BRITISH COLUMBIA REVIEW BOARD



BROWN, Douglas Harold - July 30, 1993

IN THE MATTER OF THE CRIMINAL CODE R.S. c. C-34
AND
AN ACT TO AMEND THE CRIMINAL CODE (MENTAL DISORDER), 1991 c. C-30
AND
IN THE MATTER OF DOUGLAS HAROLD BROWN
THE BRITISH COLUMBIA REVIEW BOARD
IN THE MATTER OF
AN APPLICATION FOR ACCESS TO DISPOSITION INFORMATION


INTRODUCTION:

These reasons are in response to a request by the newspaper, the Vancouver Sun (the "Sun") for access to written information in this case made during the course of a review of disposition hearing. This information includes medical reports submitted to the Review Board respecting Douglas Harold BROWN (the "Accused") presented as evidence to assist in a review of disposition of the Accused. Counsel for the Accused and the Director, Forensic Psychiatric Institute (the "Hospital") opposed the release of all disposition information to the press as members of the public, arguing that such information belonged to the parties or was protected by privilege or other confidentiality protected by law.

Both counsel further submitted that the Sun should not be allowed to be heard before the Review Board to argue that it ought to have the information.

Having heard the arguments, the Review Board deferred its determination on the application for disclosure following the conclusion of the review of disposition in the case of the Accused dated December 15, 1992. The disposition and reasons for disposition were given that day. This was to allow for the assistance of judicial opinion in other cases before the courts in which public right of access to attend Review Board disposition hearings, and collateral issues involving the interpretation of Part XX.1 (Mental Disorder) of the Criminal Code were being raised. The Review Board has received the benefit of some observations by the courts on these issues since then and with these reasons trusts it can accurately reflect the intention of Parliament on the matter of public access to written information tendered as evidence in the course of disposition hearings, statutorily defined as disposition information.

Some basic assumptions and understandings were made in these reasons.

The Review Board does not have inherent jurisdiction. The powers of the Review Board acting under Part XX.1 of the Criminal Code are entirely statutory and specifically circumscribed. As a result, the Review Board has only such powers as can be found to have been conferred expressly or by necessary implication by those legislative provisions. This assumption and understanding is taken from Doyle v. R. [1977] 1 S.C.R. 597 and Re Southam Inc. and the Queen (No. 1) (1983) 41 O.R. (2d) 113.

Review Board hearings are most analogous to criminal proceedings. This was supported by Madam Justice Proudfoot in Blackman v. A.G.B.C. et al - Vancouver Registry of the Court of Appeal for British Columbia Registry No. CA016416 dated January 18, 1993 (Paragraph 16).

At common law, the press has never been regarded as having lesser or greater freedoms than those enjoyed by the general public. Entitlement by the media to access to information or government proceedings has always been considered to be equal to the right of access in members of the public. Journal Printing Co. v. McVeity (1915), 7 O.W.N. 633, affirmed in (1915), 21 D.L.R. 81 (Ont. C.A.).

Equality of access enjoyed by the media to that of the general public is constitutionally protected. S. 2 of the Charter of Rights and Freedoms provides "everyone has the following fundamental freedoms: ... (b) freedom of thought, belief, opinion and expressions, including freedom of the press and other media of communication; ..."

MAIN ISSUES:

Three main issues were presented to the Review Board for resolution:

  1. Does the Sun have standing before the Review Board to make the application for access to disposition information? If so, is standing limited in any way?
  2. If the Sun has standing to make such an application, is the Sun entitled to access to and copies of disposition information including medical reports to the Review Board respecting the Accused? Does the Sun have the right to publish these reports? Is entitlement to access limited in any way under the Criminal Code? Can publication be limited in any way by the Review Board under the Code?
  3. If the Sun is allowed access, should it be granted in the circumstances of this case when the Sun was not, in fact, present for the entire hearing on the substantive matter?

I.          THE ISSUE OF STANDING BEFORE THE REVIEW BOARD

The issue of whether the Sun as a member of the public should have standing to be heard before the Review Board in making its application for access to disposition information was decided by the Review Board in the course of the hearing. The Review Board decided in favour of the Sun having standing to make its application. Counsel for the Accused and the Hospital argued that the Sun was not a party to the disposition hearing, not being otherwise able to meet the statutory requirements of one who could be given party status under s. 672.5 (4) and therefore could not have standing before the Review Board to request disposition information. The Sun agreed that they were not a party but were not seeking standing to have a participating role in the proceedings on the disposition of the Accused.

The Sun's position was that it did not seek standing in order to make submissions on any substantive issues arising in the disposition hearing that may affect the disposition of any Accused. Its interest was in access with the prospect of publication of information concerning the disposition.

