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Document
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P-775
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File #
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P-9400097
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Institution/HIC
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Ontario Criminal Code Review Board
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Summary
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NATURE OF THE APPEAL: This is an appeal under the Freedom of Information and Protection of Privacy Act (the Act ). The Ontario Criminal Code Review Board (the Board) received a request from a patient in the Penetanguishene Mental Health Centre (the PMHC) for access to records relating to himself. The Board located 74 responsive records but denied access to these documents in their entirety based upon the following exemptions contained in the Act : advice or recommendations - section 13 law enforcement - section 14(1)(b) information published or available - section 22(a) discretion to refuse requester's own information - section 49(a) In addition, the Board claimed that a number of the records are not subject to the Act pursuant to section 65(2)(a). This provision excludes from the application of the Act records which are clinical records as defined by section 35(1) of the Mental Health Act (the MHA ). The requester appealed these decisions to the Commissioner's office. A Notice of Inquiry was provided to the appellant, through his agent, and the Board. Representations were received from the Board, and the appellant, by his agent. THE MANDATE OF THE BOARD I will now describe how the appellant's records came before the Board and the statutory authority of the Board in relation to the records at issue. The Board was established pursuant to section 672.38(1) of the Criminal Code (the Code ) to: "make or review dispositions concerning any accused in respect of whom a verdict of not criminally responsible by reason of mental disorder or unfit to stand trial is rendered ..." The records at issue in this appeal comprise those documents held and received by the Board including all "disposition information". This information includes all or part of any assessment and any other written information about the accused that is before the Board and is relevant to making a disposition. It may include documents submitted to the Board at a disposition hearing by the Attorney General of Ontario, the accused or the hospital having custody of the accused. Section 672.51(2) of the Code requires that copies of all disposition information be made available to the accused or his counsel. The Board is also required to keep a record of its disposition hearings and to include in the record any assessment report submitted. The Board must also state its reasons for making a disposition and shall provide all of the parties to the hearing with a copy of its disposition and reasons. Where the Board makes a disposition which directs, by order, that the accused be detained in custody in a hospital pursuant to section 672.54(c) of the Code , it shall issue a warrant of committal of the accused. Section 672.81 of the Code requires that the Board hold a disposition hearing every 12 months in cases where the accused is held in custody. The records which are the subject of the present appeal relate to the disposition information compiled by the Board, and its predecessors, the Lieutenant Governor's Board of Review and the Advisory Review Board, concerning the appellant, between January 1, 1976 and September 15, 1993. DISCUSSION: ADVICE OR RECOMMENDATIONS The Board has claimed the application of the exemption contained in section 13(1) to Records 53 to 67 and to the undisclosed portions of Records 72 and 73. Section 13(1) of the Act states that: A head may refuse to disclose a record where the disclosure would reveal advice or recommendations of a public servant, any other person employed in the service of an institution or a consultant retained by an institution. It has been established in a number of previous orders that advice and recommendations for the purpose of section 13(1) must contain more than mere information. To qualify as "advice" or "recommendations", the information contained in the records must relate to a suggested course of action, which will ultimately be accepted or rejected by its recipient during the deliberative process. Records 53 to 67 contain the submissions of the Chair of the Lieutenant Governor's Board of Review and Advisory Review Board, the predecessors to the present Board, to the Lieutenant Governor and the Administrator of the PMHC following the appellant's annual hearing by the Board for the years 1979 to 1992, inclusive. A portion of each submission contains the recommendations of the Board to the Administrator of the PMHC and the Lieutenant Governor concerning the disposition of the appellant's annual review. Section 13(2) of the Act describes a number of exceptions to the advice or recommendations exemption contained in section 13(1). One of these exceptions, set out in section 13(2)(l), relates to: "the reasons for a final decision, order or ruling of an officer of an institution made during or at the conclusion of the exercise of discretionary power conferred by or under an enactment or scheme administered by the institution ..." In Re Able and Advisory Review Board (1980), 31 O.R. (2d) 520, Mr. Justice John Arnup of the Ontario Court of Appeal considered whether the Advisory Review Board, the predecessor to the Lieutenant Governor's Board of Review and the Ontario Criminal Code Review Board, in fact makes a "decision" about an accused person at a disposition hearing, regardless of the fact that its disposition report contains only a "recommendation" to the Lieutenant Governor. He held that: Does Ontario's Advisory Review Board make a "decision" which brings into play the requirement that it act fairly? O'Driscoll J. held that it did not, relying on s.3(2)(g) of the Statutory Powers and Procedures Act and R v Ontario Labour Relations Board, Ex p Kitchener Food Market Ltd. The view enunciated by O'Driscoll J. forms the principle argument of the appellant Board. I do not accept this position. In Martineau No. 2 , Dickson J. said: In my opinion, certiorari avails as a remedy whenever a public body has power to decide any matter affecting the rights, interests, property, privileges or liberties of any person. In my view, the Board has power to decide such a question. Grange J. observed ... The Lieutenant Governor is, of course, not bound t
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Legislation
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FIPPA
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13(2)(l)
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14(1)(b)
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22(a)
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65(2)(a)
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13(1)
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Subject Index
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Signed by
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Donald Hale
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Published
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Oct 11, 1994
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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