T-90-88
Robert Maxwell Lingley (Applicant)
v.
Lieutenant Governor's Advisory Review Board of
New Brunswick (Respondent)
INDEXED AS: LINGLEY V. NEW BRUNSWICK (LIEUTENANT
GOVERNOR'S ADVISORY REVIEW BOARD)
Trial Division, Reed J.—Ottawa, January 27 and
February 16, 1988.
Judicial review — Prerogative writs — Certiorari — Appli
cant acquitted of murder as insane — Detained by order of
Lieutenant Governor of New Brunswick under Criminal Code
s. 545 — Transferred to Ontario — Lieutenant Governor's
Advisory Review Board of New Brunswick continuing to exer
cise jurisdiction — Code s. 547(5)(b) requiring annual review
— 1985 review held in New Brunswick — Not given opportu
nity to challenge evidence of psychologist and psychiatrist —
No evidence before Board as to sexual offenders therapy
undergone in Ontario — Board recommending warrant con
tinue — Applicant refusing transfer to Dorchester for 1987
review hearing — Board recommending no change in warrant
based on information from earlier years — Purpose of annual
review to reassess detainee's mental condition based on infor
mation obtained during immediately preceding year — Review
a sham — Investigative Board having duty to seek out relevant
information — 1985 decision arbitrary as made without infor
mation regarding applicant's Ontario experience — Duty of
fairness not met in 1985 or 1987 — Board's 1987 recommen
dations quashed.
Judicial review — Prerogative writs — Mandamus —
Applicant acquitted of murder in New Brunswick for insanity
— Transferred to Ontario — Lieutenant Governor's Advisory
Review Board of New Brunswick purporting to continue to
exercise jurisdiction — Applicant seeking mandamus to
require Board to redo 1987 review — Application denied as
New Brunswick Board without jurisdiction.
Criminal justice — Murder acquittal in New Brunswick —
Defence of insanity — Custodial order issued by Lieutenant
Governor under Code s. 545(1) — Inmate transferred to
Ontario — Lieutenant Governor's Review Board in New
Brunswick purporting to retain jurisdiction — Intent of legis
lation that Lieutenant Governor of province where inmate
detained having jurisdiction — Inmate's 1987 annual review
(Code s. 547(5)(b)) a sham as based only on evidence before
Board at previous review — Board's recommendation quashed
by writ of certiorari — Purpose of annual review to reassess
inmate's mental condition based on information obtained
during immediately preceding year — Investigative Board
having duty to seek out relevant information rather than
leaving it to inmate to take initiative.
This was a motion for a writ of certiorari to quash a decision
of the New Brunswick Lieutenant Governor's Advisory Review
Board recommending that the applicant not be discharged from
custody. The applicant had been acquitted of murder on the
ground that he was insane at the time of the offence. He was
incarcerated in New Brunswick until 1977, when he was trans
ferred to Ontario. Section 547 of the Criminal Code provides
for the establishment of Lieutenant Governor's Advisory
Review Boards which are to conduct periodic reviews of the
mental condition of individuals in custody pursuant to orders of
the lieutenant governor. Although the applicant was in custody
in Ontario, the New Brunswick Board purported to continue to
exercise jurisdiction over him. In 1985, the applicant was
temporarily transferred to New Brunswick, but he was absent
from the review hearing when the evidence of the psychologist
and psychiatrist, each of whom had briefly interviewed him,
was given. As he did not see their reports until after the
hearing, he had no way of questioning their evidence. There
was no evidence before the Board as to the applicant's partici
pation in therapy programmes in Ontario specifically designed
for sexual offenders. The Board recommended the continuation
of the warrant in its existing form. At the 1986 review hearing,
the Board had before it reports concerning the applicant's
Ontario experience, and a letter from an Ontario psychiatrist
stating that the applicant had not been mentally ill for years.
The same psychiatrist and psychologist who had given evidence
in 1985 reported that Lingley remained unchanged since their
last report. This was based solely on a brief interview with the
psychologist, as Lingley refused to see the psychiatrist. The
Board recommended that Lingley not be discharged. The appli
cant refused to attend the 1987 review hearing. The Board
reviewed the evidence which had been before it in 1986 and
recommended no change in the warrant.
The applicant's submission was that the 1987 decision was
made in breach of the principles of fundamental justice guaran
teed by section 7 of the Charter. The applicant argued (1) that
the Board had applied the wrong test by focusing on his
personality structure rather than on whether his psychopathic
condition was such as to make him a danger to either himself or
the public. The applicant further argued (2) that the Board
erred because there were no facts before it to support the
doctors' opinion evidence. It was also submitted (3) that the
burden of proving that the applicant had not recovered was on
the Board. The applicant's final argument (4) was that there
was no evidence to support the Board's 1987 decision, or that
the quality of the evidence was so flawed as to amount to no
evidence to support the decision.
Held, the application should be allowed.
(1) Although the Board framed the test in different words
from that set out in the case law, it would be an overly fine
criticism of a decision of a Board composed largely of non-legal
members to say that the wrong test had been applied. On the
facts, the Board did address the proper question, and the Court
should not interfere as there was no error so patently unreason
able as to deprive the Board of jurisdiction. (2) The standards
which are applicable to a trial proceeding (i.e. that facts must
always be adduced to support opinion evidence) are not
required to be met by a review tribunal. Furthermore, the
opinion evidence was supported by facts, as both doctors had
interviewed the applicant at one time, and the psychologist had
done certain tests which entered into his decision. (3) It would
not be appropriate to require an advisory Board to articulate
the burden of proof it was applying, as that would be imposing
evidentiary rules that are applicable in a court of law. It would
be too high a standard to require the Board to prove "beyond a
reasonable doubt" that an offender must be detained because
he poses a danger to himself or to the public. In any event, the
burden of proof is not pivotal in the process of protecting and
balancing the rights of individuals as against the responsibility
that the state owes to society in general in the field of mental
health.
