A-250-74
Robert Maxwell Lingley (Plaintiff)
v.
New Brunswick Board of Review (section 547 of
Criminal Code) (Defendant)
Court of Appeal, Pratte and Dubé JJ., Jean D.J.—
Campbellton, N.B., June 6, 1975.
Judicial review—Whether recommendation of Board of
Review that applicant should not be discharged reviewable
under s. 28—Criminal Code, ss. 542, 545, 547—Federal Court
Act, s. 28.
The Court has no jurisdiction to set aside a recommendation
or report made by a Board of Review under section 547 of the
Criminal Code. Such a recommendation is not an order or
decision within the meaning of section 28 of the Federal Court
Act.
JUDICIAL review.
COUNSEL: •
R. M. Lingley for himself.
R. Speight for defendant.
SOLICITORS:
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
delivered orally in English by
PRATTE J.: It is not necessary to hear you Mr.
Speight.
This is an application under section 28 of the
Federal Court Act to review and set aside a recom
mendation made by a Board appointed by the
Lieutenant Governor of New Brunswick under
section 547 of the Criminal Code.
In 1963, the applicant (who is wrongly desig
nated in the style of cause as the "plaintiff") was
tried for murder in New Brunswick and was found
not guilty by reason of insanity. Pursuant to the
provisions of sections 542 and 545 (which were
then sections 523 and 526) of the Criminal Code
and by order of the Lieutenant Governor of New
Brunswick, the applicant was placed and still
remains in custody.
Sections 542 and 545 of the Criminal Code read
as follows:
542. (1) Where, upon the trial of an accused who is charged
with an indictable offence, evidence is given that the accused
was insane at the time the offence was committed and the
accused is acquitted,
(a) the jury, or
(b) the judge or magistrate, where there is no jury,
shall find whether the accused was insane at the time the
offence was committed and shall declare whether he is acquit
ted on account of insanity.
(2) Where the accused is found to have been insane at the
time the offence was committed, the court, judge or magistrate
before whom the trial is held shall order that he be kept in
strict custody in the place and in the manner that the court,
judge or magistrate directs, until the pleasure of the lieutenant
governor of the province is known.
545. Where an accused is, pursuant to this Part, found to be
insane, the lieutenant governor of the province in which he is
detained may make an order
(a) for the safe custody of the accused in a place and
manner directed by him, or
(b) if in his opinion it would be in the best interest of the
accused and not contrary to the interest of the public, for the
discharge of the accused either absolutely or subject to such
conditions as he prescribes.
Section 547 further provides for the appoint
ment of a Board to review the case of every person
who is in custody by virtue of an order made under
section 545. Section 547 reads in part as follows:
547. (1) The lieutenant governor of a province may appoint
a board to review the case of every person in custody in a place
in that province by virtue of an order made pursuant to section
545 or subsection 546(1) or (2).
(5) The board shall review the case of every person referred
to in subsection (1)
(a) not later than six months after the making of the order
referred to in that subsection relating to that person, and
(b) at least once during every six months following the date
the case was previously reviewed so long as that person
remains in custody under the order,
and forthwith after each review the board shall report to the
lieutenant governor setting out fully the results of such review
and stating
(d) where the person in custody was found not guilty on
account of insanity, whether, in the opinion of the board, that
person has recovered and, if so, whether in its opinion it is in
the interest of the public and of that person for the lieutenant
governor to order that he be discharged i absolutely or subject
to such conditions as the lieutenant governor may prescribe,
or
The Lieutenant Governor of the Province of
New Brunswick appointed a Board pursuant to
section 547 which, at various times, reviewed the
case of the applicant. Each time, the Board came
to the conclusion that the applicant had not recov
ered and that it was not in the interest of the
public that he be discharged.
The present application is directed against the
recommendation made by the Board on June 27,
1974. That recommendation is contained in a
report reading as follows:
TO: THE HONOURABLE HEDARD ROBICHAUD, LIEUTENANT GOV
ERNOR OF NEW BRUNSWICK
Sir:
I have the honour to present the following report of the
Board of Review appointed under Section 527A of the Criminal
Code of Canada as now amended to Section 547; in the case of
LINGLEY, Robert Maxwell
The above named patient's case was last reviewed and a
report submitted to your Honour dated the 21st day of Novem-
ber 1973.
Pursuant to statutory requirement this man's case was on the
4th day of June 1974 again reviewed by the Board at the
Provincial Hospital at Campbellton, the following members
being present
Dr. R. R. Prosser, Psychiatrist
Mr. A. J. Losier, Barrister, and
Mr. H. W. Hickman, Q.C. as Chairman
Mr. Lingley was present and represented by Counsel pro
vided by Legal Aid.
The Board considered evidence submitted by the clinical
Director and the Ward Supervisor and notwithstanding the
report submitted by the clinical Director, your Board is not
satisfied that there has been any change in this man's status or
that he has recovered within the meaning of section 547 of the
Criminal Code. Your Board has recommended further tests by
the Hospital psychologist and that consideration be given to
having this patient examined by an independent panel of psy
chiatrists who would be available to express their findings at
the next sitting of the Board.
DATED this 27th day of June, 1974.
H. W. HICKMAN, Q.C.
CHAIRMAN-BOARD OF REVIEW
SECTION 547 CRIMINAL CODE
In order to dispose of this application, it is not
necessary, in my view, to consider the various
arguments put forward by the applicant in his
memorandum of points of argument since I am of
opinion that this Court does not have jurisdiction,
under section 28 of the Federal Court Act, to
review a recommendation of a Board under section
547 of the Criminal Code.
Section 28 empowers the Federal Court of
Appeal to review and set aside orders and decisions
of federal tribunals other than orders and decisions
of those tribunals which are not required by law to
be made on a judicial or quasi-judicial basis. An
act done by a federal tribunal cannot, therefore, be
reviewed by this Court unless it be, first, an order
or a decision and, second, an order or a decision of
the kind contemplated by section 28. It is clear
that the recommendation of a Board under section
547 of the Criminal Code is not an order. It also
appears to me that such a recommendation is not a
decision within the meaning of section 28(1).
Previous judgments of the Court establish that
many expressions of opinion, which are commonly
referred to as decisions, do not constitute decisions
within the meaning of section 28 if they do not, in
law, settle a matter and have no binding effect.' A
recommendation such as the one under attack
lacks these characteristics. It does not determine
or purport to determine whether the person in
custody is to be discharged; under the statute such
a determination is to be made by the Lieutenant
Governor. Moreover the recommendation of the
Board, being the mere expression of an opinion, is
not binding on anyone; it does not bind the Lieu
tenant Governor, who may choose to ignore it, and
it is not even binding on the Board itself since the
Board could certainly modify the views expressed
in its report.
For these reasons, I am of opinion that this
section 28 application should be dismissed on the
ground that this Court has no jurisdiction under
section 28(1) to set aside a recommendation or
report made by a board under section 547 of the
Criminal Code.
* * *
DUBS J. concurred.
* * *
JEAN D.J. concurred.
' See: The Attorney General of Canada v. Cylien [1973]
F.C. 1166; British Columbia Packers Ltd. v. Canada
Labour Relations Board [1973] F.C. 1194; In Re
Danmor Shoe Co. Ltd. [1974] 1 F.C. 22; Bay v. The
Queen [1974] 1 F.C. 523.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.