The Sun indicated it wished standing only to reply to objections to its application and state why it should have access. The Review Board determined that the Sun had limited standing and then only to be heard as to its application for access to information. Such application was determined by the Review Board to be required to be made in each case. To the extent the opportunity to reply to objections to its application depended upon access to documentary material, such access by the Sun to documentary material was also considered appropriate to allow the Sun to be able to "meet the case".

The decision of the Supreme Court of Canada in The Canadian Council of Churches v. R. et al (1992), 88 D.L.R. (4th), 1993 was considered by the Review Board. It was determined, in the Review Board's respectful view, that the Sun's interest in standing did not present itself to be in the same category of interest in standing as did the Canadian Council of Churches, in that case. The Sun did not seek to become a participant to these proceedings as did the Council of Churches in that case. For that reason the Review Board believes the authority is not appropriate for consideration here.

The Review Board also observes that the question of standing in representatives of the press, when making claims to right of attendance or access of the public to judicial proceedings has been invariably recognized by the courts. The most recent example of this right of standing before the courts in the press where Part XX.1 of the Criminal Code was the subject of litigation was in the case of Blackman v. British Columbia Review Board et al Vancouver Registry of the Supreme Court of British Columbia, Registry Number CC93310 dated June 16, 1993, where Mr. Justice Brenner upheld the jurisdiction of the Review Board to decide when to disallow media access to attend that disposition hearing. The Sun was an applicant for standing before the Review Board prior to the application for judicial review in the Supreme Court. No judicial objection was observed to be taken in the Sun's standing in that case. The same opportunity in allowing standing to be heard before the Review Board is assumed to be permissible in this case.

II.          ACCCESS TO DISPOSITION INFORMATION BY THE PRESS

The issue is whether the press would have lawful right to access and could receive actual copies of written information including medical reports submitted as evidence in the course of a disposition hearing. This argument has two parts, i.e. whether the press generally has access to written information presented before the Review Board in the course of a disposition hearing and specifically, whether they have access to the reports on the Accused.

Obviously the press would have access to any verbal information about the Accused arising from discussion of written reports during the course of the disposition hearing, provided they were not disallowed from being present at the hearing. This is not an issue in this case. Objection was not taken to the attendance of the press as a member of the public by the Accused. The issue in this case is access to the written material as such.

The Sun argues that they have a 'prima facie' case for access to disposition information as part of public access to the courts. The Sun contends that the Accused ought to apply to prohibit disclosure of this material under s. 672.51(7)(b) and submit evidence to support this application. Furthermore, such application would have to demonstrate that disclosure would be 'seriously prejudicial' to the applicant, not merely embarrassing or an invasion of privacy and that denial of access is not contrary to the public interest.

Counsel for the Accused argued that a plain reading of s. 672.51 leads to the conclusion that sub.(7) applies only to parties, thereby limiting the ability of parties to give disposition information to non-parties.

A secondary argument presented by the Accused and the Hospital is that medical reports were produced as a result of a fiduciary and confidential relationship between medical staff and the Accused as a patient and that disclosure would work against a trusting, therapeutic relationship.

Further arguments of the Accused relate to Charter issues, which it was agreed, a tribunal such as the Review Board should not opine on.

The Hospital also submitted arguments about the absence of written procedures under which issues of confidentiality must be examined.

In addressing the argument on the basis of a plain reading of s. 672.51, the Review Board concludes that subs. (7) is not intended to regulate the conduct of parties only and does not apply only to material in the hands of the parties.

Disposition information is defined in s. 672.51(1). This would include the Psychiatric Reports, Nurse Case Coordinator Reports, Therapeutic Leisure Services Reports, Psychiatric Social Work Reports, reports to Crown Counsel on the circumstances of the index offence, Criminal History of the Accused, Victim Statements, Court Orders, Judicial Records, Applications for Orders-in-Council and other written information before the Review Board about the Accused that is relevant to making a disposition. S. 672.51(7) provides that no disposition information shall be available for inspection or disclosed to any person who is not a party to the proceedings where otherwise withheld from the Accused or another party or:

                     "Where... the Review Board is of the opinion that disclosure of the disposition information would be seriously prejudicial to the Accused and that, in the circumstances, protection of the Accused takes precedence over the public interest in disclosure."                     

