Robert Maxwell Lingley (Plaintiff)
v.
H. W. Hickman (Defendant)
Trial Division, Heald J.—Saint John, New
Brunswick, January 11; Ottawa, February 9,
1972.
Judicial review — Jurisdiction — Practice — Declaratory
Relief—Insane person placed in custody on order of Lieuten
ant Governor following murder trial—Review board appoint
ed by Lieutenant Governor under Criminal Code—Decision
that prisoner not "recovered" within meaning of Criminal
Code s. 547(5)(d)—Whether decision reviewable by Trial
Division or Court of Appeal—Whether board of review a
"federal board, commission or tribunal"—Committee or
next friend—New Brunswick lunacy practice—Action
improperly framed—Substantial issues raised—Motion to
dismiss rejected—Federal Court Act, secs. 2(g), 18, 28—
Federal Court Rule 1700.
Following a trial in New Brunswick plaintiff was found
not guilty of murder by reason of insanity and by order of
the Lieutenant Governor in Council was placed in custody
pursuant to the Criminal Code (secs. 543 and 545). His case
was reviewed on December 4, 1970 pursuant to s. "47 of
the Criminal Code by a board appointed by the Lieutenant
Governor. On December 7, 1970, the board reported that
the plaintiff had not recovered within the meaning of s. 547.
Plaintiff, acting without legal assistance, brought this action
for declaratory relief against the chairman of the board.
Defendant moved to dismiss the action on several grounds.
Held, dismissing the motion
1. The review board's interpretation of the word "recov-
ered" in s. 547(5)(d) of the Criminal Code was reviewable
by the Trial Division of this Court in the exercise of its
jurisdiction under s. 18 to grant declaratory relief. Barnard
v. National Dock Labour Board [1953] 2 Q.B. 18; Pyx
Granite Co. v. Ministry of Housing & Local Gov't [1958] 1
Q.B. 554, referred to.
2. The review board appointed by the Lieutenant Gover
nor pursuant to s. 547 of the Criminal Code was a "federal
board, commission or tribunal" within the meaning of s. 18
of the Federal Court Act. It was not a "body constituted or
established by or under a law of a province" within the
meaning of s. 2(g).
3. While the action may have been improperly framed
and the statement of claim required amendment, the action
raised substantial issues and should not be struck out. Joyce
v. Att'y-Gen. of Ont. [1957] O.W.N. 146; Gilbert v. Horner
[1960] O.W.N. 289, referred to.
4. There was no evidence before the Court that the
plaintiff was a "lunatic, person of unsound mind or a person
under disability" within the meaning of Federal Court Rule
1700 so as to require the action to be brought by a commit
tee or next friend in accordance with the practice of the
Supreme Court of New Brunswick, (Order 16 Rule 17,)
which was made applicable in such case by Federal Court
Rule 1700.
5. Since the report of the board of review was made
before the coming into force of the Federal Court Act on
June 1, 1971, the Federal Court of Appeal had no jurisdic
tion in the matter under s. 28, but the Trial Division did
have such jurisdiction under s. 18.
MOTION.
David C. R. Olmstead for plaintiff.
John E. Warner for defendant.
S. F. Sommerfeld, Q.C. for Deputy Attorney
General of Canada.
HEALD J.—This is an application by notice of
motion on behalf of the defendant for an order
dismissing plaintiff's action against the
defendant.
The facts are not in dispute. 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 is at present in the Provincial
Hospital at Saint John.
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. In accord
ance with the requirements of this section, the
plaintiff's case was reviewed in May, 1970,
again on October 30, 1970, and as a result of a
special request from the plaintiff, was reviewed
again by the board on December 4, 1970. The
board of review under the signature of its chair
man, the defendant in this action, submitted its
report to the Lieutenant Governor of New
Brunswick under date of December 7, 1970.
The report recites that four members of the
board were present at the review and then goes
on to state: "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."
By way of explanation, I should observe that
the reference to section 527A is because the
present section 547 was formerly numbered
527A. Said sections have identical wording.
The plaintiff commenced this action to chal
lenge the review of December 4, 1970 and the
board's report to the Lieutenant Governor
thereon dated December 7, 1970. Plaintiff's
petition asks for the following relief:
(1) Declaratory relief from the decision of the Board of
Review and to "replace the decision of the Board with such
a decision as the Court feels will serve the ends of justice".
(2) "That this Honourable Court set down such regula
tions for parole as it feels would meet the requirements of
release, as outlined in Section 547, subsection 5(D)."
(3) "That this Honourable Court issue a Writ of Man-
damus towards Mr. Hickman, as Chairman of the New
Brunswick Board of Review, Section 547 of the Criminal
Code of Canada, instructing him to carry out the Courts
decision, as decided by this Honourable Court under Sec
tion 18 of the Federal Court Act."
