BRITISH COLUMBIA REVIEW BOARD


WILLIE, Margaret - no date

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
THE BRITISH COLUMBIA REVIEW BOARD
IN THE MATTER OF
THE DISPOSITION HEARING OF
MARGARET WILLIE

THE CHAIRMAN: The British Columbia Review Board heard an application on behalf of Mr. Ted Field, a reporter with the radio station, C.K.N.W. in Vancouver to attend the Review Board's disposition hearing as a member of the public to report proceedings and the final result publicly in the case of Margaret Willie, he being a member of the radio news.

Notice of Mr. Field's intention was first made known to me as Chairperson of the B.C. Review Board first by telephone. At that time, I invited Mr. Field to give notice of his intention to attend and to report the disposition proceedings by letter to the Board. I asked him also to give notice of his intention to counsel for the accused and the other parties. A copy of Mr. Field's letter to the Board dated May 21, 1992 has been marked as Exhibit 1. It outlines Mr. Field's stated intention.

As Chairperson, I was not satisfied that the letter giving notice of intention to attend as a member of the public was given to the other parties. I certainly anticipated at the time of the telephone conversation that that was Mr. Field's position. I nevertheless responded, in my view, in conformity with how the Board had reacted in cases such as this in the past, with my letter of May 25, 1992, which has been marked as Exhibit 2 in these proceedings.

I stop to remark on Exhibit 1 and Exhibit 2 because they help point out the first point raised in argument by counsel for the radio station, that being that no application, as such, needs be made by anyone in order to attend Review Board proceedings. My letter joined issue with Mr. Field on that point. I made it clear in my letter, Exhibit 2, that I thought the prior necessity of an application might be contemplated by the legislation. I am thankful for the benefit of counsel on behalf of C.K.N.W. today to assist in how we might further explore what the law might be as to what the Board's position has been in cases.

No objection was taken by Margaret Willie in this case through her counsel to the attendance of C.K.N.W. as a member of the public. On the other hand, neither did she support the application. I think it is fair to say that counsel is taking a practical approach to the attendance of the press in these proceedings. She was concerned to note that there should be certain limitations to the right of the press attending, particularly where there might be utilization of electronic media. Further, Ms. Ker underlined that if reporting was to take place it should be no different to, and in conformity with, reporting practices such as those in general trial proceedings in the province.

Counsel for the Attorney General of British Columbia did not object to the attendance of the press as members of the public to these proceedings. His argument reflected the view that the public is entitled to attend these hearings and, as a result, these hearings are open for the media to attend. But, he did qualify that sweeping right in cases where, for "clinical" reasons, a ban on publication would be appropriate, either in whole or in part, as provided for in the Code. He was mindful and sensitive to the question of the need for protection against disclosures of the patient to a psychiatrist where the patient's best interest would be affected and didn't want to undermine that principle by admitting to allowing of reporting of the proceedings.

Having given careful consideration to the application presented to us this morning, the Review Board has come to the conclusion that this is not an appropriate case for the exclusion of the public generally or this specific member of the public, in this case. It is our view that exclusion of the public could be ordered where the Review Board is satisfied that both the best interests of the accused were adversely affected and also the public interest was served with exclusion as provided for under Section of 672.5 (b) of the Criminal Code.

We think the legislative enactment and specifically Section 672.5 (b) and 672.51 (7) and (11), speak to an intention by Parliament that public access could be limited. Otherwise, though, the statutory amendments are silent and the Board is of the view that it should be inclined towards attending public as opposed to excluding attending public.

