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Man is entitled to review in territory: court

A Yukon Supreme Court justice has granted a man’s application to have his annual review hearing in the territory, quashing the Yukon Review Board’s order to hold it at a hospital in Edmonton.

By Gord Fortin on August 13, 2019

A Yukon Supreme Court justice has granted a man’s application to have his annual review hearing in the territory, quashing the Yukon Review Board’s order to hold it at a hospital in Edmonton.

Justice Edith Campbell issued her 53-page written decision on July 23.

Chad Daniel Carlyle wanted his review to take place in Yukon, but the review board disagreed, wanting to hold it outside the territory.

Carlyle was found to be not criminally responsible (NCR) for uttering threats, assault, and breaching probation on Nov. 28, 2005. This was due to a mental disorder.

He was thus referred to the review board.

The details of the mental disorder were not shared in the decision.

On Dec. 22, 2005, the board determined that Carlyle was a safety risk to the public, so ordered him to be committed to a hospital.

He sought to have his 2018 hearing in Whitehorse.

In her analysis, Campbell pointed out that the board realizes that it does not have the statutory power to have a review outside of the territory. She said the courts have used the doctrine of jurisdiction by necessity to navigate through this issue.

There are five occasions where the court can intervene. These are:

• when it is needed to accomplish the objective of the legislation and for the board to meet its mandate;

• the act in question does not grant the board the power to meet its objectives;

• the board has a wide mandate that could confer jurisdiction;

• the board cannot deal with the issue with expressly granted powers; and

• when the legislature did not provide the mind to the issue at hand and banned the conferring of power to the board.

“I note that the power at issue does not have to be absolutely necessary for the court or tribunal to realize the objects of its statute,” Campbell said in the decision.

“It only needs to be practically necessary to effectively and efficiently cary out its purpose.”

She added that the court must interpret the legislation to determine if the board has the jurisdiction to hold the review Outside.

The Supreme Court of Canada has said that the legislation in question must be read in its entire context – the scheme of the legislation, its object and Parliament’s intention.

Campbell went over the review board’s mandate.

She explained that it is somewhat of a judicial tribunal, with authority over the custody, discharge and freedom on anyone designated as NCR.

Its purpose is to protect the public, treat people fairly and reduce the restrictions on a patient’s liberty.

The board has the authority to have witnesses attend reviews. It can prevent the public from attending all or part of it

It can assign representation to an accused and can adjourn the hearing in some instances.

The accused, by right, can attend the hearing. The accused and victims will get notice of the review, with some exceptions.

“This series of provision coupled with the mandate of review boards and the informal and inquisitorial nature of the proceedings before them lead to the conclusions that Parliament intended review boards to have broad powers to control their proceedings,” Campbell said in her decision.

She then addressed Parliament’s intent on holding a review outside of the jurisdiction in question, noting the Yukon has no rules about this.

She said it’s clear that the board can determine the hearing’s location. That said, she did not feel it had authority to hold the meeting outside of the territory.

She indicated that the court should not proceed on much of a technical or restrictive approach in making this decision. Constitutional, common law and statutory restrictions must be taken into account.

Each province and territory has a board reflecting that jurisdiction’s laws; the boards are not a federal entity.

“The intention of Parliament is clear,” Campbell said in the decision. “Each of the 13 review boards is to be considered as a provincial or territorial entity having jurisdiction over NCR accused persons and NCR proceedings in and for their respective province or territory.”

Parliament’s intention matches sections of the Criminal Code of Canada with regard to geography and jurisdiction having a connection, Campbell added.

Due to this, she felt she could not accept the board’s arguments.There are provisions that allow the board jurisdiction over an accused who was transferred outside of its home province or territory.

She indicated that the jurisdiction that houses the accused is granted full authority over that person. The two jurisdictions can enter an agreement to transfer duties.

Each party, in this case, agreed that the Yukon’s board still has jurisdiction over Carlyle.

She was prepared to accept that the board did have concerns about bringing Carlyle to the territory and housing him. While there was evidence of this, Campbell felt it was insufficient to show the hearing had to be held in Alberta.

“There is concern of evidence in this case that the YRB would unable to hold a fair hearing in the Yukon,” Campbell said.

She felt that allowing the board to holding the meeting outside of the Yukon would be a way of amending the legislation. With that, she denied the board’s request to hold the hearing in Alberta.

She felt she did not have to address an argument that the board went against the rules of natural justice and fairness.

If she is wrong, she explained, the board did contravene Carlyle’s right to attend a hearing from May 4, 2018. The board sent a short email, which advised of a change to the meeting.

She pointed out that none of the travel and housing concerns were mentioned.

She felt that both Carlyle and the Yukon government are entitled to notice from the board.

She said this “defective notice” was somewhat mitigated when the board invited all parties to make submissions.

Campbell also addressed the issue of the board’s chairperson’s ability to sign a warrant to bring an accused to a hearing. This includes determining if this is imperative or discretionary.

The parties were hung up on the use of the word “shall” in the legislation.

Campbell said its use indicates that it’s more imperative rather than discretionary. She said interpreting “shall” as imperative is more in line with the board’s mandate.

She clarified that an NCR person in a hospital cannot just go where he or she desires, at whatever time.

“The person who has custody of the NCR accused person must detain them in accordance with the review board’s orders,” Campbell said in the decision.

She explained that the board can be ordered to have it bring in the accused.

She ordered that the board’s chairperson and associate chairperson to compel the Alberta hospital to bring Carlyle to his review in Yukon.

She also determined that the board does not have the power to apply conditions on the attendance of the accused, other than the time and place.

Comments (2)

Up 8 Down 1

community member on Aug 14, 2019 at 1:17 pm

Sounds like the board wanted a free trip to Alberta. Waste of taxpayer money. And the individual's time. Let's hope they appoint a new chair that will make logical decisions.

Up 10 Down 2

Doubting Thomas on Aug 13, 2019 at 6:10 pm

Sure, read out his Gladue report in public and then we can appoint him to the 'Order of the Yukon'.

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