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Admitting the need for a fresh start

Thursday, June 24, 2021

Saul complained to our office about a hearing with the Mental Health Review Board (the Board). He explained that during his hearing the panel did not provide an adequate opportunity for him to be heard nor did the panel provide him with adequate reasons for the decision for why his involuntary detention should continue.

The focus of our investigation was whether the panel followed a fair process in conducting the hearing.

With respect to Saul’s complaint that he was not provided an opportunity to be heard, we noted he was represented by counsel at the hearing. It was difficult to assess if Saul was provided with an opportunity to be heard because the hearing was not taped as per usual panel procedures, which the Mental Health Review Board acknowledged was an oversight. However, the written decision reflected information provided by his lawyer in support of his position that his involuntary detention should cease to continue.

With respect to the reasons provided, the written decision appeared to adequately explain why the panel concluded that Saul met the criteria under the Mental Health Act for continued detention. We noted that the psychiatric case note provided to the panel by the health authority included information that would have identified Saul as having been dealt with under the Young Offenders Act. Although the record did not list specific offences, it did identify several periods of time spent in a youth custody centre. Saul’s history in the youth justice system was referenced by the panel
in their decision.

Both the Young Offenders Act and the Youth Criminal Justice Act provide protections regarding disclosure of youth records. Based on the  information available, we were concerned that the Mental Health Review Board might not have adequately considered whether this information should have been allowed as evidence at Saul’s hearing. We considered that the panel’s use of this information could be highly prejudicial and could bias Saul’s ability to have the “fresh start” intended by the young offender legislation.

As a result, we asked the Mental Health Review Board to settle the administrative fairness concerns identified by including information about evidence admissibility in their Review Panel procedures. Specifically, in accordance with the provisions of sections 110-128 of the Youth Criminal Justice Act, information that would identify a person as having been dealt with under the Youth Criminal Justice Act (which replaced the Young Offenders Act) may not be disclosable to the review board panel. In cases where such information is presented to the panel, the panel chair must determine whether or not the information is disclosable under the federal legislation. In order to make this determination, the panel chair should seek submissions regarding the admissibility of this evidence. If the panel chair determines the evidence is admissible, the panel chair should include a summary of the reasons for their decision to allow the evidence in the review panel’s decision. The Board agreed and we closed our file.