Material was submitted by counsel for the Hospital describing the 'plain reading' of an Act, and was helpful. S. 672.51 regarding disposition information is a part of s. 672.5 outlining the whole process of procedure in the conduct of these hearings. Any words of the Act must be read within the context of the entire Act and/or section to be considered. It is apparent that the overall purpose of the new amendments was to create greater accountability in the process of deciding what happens to those persons found not responsible for criminal offences on account of mental disorder, as well as affording the Accused greater rights and protections within this process. Public access to the Review Board process allows for such accountability as discussed in earlier Review Board decisions in the cases of AHLUWALIA dated July 27, 1992, FISHER dated September 30, 1992 and BLACKMAN dated February 25, 1993.

The Criminal Code makes a distinction, in the Review Board's opinion, on prohibition of disclosure of disposition information in those certain cases outlined in s. 672,51(7)(b), as distinct from the matter of exclusion of the public to attend at a hearing.

The Review Board's opinion of the law is that it must consider both the best interests of the Accused and the public interest in excluding the public from a hearing. In exercising such power of exclusion of the public, the Review Board has indicated that Parliament intended disposition hearings to be open to the public as a matter of right, subject to the statutory right in the Review Board of exclusion. The Honourable Mr. Justice Brenner confirmed this view in the Blackman Case (supra).

However, under s. 672.51(7)(b) Parliament intended to allow for prohibition of disclosure of information to be made in circumstances where in the opinion of the Review Board, protection of the Accused takes precedence over the public interest in disclosure by stating that "no disposition information shall be available or disclosed to non-parties", except as provided for in that section. Disposition information falls in a clear, defensibly different position from the matter of the attendance of a member of the public to hear oral evidence during the course of a hearing, as such.

Parliament provided that when the Review Board was to direct its mind to prohibition of disclosure of disposition information, it could in the circumstances of a particular case favour protection of the Accused over the public interest in disclosure, but only where 'the Review Board is also of the opinion that disclosure would be seriously (emphasis added) prejudicial to the Accused'.

S. 672.51(7)(b) recognizes that there are circumstances in which protection of the Accused takes precedence over the public interest in disclosure. This recognition of protection against disclosure in some circumstances only makes sense in the context of an assumption by Parliament of an existing 'prima facie' right of the public to access; otherwise, why would Parliament need to have stated when this right may be limited? Further, disposition information, touching upon an Accused as such, even where otherwise prohibited from disclosure to the public in certain cases under s.672.51(7) could still be available to specified persons or members of a class of persons as allowed for under s. 672.51(9) governed by the provisions of s.672.51(10).

It is true that the media have from time to time sought to enforce a claimed right to examine exhibits tendered in criminal judicial proceedings. The reasoning is that fir there to be full public access there must be access to both the oral and physical aspects of the proceedings.

There is common law authority in which the courts discuss the claimed right in the public to access to examine exhibits in criminal proceedings. It is of interest to note however, that this is not perceived as an inviable right. In R. v. Thompson Newspapers 11 W.C.B. 436 (December 8, 1983) a decision of the Ontario High Court of the Honourable Mr. Justice Anderson supported the view that under the Charter the media have no right of access to documentary evidence in criminal proceedings, in that case, for the purpose of copying or filming that evidence for publication.

It is safe to conclude that the Court there determined that the right of the press to have access to trial proceedings is no more than the entitlement to attend those judicial proceedings as spectators. It is interesting to note that Mr. Justice Anderson's views did not extend to effect any right in the right of members of the public to have access to exhibits or other records of the court after a verdict or judgment is given. He left that matter for determination by the rules of court and the position taken by the respective parties to the cause.

Mr. Justice Bouck of the British Columbia Supreme Court reviewed the general issue of the public having uninhibited access to the Court and judicial records, which is interpreted to include exhibits, in A.G.B.C. v. Pacific Press Ltd. et al. [1988] 6 W.W.R. 536. To the extent that these principles of law operate in affecting public rights, the Review Board accepts that the principles enunciated in that case operate to guide tribunals such as the Review Board, except as otherwise provided for by Parliament in Part XX.1 of the Criminal Code.

Mr. Justice Bouck said at p. 542:

                     "From these and other leading decisions the following principles seem to emerge:                                     

                     1) One starts with the fundamental proposition that the public is entitled to uninhibited access to a court of law and its judicial records: A.G.N.S. v. MacIntyre, 132 D.L.R. (3d) 385 at p. 404; Pacific Press Ltd. v. Vickers & Palmer, 60 B.C.L.R. at p. 98.                     

                     2) With respect to exhibits or other material filed in a judicial proceeding, it seems that public access may be restricted by the presiding judge during the course of the trial. Once the trial is over, the prohibition may no longer be effective: C.B.C. v. Clerk of Alta. Supreme Ct. 77 D.L.R. (3d) 621 at p. 623-240.                     