To return to the interpretation of Section 672.5 (6) as to when the public might be excluded, the Board's view is that it would not be enough for only one of the conditions to be satisfied, say, for example, that of the best interest of the patient in her care or the best interest of the Institution in service the interest of the patient, only possibly, be adversely affected. Further, at this stage of the proceedings the Board cannot say with any confidence that Mr. Field's attendance and, ultimate reporting, will indeed adversely affect the patient though the Board feels it must be vigilant about that prospect. As the hearing proceeds and the elements of the evidence come before the Review Board, it will be mindful of the best interest of the accused and the public interest. The evidence that brought the accused before the criminal courts was public and, the board understands, reported at that time. There appears to the Board at first blush, therefore, to be no reason why public reporting of this disposition hearing or of the oral evidence before the Board might not be reported. Public attendance and reporting at this time is no different in the category in terms of the patient's best interest than it might have been at the time of the trial where she was found to have had a mental disorder.

In any event, we now turn to the second aspect of this test, that is, the public interest. It too must be considered. When examining the public interest, in its considerations about excluding the public and preventing the resulting reporting of the disposition hearing, the Board feels it must be cognizant of the fact that the patient accused was once before the criminal courts and was found not criminally responsible by reason of mental disorder. We are not in this hearing focused solely on the patient's well-being and possible treatment. The public interest test is a wider one than of the need to protect the patient alone or the Institution for the patient. It is the interest of the community at large that the Review Board must also consider and the need for the public to be generally informed on proceedings such as these, particularly where they are relatively new in face of the changes to the criminal law. So unless the public and the patient's best interests are both adversely affected, the Board is not immediately inclined to restrict the public as represented here by the media.

There is room for qualification, however, to the Board's view as provided for and embodied in Section 672.51 (7). This section allows that no disposition information -- and for the benefit of others in the room who are not familiar with the definition, as such, this would include the psychiatric reports, nurse case coordinator reports, exhibits perhaps, statements -- it allows that no disposition information should be made available for inspection or disclosed to any person who is not a party to the proceedings but only where -- and I say "but" when I insert that word -- where, under Subsection (a), this disposition information has been withheld from the accused or another party pursuant to Subsection (3) or Subsection (5). In this case, the Board has not yet heard that any of the disposition information which may be part of the record in these proceedings has been withheld from the patient. We understand that none has been withheld from the patient. Therefore, it is axiomatic, I suppose, to say there is no requirement for this prohibition condition to be met so far. However, Subsection (b) of Section 672.51 (7) does provide that where the Review Board is of the opinion that disclosure of disposition information would seriously prejudice the accused and that there is evidence in the circumstances of a particular case that protection of the accused should take precedence over the public interest in that preventing disclosure, then that prohibition can be invoked. The distinction in the case of disposition information, in putting the patient's best interest above public interest as opposed to attendance at proceedings generally, I think, is a notable one. We are of the view that the disposition information in this case may well fall in a category being that which should not be disclosed to a member of the public in that it may adversely affect the patient's best interest.

The Review Board is satisfied that its proscription of disclosure of disposition information, therefore, falls into a different and defensible category than does proscription of viva voce evidence and in support of this view it relies on Subsection (7) of Section 672.51. As we said earlier, this same precedence of one interest over the other, i.e., the patient's over the public's, is not evident between these two elements outlined in Section 672.5 (6).

In general, considering the request for exclusion of the public, the Board was in this case and will always be mindful of the fact that great care should always be exercised by courts and statutory tribunals such as this one, particularly where liberty of a subject may be involved, that great weight should be given to the tradition of openness of these tribunals, being a long-held English common-law tradition through which scrutiny of the operation of these tribunals by the public is afforded by reason of public attendance and reporting either through the press or the media. Any decision to exclude the public must be exercised by a tribunal such as this very cautiously and only as very special circumstances demand and we feel should be made on a case-by-case basis, notwithstanding counsel's argument that the public's attendance should never be a matter of privilege to be requested and then granted. This view, we think, is supported by R. v. Warauk, (1978), 22 C.C.C., (2d.), 121, and also a decision of the Ontario Court of Appeal that I believe is nominally cited as R. v. Southam Inc., dated March 9, 1989 which we believe touched on the Young Offender provisions of the Criminal Code.