At the hearing of the motion before me, Mr.
Olmstead, counsel appointed as amicus curiae
by the Attorney General of Canada to represent
the plaintiff, conceded that plaintiff was not
entitled to the relief asked for in his petition.
His submission on behalf of the plaintiff was,
however, that plaintiff was entitled to a declara
tion that the board of review erred in its con
struction of the word "recovered" in section
547(5)(d) of the Criminal Code. In effect, at the
trial of this action, if it is allowed to proceed,
plaintiff will ask the Court to instruct the board
of review that "recovered" in section 547 must
be restricted to and relate only to the definition
of insanity contained in section 16 of the Crimi
nal Code. Mr. Olmstead stated that the plaintiff
wants a declaratory judgment "to guide the
Board".
It is necessary, for a proper consideration of
the issues arising on this motion, to consider the
nature of the board of review established under
section 547 of the Criminal Code and the his
torical position prior to its enactment.
Mr. Justice Ruttan of the British Columbia
Supreme Court has succinctly stated the posi-
tion in a case of this kind in Ex parte Kleinys
[1965] 3 C.C.C. 102. That case holds that the
Parliament of Canada, in the exercise of its
powers in connection with a criminal cause
against a person who is subsequently found to
be insane, may validly, as it has done under the
Criminal Code, section 523 (now 542) and sec
tion 526 (now 545) empower a magistrate or
judge to order detention of the accused in a
provincial prison at the discretion of the provin
cial lieutenant governor, who is empowered to
make an order for the safe custody of the
accused. Parliament may delegate such authori
ty to the lieutenant governor who acts in such a
case as agent for the Federal Government in a
field in which he has inherent power to decide
when it is safe to release an accused from an
indeterminate sentence.
Upon the enactment of section 527A, the
predecessor section to the present section 547,
this section permitted any province to set up a
board to review the cases of all persons held in
custody in circumstances like those of Mr.
Lingley and also in a wider class of cases which
has no bearing on the situation here. The sec
tion further prescribes the number of members
on such board, issues directions as to its
makeup, quorum, etc., and then provides: that
the board shall review the case of every person
in the classes covered every six months.
Then, the section details with some par
ticularity the way in which the board of review
is to function. Forthwith after each review, the
board must report to the lieutenant governor
setting out fully the results of such review and
giving the board's opinion as to whether that
person has recovered and if so, whether in the
board's opinion, it is in the interest of the public
and of that person for the lieutenant governor
to discharge him absolutely or subject to such
conditions as the lieutenant governor may
prescribe.
In this case, there is no suggestion that the
makeup of the board does not comply with
section 547, nor that the review did not take
place as prescribed, nor that the required report
was not forwarded to the lieutenant governor.
The Trial Division's jurisdiction to deal with a
matter of this kind, if it has jurisdiction at all,
would be under section 18 of the Federal Court
Act which reads as follows:
18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of
prohibition, writ of mandamus or writ of quo warranto,
or grant declaratory relief, against any federal board,
commission or other tribunal; and
(b) to hear and determine any application or other pro
ceeding for relief in the nature of relief contemplated by
paragraph (a), including any proceeding brought against
the Attorney General of Canada, to obtain relief against a
federal board, commission or other tribunal.
Defendant's counsel's first attack upon this
Court's jurisdiction is that the functions of the
board of review are administrative rather than
judicial or quasi-judicial. Counsel submits that
the functions of the board are informative and
investigatory only and that this board has no
authority to determine the rights of a person in
Lingley's circumstances, that the decision
whether Lingley is to be released or remain in
custody is the decision of the Lieutenant Gov
ernor of New Brunswick; that the report of the
board which must follow the review of the
board, is simply material to be put before the
Lieutenant Governor to assist him in making a
decision. Counsel relies on that line of cases
which holds that investigative functions are not
subject to the rules of natural justice. One of
the leading English cases in support of this view
is R. v. Statutory Visitors to St. Lawrence's
Hospital [1953] 2 All E.R. 766, while two cases
in the Ontario Court of Appeal to the same
effect are R. v. Ontario Labour Relations Board
57 D.L.R. (2nd) 521 and The Queen v. Board of
Broadcast Governors 33 D.L.R. (2nd) 449.
Here we have an investigative board, which
does not decide, but which reports to someone
else who decides. In the course of the board's
review and report, it is required to interpret the
word "recovered". If the board reports on the
basis of what may be a wrong interpretation of
the statute, and if such report acted upon
deprives an individual of his rights or liberties,
he should, it seems to me, be given the elemen
tary right of obtaining a decision on the law
which was the basis of the report before his
rights or liberties are irredeemably infringed or
destroyed by administrative action.