                     3) The burden of proof is on the person who seeks to prevent disclosure by showing as a matter of principle and not just convenience that the document or object should be protected from public scrutiny: Scott v. Scott [1913] A.C. 417 at P. 437 (H.L.); A.G.N.S. v. McIntyre, at p. 405.                     

                     4) Conditions which may arise in exercising a discretion include the following:                                        

                               a) Is the applicant seeking the document out of mere curiosity rather than for some genuine purpose such as the right of the public to know about the conduct of government officials? Pacific Press Ltd. v. Vickers & Palmer, at p. 98.                               

                               b) Is the applicant merely asking for release of the documents to gratify spite or to promote public scandal such as in a divorce action? Nixon v. Warner Communications Inc. 55 L. Ed. 2d570 at p. 580.                               

                               c) ...                                                                                                                                                        

                               d) Might the disclosure injuriously damage the interest of infants or persons allegedly of unsound mind? Snell v. Haywood, [1947] 3 D.L.R. 586 (Alta. C.A.)                               

                               e) Might the disclosure affect persons not parties to the proceedings who are mentioned unfavourably in the document such as is sometimes found in a pre-sentence report?                               

Counsel for the Hospital submitted Practice Direction re: Criminal Files for the Supreme Court of British Columbia dated May, 1990 and focused on paragraph 1 which states:

                     "...criminal files shall be open to inspection only by the Accused person, his counsel, Crown counsel..."                     

Interesting though this practice direction in the Supreme Court may be, it is not operative as a rule of law against this tribunal and cannot bind it. In any event, paragraph 2 goes on to identify how members of the public acquire access to information and concludes by saying:

                     "The governing legal principle is that there is a presumption in favour of public access, but that access must be supervised by the Court to ensure that no abuse or harm occurs to innocent parties."                     

This, in fact, supports the position that members of the public should have a right to access such evidence, provided of course no abuse or harm occurs to innocent parties.

Counsel for the Hospital made the point that there is no established procedure in the Review Board for raising prohibition issues. Because there is no procedure does not mean that the common law as outlined above or for that matter the specific provisions of the Criminal Code do not speak clearly on the question of the right of public access and how Parliament has chosen to affect it for the Review Board process. Parliament of Canada intended Review Board hearings to be conducted in as informal a manner as is appropriate in the circumstances.

The Review Board must not lose sight of the need for informality and is not encouraged by arguments for development of rules where they would otherwise serve little purpose and tend towards legal formalism. Rules established by the Governor-in-Council or by the Lieutenant-Governor-in-Council as suggested would not in any event address the categorical objection taken by the Accused and by the Hospital to public access to disposition information. Clearly, the absence of established procedure for raising prohibition issues did not prevent opportunity for resolution here.

Counsel for the Accused and the Hospital expressed concern that if the Sun's application were granted, the Sun would be allowed to have access to the Accused's file perhaps even before the disposition hearing was held. If the Review Board were to hold that the press may have access to disposition information it is argued that this would mean anyone could demand, through the Review Board, to see any Accused's full medical file. The Sun stated clearly they were not asking for information ahead of time, but only for disposition information introduced in the hearing in order to have a full and complete understanding of the issues and facts before the Review Board.

Clearly, disposition information should not be given to the press ahead of time if it might prejudice a hearing through public reports about it.

Counsel for the Hospital proposes that access by the press to disposition information, if allowed at all, should be only at the conclusion of a hearing. There is merit to such a position case and is supported by the observations of Mr. Justice Anderson in the context of R. v. Thomson Newspapers Ltd. (supra) and Mr. Justice Bouck in A.G.B.C. v. Pacific Press Ltd. (supra).

Further, no member of the public, even in the face of a favourable determination allowing for that member of the public to have access to disposition information under 672.51(7) would be entitled to have, nor ought they to have access to an Accused's complete file or to a portion of it prior to a disposition hearing if it would be seriously prejudicial to the Accused. These considerations would be taken into account by the Review Board in perhaps denying public disclosure prior to the hearing if it was perceived that in a particular case this would result in serious prejudice to the Accused and thereby rejecting the public interest in disclosure prior to a disposition hearing.

It should also be observed that access to an Accused's file as such in the Review Board's respectful opinion may become the subject of an application for access under applicable legislation regulating access to government documents. Parliament indicated under s.672.38(2) that "a Review Board shall be treated as having been established under the laws of the province." In British Columbia, an application could conceivably be made under such Provincial access to information legislation. It is arguable that provincial access to information legislation would govern the matter of access to the Accused's file except as otherwise specifically provided for in Part XX.1 of the Criminal Code.

