Robert Maxwell Lingley (Plaintiff)
v.
New Brunswick Board of Review (Defendant)
Trial Division, Heald J.—Fredericton, June 18;
Ottawa, July 11, 1973.
Criminal law—Criminal acquitted but confined by reason
of insanity—Review Board—Finding that prisoner not
"recovered" though improved—Criminal Code, secs. 16,
547(5)(d).
Plaintiff was found not guilty of murder by reason of
insanity and confined in a hospital pursuant to section 545
of the Criminal Code. Pursuant to section 523 his case was
reviewed by a Board upon three occasions in 1970 and
twice in 1971. On each occasion the Board reported, upon
evidence that plaintiff's condition had improved but that he
was still psychopathic and sexually dangerous, that he had
not recovered and that it would not be in his interest and
that of the public to recommend his discharge. Plaintiff
brought action for declaratory relief on the ground that he
had recovered from insanity as defined by section 16(2) of
the Criminal Code.
Held, his action must be dismissed. The Board of Review
was entitled to find that although plaintiff was no longer
legally insane as defined by section 16 he had nevertheless
not "recovered" within the meaning of section 547(5)(d)
where there was evidence of continuing psychopathic disor
ders which would render him dangerous to the public.
ACTION.
COUNSEL:
David C. R. Olmstead for plaintiff.
Hazen Strange for defendant.
SOLICITORS:
Appleby, Olmstead & Quinn, Fredericton,
for plaintiff.
Hazen Strange, Fredericton, for defendant.
HEALD J.—The plaintiff was indicted on a
charge of murder at Saint John, New Brunswick
on April 15, 1963. At the trial, he was found not
guilty by reason of insanity. Pursuant to the
provisions of sections 523 (now section 542)
and 526 (now section 545) of the Criminal
Code, and by order of the Lieutenant Governor
in Council of the Province of New Brunswick
dated April 22, 1963, the plaintiff was placed in
custody and is still in custody pursuant to the
terms of said Order in Council. The plaintiff
remained in a provincial hospital at Saint John
until 1972 when he was transferred to a special
ward for the criminally insane at the Provincial
Hospital at Campbellton, New Brunswick where
he remains at the present time.
By the Statutes of Canada 1968-69, what is
now section 547 of the Criminal Code, was
enacted to provide for the review of committals
in these circumstances. The relevant portions of
section 547 are as follows:
547. (1) The lieutenant governor of a province may
appoint a board to review the case of every person in
custody in a place in that province by virtue of an order
made pursuant to section 545 ... .
(2) The board referred to in subsection (1) shall consist of
not less than three and not more than five members.
(3) At least two members of the board shall be duly
qualified psychiatrists entitled to engage in the practice of
medicine under the laws of the province for which the board
is appointed, and at least one member of the board shall be a
member of the bar of the province.
(4) Three members of the board of review, at least one of
whom is a psychiatrist described in subsection (3) and one
of whom is a member of the bar of the province, constitute a
quorum of the board.
(5) The board shall review the case of every person
referred to in subsection (1)
(a) not later than six months after the making of the order
referred to in that subsection relating to that person, and
(b) at least once during every six months following the
date the case was previously reviewed so long as that
person remains in custody under the order,
and forthwith after each review the board shall report to the
lieutenant governor setting out fully the result of such
review and stating
(d) where the person in custody was found not guilty on
account of insanity, whether, in the opinion of the board,
that person has recovered and, if so, whether in its
opinion it is in the interest of the public and of that person
for the lieutenant governor to order that he be discharged
absolutely or subject to such conditions as the lieutenant
governor may prescribe, ... .
Pursuant to the provisions of said section, the
Lieutenant Governor of New Brunswick
appointed such a board of review. Said Board
reviewed the plaintiff's case on May 14, 1970;
October 30, 1970; December 4, 1970; May 7,
1971 and November 10, 1971.
The Board's decision on each said review was
that the plaintiff had not recovered and that it
would not be in the interest of the plaintiff or
the public to recommend discharge of the
plaintiff.