The Review Board was not and will not in the future -- I wish to assure counsel for the record -- be insensitive to the delicate nature of the subject of these proceedings, that being the question of the mental condition of this accused patient, in this case, Margaret Willie, at this time. However, unless and until the Board hears specific viva voce evidence that is demonstrably injurious to the patient and as well that publication of it is not necessary to the public interest, Mr. Field and other members of the press who announce themselves to be so will not be prevented from attending at this disposition hearing as a member of the public and to report these proceedings.

The concept that justice should be seen to be openly done has been known to the law, as I have said, for many years. The Supreme Court of Canada recently commented on this principle in Southam v. The Attorney General of Alberta and the Attorney General of Canada, otherwise known as the Edmonton Journal Case, which counsel also referred to today, reported in 1989, Volume 2 of the Supreme Court of Canada Reports, page 1326. And at page 1338, Mr. Justice Cory said -- and I think I would like to, with your forbearance, quote from his decision -- as follows:

"In Canada this Court has emphasized the importance of public scrutiny of the courts. It was put in this way by Chief Justice Dickson, as he then was, writing for the majority in the Attorney General of Nova Scotia v. MacIntyre, (1982) 1 S.C.R., 175, at p. 185."

"Many times it has been urged that the privacy of litigants requires that the public be excluded from court proceedings. It is now well established, however, that covertness is the exception and openness is the rule. Public confidence in the integrity of the court system and of the administration of justice are thereby fostered. As a general rule the sensibilities of the individuals involved are no basis for exclusion of the public from judicial proceedings."

The judgment goes on to say:

"The following comments of Laurence J. in R. v. Wright, 8 T.R. 293, are apposite and were cited with approval by Duff J.in Gazette Printing Co. v. Shallow (1909), 41 S.C.R. 339 at p. 359."

Where Mr. Justice Duff said:

"Though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that these proceedings of courts of justice should be universally known. The general advantage to the country in having these proceedings made public more than counterbalances the inconveniences to private persons whose conduct may be the subject of such proceedings."

It is the Review Board's intention to abide by the principles of openness that are enunciated by the Supreme Court of Canada but we are also of the view that these views may have been modified by the statutes in some minor ways which I've already outlined. It is our opinion that we are no longer discharging or dispatching a purely administrative function and to the extent that Order-in-Council Review Boards in the past heard hearings and made recommendations to Cabinet in what were then known as cases involving those not criminally responsible by reason of insanity, today the Review Board makes the decisions; they are no longer made as recommendations to Cabinet as in the past and, to the extent that the amendments to the Criminal Code made this clear in that we have to consider the liberty of the subject as a vital aspect of the work we do, we are now dispatching a judicial function. On the other hand, I believe that we also have quasi-judicial functions to discharge and, as well, as the legislation outlines, purely administrative ones. But, in the course of disposition hearings such as this one we believe that we are at least quasi-judicial in nature and also discharging judicial functions, both being aspects of the administration of justice.

I cite as one example the fact that if we could detain Margaret in custody as one of the three options available following a disposition hearing, it could be said that there is nothing that is higher by way of accountability to the public or to one affected than a matter of personal detention custody. There are provisions in the legislation that require detention only by warrant and those are observed to qualify perhaps as purely judicial functions. So I reflect the view of the Board that to the extent that we are perceived as being so accountable, we intend to be and for that reason feel that these proceedings should be open.