There were several points made on the issue of confidentiality argued by both the Accused and the Hospital to exist in law protecting against disclosure of all disposition information. The Accused argued disposition information includes medical reports produced as a result of a fiduciary and confidential relationship between the medical staff and Accused as a patient and that this relationship ought to be protected. The Hospital argues that confidentiality has legal protection and cites 4 conditions that it says have been satisfied thereby protecting disposition information as in some way privileged, recognized as the "4 Wigmore Tests" approved by the Supreme Court of Canada in Slavutych v. Baker [1976] 1 S.C.R. 254.

According to Wigmore, the following 4 conditions must be satisfied before any communications, be they psychiatrist - patient or otherwise, will be recognized as protected from disclosure:

                     "(1)     The communication must originate in a confidence that they will not be disclosed;                     

                       (2)     This element of confidentiality must be essential to the full and satisfactory                                       
                                 maintenance of the relation between the parties;                     

                       (3)     The relation must be one which in the opinion of the community ought to be                                     
                                 sedulously fostered;                     

                       (4)     The injury that would inure to the relation by the disclosure of the communications                     
                                 must be greater than the benefit thereby gained for the correct disposal of                     
                                 litigation."                     

See Wigmore on Evidence, vol. VIII (McNaughton revision, 1961), paragraph 2285.

The Review Board respectfully concludes that any protection found to exist arising out of the application of the Wigmore principles which might otherwise shield disposition information from disclosure to non-parties, has been specifically removed by the operation of s.672.51. In its place Parliament left the Review Board to assess the interest of the public in disclosure as against the serious prejudice to the Accused under s.672.51(7) that would result in public disclosure of the documentation. With a determination that disclosure of disposition information would be seriously prejudicial to the Accused and that, in the circumstances, protection of the Accused takes precedence over the public interest in disclosure, the statutory privilege if it meets this test, is imposed. Without serious prejudice to the Accused, and without protection of the Accused taking precedence, the statute by implication allows for disclosure. Otherwise why would Parliament have legislated, as it did in s. 672.51 (9) and (10), to specifically allow for public disclosure of documents which counsel says are protected by common law privilege, even where otherwise protected from disclosure through the operation of subsection (7)?

There is further support for the proposition that Parliament intended there to be public right of access to disposition information protecting the Accused against serious prejudice by imposing statutory prohibition against publication as appears under s.672.51 (11). Under that section:


                     "(No person shall publish in any newspaper within the meaning of s.297 or broadcast (a) any disposition information that is prohibited from being disclosed pursuant to subsection (7);..."                     

If the Review Board is to accept arguments of Counsel for the Accused and the Hospital that the Sun as a member of the public has no standing to request and be allowed to receive disposition information if allowed by the Review Board under that statute, why would Parliament as it did, have provided for an absolute prohibition against publication by the very applicant argued not to have standing or rights, where disclosure of disposition information was prohibited by the Review Board under the statute?

Obviously, in coming to the opinion that disclosure of disposition information would be seriously prejudicial to an Accused and that, in the circumstances, protection of the Accused takes place over the public interest in disclosure as is provided for under s.672.51 (7), must not one assume that Parliament intended there to be no such public disclosure in certain circumstances where there was an absence of serious prejudice or where there might be prejudice as such but that in itself should not stand in the way of public disclosure? What is required of the Review Board is to come to an opinion that disclosure of disposition information would be seriously prejudicial and that in the circumstances protection of the Accused takes precedence over the public interest. There may well be a case where disclosure would be seriously prejudicial to the Accused but protection of the Accused would not in the circumstances take precedence over the public interest in disclosure.

All of this leads to the inescapable conclusion that the Review Board process as articulated by Parliament was intended to be an open process, open to the public to attend as well as open to the public to request information even where there might be serious prejudice to the Accused provided the Accused's interest did not take precedence over the public's interest to know.

In assessing prejudice to the Accused and also, in what circumstances the public interest in disclosure overrides the interest of the Accused in the face of prejudice, the Review Board must have regard to the sensitive nature of the relationship between the Accused, being a patient with a mental disorder and his care givers. The common law recognizes the need to protect the interest of those who suffer from alleged unsound minds from the unreasonable glare of public scrutiny. If disposition information is comprised of psychiatric reports for example, obviously the Review Board will have high regard for their sensitivity and the need to preserve the Accused from the possible negative effects of such scrutiny upon his mental condition. In allowing disclosure the Review Board should not act with disregard for the need to preserve the trust relationship between an Accused and his psychiatrist. If with public disclosure of such a report the trusting, confidential relationship could become impaired resulting in serious prejudice to the Accused, the Review Board would have to weigh the prejudice in the circumstances of each case against the public interest in disclosure and determine whether it would take precedence.

