BRITISH COLUMBIA REVIEW BOARD



BEAUDOIN, Joseph James - December 30, 1999

IN THE MATTER OF
PART XX.1 (Mental Disorder) OF THE CRIMINAL CODE
R.S.C. 1985 c. C-46, as amended 1991, c. 43
AND
THE BRITISH COLUMBIA REVIEW BOARD
IN THE MATTER OF
THE DISPOSITION HEARING OF
JOSEPH JAMES CLAUDE BEAUDOIN


INTRODUCTION

On December 15th, 1999 a disposition review was conducted in the matter of Joseph Beaudoin. At the conclusion of the hearing, this panel ordered Mr. Beaudoin conditionally discharged. We reserved our reasons.

The Director of the Forensic Psychiatric Institute ("FPI") did not discharge Mr. Beaudoin on December 15, 1999. The Director, represented by members of Mr. Beaudoin's treatment team, did not think he should have been released on the order made by this panel.

The Director refused to release Mr. Beaudoin until he first received an entered copy of the order. When the order was available several days later, the Director still did not discharge the accused. Instead the Director "restricted" Mr. Beaudoin's liberties pursuant to a condition of the order that delegated power to the Director to return Mr. Beaudoin to the hospital under certain circumstances.

Once Mr. Beaudoin's liberties were restricted for more than seven days, a hearing to review the December 15, 1999 disposition was automatically triggered by s. 672.81(2)(a) of the Criminal Code. That section requires that a disposition review be held as soon as practicable after notification that restrictions on an accused's liberties have been significantly increased for more than seven days.

That disposition review was held on December 30, 1999 before the same panel that conducted the December 15, 1999 hearing. The result of this second hearing was the same as the first. We again ordered Mr. Beaudoin released, although on slightly different conditions, solely to avoid a repetition of the Director's response to the first order. These now are our reasons.

There were no new facts, or change in circumstances, presented at this hearing. We concluded that Mr. Beaudoin should be conditionally discharged for the same reasons as those given for the December 15, 1999 review, and need not be repeated. However the Director's response to the first disposition requires further comment.

DISCUSSION

The Director's reaction to the Board's first order was surprising given Dr. Riley's position at the last hearing. He provided a report on November 29, 1999, found at Tab 8 of the disposition information. His report concluded at page 4 with the following:

                     "In summary, Mr. Beaudoin would not appear to require further detention in hospital for his mental health needs or for his reintegration to the community, although the appropriate support services for his safe reintegration may not be in place by the time of this hearing. Whether his potential risk to others is sufficient to warrant further detention in custody is an issue I will leave to the discretion of the Review Board."                     

The Director was apparently not prepared to accede to the Board's discretion. The rationale is contained in Dr. Riley's report of Dec. 29, 1999, found at Tab 12 of the disposition information. Dr. Riley stated:

                     " although the disposition order required the accused to be subject to the general direction and supervision of the Director, there was no clause addressing the issue of residence. In consultation with the Prince George forensic outpatient clinic, the treatment team decided it was impossible to discharge our responsibilities under the first condition of the disposition order without a clause which addressed the issue of residence."                     

It is apparent that at the heart the Director's response was the treatment team's disagreement over the timing of Mr. Beaudoin's release. They were clear in opposing Mr. Beaudoin's immediate return to his home. They believed that Mr. Beaudoin should not go home until the end of January at the earliest. That delay was necessary in their view in order to conduct certain assessments and permit resources to be put in place in Dawson Creek.

At the December 15, 1999 hearing, the Director clearly and forcefully expressed those concerns. The treatment team strongly urged that it should have the power to decide where Mr. Beaudoin would live and when that should occur. After giving the matter careful consideration, we were unable to agree with the Director's opinion. We concluded that Mr. Beaudoin could be safely returned to his home, notwithstanding the anticipated absence of forensic services in the community until approximately the end of January 2000. We had intended that Mr. Beaudoin would go home to his family on December 15, 1999, and crafted an order to implement those expectations.

