A man who had been found not guilty by reason of insanity for a first-degree murder he committed in his teens (“Leyshon-Hughes”) applied to quash decisions of the Ontario Review Board (the “Board”) adjourning his annual Review Board hearing and mandating provision of further medical evidence as to his risk of reoffending, and for an order requiring the ORB to establish a new Review Board panel to proceed forthwith with his annual Review Board hearing

Administrative law – Criminal charges – Inmates Not Criminally Responsible for their crimes – Decisions of administrative tribunals – Review Board – Adult in need of protection – Danger to public – Mental health – Substitute decision maker – Judicial review – Application for intervenor status – Adjournment of hearing – Evidence – Procedural requirements and fairness – Natural justice – Bias – Jurisdiction

R. v. Royal Ottawa Health Care Group, [2007] O.J. 2157, Ontario Superior Court of Justice, May 31, 2007, M.T. Linhares de Sousa J.

In 1986, Leyshon-Hughes was found not guilty by reason of insanity for the murder of a woman. Leyshon-Hughes was a teenager at the time. Leyshon-Hughes was detained in a maximum security mental health centre at Penetanguishene and became subject to annual reviews by the ORB under Part XX.1 of the Criminal Code of Canada.

In 1992, Leyshon-Hughes was transferred to a medium security psychiatric hospital unit at Kingston. His actuarial risk assessments continued to be high.

By 1998, Leyshon-Hughes was at a “therapeutic impasse”. The various therapies provided to him were not resulting in any progress or further rehabilitation.

Later in 1998, Leyshon-Hughes was assessed by a Dr. John Bradford (“Dr. Bradford”) at the Royal Ottawa Hospital (“ROH”). Dr. Bradford made a different diagnosis and prescribed a different medication (paroxetine) for Leyshon-Hughes. Under Dr. Bradford’s care, Leyshon-Hughes made considerable improvements.

On its annual review in 1999, the ORB permitted Leyshon-Hughes to be transferred to ROH with Dr. Bradford’s personal undertaking to be his attending psychiatrist and to supervise his progress and treatment.

Following his transfer to ROH, Leyshon-Hughes continued to make positive progress, including a slow and cautious reintegration into community living. After the December 2005 ORB hearing, Mr. Leyshon-Hughes was granted a continuation of his conditional discharge into the community, with fewer conditions than in previous years.

In December 2005, the ORB found that Dr. Bradford’s evidence on the question of whether Leyshon-Hughes posed a significant threat to be “ambivalent”. The ORB concluded that based solely on Dr. Bradford’s evidence, it would have “little choice but to discharge” him absolutely. However, rather than proceed with the absolute discharge, the Board continued Leyshon-Hughes’ conditional discharge, stating that it was not satisfied that without the “significant umbrella of security still provided by Dr. Bradford and the other members of the hospital team” Leyshon-Hughes would not succumb to acts of aggression and impulse.

At the next annual review hearing in 2006, Leyshon-Hughes, this time through counsel, requested an absolute discharge. Dr. Bradford supported this request.

In a pre-hearing conference to the 2006 hearing, Crown counsel indicated that he would not be seeking an independent assessment of Leyshon-Hughes, and this position was confirmed after the Crown received Dr. Bradford’s final report. Crown counsel also indicated that he would not be seeking to introduce any independent expert evidence at the 2006 ORB hearing.

The ORB hearing was set to proceed on December 18, 2006. The Board adjourned the hearing stating that Leyshon-Hughes’ medical history should be subject to a qualitative review by another expert, less close to him and who could provide a “fresh perspective”. The Panel adjourned the hearing for six months, and the Panel Chairperson refused to recuse himself from hearing the matter despite submissions from counsel for Leyshon-Hughes that there was a reasonable apprehension of bias on his part.

The ORB released brief preliminary Reasons for Adjournment, followed by a more detailed set of Reasons which provided nine bullet points that the chosen expert would be asked to address. These included a review of an explanation for Leyshon-Hughes’ childhood and adolescent histories of antisocial behaviour and violence, his consistent disclaimer of having had any sexual fantasies regarding the victim, and a suggestion that an expert might consider whether a trial withdrawal of the paroxetine to support or refute an organic diagnosis would be “scientifically worthwhile and ethically responsible.”

On this judicial review, the ORB applied to intervene. The parties agreed that the ORB could intervene on the issues of the ORB’s jurisdiction to make the Order to adjourn the Review Board hearing and to require further medical evidence, and on the question of the practice and procedure adopted by the ORB in December 2006.

The ORB requested permission to intervene on the issue of Leyshon-Hughes’ allegation that it had breached the principles of natural justice, that the Alternative Chairperson’s conduct gave rise to a reasonable apprehension of bias, and that his Charter rights had been violated by the ORB.