(4) The applicant's final argument was well taken. Section
545 review proceedings are subject to the requirements of
section 7 of the Charter. Comparable protections are provided
by the Canadian Bill of Rights and the common law duty to
act fairly. The review procedure was designed to reassess,
annually, the mental condition of individuals held pursuant to
lieutenant governors' warrants, so that the assessment is kept
current. This reassessment was intended to proceed on the basis
of information obtained concerning the detainee's mental state
during the year immediately preceding the review, although
information obtained during earlier years may also be taken
into account. A review based only on the evidence which was
before the Board at the time of the previous annual review,
with no update respecting the immediately preceding year, falls
short of the standard required. The Board, as an investigative
body, had a duty to seek out the relevant and pertinent
information. The duty of fairness was not met in 1985 when the
Board made its decision without regard to any of the appli
cant's Ontario experience and on the basis of opinions
expressed by New Brunswick doctors who had only briefly
interviewed the applicant. Nor was it met in 1987. The Board's
recommendation arising out of the 1987 process should be
quashed.
The applicant also sought mandamus to require the Board to
redo the 1987 review. Subsection 547(1) of the Code gives the
Board jurisdiction "to review the case of every person in
custody in a place in that province." Thus, the Ontario Board
had jurisdiction over the applicant, not the New Brunswick
Board. This conclusion recognized the practical difficulties
arising when a Board attempts to review the case of an
individual confined in another province, and that it would be
the residents of the province where the offender is released who
might be endangered by his release, not those of the home
province. It also conformed to subsection 542(2) which author
izes the lieutenant governor to transfer an individual out of the
province "to any other place in Canada ... with the consent of
the person in charge of such place." Such consent is not
required when an individual is transferred within the province.
Section 545 does not require or authorize the lieutenant gover
nor of the home province to make orders respecting the custody
of the individual once a transfer out of the province has been
made nor does it prevent the lieutenant governor of the receiv
ing province from exercising jurisdiction over the individual
pursuant to subsection 545(1) providing the individual has not
been absolutely discharged from custody.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Bill of Rights, R.S.C. 1970, Appendix III.
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), s. 7.
Criminal Code, R.S.C. 1970, c. C-34, ss. 542(1),(2), 545
(as am. by S.C. 1972, c. 13, s. 45; 1974-75-76, c. 93, s.
69), 547 (as am. idem, s. 71).
CASES JUDICIALLY CONSIDERED
APPLIED:
Re Tandy Electronics Ltd. and United Steelworkers of
America et al. (1980), 115 D.L.R. (3d) 197 (Ont. H.C.);
Azhar v. Anderson, Ont. District Court, decision dated
June 28, 1985, file number 609/85.
DISTINGUISHED:
Canadian Union of Public Employees, Local 963 v. New
Brunswick Liquor Corporation, [1979] 2 S.C.R. 227; Re
Hughes Boat Works Inc. and International Union, United
Automobile, Aerospace, Agricultural & Implement
Workers of America (UAW) Local 1620 et al. (1979),
102 D.L.R. (3d) 661 (Ont. H.C.); R. v. Abbey, [1982] 2
S.C.R. 24; Rex v. Nat Bell Liquors, [1922] 2 A.C. 128
(P.C.); Rex v. Smith (1800), 8 T.R. 588 (K.B.).
CONSIDERED:
R. v. Saxell (1980), 59 C.C.C. (2d) 176 (Ont. C.A.); Re
Abel et al. and Advisory Review Board (1980), 31 O.R.
(2d) 520 (C.A.); Re Eggleston and Mousseau and
Advisory Review Board (1983), 42 O.R. (2d) 268 (H.C.);
Lingley v. New Brunswick Board of Review, [1973) F.C.
861; 13 C.C.C. (2d) 303 (T.D.); Governor General v.
Swamy, Ontario District Court, decision dated March 12,
1986, file number 1179/86.
REFERRED TO:
R. v. Swain (1986), 24 C.C.C. (3d) 385 (Ont. C.A.);
National Bank of Canada v. Retail Clerks' International
Union et al., [1984] 1 S.C.R. 269; Baler v. Baler, [1950]
2 All E.R. 458 (C.A.); Addington v. Texas, 441 U.S. 418
(1979); Ake v. Oklahama, 470 U.S. 68; 105 S. Ct. 1087;
84 L.Ed (2d) 53 (Okla. Crim. App. 1985); U.S. v. Crews,
781 F.2d 826 (10th Cir. 1986); U.S. v. Sloan, 776 F.2d
926 (10th Cir. 1985); Blake v. Kemp,758 F.2d 523 (11th
Cir. 1985).
COUNSEL:
Ronald R. Price, Q.C. for applicant.
Eugene D. Westhaver, Q.C. for respondent.
SOLICITORS:
Ronald R. Price, Q.C., Faculty of Law,
Queen's University, Kingston, Ontario for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
REED J.: The applicant brings a motion for a
writ of certiorari to quash a decision of the New
Brunswick Lieutenant Governor's Advisory
Review Board. The Board is created pursuant to
section 547 of the Criminal Code [R.S.C. 1970, c.
C-34 (as am. by S.C. 1974-75-76, c. 93, s. 71)]. Its
function is to advise with respect to the mental
state of individuals who have been acquitted of a
criminal charge because they were found not
guilty by reason of insanity. (The Board also
advises with respect to individuals who are incar
cerated for the commission of a criminal offence
and have become insane, but this is not relevant
for present purposes.)