A most compelling argument it seems, in rejecting claims to the existence of an unaffected right to confidentiality here, is that those found not criminally responsible by reason of mental disorder are not perceived by the new Criminal Code legislation to be in the same position as those otherwise found to be criminals or those in hospitals, suffering from mental disorders. That is why the Accused's rights and liberties are treated differently as provided for under Part XX.1 of the Criminal Code.

The constitutional underpinning for Parliament's having legislated as it did with the enactment of Part XX.1 of the Criminal Code through its criminal law powers was described by Mr. Justice Brenner in the Blackman Case (supra) on page 19 of the unreported decision as follows:

                     "The 'pith and substance' of the legislative scheme [Part XX.1 of the Criminal Code] dealing with individuals acquitted by reason of insanity is the protection of society from dangerous people who have engaged in conduct proscribed by the Code through the prevention of such acts in the future: Swain [1991] 1 S.C.R.933 at p. 998. While treatment or cure of the individual may be incidentally achieved through the Code provisions, this consideration is secondary and simply a means to achieving the ends of protection and prevention of crime: Swain, supra p. 1004..."                     

Disposition information sought to be clothed with absolute legal confidentiality here, is prepared to assist in making a disposition under s.672.54. This is the essential task of the Review Board in respect of those Accused found not criminally responsible by reason of a mental disorder. S. 672.54 provides, in part:

                     "Where a ... Review Board makes a disposition ... it shall, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is the least onerous and least restrictive to the accused ..."                     

It is clear from the above that Parliament envisaged disposition information would discuss "the mental condition of the accused", but that is not the only feature of interest to the Review Board in receiving such information. Mental health professionals will of course, be concerned with informing the Review Board of the mental condition of the Accused, however, they will also be informing the Review Board of the reintegration prospects of the Accused in society, the Accused's other needs, and of course, the Accused's potential for being a risk to the safety of the public.

The Honourable Chief Justice McEachern said the following in Orlowski et al v. A.G.B.C. 1992), 75 C.C.C. (3d) 138, 94 D.L.R. (4th) 541 at 146.

                     "The Interpretation and Application of the New Legislation                     

                     32... in my judgment the Board must, in the first instance,                     
                     consider the "preamble" factors, not just in deciding whether                     
                     an accused is a significant threat, but also in deciding what                     
                     disposition it will make of each case.                     

                     33... in addition, however, the Board must also struggle with                     
                     other questions, and it is not possible to say that any of these                     
                     factors are free standing and independent of each other. The                     
                     legislative objective is to decide what dispositions should be                     
                     made that is the least onerous and the least restrictive upon                     
                     considering the "preamble" factors and the language of                     
                     s.672.54"                     

                     34. This exercise does not centre only upon whether the                     
                     accused is a significant threat to public safety. For example,                     
                     a patient may be perfectly lucid at the time of his disposition                     
                     hearing yet still be a significant threat because of his history                     
                     and prognosis ..."                     
                     (emphasis added)                     

The phrase emphasized above serves to illustrate the point that not all disposition information will be concerned with features of an Accused's mental condition that should be clothed with confidentiality in disposition hearings.

It appears to the Review Board therefore, that Parliament of Canada intended to put disposition information in a very different category from medical reports that would otherwise be understood to be protected by confidentiality or privilege.

In conclusion for these reasons, the Review Board believes that the confidentiality claimed was not intended to apply to disposition information and if so, has been replaced by the legislative scheme found in 672.51.

In the event that the Review Board is wrong in these conclusions and there is need for consideration of the 4 Wigmore Tests and it is determined that Parliament of Canada did not replace the need to apply such tests in extending confidentiality, the Review Board observes that in disposition hearings at least two of the four Wigmore conditions do not always apply and hence, such confidentiality is not uniformly extended.

For example, Wigmore's first test i.e. 'the communications must originate in a confidence that they will not be disclosed', cannot apply to extend confidentiality because medical staff are routinely called upon to reveal information they have ascertained from patients to the Courts and also to the Review Board, particularly in applications where the issue of significant threat arise. Unless an Accused is appearing for the first time, many reports have been submitted over the years and the Accused is likely aware of this. The new Criminal Code amendments mean that many Accused are far more aware than they were previously about the nature of these reports. The psychiatrists and other preparing these reports are fully aware that information and observations they record are not always confidential. In fact, the Review Board has routinely received reports on other Accused persons which expressly stated that the doctor clarified with their patient as an Accused, that the report was not confidential.

