had erred in law in failing to recognize its inquisitorial role and to consider making further inquiries.

Administrative law – Decisions of administrative tribunals – Review Board – Mental health – Detention – Adult in need of protection – Investigations – Evidence – Criminal Code – Statutory provisions – Judicial review – Standard of review – Reasonableness simpliciter

R. v. LePage, [2006] O.J. No. 4486, Ontario Court of Appeal, November 9, 2006, M.J. Moldaver, R.J. Sharpe and R.G. Juriansz JJ.A.

The Appellant had been detained at the maximum security division of the Mental Health Centre at Penetanguishene for some 28 years. Before the Court was an appeal from the Disposition of the Ontario Review Board which had ordered the Appellant’s continued detention at that facility. The Appellant had a long and ongoing record of engaging in violent and threatening behaviour.

For years, the Appellant had refused to attend the Board Hearings and had refused to permit counsel to attend on his behalf. In this case, the Court appointed amicus curiae to assist in dealing with the issues raised by the Appellant. At the Hearing, the Board had expressed concern about the long history of proceeding in the absence of the Appellant, but decided in this instance to proceed again in his absence.

The Appellant sought an Order at the Court of Appeal, transferring him to a medium security facility for the purposes of a new assessment. The Court of Appeal held that, after 28 years, the case had reached the point where it was incumbent on the Board to consider making a further inquiry. The regime under Part XX.1 of the Criminal Code, regarding persons found not criminally responsible due to a mental disorder (“NCR”), departs from the traditional adversarial model. The system is inquisitorial. The Board bears the burden of reviewing all relevant evidence on both sides of the case. The Board has the duty to search out and consider evidence not only favouring restricting the NCR accused, but also evidence in his or her favour regardless of whether the NCR accused is even present.

In this case, there was nothing in the record to indicate that the Board adverted to the inquisitorial nature of its process. It was an error of law for the Board to fail to consider its inquisitorial role and to consider making further inquiries. The resulting Disposition was “based on a wrong decision on a question law” and appellate intervention was appropriate under s. 672.78(1)(b) of the Criminal Code. Had the Board’s Reasons explained why it decided not to make further inquiry in this case, the Court would have to show deference to that decision. It and the resulting disposition would have been reviewable on a reasonableness standard.

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