While decisions of the Review Board strive to accommodate the legitimate concerns of all parties, there inevitably will be occasions where a party strongly disagrees with a Board decision. However, no disagreement, no matter how strongly or legitimately felt, can supplant the obligation to comply with an order and attempt to implement it in good faith. Dispositions of the Board, if not agreed with, must still be respected and obeyed. Despite the informality of the hearing, it should not be forgotten that the Review Board is a quasi-judicial body statutorily empowered to make dispositions under Part XX.1 of the Criminal Code. A decision of the Board is a lawful order, for which the rule of law demands compliance. Disobeying a lawful order, without lawful excuse, is an indictable criminal offence under s. 127 of the Criminal Code, punishable by a maximum of two years imprisonment.

The connection between the rule of law and the obligation to obey lawful orders was explored in R. v. Domm (1997), 111 C.C.C. (3d) 449 (Ont. C.A.). The accused was a reporter charged and convicted with disobeying a lawful order, contrary to s.127 of the Code. He refused to be bound by a court order postponing publication of certain evidence adduced at the now infamous trial of Karla Homolka (known as Bernardo then). The accused did not agree with the trial judge's order. He believed that it infringed upon his right of freedom of expression and harmed the administration of justice by denying the public timely access to important information concerning the operation of the criminal justice system. In upholding the conviction, Doherty, J.A., speaking for the Court of Appeal, noted at p. 455, that:

                     "This appeal is about the rule of law, the foundation on which our concept of ordered liberty is built. The preamble to the Canadian Charter of Rights and Freedoms provides:                     

                                    Whereas Canada is founded on principles that recognize the supremacy of God and the rule of law.                                    

                     The rule of law encompasses several interrelated and, in some ways, countervailing principles: E. Colvin, "Criminal Law and the Rule of Law", in P. Fitzgerald ed. Crime, Justice and Codification: Essays in Commemoration of Jacques Fortin (Toronto: Carswell, 1986) at pp.127-130. It refers to a system of government of laws in which both the governed and the government are subject to and must comply with the law: Reference re: Language Rights under Manitoba Act, 1870, [1985] 1 S.C.R. 721 (S.C.C.) at 748-49. Judicial orders are one manifestation of the law with which the state and the individual must comply."                     

...
                     The compliance component of the rule of law is manifested in the rule barring collateral attacks on court orders. A judicial order made by a court, having jurisdiction to make that order must be obeyed unless set aside in a proceeding taken for that purpose: R. v. Wilson, supra, at 117. Referring to the rule in Litchfield, supra, Iacobucci J. said at p. 110:                     

                                    The rationale behind the rule is powerful: the rule seeks to maintain the rule of law and preserve the repute of the administration of justice. To allow the parties to govern their affairs according to their perception of matters would result in uncertainty. Further, "the orderly and functional administration of justice" requires that court orders be considered final and binding unless they are reversed on appeal "                                    

In this matter the Director used the treatment team's heartfelt disagreement with the Board's decision of December 15, 1999 to justify its refusal to comply with that order. This is unacceptable.

The Director is not without remedy should it disagree with a decision of the Board. Any party, including the Director, may appeal a disposition of the Review Board to the Court of Appeal pursuant to s. 672.72(1) of the Code. If the Director believes that an accused should not be at large pending the determination of the appeal, he can apply to the Court of Appeal under s. 672.76(2)(b) for an order suspending the disposition pending a determination of the appeal. Furthermore if the Director believes that the accused should not even be released pending an application to suspend the disposition, he can request the panel conducting the disposition review to delay the effective date of the order for a short time to permit him the opportunity to make an application forthwith under that section. Absent rare and exceptional circumstances, such an order is likely to be made.

In this case, the Director did not follow any of these options available under Part XX.1 of the Criminal Code. Initially the Director refused to release Mr. Beaudoin until he received a copy of the entered order of December 15, 1999. When the entered order was provided, the treatment team then restricted Mr. Beaudoin's liberties. Neither of these responses can withstand scrutiny.

