VALE, Terry - September 30, 1997

R.S.C. 1985 c. C-46, as amended 1991, c. 43

On September 30, 1997 the British Columbia Review Board (BCRB) held a hearing at FPI to review Mr. Vale's disposition.

By way of background, on December 13, 1992, Mr. Vale was charged with arson contrary to s. 433(1) of the Criminal Code. On July 15, 1993, Mr. Vale was found not criminally responsible on account of mental disorder by the provincial Court of British Columbia at Vancouver.

Reports provided to the court in support of its verdict revealed:

Mr. Vale has had at least 11 prior hearings before the BCRB. Information provided to the Board has consistently described him as hostile, angry, aggressive, non-compliant and potentially a danger to himself due to his depression.

Since coming into the care of FPI he has been involved in several unauthorized absences or elopements. Although the BCRB has in the past granted Mr. Vale conditional discharges, (pre- Johnson), he has since his admission in fact resided at FPI.

More recently, Mr. Vale’s mood appears to have stabilized somewhat and on April 21, 1997 he was granted visit leaves of up to 28 days as part of his custodial disposition.

Today's hearing was convened following notice from his counsel, dated August 21, 1997, that the loss of his day leaves from FPI for a period exceeding seven days constituted a significant restriction on Mr. Vale's liberties. The request for a special hearing was based on s. 672.81 and deemed to be of a "mandatory" nature.

The issues before the Board are:

Clinical material provided in anticipation of his hearing indicates that:

Mr. Vale has had his unescorted day leaves withdrawn since June 19, 1997 due to his failure to return on time and on one occasion even remaining absent overnight. His treatment team opines that these lapses are due either to his lack of self management capacity or his disregard for both the rules of the hospital and the terms of his disposition.

There is concern that either alternative places his personal safety and his compliance with medication at risk. Mr. Vale's behaviour is troubling to his treatment providers although a recent amelioration of his negative and hostile attitude is acknowledged.

The plan is to move progressively toward reinstatement of his privileges and liberties.

On his own behalf and through counsel Mr. Vale states that he would like to reside in a community group home either in Surrey or Victoria. He states he has no interest in drugs or alcohol. This is borne out by recent negative tests for illicit substances.

He would like his medication decreased although he admits that these help him to rise above his sadness.

With respect to the origin of this hearing, it is asserted on Mr. Vale's behalf that in not notifying the BCRB of the withdrawal of his "liberties", i.e. day leaves, for longer than 7 days, the hospital has departed from its own past practice with respect to this individual. Past unauthorized absences (see October 1995) have resulted in notification to the Board and a mandatory hearing. Counsel argues that the hospital's decision not to notify the Board places the onus of triggering a hearing upon her client and disregards the provisions of s. 672.56 of the Criminal Code.

Counsel requests a conditional discharge for Mr. Vale. The hospital, as supported by the Attorney General's representative, argues that their decisions in the circumstances of this case are both appropriate and within the treatment discretion afforded under s. 672.56, with respect to a custodial patient. The Hospital/Director was not represented by legal counsel.

The authority to hold a hearing pursuant to notice that the Director has significantly increased the restrictions on the liberty of an accused in excess of 7 days is found in s. 672.81(2) of the Criminal Code:

                     "The Review Board shall hold a hearing to review any disposition made under paragraph 672.54(b) or (c) as soon as is practicable after receiving notice that the person in charge of the place where the accused is detained or directed to attend                     

                  (a) has increased the restrictions on the liberty of the accused significantly for a period exceeding seven days; or                     

        (b) requests a review of the disposition.                     

Section 672.56(2)(b) appears to contemplate that the notice which originates a hearing under s. 672.81(2) will be given by the "Director" or the person who significantly "increases the restrictions" on the accused's liberty. However, the wording of the latter subsection’s two subclauses are phrased disjunctively. Consequently the Review Board is mandated to hold a hearing in either of the two possible circumstances, in (a) and (b) above.

In the current case although the "person in charge" did not provide the notice required under s. 672.56(2)(b), the accused's counsel did do so, alleging a significant restriction. Clause 672.81(2)(a) does not qualify or restrict the source of the request for hearing. Therefore, the Board in our view, had no choice but to convene.

The only other instance where the Board has no discretion but to convene is upon the Director's request under clause 672.81(2)(b).

Alternatively, the hearing could under the circumstances have been convened under s. 672.82(1) (accused request).

Moreover, the Director though aware of the hearing, has chosen not to appear to object to the hearing. His acquiescence must be taken as a waiver of any procedural irregularity in terms of how the hearing has come about.

We therefore find that this hearing is appropriately convened as a mandatory hearing as envisaged by s. 672.81(2).

Section 672.56(1) contemplates a "delegation" of authority from the Review Board to the Director to increase or decrease, within specifically articulated limits, restrictions on an accused's liberties.

Without purporting to resolve the question of whether such a delegation must be explicit or may be implicit, the authority is obviously appropriate and necessary to enable the hospital to discharge its treatment accountabilities with respect to mentally disordered offenders. Duly delegated directions are in this respect clothed in the dispositional powers and protections of the Review Board. The disposition under review contains no specific delegating clause though previous dispositions in relation to the accused did.

The operative clauses of the Board's April 21, 1997 disposition envisage or imply a range of discretion in relation to the accused's supervision; his "appropriate" residence in the wards of the hospital; his attendances and programming; and in respect of the conditions and purposes of his "access to the community, either escorted or otherwise" [Exhibit 57, Clauses 1,2,3,4].

According to hospital policy guidelines unescorted day or visit leaves are Level IV, or the "Highest Levels of Freedom and Privileges for in-Patients" [Privileges and Program Activity Levels: Security Guidelines - attached]. For an accused in custody for 5 years to have his "Level IV" liberties or Freedoms restricted to level II (as the evidence indicates), is likely "significant", especially as Mr. Vale has to requalify or establish his entitlement to higher level freedoms through the hospital Security Committee's gradual or cascading assignment process. That the increased restriction complained of has been in effect since June and not reinstated or restored is not disputed.

Moreover, the hospital having had notice of today’s hearing, and having chosen not to object thereto must be taken to have acquiesced or agreed that the decisions at issue constituted a significant increase in Mr. Vale’s liberties within s. 672.56(2). The Board therefore finds that the restrictions imposed on Mr. Vale's liberties were significant within the meaning of s. 672.56. The hospital therefore should have given notice as required under 672.56(2)(b).

On the evidence adduced of Mr. Vale’s chronic testing of rules and limits as well as the justifiable concerns about his self-management and safety [2.1, supra] the panel finds that the restrictions imposed on the accused’s liberties though significant, were in the circumstances justified.

Although we commend Mr. Vale on his recent positive progress in terms of the gradual diminution of his resistance or hostility toward his treatment providers and his abstinence with respect to drug and alcohol use, the accused obviously remains somewhat depressed or sad. His insight into his need for, and commitment to medication remains questionable and there currently exists no viable plan for his safe discharge from hospital. We cannot conclude that his potentially significant threat to public safety has abated to the point where an absolute or indeed a conditional discharge is warranted or appropriate. At this time we note also that Mr. Vale has had a further unauthorized absence as recently as July. Accordingly, we have no reason to disturb the Board’s custodial disposition of April 21, 1997, (which is further reviewable by April 20, 1998) other than to express our hope that Mr. Vale will soon be in a position to resume enjoyment of his liberties.

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Bernd Walter