The Court determined that the ORB should be limited to intervening on the issues of jurisdiction and practice and procedure. While other Ontario administrative tribunals are entitled to party status in judicial review proceedings from their own decisions, under statute, the ORB only gains such status with leave of the Court. The Court must exercise its discretion in determining whether the intervenor has sufficient interest in the proceedings, and a history of involvement in the issues allowing it to shed fresh light or provide new information on the matter. Although ORB met most of the criteria from R v. LePage, [1994] O.J. No. 1305 in respect of intervenor status on the questions of the scope of powers, jurisdiction and its own specialized procedures, the ORB was held not to possess specialized knowledge and expertise on the questions of natural justice and reasonable apprehension of bias that would justify intervenor status on those issues.

The Court noted that to grant intervenor status on those issues would put the ORB “in the unseemly position of justifying its own actions” and defending the substantive merits of its own decision. Giving the ORB this additional opportunity to defend the merits of its decisions would not be helpful for the Court, or fair to Leyshon-Hughes.

The first issue was the limits of the inquisitorial powers of the ORB, and whether those powers were exercised appropriately on these facts. The Court held that the ORB is a statutory body with no inherent common-law power. The ORB is charged with public protection and treating the offender fairly. In that context, the ORB must make a disposition that is the least onerous and restrictive to the accused, with consideration to the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society, and the other needs of the accused.

ORB proceedings are not adversarial in nature. The legal and evidentiary burden of proving that an accused poses a significant threat to public safety justifying a restrictive disposition rests with the ORB. Therefore, before the ORB has jurisdiction to do anything other than order an absolute discharge, they must make a positive finding that the offender poses a significant threat to public safety. With that burden comes the need for broad inquisitorial powers.

The Court held that the ORB breached the principles of fundamental justice by adjourning the ORB hearing on its own motion, for 6 months, without consent of the parties, on what was to be the first day of the hearing where all counsel and witnesses were available and ready to proceed. The ORB did not have statutory jurisdiction to adjourn a hearing for 6 months. The statutory jurisdiction to adjourn a hearing is limited to a period of not more than 30 days, unless all parties consented to a more lengthy adjournment.

While the ORB is obligated to assess the accused person’s current mental condition and risk to the public, it may consider past diagnosis and treatment plans depending on the facts of a given case. However, the ORB reached a premature decision concerning the sufficiency of the evidence. The ORB was obliged to hear Leyshon-Hughes’ evidence with appropriate procedural rights, and by exercising a decision that Dr. Bradford’s evidence would be insufficient, before hearing the intended cross-examination of Dr. Bradford, the ORB exceeded its inquisitorial jurisdiction. The ORB made suggestions for a further comprehensive review of Leyshon-Hughes’ medical evidence, and regarding an experiment to test the validity of his diagnosis, on the basis of only part of the evidence that it would have heard had the hearing proceeded.

The ORB had a duty to hear the information presented by the parties before embarking on its own inquiry to seek out other evidence. It may seek out other evidence only if the parties do not present sufficient information. The premature closing of the hearing breached the fundamental principles of natural justice.

The Court stated, at paragraph 88:

In sum, the jurisprudence clearly establishes that the ORB has the statutory authority to embark on such a broad scope of inquiry with respect to a NCR accused’s past and present medical diagnosis and treatment in the course of its determination of whether that individual poses a significant risk to the public. It must, however, exercise all of these inquisitorial powers within the context of a hearing during which the NCR accused is accorded all his constitutional and statutory rights to procedural fairness. In conducting itself in the way it did in this matter, the ORB created substantial unfairness to Mr. Leyshon-Hughes.

The Court took issue with the suggestion that Leyshon-Hughes medication might be stopped to test out his diagnosis. The Court held that there was no jurisdiction to order this type of assessment. The suggestion regarding medication withdrawal was considered to be a demonstration of the mischief done by the Board in making its decision to adjourn precipitously in the absence of according Leyshon-Hughes his procedural rights. Had the ORB taken the correct route of hearing and considering all of the evidence, it may not have made a suggestion which, in Dr. Bradford’s view, was unethical and would jeopardize Leyshon-Hughes progress. The suggestion was to be ignored.

The Court concluded that the ORB found that any evidence that would be provided by Dr. Bradford would be of limited value, and that decision to adjourn the hearing in this matter was unfair to Leyshon-Hughes. The Reasons for Adjournment demonstrated a “mind closed to argument” and as such created a reasonable apprehension of bias on the part of the panel.

The Court quashed the December 2006 ORB decision to adjourn the hearing, prohibited the panel to re-convene and directed that a new panel be established to proceed forthwith with the annual hearing.

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