Mazzei, Re, (2006) 346 N.R. 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), 346 N.R. 1 (SCC);2006 SCC 7;260 Nfld & PEIR 222;[2006] SCJ No 7 (QL);[2006] 1 SCR 326;264 DLR (4th) 10;46 Admin LR (4th) 1;346 NR 1;68 WCB (2d) 722;JE 2006-620;EYB 2006-102437;206 CCC (3d) 161;222 BCAC 1;36 CR (6th) 1

Mazzei, Re (2006), 346 N.R. 1 (SCC)

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] N.R. TBEd. MR.014

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 North-west 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.