Pinet v. St. Thomas Psychiatric Hospital et al., (2003) 317 N.R. 365 (SCC)

• Judge: McLachlin, C.J.C., Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 05, 2003
• Jurisdiction: Canada (Federal)
• Citations: (2003), 317 N.R. 365 (SCC);2004 SCC 21;237 DLR (4th) 23;185 OAC 8;182 CCC (3d) 214;[2003] SCJ No 66 (QL);[2004] 1 SCR 528;317 NR 365;19 CR (6th) 21

Pinet v. St. Thomas Hospital (2003), 317 N.R. 365 (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: [2004] N.R. TBEd. MR.069

Michael Roger Pinet (appellant) v. Attorney General of Ontario and Administrator of St. Thomas Psychiatric Hospital (respondents) and Attorney General of Canada, Ontario Review Board and Nunavut Review Board, Mental Health Legal Committee and Mental Health Legal Advocacy Coalition (interveners)

(29254; 2004 SCC 21; 2004 CSC 21)

Indexed As: Pinet v. St. Thomas Psychiatric Hospital et al.

Supreme Court of Canada

McLachlin, C.J.C., Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish, JJ.

November 7, 2003.

Summary:

In 1976, Pinet was found not guilty of murdering four people by reason of insanity. He had been detained in mental hospitals since then. On June 30, 2000, the Ontario Review Board ordered that Pinet be sent back from the medium security facility at the St. Thomas Psychiatric Hospi­tal to the maxi­mum security unit of the Oak Ridge Division of the Penetanguishene Mental Health Centre. The Review Board proceeded on the basis that the conditions which formed part of a dispo­sition order under s. 672.54 of the Criminal Code merely had to be shown to be "appro­priate". Pinet appealed from the Re­view Board's disposi­tion.

The Ontario Court of Appeal, in a decision reported at [2002] O.A.C. Uned. 44, dis­missed the appeal. The court held that the "least onerous and least restrictive" test in s. 672.54 of the Code did not apply to the con­ditions which formed part of a disposi­tion imposed under clauses (b) and (c) of that section. The court concluded that the Review Board's decision could reasonably be sup­ported by the evi­dence and that the Re­view Board took the proper considerations into account when reaching its decision. Pinet appealed.

The Supreme Court of Canada allowed the appeal. The court held that the Review Board's decision was based on an error of law where the Board did not accept that the conditions of Pinet's continued detention were required by s. 672.54 of the Code to be "the least onerous and least restrictive" of Pinet's liberty after taking into consideration the other factors set out in that section. The court set aside the judgment of the Court of Appeal and ordered an expedited hearing be­fore the Review Board. The court stayed its order setting aside the judgment of the Court of Appeal pending the Review Board's deci­sion on the expedited hearing.

Civil Rights - Topic 659

Liberty - Limitations on - Committal of insane accused - Section 672.54 of the Criminal Code set out the dispositions that could be made by a court or review board with respect to an accused who had been found not criminally responsible on ac­count of mental disorder - The disposi­tion in s. 672.54(c) was that the accused be de­tained in custody in a hospi­tal, subject to such conditions as the court or review board considered appropriate - The Su­preme Court of Canada held that s. 672.54(c) did not infringe s. 7 of the Char­ter - See paragraph 59.

Civil Rights - Topic 659

Liberty - Limitations on - Committal of insane accused - The Supreme Court of Can­ada stated that "The principles of fun­damental justice require that the liberty interest of individuals, like the appellant, who have been found not criminally re­spon­sible ('NCR') for a criminal offence on account of mental disorder be taken in­to account at all stages of a Review Board's consideration. The objective is to reconcile the twin goals of public safety and treatment. In this process of reconcili­ation, public safety is paramount. How­ever, within the outer boundaries defined by public safety, the liberty interest of an NCR accused should be a major preoccu­pa­tion of the Review Board when, taking into consideration public safety, the mental condition and other needs of the individual concerned, and his or her potential rein­tegration into society, it makes its disposi­tion order" - See paragraph 19.

Criminal Law - Topic 93.81

Mental disorder - Dispositions by court or review board - Considerations - [See sec­ond Civil Rights - Topic 659 ].

Criminal Law - Topic 93.81

Mental disorder - Dispositions by court or review board - Considerations - Section 672.54 of the Criminal Code set out the dis­positions that could be made by a court or review board with respect to an accused who had been found not criminally respon­sible (NCR) on account of mental disorder - The Supreme Court of Canada held that the requirement in s. 672.54, that the dis­po­sition order be the "least onerous and least restrictive" of the liberty of the NCR accused having regard to the factors enu­merated in s. 672.54, applied not only to the disposition of the case (abso­lute dis­charge, conditional discharge or detention on conditions), but also to the conditions that formed part of that disposi­tion order - The court stated that "even where a risk to the public safety is estab­lished, the condi­tions of the disposition order are to be 'the least onerous and least restrictive to the accused' consistent with the level of risk posed considering the mental condition of the NCR accused, the objective of eventual reintegration into the community and his or her other needs" - See paragraphs 3 and 21.