The factual background to this case begins in
1963 when the applicant, then 15 years old, was
acquitted of a charge of murder. The murder was
of a young girl and occurred after she had been
sexually assaulted. The applicant was acquitted on
the ground that he was insane at the time of the
offence.' The offence occurred in New Brunswick.
1 The present subsection of the Code provides:
Defence of Insanity
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,
. ontinued on next page)
The applicant was placed under a custodial order
issued by the Lieutenant Governor of New Bruns-
wick. The relevant sections of the Criminal Code
[as am. by S.C. 1972, c. 13, s. 45; S.C. 1974-75-
76, c. 93, s. 69] presently read:
545. (1) 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.
(2) An accused to whom paragraph (I)(a) applies may, by
warrant signed by an officer authorized for that purpose by the
lieutenant governor of the province in which he is detained, be
transferred for the purposes of his rehabilitation to any other
place in Canada specified in the warrant with the consent of the
person in charge of such place.
(3) A warrant mentioned in subsection (2) is sufficient
authority for any person who has custody of the accused to
deliver the accused to the person in charge of the place
specified in the warrant and for such last mentioned person to
detain the accused in the manner specified in the order men
tioned in subsection (I).
(4) A peace officer who has reasonable and probable
grounds to believe that an accused to whom paragraph (1)(b)
applies has violated any condition prescribed in the order for
his discharge may arrest the accused without warrant.
The applicant was kept in New Brunswick (in
various institutions) under the lieutenant gover
nor's order until 1977. At that time he was trans
ferred to Ontario to the St. Thomas Psychiatric
Facility.
The capacity in which lieutenant governors act
when issuing orders under section 545 of the
Criminal Code, has been commented on in R. v.
Saxell (1980), 59 C.C.C. (2d) 176 (Ont. C.A.), at
page 183:
... in the absence of the above-quoted sections of the Code, the
right to the custody of- an accused person who has been
acquitted on account of insanity would, I assume, vest in the
(Continued from previous page)
(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
acquitted 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 magis
trate 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.
Lieutenant-Governor. That right has now been assumed by
Parliament in criminal cases, and by it delegated to the Lieu-
tenant-Governor, so that he derives his authority from the Code
and not from any vestige of the Royal Prerogative.
Much of the history of what occurred after the
applicant was transferred to Ontario is neither on
the file nor relevant. Suffice it to say the condi
tions under which he was held, pursuant to the
lieutenant governor's warrant, were altered from
time to time by the Lieutenant Governor of New
Brunswick, in response no doubt to advice given to
him. By March, 1979, the applicant had been
released from institutional custody and was living
in Ontario in the community, on a "loosened"
warrant. While he was a resident in the commu
nity he sexually assaulted two women (two sepa
rate occasions). He was charged and sentenced to
ten years imprisonment. His sentence will have
been served sometime in 1990. Indeed he could
now apply for release on parole but has not done
so. He has been advised there is a lieutenant
governor's warrant waiting for him at the prison
door.
It is well known that criticism of the indefinite-
ness of the term, during which individuals were
held pursuant to lieutenant governor's warrants,
led in 1969 to amendments to the Criminal Code.
Those amendments provided for the establishment
of Lieutenant Governor's Advisory Review Boards.
As noted above, the Boards are to conduct periodic
reviews of the mental condition of individuals in
custody pursuant to orders of the lieutenant gover
nor. The purpose of the review is to determine
whether the individual can be released from
custody:
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...
(2) The board referred to in subsection (1) shall consist of
not less than three and not more than five members of whom
one member shall be designated chairman by the members of
the board, if no chairman has been designated by the lieutenant
governor.
(3) At least two members of the board shall be duly quali
fied psychiatrists entitled to engage in the practice of medicine
under the laws of the province for which the board is appointed,
and at least one member of the board shall be a member of the
bar of the province.
(4) Three members of the board of review, at least one of
whom is a psychiatrist described in subsection (3) and one of
whom is a member of the bar of the province, constitute a
quorum of the board.
(5) The board shall review the case of every person referred
to in subsection (I)
(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 in every twelve month period following the
review required pursuant to paragraph (a) so long as the
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
(c) where the person in custody was found unfit on account
of insanity to stand his trial, whether, in the opinion of the
board, that person has recovered sufficiently to stand his
trial,
(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 absolutely or subject
to such conditions as the lieutenant governor may prescribe,
[or]
(f) any recommendations that it considers desirable in the
interests of recovery of the person to whom such review
relates and that are not contrary to the public interest.
(6) In addition to any review required to be made under
subsection (5), the board shall review any case referred to in
subsection (I) when requested to do so by the lieutenant
governor and shall forthwith after such review report to the
lieutenant governor in accordance with subsection (5).
An immediate difficulty in applying these provi
sions to the applicant's case becomes obvious. Sub
section 547 (1) states:
547. (I) 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 .... [Emphasis added.]
Subsection (5) states:
547... .
(5) The board shall review the case of every person referred
to in subsection (1) .... [Emphasis added.]
The applicant is not in custody in New Brunswick.
He is in custody in Ontario. Yet the Lieutenant
Governor's Advisory Review Board of New Bruns-
wick purports to continue to exercise jurisdiction
over him. This I understand to be based on the
assumption that the corresponding Ontario Board
has no jurisdiction to do so and because the
scheme of the legislation contemplates a system
whereby the respective Review Boards advise the
lieutenant governor of the province by whom they
have been appointed. Also, it is assumed that
advice is only given with respect to persons who
are being held under an order issued by that
particular lieutenant governor.