The purpose of creating a review board in
these circumstances is to assist the Lieutenant
Governor in coming to a proper decision. The
statute requires that at least two members of
the board must be duly qualified psychiatrists
and at least one member of the board must be a
duly qualified solicitor. In my view, one is enti
tled to assume that the Lieutenant Governor
acting prudently and judiciously would give
much weight to the considered opinion of a
board like this—heavily weighted as it is with
personnel equipped with expertise so relevant
to the issues in cases of this kind. If my
assumptions are correct, then the deliberations
and conclusions of such a board become impor
tant indeed to the individual concerned whose
liberty may be at stake. Surely, in these circum
stances, it is vital that the principles of natural
justice be observed by a board such as this.
If the principles of natural justice are not
followed by such a board, if such a board,
acting on improper principles, makes an
improper report to the Lieutenant Governor,
can such an injustice ever be corrected at a
later date? I think not, as the critical point in the
total proceedings might well be at the board of
review stage.
There might be little point in the Court exer
cising its supervisory jurisdiction over subse
quent proceedings leading to a decision if a
wrong report based on wrong principles is per
mitted to strongly influence the decision-making
body.
Put another way, the report and recommenda
tions of the board of review to the Lieutenant
Governor sets in motion a chain of events lead
ing to a determination of rights affecting the
liberty of the individual in question.
On the basis of the authorities, I think it fair
to say that it is, at best, doubtful whether cerFi-
orari or any of the other prerogative writs
would lie in these circumstances. However, this
Court has jurisdiction under section 18 to grant
declaratory relief as well and d the doubt and
uncertainty which surround the position on
prerogative writs, does not, in my view, similar
ly impede the Court's jurisdiction to grant
declaratory relief in these circumstances.
Professor I. Zamir in his 1962 textbook on
The Declaratory Judgment says at page 119:
As a supervisory remedy the declaration ranges over
statutory as well as non-statutory bodies; it is available
against the Crown as much as against other authorities; and
it is applicable to legislative, judicial and administrative acts
alike. No other supervisory remedy is of such a wide scope.
The scope of the prerogative orders in particular is circum
scribed by principles and technicalities established long
back in history when they served purposes different from
their present purposes. The declaration of right, on the
other hand, being a comparatively new remedy, is not
hampered by any similar rules.
Support for this view is contained in the
words of Denning L.J. in the case of Barnard v.
National Dock Labour Board [1953] 2 Q.B. 18
at p. 41 where he said:
It is axiomatic that when a statutory tribunal sits to
administer justice, it must act in accordance with the law.
Parliament clearly so intended. If the tribunal does not
observe the law, what is to be done? The remedy by
certiorari is hedged round by limitations and may not be
available. Why, then, should not the court intervene by
declaration and injunction? If it cannot so intervene, it
would mean that the tribunal could disregard the law, which
is a thing no one can do in this country.
Lord Denning expressed similar views in the
case of Pyx Granite Co. v. Ministry of Housing
and Local Government [1958] 1 Q.B. 554 at p.
571 where he said:
It is one of the defects of certiorari that it so often
involves an inquiry into the distinction between judicial acts
and administrative acts which no one has been able satisfac
torily to define. No such difficulty arises with the remedy
by declaration, which is wide enough to meet this deficiency
... It applies to administrative acts as well as to judicial
acts whenever their validity is challenged because of a
denial of justice, or for other good reasons.
Another English case, the case of Worthing-
ton Corp. v. Southern Rly. [1942] Ch. 178, is of
particular interest here because it held that
declaratory proceedings may be especially con
venient where the determination of the question
in dispute depends upon the construction of
legislative provisions.
Here, the plaintiff will ask the Court at trial
to define the word "recovered" as it is used in
section 547(5)(d) of the Criminal Code. On this
motion it is not necessary for me to decide
whether the interpretation urged by the plaintiff
is correct or whether the wider interpretation
submitted by the defendant is the proper one.
All I am required to do here is to determine
whether the Court has jurisdiction to consider
this problem and to adjudicate thereon using the
vehicle of a declaratory judgment. For the rea
sons above stated, I am of the opinion that the
Court does have such jurisdiction.
The defendant's second ground of attack on
this Court's jurisdiction is that section 18 con
fines the Court's jurisdiction to "any federal
board, commission or other tribunal" and that
by the definition of these terms as contained in
section 2(g) of the Federal Court Act, the New
Brunswick board of review in the instant case is
not a federal board as defined in said section
2(g).
