Mazzei, Re, (2006) 222 B.C.A.C. 1 (SCC)

• Judge: McLachlin, C.J.C., Major*, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 16, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2006), 222 B.C.A.C. 1 (SCC);2006 SCC 7;[2006] SCJ No 7 (QL);46 Admin LR (4th) 1;JE 2006-620;EYB 2006-102437;264 DLR (4th) 10;36 CR (6th) 1;346 NR 1;222 BCAC 1;[2006] 1 SCR 326;260 Nfld & PEIR 222;68 WCB (2d) 722;206 CCC (3d) 161

Mazzei, Re (2006), 222 B.C.A.C. 1 (SCC);

    368 W.A.C. 1

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2006] B.C.A.C. TBEd. MR.075

Vernon Roy Mazzei (appellant) v. Director of Adult Forensic Psychiatric Services and Attorney General of British Columbia (respondents) and British Columbia Review Board, Ontario Review Board, Alberta Review Board, Saskatchewan Review Board, Manitoba Review Board, Quebec Review Board, Newfoundland Review Board, Nova Scotia Review Board, New Brunswick Review Board, Prince Edward Island Review Board, Northwest Territories Review Board, Yukon Review Board, Nunavut Review Board, Community Legal Assistance Society, Mental Health Advocacy Coalition and Attorney General of Ontario (intervenors)

(30415; 2006 SCC 7; 2006 CSC 7)

Indexed As: Mazzei, Re

Supreme Court of Canada

McLachlin, C.J.C., Major*, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.

March 16, 2006.

Summary:

In 1986, Mazzei was found not guilty of a number of criminal offences by reason of insanity. He was detained in custody. Since then, he appeared before the Review Board more than 20 times, and had been either held in custody or discharged into the community on conditional discharges. On November 1, 2001, the Review Board made a six month conditional disposition order that Mazzei be detained in custody. A further review was conducted, as ordered, on April 3, 2002. The disposition order made at that time was for four months and contained three additional conditions relating to Mazzei's treatment. The Director of Adult Forensic Psychiatric Services appealed the imposition of the conditions under s. 672.72 of the Criminal Code.

The British Columbia Court of Appeal, in a judgment reported (2004), 200 B.C.A.C. 79; 327 W.A.C. 79, allowed the appeal and struck the three conditions. The Board's jurisdiction was limited to managing Mazzei for the protection of the public. The Director was responsible for his medical treatment. A Board could not impose medical treatment without violating this division of roles and responsibilities. Mazzei appealed.

The Supreme Court of Canada allowed the appeal, stating that "Review Boards have the power to bind hospital authorities and to impose binding conditions regarding or supervising (but not prescribing or imposing) medical treatment for an NCR accused. In this case, [the three] conditions were well within the Board's supervisory powers. These conditions are clearly linked to the Board's mandate to assess and manage Mazzei's threat to public safety, and were part of an appropriate disposition order aimed at protecting society while minimizing restrictions on his liberty".

* Major, J., did not take part in the judgment.

Criminal Law - Topic 93.83

General principles - Mental disorder - Dispositions by court or review board - Discharge or detention subject to conditions - A Review Board's disposition order detaining a not criminally responsible accused in custody contained three conditions directed to the Director of Adult Forensic Psychiatric Services - The conditions required the Director to (1) provide an independent evaluation of the NCR accused's diagnosis, treatment and clinical progress; (2) provide an independent evaluation of his public safety risk in light of a new "refocused" treatment plan; and (3) undertake assertive efforts to enrol the NCR accused in a culturally appropriate treatment program - The Supreme Court of Canada held that all three conditions were within the Board's jurisdiction, constituting a valid exercise of the Board's power to request information for the assessment and management of the accused's safety risk and its power to supervise his treatment, including the scrutiny of past approaches and the exploration of alternatives - Further, all three conditions were "reasonable" given the evidence before the Board - See paragraphs 30 to 55.

Criminal Law - Topic 93.94

General principles - Mental disorder - Dispositions by court or review board - Jurisdiction and powers - A Review Board made a disposition order respecting a detained not criminally responsible accused - The order contained three conditions directing the Director of Adult Forensic Psychiatric Services to essentially re-evaluate the accused's current and past treatment and to explore alternative treatment approaches - The Supreme Court of Canada held that "Review Boards have the power to bind hospital authorities and to impose binding conditions regarding or supervising (but not prescribing or imposing) medical treatment for an NCR accused. In this case, [the three] conditions were well within the Board's supervisory powers. These conditions are clearly linked to the Board's mandate to assess and manage [the accused's] threat to public safety, and were part of an appropriate disposition order aimed at protecting society while minimizing restrictions on his liberty" - The court stated that a Board's role was to ensure an NCR accused was provided opportunities for medical treatment, where necessary and appropriate, to reduce the level of risk - Boards could not exceed this authority to impose a particular course of treatment or to require hospital authorities to administer that treatment - See paragraphs 30 to 56.

Criminal Law - Topic 93.94

General principles - Mental disorder - Dispositions by court or review board - Jurisdiction and powers - The Supreme Court of Canada stated that "Review Boards ... possess the authority to make orders and conditions in a 'supervisory' role or capacity with respect to the NCR accused's medical treatment and clinical progress. ... The scope of this power would arguably include anything short of actually prescribing that treatment be carried out by hospital authorities. It would therefore include the power to require hospital authorities and staff to question and reconsider past or current treatment plans or diagnoses, and explore alternatives which might be more effective and appropriate." - See paragraph 39.

