R. v. Cooper, 2019 NLCA 18

David Cooper (appellant) v. Her Majesty the Queen (firstrespondent) and Eastern Health (second respondent) (18/58) Indexed As: R. v. Cooper 2019 NLCA 18 4 C.A.N.L.R. 268 Court of Appeal of Newfoundland and Labrador Fry C.J.N.L., White and Goodridge JJ.A. April 1, 2019

Summary: The appellant came under the jurisdiction of the Review Board of Newfoundland and Labrador after he was found not criminallyresponsible on account of a mental disorder of the offence of assault causing bodily harm. At an annual review of his detention, theBoard ordered him discharged subject to conditions when “clinically indicated”. The appellant appealed the order on the grounds thatthe Board improperly delegated its authority by adding this pre-condition to the discharge. Held: Appeal allowed.

White J.A. (Fry C.J.N.L. and Goodridge J.A. concurring): Although the appeal is moot because the appellant has been discharged fromthe hospital, the parties and the Court agreed that the appeal should be heard. It is in the public interest to give direction regarding theuse of a pre-condition in a discharge order. The phrase ‘when clinically indicated’ was not included as one of the conditions of the conditional discharge; rather, it was incorporatedinto the

preamble, seemingly operating as a pre-condition to the conditional discharge. Such a pre-condition is an improper sub-delegation of the Board’s authority to the treatment team. The Board erred in law by attempting to delegate its authority. Clearly, if the Board determines that a person subject to its review is ready for discharge, the appropriate remedy is to order a discharge– either absolute or with conditions. If the Board determines that a person is not ready for discharge, it is not open to the Board totransfer its authority to make a later finding on the appropriateness of a discharge to any other person.

It is, however, open to the Board topostpone the coming into effect of its disposition as permitted by

section 672.63 of the Code. Including such a delayed effective datewould not constitute improper sub-delegation. Making certain conditions of a discharge or detention order applicable “when clinically indicated” is not equivalent to including a pre-condition on a discharge or detention order itself. Certain designated privileges “while in hospital” – such as permission to “go off theunit and off-grounds” – can be left to the discretion of the treating psychiatrist. Cases cited: Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342 Powers v. Mitchell, 2019 NLCA 16 R. v.

Head, 2016 NLCA 45, 382 Nfld. & P.E.I.R. 339 Counsel: Jennifer A. Curran, for the appellant; Sheldon B. Steeves, for the first respondent; and

Janie L. Bussey Q.C., for the second respondent. This appeal was heard on January 15, 2019 before Fry C.J.N.L., White and Goodridge JJ.A.

The following judgment was filed on April 1, 2019 by White J.A. for the Court. ______________________________________________________________ White J.A.: [1] This is an appeal of an order of the Newfoundland and Labrador Review Board (the Board) ordering the discharge of anaccused, subject to conditions, “when clinically indicated”. [2] In 2013, the appellant, David Cooper, was found not criminally responsible on account of a mental disorder of the offence ofassault causing bodily harm. The finding led to him being subject to the jurisdiction of the Board. [3] In 2017, the Board ordered that Mr.

Cooper be discharged subject to conditions. In early 2018, Mr. Cooper was returned to theWaterford Hospital, based on a failure to comply with the conditions of his 2017 discharge. [4] The Board held a review on March 6, 2018 at which time it heard evidence from members of Mr. Cooper’s treatment team,including his psychiatrist. [5] On March 26, 2018, the Board found Mr. Cooper to be in breach of its 2017 order and further concluded that “… the Accused’smental disorder is stable and under control.

For that reason we are of the view that he is not of such danger to the safety of the public asto require further detention in hospital.” [6] The operative portion of the order of the Board begins with: IT IS ORDERED that pursuant to

section 672.54(

b) of the Criminal Code of Canada when clinically indicated the accused be dischargedsubject to the following conditions, that he: . . . [7] At issue is whether it was an error of law for the Board to order the appellant be discharged “when clinically indicated”. [8] A preliminary issue related to mootness, as Mr. Cooper was discharged from hospital on May 11, 2018. The appellant and theCrown both suggested that this Court should hear the appeal on the basis that it is in the public interest to give direction regarding theuse of a pre-condition in a discharge order.

I agree that the issue is of public importance and that its resolution is in the public interest. (See Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342, recently discussed by this Court in Powersv. Mitchell, 2019 NLCA 16). [9] As succinctly noted by the Crown in its factum “[t]he phrase ‘when clinically indicated’ was not included as one of theconditions of the conditional discharge; rather, it was incorporated into the

preamble, seemingly operating as a pre-condition to theconditional discharge”. [10] Both the appellant and the Crown submitted that such a pre-condition is an improper sub-delegation of the Board’s authority tothe treatment team. [11] As support, the Crown cited R. v. Head, 2016 NLCA 45, 382 Nfld. & P.E.I.R. 339, at para. 36: Generally, a person is either ready for a conditional discharge or they are not.

While I am not prepared to conclude that a conditionprecedent built into a conditional discharge order is never appropriate, for example in order to complete the discharge process from thehospital or to provide for the occurrence of a discrete event such as the administration of medication, the Board must be careful not toissue orders which take the ultimate issue of whether or not the person concerned is to be detained or discharged outside of its control.

For example, an order making the discharge contingent on the exercise of someone else’s unfettered discretion constitutes improper sub-delegation (Brant Dairy Co. v. Milk Commission of Ontario, (SCC), [1973] S.C.R. 131 at 146-148). [12] Clearly, if the Board determines that a person subject to its review is ready for discharge, the appropriate remedy is to order adischarge – either absolute or with conditions. If the Board determines that a person is not ready for discharge, it is not open to theBoard to transfer its authority to make a later finding on the appropriateness of a discharge to any other person.

As stated in Head, thiswould constitute improper sub-delegation. [13] As also noted by both the appellant and the Crown it is open to the Board to postpone the coming into effect of its disposition aspermitted by

section 672.63 of the Code: A disposition shall come into force on the day on which it is made or on any later day that the court or Review Board specifies in it … [14] A later date than that of the hearing will often be appropriate as it would not be unusual for the treatment team to require time tocomplete such matters as finalizing living arrangements. Including such a delayed effective date would not constitute improper sub-

delegation. [ 15 ] As noted by counsel for the Crown, this Court utilized the phrase “when clinically indicated” in its substitute order in Head . While the phrase was utilized, it was only in relation to certain privileges which might potentially be granted to Mr. Head while he remained an in-patient at the hospital – not as a pre-condition to the coming into effect of the disposition order itself. [ 16 ] Making certain conditions of a discharge or detention order applicable “when clinically indicated” is not equivalent to including a pre-condition on a discharge or detention order itself.

The latter is a task that the Legislature has directed the Board to make, and cannot be sub-delegated. In contrast, the Legislature has empowered the Board to order conditions on discharge or detention, which, as a matter of practicality, may require clinical determinations.

As in the order in Head , certain designated privileges “while in hospital” – such as permission to “go off the unit and off-grounds” – can be left to the discretion of the treating psychiatrist. [ 17 ] While moot to the extent that the appellant had been discharged well before the hearing of this appeal despite the impugned language of the order, I would, nevertheless, pursuant to

section 672.78(3), vary the order by deleting the phrase “when clinically indicated”. [ 18 ] I would allow the appeal. The Board erred in law by attempting to delegate its authority. It should be clear from the order that the decision on whether an accused is discharged or detained is made by the Board, not a delegated decision-maker. Appeal allowed.