The plaintiff alleges that it is apparent from
the decisions of the defendant, particularly the
decisions of May 14, 1970 and November 29,
1971, that the defendant Board interpreted the
word "recovered" in section 547(5)(d) to con
template an inquiry into more than merely
whether the plaintiff has recovered from insani
ty under section 16 of the Criminal Code. The
plaintiff further alleges, that at the hearing on
November 10, 1971, evidence was submitted to
the effect that the plaintiff was not, at that time,
insane within the meaning of section 16 of the
Criminal Code and at said hearing, . plaintiff's
representative submitted that the word "recov-
ered" in section 547(5)(d) necessarily refers to
the condition of insanity as described under
section 16 of the Code, but that, by its decision,
the defendant obviously did not accept said
evidence or said submission. Thus the plaintiff
in this action asks for the following relief:
(a) A declaration that the word "recovered"
in section 547(5)(d) relates to the recovery
from a condition of insanity under section 16
of the Criminal Code as found by the jury at
the plaintiff's trial in 1963; and
(b) A declaration that if the Review Board
finds that the plaintiff has recovered, then the
Review Board must recommend that the
plaintiff be discharged, absolutely or
conditionally.
In its statement of defence, the defendant
alleges that "recovery" and the provisions of
section 16 are not the only relevant criteria on
review. The defendant also denies that unquali
fied evidence, that the plaintiff was not insane,
was offered at the review on November 10,
1971.
The defendant submits further that the Court
should not make the declaration asked for,
since, in its submission, such a finding would
achieve nothing because the provisions of sec
tion 16 relate to insanity at trial and the criteria
for discharge under section 547 must include
the interests of the plaintiff and the public as
well as "recovery" and thus mere "recovery"
alone will not support a recommendation for
discharge.
Exhibit P-1 is a copy of the Board's report
covering the May 14, 1970 hearing and the
operative part of said report reads as follows:
That having reviewed the case of this subject including
the medical file and information and reports compiled by the
hospital authorities relating to the subject from the time of
his admission to the Provincial Hospital under the Lieuten-
ant-Governor's Warrant and records of prior admissions,
and upon interrogating the subject in person by members of
the Board, and having read the written submission filed by
the subject on his own behalf, Your Board is of the opinion
that while the said Robert Maxwell Lingley has learned to
conform to controls imposed by the Institution, his condi
tion remains fundamentally unchanged and he has not
recovered from the condition under which he was labouring
at the time he committed the act for which he stood trial and
it would not be in the interest of the public or of the subject
person for the Lieutenant-Governor to order that he be
discharged.
Exhibit P-2 is a copy of the Board's report
covering the October 30, 1970 hearing and the
operative part of the report reads as follows:
We are unanimous in the opinion that there has been no
change in this man's status and that he has not recovered
within the meaning of section 527A of the Criminal Code.
Exhibit P-3 is a copy of the Board's report
concerning the May 7, 1971 hearing. At that
hearing, the Board heard a detailed report from
Dr. I. A. Kapkin, the hospital's Superintendent
covering 12 psycho-therapeutic sessions he had
with the plaintiff since the last hearing. The
Board's decision was as follows:
Your Board is of the unanimous opinion that there has
been no improvement in this man's status and that he has
not recovered within the meaning of section 527(A) of the
Criminal Code.
Exhibit P-3 has attached to it a transcript of the
proceedings before the Board. On page 3, plain-
tiff's counsel asked Dr. Kapkin the following
question:
Do you feel that he is dangerous?
and received the following answer:
Yes, unpredictable. The psychological report defines him as
unpredictable. Quite possible.
One of the medical members of the Board then
asked Dr. Kapkin the following question:
Could you volunteer the possibility about whether or not he
might, from time to time in future force some unwanted sex
on some man, woman or child?
to which Dr. Kapkin answered:
This is what I am afraid of.
Dr. Kapkin also read to the Board the psycho
logical report prepared by Mr. James Horgan,
M.A., the hospital psychologist. Mr. Horgan's
report indicates he tested the plaintiff on March
26 and 27, 1971. He concludes that the results
of his tests support a diagnosis of psychopathic
personality. He also says:
The prognosis for therapy is poor.