In any event, to appreciate the applicant's con
tention that a writ of certiorari should issue to
quash the September 1, 1987 recommendation of
the New Brunswick Lieutenant Governor's Advi
sory Review Board, it is necessary to recount the
facts surrounding the annual review of that year,
as well as those of 1986 and 1985.
The 1985 review was held at Dorchester Peni
tentiary in New Brunswick. Mr. Lingley was
moved there (with his permission) from the medi-
um-security institution of Warkworth in which he
was being held in Ontario. He was kept in Dor-
chester for three months although the examina
tions by the Dorchester Penitentiary psychologist
and psychiatrist involved only brief interviews with
Mr. Lingley. 2 Although he was present in Dor-
chester, Mr. Lingley was not present at the review
hearing when the evidence of the psychologist (Dr.
Lapalme) and the psychiatrist (Dr. Michel) was
given. Mr. Lingley did not have counsel (his
request for legal aid counsel had been refused).
The reports of the above-mentioned psychologist
and psychiatrist were not shown to him ahead of
the hearing, thus he had no effective way of ques
tioning this evidence.
By the time of the 1985 review, Lingley had
participated in some therapy programmes in
Ontario. One such was held at the Kingston Peni
tentiary and involved therapy specifically designed
for sexual offenders. As a result of these pro
grammes Lingley considered himself to be "recov-
ered". It is clear neither the Dorchester psychia
trist nor psychologist knew anything about the
Ontario programmes. Also, the Lieutenant Gover
nor's Advisory Review Board in 1985 did not have
any of the reports relating to Lingley's Ontario
experiences before it. This was so despite the fact
that by that time Lingley had been in Ontario for
eight years. I quote part of the transcript of the
1985 hearing:
2 It would appear he remained in Dorchester for three
months because one of the then members of the New Bruns-
wick Review Board died unexpectedly.
MR. LAPALME: Well, he [Mr. Lingley] feels that just with that
he has resolved his problem, and that he has developed empathy
and all kinds of other things.
... at least that is what Mr. Lingley says—we don't have any
knowledge of the program—[Underlining added.]
(at page 8)
MR. LINGLEY:... I don't know what you know about the SDS
program. I hope you would have all the reports, and it gives you
a general idea. You should have them sent to you.
1 have a copy of my profile here, and I can give you them off.
They are very pertinent as far as I am concerned because it is
two years of intensive therapy as opposed to 35 years of
nothing ....
(at pages 42-43)
MR. ROBERTSON: Did you expect the reports from both these
institutions to be sent along with you? [Kingston and
Warkworth]
MR. LING LEY: As far as 1 know, they were sent to you—
CHAIRMAN: That could be, Mr. Lingley, but I am not aware of
it.
(page 64)
The Board recommended that the warrant in its
existing fashion should be continued. The warrant,
as of that date, directed that the Administrator of
St. Thomas Psychiatric Hospital had absolute dis
cretion to detain Mr. Lingley in that facility or to
permit him to reside and live in the community in
Ontario (this version of the warrant was dated
April 4, 1979).
Lingley alleges, with respect to the 1985 review,
that there was a failure of fundamental justice,
contrary to section 7 of the Charter [Canadian
Charter of Rights and Freedoms, being Part I of
the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)], or contrary to
natural justice, as that concept applies at common
law, because: (1) his legal aid application was
rejected and thus he was denied right to counsel;
(2) he did not receive a copy of the "independent"
reports ahead of time and thus was effectively
denied the opportunity to answer the case against
him; (3) he was not given the right to be present
through his entire hearing. This is not an exhaus
tive list of his criticisms of that hearing.
When the time for the 1986 review arose Ling-
ley wrote to the Chairman of the Board in a letter
dated April 11, 1986. That letter reads in part:
I hate to be the one to throw cold water on the idea and I am
sure it is in my best interest to attend, except it really is not
when I am effectively cut off from having counsel by Legal Aid
and from calling any witnesses because they are all here in
Ontario. One further matter of some concern is the fact that I
refuse to see the doctor which I saw last time [Dr. Michel] as
he lied to my face and I have filed a complaint about the
matter ... This is further to the fact that some very serious
incorrect information was put forward by him in his report and
things are serious enough without any increase in the impact of
the material through incorrect information. I have no plans to
take another three-month trip to New Brunswick and I do not
wish to lose my job, my cell, et cetera, by leaving here and
being stuck like I was last time. A trip down and immediately
back might be looked at by myself but I would certainly have to
have some solid guarantees ....
By this time, he had been given copies of the
1985 reports of Dr. Lapalme and Dr. Michel, as
well as a copy of the transcript of the 1985 review
hearing. He eventually agreed to attend the 1986
review hearing. He was represented by counsel.
The Board had before it the reports from Ontario
to which the applicant had referred in 1985. It also
had a letter from a Dr. McCaldron, a psychiatrist
at Kingston Penitentiary, written in July, 1986,
which stated:
He [Lingley] is now 40. He was found 'Not Guilty by Reason
of Insanity' when he was 15. Apart from his compulsive sexual
acting-out in 1978, there is not a shred of evidence that he has
been "insane", or mentally ill in the conventional sense for
decades ... [it seems curious to me that the Lieutenant Gover
nor of the Province should find it necessary to treat Mr.
Lingley as mentally ill under those circumstances. He hasn't
been mentally ill in years].'
Dr. McCaldron did not attend the Board person
ally as he was in Ontario. He had last seen the
applicant in 1982. Dr. Lapalme again gave evi
dence to the Board. This was based on a short
interview with the applicant. Dr. Michel also gave
evidence, despite the fact that he had not inter
viewed Lingley in 1986 because Lingley refused to
see him. It is fair to characterize the gist of Dr.