Criminal Law - Topic 93.81

Mental disorder - Dispositions by court or review board - Considerations - In 1976, Pinet was found not guilty of murdering four people by reason of insanity - He had been detained in mental hospitals since then - On June 30, 2000, the Ontario Re­view Board ordered that Pinet be sent back from the medium security facility at the St. Thomas Psychiatric Hospital to the maxi­mum security unit of the Oak Ridge Divi­sion of the Penetanguishene Mental Health Centre - Pinet appealed - The Ontario Court of Appeal dismissed the appeal - Pi­net appealed - The Supreme Court of Can­ada held that the Review Board's decision was based on an error of law where the Board did not accept that the conditions of Pinet's continued deten­tion were required by s. 672.54 of the Criminal Code to be "the least onerous and least restrictive" of Pinet's liberty after taking into considera­tion the other factors set out in that section - Since it could not be said that the error of law resulted in "no substantial wrong", s. 672.78(b) of the Code applied and the court allowed the appeal - See paragraph 56.

Criminal Law - Topic 93.81

Mental disorder - Dispositions by court or review board - Considerations - The Su­preme Court of Canada stated that "In my view, with respect, the proposition that [not criminally responsible] NCR detainees who are not at present candidates for com­munity access should, by reason of that fact alone, be detained under conditions of maximum security, even though they do not present a risk to the safety of the pub­lic themselves, is clearly not compatible with the 'least onerous and least restric­tive' requirement of s. 672.54 [of the Crim­inal Code]" - See paragraph 46.

Criminal Law - Topic 93.90

Mental disorder - Dispositions by court or review board - Detention (incl. place of and transfers) - [See first Civil Rights - Topic 659 and third and fourth Criminal Law - Topic 93.81 ].

Criminal Law - Topic 93.95

Mental disorder - Dispositions by court or review board - Appeals or judicial review -Section 672.78(b) of the Criminal Code provided that the court could set aside an order of a Review Board where it was of the opinion that "the decision is based on a wrong decision on a question of law (un­less no substantial wrong or miscarriage of justice has occurred)" - The Supreme Court of Canada stated that the reference to no "substantial wrong" in s. 672.78(b) re­quired the party seeking to uphold the or­der to satisfy the appellate court that a Review Board, acting reasonably, and prop­­erly informed of the law, would neces­sarily have reached the same conclusion absent the legal error - See paragraph 28.

Cases Noticed:

Penetanguishene Mental Health Centre et al. v. Ontario (Attorney General) et al. (2004), 318 N.R. 73; 2004 SCC 20, appld. [para. 1].

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; 135 C.C.C.(3d) 129; 25 C.R.(5th) 1, refd to. [para. 20].

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. 22].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 59].

Criminal Code, R.S.C. 1985, c. C-46, sect. 672.54, sect. 672.78 [para. 10].

Counsel:

Suzan E. Fraser and Richard Macklin, for the appellant;

Riun Chandler, Christine Bartlett-Hughes and Melissa Ragsdale, for the respondent, the Attorney General of Ontario;

Janice E. Blackburn, for the respondent, the Administrator of St. Thomas Psychia­tric Hospital;

James W. Leising and Michael H. Morris, for the intervener, the Attorney General of Canada;

Maureen D. Forestell and Sharan K. Bas­ran, for the interveners, the Ontario Review Board and the Nunavut Review Board;

Daniel J. Brodsky, Anita Szigeti and Michael Davies, for the interveners, the Mental Health Legal Committee and the Mental Health Legal Advocacy Coalition.

Solicitors of Record:

Suzan E. Fraser, Toronto, Ontario, for the appellant Pinet;

Ministry of the Attorney General of On­tario, Toronto, Ontario, for the re­spon­dent, the Attorney General of Ontario;

Paterson, MacDougall, Toronto, Ontario, for the respondent, the Administrator of St. Thomas Psychiatric Hospital;

Department of Justice Canada, Toronto, On­tario, for the intervener, the Attorney General of Canada;

Cavalluzzo Hayes Shilton McIntyre & Cor­nish, Toronto, Ontario, for the in­terveners, the Ontario Review Board and the Nunavut Review Board;

Hiltz Szigeti, Toronto, Ontario, for the interveners, the Mental Health Legal Com­mittee and the Mental Health Legal Advocacy Coalition;

This appeal was heard on November 5, 2003, before McLachlin, C.J.C., Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish, JJ., of the Supreme Court of Canada. The judgment of the Su­preme Court was rendered on November 7, 2003, and the following reasons were de­livered in both official languages by Bin­nie, J., on March 26, 2004.