Exhibit P-4 is a copy of the Board's report of
the hearing held on November 10, 1971. To the
report is attached a transcript of the proceed
ings before the Board.
At the trial, I advised counsel that I did not
think the Trial Division would have jurisdiction
in respect of the Board's hearing of November
10, 1971, because said hearing was after June 1,
1971. I referred counsel to my comments in this
regard in my Reasons for Judgment in a motion
in this action (see: Lingley v. Hickman [1972]
F.C. 171) and in particular, my comments on
page 184 of the judgment. I continue to hold the
view that the Federal Court of Appeal would
have jurisdiction to review the Board's proceed
ings of November 10, 1971 under section 28 of
the Federal Court Act and that, accordingly,
under subsection (3) of section 28, where the
Court of Appeal has jurisdiction, the jurisdic
tion of the Trial Division is excluded. I there
fore am not in a position to consider the Board
hearing of November 10, 1971.
Turning now to the other three hearings, it
seems clear from a perusal of Exhibits P-1 to
P-3 that the Board did, in fact, address itself to
the question of plaintiff's recovery from his
condition at the time he committed the act for
which he stood trial. Exhibit P-1 is quite explicit
in its wording. Exhibit P-2 again says there has
been no change. Exhibit P-3 said there had been
no improvement and therefore no recovery.
Looking at such evidence as was before me, I
am satisfied that the Board acted quite properly
and justifiably on the evidence before it. In fact,
for them to have made any other finding would
have required them to completely disregard the
medical evidence before them.
However, plaintiff's counsel seeks a declara
tion from the Court for the guidance of the
defendant Board upon future reviews of the
plaintiff's case—i.e. that in deciding "recovery",
the Board must restrict itself to the legal defini
tion of insanity as contained in section 16(2) of
the Criminal Code as follows:
16. (2) For the purposes of this section a person is insane
when he is in a state of natural imbecility or has disease of
the mind to an extent that renders him incapable of
appreciating the nature and quality of an act or omission or
of knowing that an act or omission is wrong.
In other words, the plaintiff wishes the Court to
instruct the Board that, in considering recovery,
the Board must consider only "recovery" from
legal insanity as defined in section 16(2), that is,
if a person in plaintiff's position is no longer
legally insane, he is to be deemed to be "recov-
ered" as set out in section 547(5)(d).
It is clear from a reading of sections 545 and
547 that the public interest and the interest of
an accused himself were of paramount impor
tance in the minds of Parliament when these
sections were passed. I am satisfied from a
reading of section 547(5)(d) that, in addressing
itself to the question of whether an accused has
recovered, the Board is entitled to interpret
"recovery" as full recovery and to find that if
an accused can no longer be said to be legally
insane as defined in section 16, he is, neverthe
less, "not recovered" in a case like this where
there is strong evidence of continuing psyco-
pathic disorders which would render the
accused "dangerous" to members of the public
were he to be released.
A comparison of paragraphs (c) and (d) of
subsection (5) of section 547 makes it clear that
the "recovery" contemplated in paragraph (d) is
something more than the "partial recovery"
contemplated in paragraph (c).
Section 543(1) applies to prevent the trial of
an insane person. Section 547(5)(c) in referring
to a person in these circumstances, asks the
Board to inquire whether this person "has
recovered sufficiently to stand his trial".
And yet, in dealing with "recovery" under
paragraph (d), no such qualification is placed on
said recovery.
This is a clear indication that the "recovery"
which the Board is required to determine under
paragraph (d) is something far more complete
and far more total than the legal insanity con
templated under paragraph (c) and as defined by
section 16(2) of the Code.
Thus, in my view, under paragraph (d), the
Board is quite within its rights in saying that
someone who is partially recovered to the point
of no longer being legally insane under section
16(2) but who is still mentally ill or mentally
deficient or who suffers from psychopathic dis
order and who is a danger to either himself
and/or the public because of this condition, is
not "recovered" as that word is used in section
547(5)(d).
Accordingly, I must decline the relief asked
for by the plaintiff in this action.
The action is dismissed. No order will be
made as to costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.