Lapalme and Dr. Michel's evidence as: Lingley is
a psychopath and, as such, he has a structural
personality disorder; therefore, he should not be
considered to be "recovered" (whether or not the
Board also addressed the question of whether, if
released, he would be a danger to the public is an
3 The parenthetical addition is missing from the transcript
but I understood both counsel to agree that the letter contained
these words.
issue dealt with later). I quote part of the tran
script of Dr. Lapalme's evidence (page 39):
Q. In 1986, yes, I take it you're saying there, not very much
has been accomplished by your interview with Mr.
Lingley.
A. No, except I spent an hour with him talking and I noted
that he's the same Robert Lingley basically personality
wise as he was in 1985.
The Board advised that Lingley had not recovered
and that it was in the interest of the public and of
Lingley that he not be discharged. It was recom
mended that:
Upon the release of Robert Maxwell Lingley from Warkworth,
a medium security facility of the Federal Penitentiary at
Campbellford, Ontario, he be taken into custody, transported to
the Province of New Brunswick, and there to be received by the
Administrator of the Restigouche Hospital Centre in Camp-
bellton in the County of Restigouche and Province of New
Brunswick to be kept by him in safe custody until such arrange
ments can be made for his transfer to a psychiatric facility
where he may obtain treatment for the purpose of his
rehabilitation.
The Lieutenant Governor issued a warrant dated
September 23, 1986 in these terms.
When the time for the 1987 review arrived,
Lingley was given notice by the Review Board of
the date and place of the review. He was invited to
attend. He refused to go. The prison officials in
Ontario refused to transfer him to Dorchester
unless he requested such a transfer. I should note
that had Lingley been out on the street, and not in
a federal penitentiary, he would have been subject
to subpoena by the Advisory Review Board. He
could have been required to attend the 1987 hear
ing. Subsection 547(7) of the Criminal Code
provides:
547...
(7) For the purposes of a review under this section, the
chairman of a board has all the powers that are conferred by
sections 4 and 5 of the Inquiries Act on commissioners appoint
ed under Part I of that Act.
The New Brunswick Lieutenant Governor's
Advisory Review Board met on August 14, 1987.
It reviewed the evidence which had been before it
in 1986, and reported to the Lieutenant Governor
recommendations dated September 1, 1987, in
part, as follows:
Not having supplementary medical and psychological reports to
consider since the Hearing of August 15th, 1986, the Board is
of the opinion that its report dated September 9th, 1986, is still
in effect and recommends no change in the existing warrant.
Lingley challenges this decision as having been
made in breach of the principles of fundamental
justice guaranteed to him by section 7 of the
Canadian Charter of Rights and Freedoms:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
It is clear that review proceedings, pursuant to
section 545 of the Criminal Code, are subject to
the requirements of section 7: R. v. Swain (1986),
24 C.C.C. (3d) 385 (Ont. C.A.). Even in the
absence of the Charter guarantees, comparable
protections would arise pursuant to the Canadian
Bill of Rights [R.S.C. 1970, Appendix III] and
the common law duty to act fairly: R. v. Saxell
(1980), 59 C.C.C. (2d) 176 (Ont. C.A.); Re Abel
et al. and Advisory Review Board (1980), 31 O.R.
(2d) 520 (C.A.); Re Eggleston and Mousseau
and Advisory Review Board (1983), 42 O.R. (2d)
268 (H.C.).
The 1987 decision of the New Brunswick Advi
sory Board is challenged on the ground that: (1)
the Board applied an incorrect test by focusing on
the conclusion that Lingley had a psychopathic
personality, rather than on whether he was suf
ficiently freed of his mental disorder so as to no
longer be a danger to himself or the public; (2) no
facts had been adduced to support the psychia
trist's and psychologist's opinion; (3) there had
been a denial of fundamental justice because Ling-
ley had not been assessed by "independent"
experts; (4) the Board failed to articulate the
burden of proof it was applying; (5) the decision
was made in the absence of any evidence to sup
port it; (6) if there was evidence, its quality was so
flawed as to amount to no evidence to support the
decision.
The respondent's position is that the applicant
was given notice of the September 1987 hearing,
an opportunity to attend, and an opportunity to
bring his own psychologists and psychiatrists if he
wanted to. As noted above, he had, by 1987,
obtained copies of Dr. Lapalme's and Dr. Michel's
1985 reports and transcripts of the earlier hear
ings. Therefore, it is argued all the principles of
fundamental justice had been complied with and
the applicant should not be allowed to use his
refusal to attend as a ground for quashing the
decision. In argument it was conceded that the
applicant's ability to have Ontario psychiatrists
and psychologists attend to give evidence on his
behalf was a bit ephemeral given his incarceration
in a penal institution and his lack of financial
resources.
The applicant's first argument is that the Board,
in 1985 and 1986, used the wrong test by focusing
on the personality structure of the applicant,
rather than on whether his psychopathic condition
(in the form in which it might continue to exist)
was such as to make him a danger to either
himself or the public. I cannot find in this regard
that the Board committed an error which could be
characterized as patently unreasonable, so as to
deprive it of jurisdiction. The decisions in Canadi-
an Union of Public Employees, Local 963 v. New
Brunswick Liquor Corporation, [1979] 2 S.C.R.
227 and Re Hughes Boat Works Inc. and Interna
tional Union, United Automobile, Aerospace,
Agricultural & Implement Workers of America
(UAW) Local 1620 et al. (1979), 102 D.L.R. (3d)
661 (Ont. H.C.) were cited in support of the
applicant's position on this point. Both those cases
deal with situations where the courts were preclud
ed from intervening because of a privative clause.
In both cases, the courts held that where a tribunal
has made an error of law which is of such a
magnitude as to be patently unreasonable, it is
proper for the reviewing court to correct that error
and quash the decision. In the present case, there
is no privative clause. This, however, is not signifi
cant because of the view I take of the Board's
decision.