EFFECTIVE DATE OF AN ORDER

Evidence was given at this hearing that the Director had been in the habit for a number of years of waiting to receive a written copy of an order from the Board before discharging an accused. Such a practice is contrary to the specific provisions of Part XX.1 and the general practice regarding the effective date of an order. Section 672.63 of Part XX.1 of the Code is entitled "Effective date of disposition". It says:

                     A disposition shall come into force on the day that it is made or on any later day that the court or Review Board specifies in it, and shall remain in force until the date of expiration that the disposition specifies or until the Review Board holds a hearing pursuant to section 672.47 or 672.81.                     

It is difficult to understand how the practice first arose in light of this section. This provision is also consistent with other sections of the Code as to when an order comes into force. For example s.732.2 (1)(a) provides that a probation order comes into force on the date on which the order is made. A conditional discharge is analogous to a probation order. Both provide for orders that govern the conduct of an accused. These sections in turn are consistent with common law.

An order made in a criminal proceeding has always been considered from effective from pronouncement. In R. v. Carmichael (1940), 73 C.C.C. 350 (B.C.C.A.) the Court of Appeal held that an order setting aside a lower court order became effective when it was pronounced or when notice of the decision was given. In Re Regina and Breckner et al., Re Regina and Wright et al. (1983), 6 C.C.C. (3d) 42 (B.C.C.A.) the Court affirmed this principle, noting at p.46 that:

                     "Generally, an order is effective from pronouncement until revoked or set aside."                     

Orders at civil law have also been considered effective on the day they were made. In Guerard v. Frith (1955), 15 W.W.R. 365 (B.C.C.A), the Court held that the general rule in this province was that all orders are effective from the day they are made, without being drawn up or entered. This principle was expressly approved in Allard v. Manahan (1974) 54 D.L.R. (3d) 443 (B.C.C.A.) at p. 447. This proposition is now codified by Rule 41(13)(c) of the Supreme Court Rules. It provides that:

                     "Unless the court otherwise orders, an order takes effect on the day of its date"                     

We do not know how the practice of waiting for a written copy of the order first evolved. However there is no authority in law whatsoever to justify the practice.

It does not follow that every order should become effective immediately. There can be sound logistical reasons for requesting a delay in the effective date of an order. The treatment team may need to make specific arrangements to accommodate the individual needs of an accused. For example, contact might need to be made with an outpatient team, or temporary shelter or travel arrangements might need to be arranged. However if any party believes that it would be impractical or inappropriate to immediately comply with an order, that view and the supporting reasons should be stated at the outset. In that way the basis for the request can be reviewed and the accused can have an opportunity to respond. But unless otherwise specified, an order of the Board comes into force on the date it is pronounced.

THE SUPERVISION AND RETURN CLAUSES

Once the Director received a copy of the entered order, the treatment team then continued to detain the accused by invoking its power to return Mr. Beaudoin to FPI in certain circumstances. The Director justified this position on the basis that he could not discharge his duty to generally supervise the accused. This was an unacceptable interpretation of the supervision term and an abuse of the power to return an accused in certain circumstances.

In order to fully appreciate the mischief that occurred in this matter, it is necessary to examine both conditions that were made part of the December 15, 1999 order. They provided:

                 1.   

THAT he be subject to the general direction and supervision of the Director, Adult Forensic Psychiatric Services ("the Director");                     

                 3.   


THAT he return to and remain at the Forensic Psychiatric Institute where the Director is of the opinion the accused's mental condition requires assessment as he may be a danger to himself or others;                     

The Review Board has adopted the practice of inserting the first condition in all of its orders. The clause is intended to reinforce that the Director is still in charge of the accused even though discharged from hospital. It underscores the treatment team's continuing responsibility for managing the accused's mental illness while living in the community. However it does not imply that the Director must agree with the order before it is required to assume its responsibility to direct and supervise an accused. The rule of law obligates the Director to follow an order of the Board, no matter how unadvisable the treatment team may think. If the Director believes that he cannot adequately discharge his duty to direct and supervise, he may appeal the order. But until such time as the order is varied or set aside, the Director must follow it. No doubt if the Director believes the order will result in serious danger, he will act quickly.