To support its view, the Review Board took into consideration the need to observe the fundamental freedoms as well embodied and preserved by Section 2(b) of the Charter of Rights and Freedoms which provides that everyone has the following fundamental freedoms; freedom of thought, belief, opinion, expression, including freedom of the press and other media of communications. It is our view that these fundamental rights are not absolute and to the extent that there may be some difference in opinion between counsel for the radio station and the Board's view at this time about the necessity of having to first make an application to attend as a member of the public, that difference of opinion should not be dwelt upon for it is not necessary for us to decide in this case. We think that there may well be a situation where a fair hearing would be prejudiced by public attendance with reporting and that principle would be overriding and ought to be observed by this tribunal over the freedoms outlined in Section 2(b). We think that parliament was not unmindful of this fundamental freedom when it formulated the amendments to the Criminal Code dealing with mental disorder and in view of the great care that was taken in framing the sections earlier referred to, Section 672.5 and Section 672.51 (7) and (11) particularly in contrast to other provisions of the Criminal Code where exclusion of the public can be ordered, we think that this is an appropriate conclusion to come to and for these reasons we say, Mr. Field, your presence is allowed here. We do say, however, that the Board has determined that in respect of the disposition information that is already in its possession, they are of the view that it should not be released to the public in that it may adversely affect the patient and we think that this is an appropriate order to contemplate, having in mind the provisions of Subsection 7 of Section 672.5. Having read portions of it, we think that disclosure of this disposition information would seriously prejudice the accused and, in these circumstances, that the protection of Margaret Willie in this case should take precedence over the public in the disclosure of the specific reports. That does not, however, mean that if in the course of our ultimate disposition where, in our reasons for judgment, we feel that aspects of the disposition information should be disclosed in reflecting why we came to a decision, those should not be public, and they will, to that extent, indeed be public.

MS. KER: Perhaps I should clarify; the reasons for the Board in their disposition would be public?

THE CHAIRMAN: Yes, the reasons of the Board would be public and I think that's an appropriate clarification to make.

MS. KER: Just for the record, I would be seeking, if the Board had not been contemplating the order, in any event, I would be applying to have an order prohibiting the publication of the disposition information.

THE CHAIRMAN: Thank you. I want to make certain that counsel are aware that to the extent our reasons will be public, we will be mindful of the disclosures that we have to make in our reasons and, where we feel they should be explicit in extracting aspects of the disposition information to support our disposition, we will necessarily have to do that.

MS. KER: I appreciate that.

THE CHAIRMAN: I hope that's satisfactory for you, Mr. Festinger. Thank you for your assistance and to you, Mr. Caryer, and to you, Margaret, for your understanding of the position that you are in today and Ms. Ker.

MR. FESTINGER: Could I seek one clarification? With respect to future practice, in future in Mr. Field seeks access, is he required to bring an application or is he simply required to notify you of his intention to be present, the difference being an application to the Board as opposed to a courtesy notice of our intention to be here?

THE CHAIRMAN: I think that's an appropriate question to raise and while the implications were perhaps woven through the words I spoke of earlier, the Board's view is that these are public hearings and he could present himself at the last minute. He attends at his peril, however, because if an objection was taken, he might be excluded.

MR. FESTINGER: That's understood and I think it's not our intention to delay this process.

THE CHAIRMAN: By perilous, I meant his being excluded, so I would recommend in his case, and to you because of your role as counsel to the extensive public media here, that if the Review Board were notified in a similar way in the future that you intend to appear, by telephone, I'd be more than obliging, I hope, to you, to provide you the names of other counsel and fax you phone numbers, etc., so that they are aware of your intention to attend and be prepared to address why you should either be excluded or limited as the way we have done, for example, here today.

DR. BUNTON: I'm not, obviously, very fluent in the legal language but I understand about this disposition material that the Review Board is not going to disclose it, the press will not disclose it, and counsel will not disclose it, but the situation regarding the accused -- because we're going to be dealing with people whose judgment may not necessarily be very sound -- would they be bound by our decision that they themselves would not reveal to the press? They might be tempted and it might be detrimental to their own interests which we're trying to protect. They might not have the judgment to understand.

THE CHAIRMAN: Thank you Dr. Bunton. I think that's an important observation. We won't have to speculate about why, in a hypothetical case, as you have raised, a patient would attempt to draw some attention to their plight by releasing this disposition information which was otherwise proscribed, but I would think that any order in this case would bind not only counsel but it would bind the patient in this case against a disclosure and to the extent that it's necessary our Board order should reflect that Margaret could not disclose this information and neither, of course, should counsel. Would that help?

DR. BUNTON: Yes.

THE CHAIRMAN: Thank you very much for raising that. I think it's an appropriate concern. Thank you all very much.

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