The applicant argues that the Board misinter
preted the test it was to apply. That test, as
enunciated in Lingley v. New Brunswick Board of
Review, [1973] F.C. 861; 13 C.C.C. (2d) 303
(T.D.), requires the Board to ask whether the
individual is mentally ill or mentally deficient or
suffering from a psychopathic disorder such as to
be a danger to either himself or the public, because
of that condition. That is, the individual may be
mentally ill, or suffer from a mental disorder or a
psychopathic condition, but providing these do not
make the individual a danger to himself or the
public, they do not constitute grounds for his
continued detention. Counsel for the applicant
argues that the Board misinterpreted the test
because it stated in its recommendations that the
question to be addressed was whether the individu
al was free from mental illness, deficiency or psy
chopathic disorder and as a result was "no longer a
danger to himself or to the public". I am not
persuaded that the Board did not address the
proper question. I am not persuaded that the
Board interpreted the law in a patently unreason
able fashion. The Board framed the test in differ
ent words from that set out in the jurisprudence
but I think it would be an overly fine criticism of
the Board's decision to conclude that the wrong
legal test was applied. I do not think one should be
too quick to focus on the phrasing of a decision
made by a tribunal composed of largely non-legal
members.
The Board, in this case, numbers among its
members, persons having expertise with respect to
mental disorders. At least two of its members must
be qualified psychiatrists. The evidence which it is
to assess is to come from experts, one a psychia
trist, one a psychologist also having expertise in
this area. The question which it is asked to address
is the mental condition of an individual and wheth
er, if free of custodial constraint, that condition is
such as to enable him to operate in the community
without being a danger to himself or others. I am
convinced that the Board in this case addressed
that question. I note at page 21 of the transcript of
the 1986 hearing, Dr. Lapalme states:
If Mr. Lingley remains, in my opinion, if he remains a psy
chopath he would be still dangerous even though we cascaded
[sic] him. What we have to do is help him change that basic
personality structure ... As he hits the streets as long as
everything is going well he would probably behave well but if
he maintains a criminal [personality] structure and a psy
chopathic personality I consider him to be dangerous.
In my view the Board had before it evidence that
the applicant had a psychopathic personality
which led him to have certain fantasies and this
personality was such as to make him a danger to
others, if he were free of custodial restraint.
Whether that decision is right or wrong is one for
the Board, not the courts. It is the very decision
which the Board has a mandate to decide. It is one
to which curial deference should apply. In Nation
al Bank of Canada v. Retail Clerks' International
Union et al., [1984] 1 S.C.R. 269, Mr. Justice
Chouinard, at page 277, referred to the Ontario
Divisional Court's decision in Re Tandy Electron
ics Ltd. and United Steelworkers of America et al.
(1980), 115 D.L.R. (3d) 197, at page 210:
No matter what is the particular wording used in the deci
sions, the message is clear—a cautious approach must be taken
by the Courts when considering whether a tribunal has lost
jurisdiction ... The Board may well make a mistake. Unless
that mistake is patently unreasonable, or so fundamentally
erroneous, that it cries aloud for intervention by the reviewing
Court, it should not constitute a ground for depriving the Board
of the protection of the privative clause. [Emphasis added.]
I would not conclude in this case that the Board, in
1985 and 1986, made such an error.
The second and third arguments with which I
will deal concern the evidentiary basis necessary to
support opinion evidence presented to the Board
and the burden of proof the Board must apply. The
applicant argues that the Board erred because
there were no facts before it to support the opinion
evidence of Dr. Lapalme and Dr. Michel. It is
argued that opinion evidence must always be sup
ported by the facts on which it is based: Re Abel et
al. and Advisory Review Board (1980), 31 O.R.
(2d) 520 (C.A.); Re Egglestone and Mousseau
and Advisory Review Board (1983), 42 O.R. (2d)
268 (H.C.); R. v. Abbey, [1982] 2 S.C.R. 24. In
addition, it is argued that since an infringement of
the applicant's liberty is in issue, it is the Board
which has the burden of proof, that it is the Board
which must prove that the applicant is "not recov
ered". The following cases are cited in support of
this position: Rex v. Nat Bell Liquors, [1922] 2
A.C. 128 (P.C.); Rex v. Smith (1800), 8 T.R. 588
(K.B.), at page 590; Azhar v. Anderson (Ontario
District Court, decision dated June 28, 1985, file
number 609/85); Governor General v. Swamy
(Ontario District Court, decision dated March 12,
1986, file number 1179/86); Bater v. Bater, [1950]
2 All E.R. 458 (C.A.); Addington v. Texas, 441
U.S. 418 (1979). As I understand counsel's argu
ment, it is that, at the very least, there was an
obligation on the Board to articulate the rules with
respect to the burden of proof which it was
applying.
I find neither of these arguments persuasive in
the context of this case. With respect to the argu
ment that facts must always be adduced to support
opinion evidence, R. v. Abbey deals with the rules
of evidence applicable in a trial. It does not deal
with the nature of evidence an administrative
review board is entitled to entertain. The other two
cases cited, Re Egglestone and Re Abel, in my
view, are using the word "facts" as synonymous
with "material". That is, they stand for the propo
sition that material which is before the Board must
be disclosed to the individual whose rights are
being determined (subject to certain exceptions
when it would be detrimental to disclose). I do not
think that the standards which are applicable in a
trial proceeding, in court, are required to be met
by a review tribunal. What is more, the opinion
evidence of Doctors Lapalme and Michel was sup
ported by "facts". Both had interviews with the
applicant, however brief, and Dr. Lapalme indicat
ed that certain tests had been done, the results of
which entered into his decision. (Weschler Adult
Intelligence Scale (wArs); Minnesota Multiphasic
Personality Inventory (MMPi); The House, Tree,
Person, Projective Personality Drawing Test
(HTP); Rorschach Ink Blot Projective Personality
Test).
