Criminal law — Mental disorder — Dispositions by court or review board — Discharge subject to conditions — Detention — Judicial review.

   Application by hospital for judicial review of the Board's conditional release of the respondent McGillis.  The Board had issued an order for McGillis's conditional release, requiring that his accommodations outside the hospital be approved by the hospital.  No such accommodation was available when the Board made the order or when it renewed it a year later.  The hospital challenged the order's validity.

   HELD:  Application allowed.  Order quashed.  The Board should have ordered McGillis's continued detention and given the hospital administrator discretion to permit McGillis to reside outside the hospital if suitable accommodation could be found. The order placed the hospital in the position of putting public safety at risk by agreeing to place the resident at an immediately-available but unsuitable location or continuing to detain the respondent indefinitely even though he had been ordered released.

Statutes, Regulations and Rules Cited:

   Criminal Code, s. 672.54, 672.54(b), 672.54(c).

Counsel:

      The following judgment was delivered by

• 1      THE COURT (endorsement):— We are satisfied that the order of the Board cannot stand.  The Board ordered the conditional release of the respondent, but also required that he reside in accommodation outside of the hospital approved by the administrator of the Brockville Psychiatric Hospital.  On the evidence adduced before the Board, no such accommodation was available either when the Board initially made this order in May, 1995 or when it made the same order in April, 1996.

• 2      The order, while purporting to direct that the respondent be conditionally discharged into the community, effectively required his continued detention in the hospital until the administrator of the hospital was satisfied that suitable accommodation in the community could be found.  The order also placed the hospital in the difficult position of either putting the safety of the public at risk by agreeing that the respondent could reside outside of the hospital at a place which, while immediately available, was considered unsuitable, or continuing to detain the respondent indefinitely even though he had been ordered released by the Board.

• 3      The Board's order was a hybrid of the two separate orders contemplated by s. 672.54(b) (conditional discharge) and s. 672.54(c) (detention order) and is not contemplated by the statutory scheme in Part XX.I of the Criminal Code: Forensic Psychiatric Institute (B.C.) v. Johnson et al. (1995), 66 B.C.A.C. 34 at 48-49 (C.A.).

• 4      The Board was satisfied that the respondent could only safely reside outside of the hospital if he lived in a place approved by the hospital administrator.  Given that conclusion, the Board should have ordered the continued detention of the respondent and given the hospital administrator the discretion to permit the respondent to reside outside of the hospital if suitable accommodation could be found.  This was the order made in 1994.  The Board appears to have altered that order to its present form because it was not satisfied that the various resources available in the community had been adequately explored.

• 5      Even if the Board's conclusion was accurate, it cannot justify the Board's order.  Proceedings before the Board are not adversarial.  Parties to those proceedings are obliged to assist the Board in arriving at an appropriate disposition.  If the Board felt that further steps should be taken to explore the availability of suitable accommodation outside the hospital, it should have directed that the hospital and/or counsel for the respondent take those further steps.  No doubt, the expertise of the Board would be particularly helpful, both in directing the further steps that should be taken and in assessing the results of those efforts. Armed with whatever additional information was provided, the Board could then determine the appropriate disposition under s. 672.54.

• 6      Counsel for the hospital, with Mr. Milloy's agreement, put certain material before the court outlining attempts made by the hospital to place the respondent since the Board's order.  There have been positive changes in the respondent's behaviour since the Board made its order.  It also appears that the hospital has expanded its search for a suitable accommodation beyond self-imposed limits which existed when the hearing took place before the Board.  Those efforts suggest that suitable accommodation for the respondent may be found through the Ottawa Salus Corporation.  In these circumstances, we think it best to allow the appeal, quash the order of the Board dated April 25, 1996, and direct a new hearing before the Board.  In so ordering, we rely on the hospital to continue its efforts to find appropriate accommodation for the respondent.

OSBORNE J.A.
DOHERTY J.A.
LASKIN J.A.

QL Update:  961017
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