Criminal Law - Topic 93.95

General principles - Mental disorder - Dispositions by court or review board - Appeals or judicial review - Section 672.78(1)(b) of the Criminal Code empowered a court of appeal to allow an appeal from a Review Board's disposition order if that order was based on a "wrong decision on a question of law" - At issue was a Review Board's power to impose certain conditions in a disposition order respecting the accused's treatment - The Supreme Court of Canada held that whether the Board had jurisdiction to impose conditions in a disposition order was reviewable on the standard of correctness - Assuming that the Board had jurisdiction, the next issue was whether the conditions were reasonable, which decision was reviewable on the reasonableness simpliciter standard - See paragraphs 16 to 17.

Cases Noticed:

Winko v. Forensic Psychiatric Institute (B.C.) et al., [1999] 2 S.C.R. 625; 241 N.R. 1; 124 B.C.A.C. 1; 203 W.A.C. 1, refd to. [para. 9].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 15].

Penetanguishene Mental Health Centre et al. v. Ontario (Attorney General) et al., [2004] 1 S.C.R. 498; 318 N.R. 73; 185 O.A.C. 201; 2004 SCC 20, refd to. [para. 16].

Pinet v. St. Thomas Psychiatric Hospital et al., [2004] 1 S.C.R. 528; 317 N.R. 365; 185 O.A.C. 8; 2004 SCC 21, refd to. [para. 16].

R. v. Owen (T.), [2003] 1 S.C.R. 779; 304 N.R. 254; 173 O.A.C. 285; 2003 SCC 33, refd to. [para. 17].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81, refd to. [para. 26].

R. v. Demers (R.), [2004] 2 S.C.R. 489; 323 N.R. 201; 2004 SCC 46, refd to. [para. 27].

Manitoba (Attorney General) v. Wiebe, [2004] 2 W.W.R. 707; 187 Man.R.(2d) 181; 330 W.A.C. 181 (C.A.), refd to. [para. 36].

R. v. Lewis (M.A.) (1999), 170 Nfld. & P.E.I.R. 278; 522 A.P.R. 278; 132 C.C.C.(3d) 163 (C.A.), refd to. [para. 45].

Beauchamp v. Penetanguishene Mental Health Centre et al. (1999), 124 O.A.C. 1; 138 C.C.C.(3d) 172 (C.A.), refd to. [para. 45].

Brockville Psychiatric Hospital v. McGillis et al. (1996), 93 O.A.C. 226; 2 C.R.(5th) 242 (C.A.), refd to. [para. 45].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 672.1, sect. 672.54 [Appendix]; sect. 672.55(1) [para. 48, Appendix]; sect. 672.58, sect. 672.59(1), sect. 672.62(1), sect. 672.62(2), sect. 672.72(1), sect. 672.78 [Appendix].

Counsel:

Rod Holloway and Garth Barriere, for the appellant;

Angela R. Westmacott and Deborah K. Lovett, Q.C., for the respondent the Director of Adult Forensic Psychiatric Services;

George H. Copley, Q.C., and Lyle B. Hillaby, for the respondent the Attorney General of British Columbia;

Joseph J. Arvay, Q.C., and Mark G. Underhill, for the intervener the British Columbia Review Board;

Maureen D. Forestell and Joseph Wright, for the interveners the Ontario Review Board, the Quebec Review Board, the Nova Scotia Review Board, the New Brunswick Review Board, the Manitoba Review Board, the Prince Edward Island Review Board, the Saskatchewan Review Board, the Alberta Review Board, the Newfoundland Review Board, the Northwest Territories Review Board, the Yukon Review Board and the Nunavut Review Board;

Sara Blake and Heather Mackay, for the intervener the Attorney General of Ontario;

David W. Mossop, Q.C., for the intervener the Community Legal Assistance Society;

Anita Szigeti, for the intervener the Mental Health Legal Advocacy Coalition.

Solicitors of Record:

Legal Services Society of British Columbia, Vancouver, British Columbia, for the appellant;

Lovett Westmacott, Victoria, British Columbia, for the respondent the Director of Adult Forensic Psychiatric Services;

Attorney General of British Columbia, Victoria, British Columbia, for the respondent the Attorney General of British Columbia;

Arvay Finlay, Vancouver, British Columbia, for the intervener the British Columbia Review Board;

Cavalluzzo Hayes Shilton McIntyre & Cornish, Toronto, Ontario, for the interveners the Ontario Review Board, the Quebec Review Board, the Nova Scotia Review Board, the New Brunswick Review Board, the Manitoba Review Board, the Prince Edward Island Review Board, the Saskatchewan Review Board, the Alberta Review Board, the Newfoundland Review Board, the Northwest Territories Review Board, the Yukon Review Board and the Nunavut Review Board;

Attorney General of Ontario, Toronto, Ontario, for the intervener the Attorney General of Ontario;

Community Legal Assistance Society, Vancouver, British Columbia, for the intervener the Community Legal Assistance Society;

Hiltz Szigeti, Toronto, Ontario, for the intervener the Mental Health Legal Advocacy Coalition.

This appeal was heard on November 14, 2005, before McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ., of the Supreme Court of Canada.

On March 16, 2006, Bastarache, J., delivered the following judgment in both official languages for the Court.