With respect to the failure of the Board to
articulate the burden of proof it was applying,
again, I think such a requirement would impose on
the Board evidentiary rules that are applicable in a
court of law. Two of the cases cited by counsel,
Rex v. Nat Bell and Rex v. Smith do not address
the issue of the burden of proof applicable in a
case such as the present. They stand for the propo
sition that a superior court will upset the decision
of an inferior tribunal if there is no evidence to
support the tribunal's decision. In Rex v. Nat Bell,
at page 149, it was said:
The proposition adopted may be stated thus: in exercising its
inherent jurisdiction to supervise the proceedings of an inferior
Court, the superior Court must inquire whether there was any
evidence on which the tribunal below could have decided as it
did decide, and this involves examining the evidence given to
see if it was sufficient in this sense to sustain the conviction.
[Underlining added.]
The decisions in Azhar and Swamy relate to the
burden of proof required to justify involuntary
admissions under the Ontario Mental Health Act
[R.S.O. 1980, c. 262]. Those cases decide that the
burden of proof is that of a civil burden (the
preponderance of evidence) and not the criminal
burden (beyond a reasonable doubt). They also
state that the burden is on the doctors signing the
involuntary admission forms and on the hospital
having custody. In my view, the Review Board
does not have to prove "beyond a reasonable
doubt", on the occasion of each review, that the
person in custody must be detained because other
wise he would be a danger to himself or to the
public. That is too high a burden. I find a passage
in the Azhar case, at page 13, particularly apt:
In my respectful view, the required standard of proof while
important is not pivotal in the process of protecting and balanc
ing the rights of individuals as against the responsibility that
the state owes to society in general in the field of mental health.
If the standard is made too onerous, it seems obvious that
society may become endangered by the failure of sincere physi
cians to adequately detain and treat dangerous or potentially
dangerous people who unfortunately suffer from mental
disorders.
What is more, I am not convinced that the Board
has to articulate the burden of proof it is applying.
The Board is an advisory Board, asked to give
recommendations to the Lieutenant Governor. It is
not appropriate to foist on the Board evidentiary
rules which are applicable to a trial proceeding in
a court of law. If the Board's decision is unsup
ported by evidence or made contrary to the evi
dence before it, then it will be quashed by a
reviewing court. But, I do not think a Board's
decision should be quashed merely because the
Board has not articulated in legal terms the
burden of proof it is applying.
The applicant's fourth argument was that he is
entitled to assessment by "independent" psycholo
gists and psychiatrists. This was only half-hearted-
ly pressed. The applicant had not, at the time of
the 1985, 1986 and 1987 reviews, made any
request for an "independent" assessment, although
he did refuse to see Dr. Michel after his 1985
experience. Thus, there is an argument that even if
such right exists, it was waived. The argument that
there is a right to an assessment by an independent
expert is based on United States jurisprudence:
Ake v. Oklahoma, 470 U.S. 68; 105 S. Ct. 1087;
84 L.Ed (2d) 53 (Okla. Crim. App. 1985); U.S. v.
Crews, 781 F.2d 826 (10th Cir. 1986); U.S. v.
Sloan, 776 F.2d 926 (10th Cir. 1985); Blake v.
Kemp, 758 F.2d 523 (11th Cir. 1985). Since the
argument was not pressed, I do not intend to deal
with it.
The applicant's fifth and sixth arguments, how
ever, must succeed. I agree that there was no
evidence on which the Board could reasonably
base its 1987 decision, or alternatively that the
quality of the evidence was so flawed that one
must conclude that there was no substantial evi
dence to support that decision. It is clear that the
annual review procedure is designed to reassess,
each year, the mental condition of individuals held
pursuant to lieutenant governors' warrants. This
reassessment is intended to proceed on the basis of
information obtained concerning the detainees'
mental state during the year immediately preced
ing the review. That is not to say that information
obtained during earlier years should not also be
taken into account. But, a review based on nothing
more than the evidence which was before the
Board at the time of the previous annual review,
with no update respecting the immediately preced
ing year, falls short of the standard required. Such
a review (as an annual review) is a sham. In Re
Abel et al. and Advisory Review Board (1980), 31
O.R. (2d) 520 (C.A.), at page 532 it was said:
The whole purpose of the establishment of an advisory review
board was to create an independent body, bringing to its task a
considerable and varied expertise of its own, and likely to
develop quickly an even greater expertise with the kind of
problem assigned to it, with the hoped-for result that no one
would be kept indefinitely in a mental institution, half-forgot
ten, and with his situation unreviewed except by the staff of the
institution.
It is clear that what is intended to be accomplished
by the annual review is a reassessment of the
individual's mental condition on a yearly basis so
that that assessment is kept current. The proce
dure followed by the New Brunswick Board in
August, 1987 cannot meet that requirement.
Also, I accept counsel's argument, that the
Board, being an investigative Board, has a duty to
seek out the relevant and pertinent information. It
is not enough for the Board to sit in New Bruns-
wick and say to the applicant: "Bring whatever
evidence you want to us. You take the initiative."