Wigmore's fourth test i.e. 'the injury that would enure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation' is also not sustained by the process of Review Board hearings. The relationship of the Accused to the medical staff is not voluntary, but is a function of the Accused being ordered to live in a designated hospital such as the Forensic Psychiatric Institute and/or report to Forensic staff. Reports are prepared on ACcused, as patients, because they have been designated not criminally responsible by reason of mental disorder. Sometimes these reports are prepared on issues of fitness to stand trial or while Accused persons are on remand by the Court for psychiatric evaluation. These latter reports are essential for consideration by the Review Board in making a disposition.

Those persons working in designated hospitals or clinics have a dual obligation in that they are mental health professionals concerned with trust issues respecting their patients, while at the same time, having to be concerned with the safety of the public. They have to evaluate the Accused and assist in observations of the Accused's potential dangerousness and possibility of significant threat. This information is presented before the Review Board by the Hospital, it being one of the parties in a disposition hearing to assist the Review Board in its consideration of the appropriate disposition.

Counsel for the Hospital and Accused argued that there is legal confidentiality between hospital staff generally and the Accused as a patient. In fact, reports submitted to the Review Board are prepared by a variety of health professionals.

It is essential in making the best disposition and of course, the least onerous and least restrictive having regard to the consideration of s.672.54, that the Review Board be given information by hospital staff that might, in other circumstances, be considered confidential. This hospital staff includes more than medical personnel.

The Review Board accepts that there is a fundamental dilemma in the relationship between all forensic treatment staff and all Accused persons in their care. The staff have both a treatment and assessment role that demands they shift their attention and responsibility from time to time. In their treatment role within Forensic Services they must put their patients' needs first, respecting their conflicts and confidences. But in their assessment role, all knowledge of the patient as an Accused person under Part XX.1 comes under statutory examination and required to be considered as to whether they are not a significant threat to the public, thereby requiring the Board to order an absolute discharge. The Director under whose authority they act, being the person in charge of the hospital where the Accused is detained or is to attend pursuant to an assessment order or to a disposition, is a statutory party to a disposition hearing before the Review Board under s.672.1 of the Criminal Code and cannot avoid this involvement.

Sometimes this assessment function benefits the Accused as a patient and sometimes it works against the patient's interests. Where it works against the patient, this presents great difficulty at times for treatment staff. The need for disclosure of certain information may well hamper the development of trust between staff and patient. There is no easy solution to this dilemma.

It cannot be overlooked that:

                     "... a relationship between psychiatrist and patient is one of strict confidence. As with all physicians, psychiatrists are under a legal and ethical duty to respect and maintain the confidentiality of information relating to their patients. However this rule is subject to a number of exceptions; the one with which we are concerned in the present context relates to disclosure of confidential information in legal proceedings. Can a psychiatrist be compelled to reveal confidential information in court, or is this evidence protected by the principles of privilege?                     


                     The common law has always drawn a distinction between confidentiality and testimonial privilege. It has long been accepted that the relationship between doctor and patient, although confidential, does not give rise to testimonial privilege. Physicians can be compelled to testify in legal proceedings, even if their evidence will involve disclosure of confidential information about their patients."                     

Robertson, Mental Disability And The Law In Canada, (1987) p.288.

Counsel for the Accused and the Hospital referred the Review Board to the case of McInerney v. MacDonald (1992), 93 D.L.R. (4th) 415 recently decided by the Supreme Court of Canada. This case was concerned with the right of access by the patient to medical reports about herself. This is not an issue before the Review Board. Also, this right is otherwise amended by the presence of the provisions of s.672.51.

The Review Board has concluded that a plain reading of this section and others in part XX.1 of the Criminal Code leads to the view that Parliament intended disposition information not to be prohibited from public disclosure under s.672.51(7) but that it falls to the Review Board to make that determination in each case before disposition information could be available for inspection or disclosure to an applicant as in this case, the Sun.

The specific question of whether the Sun has access to the disposition information in the case of this Accused must also be considered. Counsel for the Accused offered no argument on this issue. The question of whether disclosure would be seriously prejudicial to the Accused and in the circumstances, protection of this Accused takes precedence over the public interest in disclosure was not addressed in the evidence as such, though raised by the Review Board as an issue in the course of the disposition hearing. There were opportunities to address this important issue. In the absence of such evidence, the Review Board might have concluded that the Accused did not consider that disclosure of disposition information to the Sun would be seriously prejudicial to him. Making counsel's arguments on positions which are in issue before the Review Board is not something that the Review Board should willingly assume. On the other hand, that does not in the respectful view of the Review Board relieve it from the responsibility of having to make that determination. If ignored this would result in offending s.672.51(7). In this case, having considered the extensive range of medical reports and documents of a similar nature touching upon the mental condition of the Accused at the time of the hearing and also the fact that the disposition information discusses the mental condition of the Accused over the lengthy period of time since the index offence, release of extremely sensitive medical information, in the Review Board's opinion, would be seriously prejudicial to the Accused. His treatment and eventual successful reintegration into the community in the circumstances of this case requires that the protection of the Accused takes precedence over the public interest in disclosure. The Accused took the strongest of objection to the release of this particular medical information which we have come to the opinion, should be given effect at this time. This does not preclude disposition information from public release in this case in a future hearing.