The return clause confers broad powers upon the Director to interfere with the liberty of an accused. Significantly those powers are limited to when "the Director is of the opinion the accused's mental condition requires assessment as he may be a danger to himself or others". In this case there was no change in the accused's mental condition from when the Board ordered him discharged on December 15, 1999. Nor were there any changes in circumstances that would have undermined the basis of the order, or suggested that the accused's level of risk had increased from the time of the December 15, 1999 hearing. Indeed the accused did not even leave the hospital before he was "returned".

In this case the Director interpreted his power to direct and supervise to include the power to return an accused if the Director did not feel he could adequately discharge his duties. If the Director's interpretation were correct, an accused could be returned whenever the Director did not agree with an order. That was never the intention of this panel and such an interpretation would completely undermine the authority of the Board.

The power to return an accused to the secure confines of FPI under this condition must be strictly limited to when there has been a change in the mental state of the accused or where there has been some striking change in circumstances that undermines the order as a whole. Furthermore a significantly increased level of risk to the accused or others must accompany the change in mental state.

After "returning" Mr. Beaudoin to FPI, the treatment team concluded that he did not need to remain in hospital. They granted him "visit leave" and permitted him to live with his brother-in-law in Yarrow pending the disposition review that was triggered by the restriction of liberties. Visit leave refers to a condition frequently found in custodial orders. It delegates discretion to the Director to permit an accused to be continually absent from FPI for a specified period, typically up to 28 days.

There was no power to place the accused on a visit leave. The order made on December 15, 1999 did not contain a visit leave clause. The court that found Mr. Beaudoin NCRMD made the only previous order, found at Tab 6 of the disposition information. The Court ordered the accused detained in custody unconditionally until disposition by the Review Board. When Mr. Broom, a senior case management coordinator appearing on behalf of the Director, was asked by the Board for his authority to place Mr. Beaudoin on visit leave, he replied that he did so on the basis of "good-faith". It is hard to know what Mr. Broom meant by that and the issue was not pursued further. Presumably he was trying to carry out the intent of the December 15, 1999 order to discharge the accused. Unfortunately the treatment team had no power to place Mr. Beaudoin on visit leave. This illustrates the mischief and potential civil liability that can occur when the rule of law is not followed.

The powers of Review Board and the Director are purely statutory. The Review Board derives its authority to make orders under Part XX.1 of the Code. Its authority is strictly circumscribed by statute and cannot be extended beyond the specific provisions of those sections. Similarly the Director may not interfere with liberties of the accused without explicit statutory authority. The Director's authority must be found either in a Board order delegating certain powers or in some other statute, such as the Mental Health Act or the Forensic Psychiatry Act. The rule of law demands strict compliance with these enactments. We can find no authority that would have permitted the Director to act as he did.

It is not suggested that the Director's conduct was intended to be contemptuous or malicious. The Director is accustomed to deciding what is medically warranted for the NCRMD. He must deal with mentally ill persons who are either unwilling or incapable of acting in their best interests. Nonetheless the interpretation given to condition 1 and manner of use of the return condition in this matter was an abuse that we hope will not be repeated. We concluded that we had no other alternative but to entirely omit clause 1 in the new order.

As we have been recently reminded by the Supreme Court of Canada in Winko v. British Columbia (Forensic Psychiatric Institute) [1999] 2 S.C.R. 625, the accused is to be treated with the utmost dignity and afforded the utmost liberty compatible with his situation. These goals cannot be met without strict adherence to the rule of law.

In summary:

  1. An order of the Review Board is effective from the date it is pronounced, without being reduced to writing, unless otherwise specified;
  2. The Director must comply with an order, regardless of whether he feels he can properly discharge his duties under the order;
  3. If the Director does not feel that he can properly discharge his duties under an order, he should appeal the order to the Court of Appeal; and
  4. An accused should not be returned to custody under a return clause unless there is significant change in the accused's mental state or circumstances resulting in increased risk.



____________________________________________
Reserved reasons prepared by Barry Long
with concurrence of the panel members
June 29, 2000


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