The Appellant facility was successful in arguing, on this appeal, that the Review Board’s disposition was unreasonable and in error because it failed to address the need for interim measures for the detainee, Mr. Rea. There was no practical remedy because the issue was moot.

Administrative law – Decisions of administrative tribunals – Review Board – Prisons – Transfer of inmates – Statutory provisions – Criminal Code – Mental health facility – Interim measures – Judicial review – Mootness

Mental Health Centre Penetanguishene v. Ontario, [2010] O.J. No. 1044, 2010 ONCA 197, Ontario Court of Appeal, March 16, 2010, R.P. Armstrong, R.G. Juriansz and D. Watt JJ.A.

On March 9, 2009, Mr. Rea was found not criminally responsible on account of mental disorder (“NCRMD”) on a charge of criminal harassment. He was detained at the appellant facility, the Mental Health Centre Penetanguishene (“MHCP”).

On April 21, 2009, the provincial Review Board, in an inquisitorial proceeding, heard evidence about the appropriate disposition for Mr. Rea. Mr. Rea wanted to be transferred to the Centre for Addiction and Mental Health (“CAMH”) because it was closer to his family.

The psychiatrist at MHCP, Dr. Jones, testified that she was not sure about the wait time for Mr. Rea to be transferred to the CAMH. She noted that he could receive the same privileges at MHCP in the interim period before his transfer to CAMH. She also testified that, if the disposition did not indicate that such interim privileges be granted, Mr. Rea may not receive those privileges in the interim. None of the Board members asked questions about the wait times for a transfer.

The Disposition was for Mr. Rea to be detained at CAMH. He would be detained in a minimum security unit and would have several privileges awarded at the discretion of the person in charge of the unit. This disposition was consistent with the position of the parties at the hearing. The disposition did not include a date for transfer nor did it address the issue of interim privileges at MHCP.

In July 2009, the MHCP filed a notice of appeal regarding the Disposition. In November, before the appeal was heard, Mr. Rea was transferred to CAMH. The appeal raised two principal issues. The substantive issue was whether the failure to provide for interim custody was unreasonable or legally flawed.

The preliminary issue was whether the appeal was moot. The Respondent Attorney General argued the appeal was moot since Mr. Rea had already been transferred. The MHCP argued there remained a lis inter partes even though the person most affected was no longer affected by the failure to provide for interim custody.

The Court noted that the issue was one that will recur between institutions in the future. Therefore, the decision would have a practical effect on these parties in the future. In addition, the issue will always be a live one for a relatively short period of time while the person is detained on an interim basis. The Court of Appeal accepted that it should exercise its discretion to hear the appeal.

In respect of the merits, the Attorney General argued the failure to include the interim provisions was neither unreasonable nor wrong in law. The Court considered the fact that the Board knew that Dr. Jones (on behalf of the MHCP) recommended that Mr. Rea have the same privileges at MHCP pending his transfer to the CAMH. The Board also knew that he would not receive those privileges if the disposition did not expressly address that issue. The Court also considered the fact that the Board did not seek any information about the likely wait time for the transfer.

The Board was required, under the Criminal Code, to make the least onerous disposition that is appropriate for the detainee. This applied to the disposition itself and the conditions listed in it. It was unreasonable that the Board failed to obtain concrete information about the timing of the transfer and failed to include express terms relating to the interim custody and discretionary privileges.

The Disposition was also legally wrong because it was not least restrictive to the detainee. The Board itself ordered the discretionary privileges and its decision amounted to Mr. Rea being denied those privileges before his transfer.

The appeal was allowed but there was no practical remedy because the issue on appeal was moot.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at or review his biography at

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