To the extent that disposition information otherwise ordered not to be disclosed is quoted in part in the body of the reasons for disposition, prohibition will not be the result. However, the quoted passages of that disposition information only, can be disclosed.

To ensure that disposition information not allowed to be disclosed is not inadvertently published, the Review Board draws the provisions of s.672.51(11) to the attention of the Sun which provides:

                     "No person shall publish in any newspaper, within the meaning of s.297 [of the Criminal Code] or broadcast (a) any disposition information that is prohibited from being disclosed pursuant to subs. (7)."                     

It should be clear that not all disposition information in this case is embraced within this prohibition. Access by the Sun to documents marked as exhibits 1, 2, 3, 4, 4A, 8, 9, 10, 11 and 12 described in the schedule attached to these reasons can, in our respectful view, be granted in applying s. 672.51 (7).

It should be observed that in the future, certain disposition information would likely routinely be considered proper for public disclosure, being regarded as matters of public record. These include previous Orders-in-Council respecting the Accused, dispositions, reasons for disposition, warrants of committal and other documents customarily viewed as official record of proceedings before tribunals.

It should also be said in closing that it is conceivable that in a case where an Accused was requesting an absolute discharge, medical reports could be considered appropriate for public disclosure even if there were to exist an arguable prejudice to the Accused because in the circumstances, those being the public's right to know the reason why an Accused was granted an absolute discharge, protection of the Accused would not take precedence over the public interest in disclosure as to the facts upon which the Review Board came to the opinion that the Accused was not a significant threat to the safety of the public.

CLOSING COMMENTS:

Parliament intended that there be no absolute confidentiality in the circumstances of disposition hearings without the Review Board's determination on the matter. A balancing of values of an individual's privacy against the need for public access to allow for the public's understanding of the working process by which a disposition is made, has replaced any absolute confidentiality. This balancing of values will not be easy.

                     "The protection of individuals' privacy is an important value in a democratic society. Neither the State nor the public should have the automatic right of access to intimate or embarrassing details of the lives of others. Some loss of privacy is, of course, inevitable in a criminal proceeding. What people did, said, heard and felt is the proper domain of inquiry in a trial if it is relevant to the criminal charge. Also, public curiosity and discussion about the individuals peripherally involved is natural. However, it would be proper for the State to protect the privacy of certain individuals involved in the criminal process when publicity would be particularly harmful. Again, any protection that is afforded to individuals in this respect should impose as little as possible on the public's right to know what transpired in its court rooms and what its servants have done."                     

(See the commentary of the Law Reform Commission of Canada's Report on Criminal Law - (1987) Public and Media Access to the Criminal Process Working Paper at p. 18).

The Review Board will in each case have to measure and balance these values as discussed above and as Parliament intended the Review Board to do under s.672.51(7).

III. If the Sun is allowed access to disposition information, should this be granted when its representative was not present throughout the entire disposition hearing?

Counsel for the Hospital and the Accused argued that the larger question of access by the Sun to disposition information had become moot in this case because no reporter from the press attended the disposition hearing. The Sun had earlier attended and argued that it wished to have the disposition information available in order to provide a complete public report of the proceedings at the Review Board hearing. It was argued by the Hospital and the Accused that any possible access to information must be grounded within the context of the Sun having heard the evidence at the disposition hearing.

If the argument of the Accused and the Hospital is that without having heard the entire body of evidence, reporting on the basis of available disposition information only, was not permissible, the Review Board declines to accept this argument as a basis for refusing public disclosure.

The Review Board is of the view that in deciding public access to disposition information, consideration may well be given to the possibility that serious prejudice to the Accused could result in the circumstances of a case in disclosure of a document, without the benefit of full understanding of oral evidence given at the disposition hearing in interpreting it, correcting it or elaborating on its contents. The Review Board however, does not presume to be in a position of having to adjudicate the circumstances under which there would be a resulting fair or accurate reporting. The Review Board concludes that the absence of the Sun throughout the disposition hearing does not of itself disentitle it to access to those documents which have earlier been determined to be available.

These are the unanimous reasons of this panel of the Review Board of British Columbia dated July 30, 1993.

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Norman J. Prelypchan
Chairperson