In this case, the applicant, by 1987, had been in
Ontario for approximately ten years. He was
known by individuals in the institutions in which
he had been held in that province. He had par
ticipated in therapy and social skills programs in
those institutions. He had little control over the
evidence that was being put before the New Bruns-
wick Board. It is clear that that Board and the
experts which appeared before it had little knowl
edge of the Ontario programs in which the appli
cant had participated, or indeed of his experience
in that province generally. It was certainly an
arbitrary procedure in 1985 for the Board to make
its decision without regard to any of this experi
ence, and on the basis of opinions expressed by a
New Brunswick psychologist and psychiatrist who
had interviewed the applicant for a matter of hours
only. The situation was corrected somewhat in
1986 when the Board, at least, had copies of some
of the Ontario reports before it. But even on this
occasion, it is clear that neither Dr. Lapalme nor
Dr. Michel addressed their minds to the Ontario
material in any considered way before giving their
evidence to the Board. The duty of fairness owed
to the applicant was singularly not met in either
the 1985 or the 1987 review proceeding, and I
have serious doubts about that of 1986, given the
fact that it relied so heavily on the evidence of
1985, and that Dr. Michel gave evidence even
though he had had no current contact with the
applicant. The Board's recommendation arising
out of the 1987 process will be quashed.
The applicant also seeks a writ of mandamus to
require the Board to redo the 1987 review. I am
not convinced that this would be appropriate, in
any event, given the fact that the time for the 1988
review is almost here. But, I have more fundamen
tal difficulty with granting the remedy sought. I
have considerable doubt as to whether the New
Brunswick Advisory Review Board has jurisdiction
over the applicant. As noted above, subsection
547(1) of the Criminal Code indicates that the
Board's jurisdiction is "to review the case of every
person in custody in a place in that province." It is
difficult to see how that wording gives the New
Brunswick Board jurisdiction over the applicant.
In my view, it is the Ontario Lieutenant Gover
nor's Advisory Board which has jurisdiction to
review the mental condition of the applicant, not
the New Brunswick Board. Such a conclusion not
only accords with the wording of the statutory
provisions, but it also accords with the practical
realities respecting these kinds of reviews. This
case demonstrates the difficulties that can arise
when a Board, which is struck and resident in one
province, attempts to review the case of an
individual who has for a considerable period of
time been resident in another province. Also, if the
applicant were to be discharged from custody by
the Lieutenant Governor pursuant to recommen
dations of the Board, and he was still a danger to
the public, it would be the residents of Ontario
who would run the risk of harm, not those of New
Brunswick.
The applicant before me did not argue that the
New Brunswick Board lacks jurisdiction. The
applicant is concerned that if the New Brunswick
Board does not have jurisdiction under the Code
provisions, he will be left in a situation where there
is no Review Committee required to assess his
mental condition, while at the same time, there is a
warrant waiting for him at the prison door com
pelling his return to New Brunswick. Counsel for
the applicant argues that the relevant provisions of
the Code are badly drafted, that while subsection
545(2) allows for the transfer of an individual out
of what I will call the home province, pursuant to
the lieutenant governor's direction, there is no
express provision determining who has authority
after the transfer is made. As I understand the
position, it is that there is no express authority,
either with regard to who issues custodial orders
after the transfer, or as to which provincial Advi
sory Review Board has jurisdiction for the purpose
of making annual assessments of the individual's
mental condition.
I do not have the same difficulty as counsel in
reading the legislation. It seems clear to me that
what is intended is that the lieutenant governor of
the province where the individual is detained is the
applicable authority with respect to transferring,
restricting, lessening, or discharging the warrants
under which the individual is held. Also, I think it
is abundantly clear that it is the Advisory Review
Board of that province which is charged with
doing the annual reviews of the individual's mental
condition. Thus, when an individual is transferred
from one province to another, both the lieutenant
governor and the Advisory Board of the receiving
province obtain jurisdiction over that individual.
This interpretation accords with the scheme of
the legislation found in the provisions which
authorize the lieutenant governor to transfer an
individual out of the province "to any other place
in Canada" (subsection 545(2) of the Code) "with
the consent of the person in charge of such place".
Within the province, there is no requirement that
the lieutenant governor obtain the consent of the
person who is to have custody of the individual
(subsection 545(1) of the Code). In my view, once
a transfer out of the province is made, then subsec
tion 545 (1) authorizes the lieutenant governor of
the receiving province to determine custody of the
individual. The lieutenant governor of the receiv
ing province is then "the lieutenant governor of the
province in which he [the person who has been
found not guilty by reason of insanity] is
detained", as defined in subsection 545(1) of the
Code.
The view that it is the lieutenant governor of the
home province who continues to have jurisdiction
once an individual is transferred, seems based on
the assumption that once a person is found not
guilty by reason of insanity, the custodial order
made by the lieutenant governor, consequent
thereon, attaches to the person until the individual
is discharged. There is an assumption that while
that order may be changed from time to time, it
has some sort of enduring quality which governs
the individual from then on and that it cannot be
superseded by order of another lieutenant governor
without somehow or other triggering the release of
the individual who is being held in custody.
I do not read section 545 of the Code in this
fashion. Subsection 545(1) speaks of the lieutenant
governor making "an order" for custody. Subsec
tion 545(2) speaks of the lieutenant governor sign
ing "a warrant" to authorize transfer. I see noth
ing in the legislative scheme which prevents the
lieutenant governor of the receiving province from
exercising jurisdiction over the individual pursuant
to subsection 545(1) providing, of course, the
individual has not, at some time, been absolutely
discharged from custody. I see nothing in the
legislative text which either requires, or indeed
authorizes the lieutenant governor of the home
province to make orders respecting the custody of
the individual once a transfer out of the province
has been made.
For the reasons given, an order in the nature of
certiorari shall issue quashing the 1987 recom
mendations of the New Brunswick Advisory
Review Board. An order of mandamus requiring a
rehearing of the 1987 review, which led to those
recommendations, will not be granted.
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.