Section 2(g) of the Federal Court Act reads as
follows:
2. In this Act,
(g) "federal board, commission or other tribunal" means
any body or any person or persons having, exercising or
purporting to exercise jurisdiction or powers conferred by
or under an Act of the Parliament of Canada, other than
any such body constituted or established by or under a
law of a province or any such person or persons appoint
ed under or in accordance with a law of a province or
under section 96 of The British North America Act, 1867;
The defendant says that if this is a federal
board, that it falls within the exclusion which is
contained in section 2(g) as follows: "other than
any such body constituted or established by or
under a law of a province or any such person or
persons appointed under or in accordance with
a law of a province ..."
Defendant argues that this New Brunswick
board is in reality established under an Order-
in-Council of the Government of New Bruns-
wick and the members of the board are appoint
ed by a New Brunswick Order-in-Council which
Order-in-Council is "a law of New Brunswick"
and thus comes within the above-noted
exception.
I am unable to accept this contention. The
Order-in-Council appointing the board is found
in The Royal Gazette of New Brunswick of
March 11, 1970, and reads as follows:
The Lieutenant-Governor in Council appoints the follow
ing persons members of a board of review under section
527A of the Criminal Code:
(a) H. W. Hickman, as Chairman;
(b) A. J. Losier;
(c) Dr. J. C. Theriault;
(d) Dr. J. E. McLean; and
(e) Dr. Raymond Boulay.
Furthermore, the report by the board to the
Lieutenant Governor dated December 7, 1970
commences as follows:
Sir:
I have the honour to present the following report of the
Board of Review appointed under Section 527A of the
Criminal Code of Canada.
The report is signed by the defendant Hickman
who describes himself as follows: "Chairman of
the Board of Review Section 527A Criminal
Code of Canada."
It would seem, therefore, that at the outset,
the Government of New Brunswick and later
the chairman of the board were treating the
board as a board appointed under a Federal, not
a Provincial statute, i.e. the Criminal Code of
Canada.
The authority to appoint the board of review
comes from a Federal statute, not from any
New Brunswick statute. Counsel was not able
to cite any New Brunswick statute empowering
the Lieutenant Governor-in-Council of that
Province to appoint such a board. I think that
the exception to section 2(g) would contem
plate, in a case like this, a New Brunswick
statute authorizing the establishment of such a
board and there was no such New Brunswick
statute at any relevant time.
I do not think that the New Brunswick Order-
in-Council meets the definition as used in the
exception to section 2(g) because the Order-in-
Council clearly derives its authority from the
Federal statute and so states in the body
thereof.
I therefore find that the board of review in
the instant case comes within this Court's juris
diction by virtue of sections 18 and 2(g) of the
Federal Court Act.
Defendant's next ground of attack on the
plaintiff's action was that the statement of claim
is so riddled with irregularities and defects as to
amount to a nullity and that the Court should
strike out the statement of claim and that per
haps plaintiff should start all over again with
proper parties and proper pleadings.
The situation here was, that up until a very
few days before the hearing of the motion
before me, plaintiff, a layman, was not repre
sented by legal counsel. The statement of claim
was prepared by the plaintiff himself and he did
the best he could based on his limited knowl
edge of the law. On the Order of the Associate
Chief Justice of this Court, an amicus curiae
was appointed to represent the plaintiff at the
motion hearing before me. The amicus curiae,
Mr. Olmstead, was under the disability of
having only a few days within which to acquaint
himself with the rather complex issues implicit
in this action. He quite readily conceded that
the action should not have been commenced
against Mr. Hickman personally, that the prayer
for relief required amendments as did the body
of the statement of claim. However, the Court
will refuse to strike out a statement of claim
that raises substantial issues (See Joyce & Smith
Co. v. Att'y.-Gen. of Ont. [1957] O.W.N. 146).
The Court will also refuse to strike out a state
ment of claim, where, at that stage of litigation,
the Court could not conclude that the plaintiff's
action could not possibly succeed and beyond
all doubt no reasonable cause of action had
been shown (See Gilbert Surgical Supply Co. v.
F.W. Horner Ltd. [1960] O.W.N. 289).
In this case, the defendant has not pleaded to
the statement of claim. By Federal Court Rule
421, the plaintiff can, even without leave,
amend his statement of claim at any time before
the defendant files his statement of defence. In
this action, the plaintiff has raised substantial
issues to be determined by the Court at the trial.
It is agreed that he will have to substantially
amend his pleadings and probably add parties
but this he is able to do within the framework of
the Rules of this Court. Assuming that he takes
these steps within the Rules, as Mr. Olmstead
has indicated he intends to do, I would not
conclude that his action could not possibly
succeed.
In all the circumstances of this case, I would
be reluctant indeed to grant the defendant's
motion on this ground.
Defendant's next ground of attack is con
tained in paragraph 4 of the notice of motion
and is as follows:
4. The action is improperly brought by the Plaintiff, a
person under disability, without a committee or next friend
(Order 16, Rule 17, New Brunswick Rules of Court, Rule
1700, Federal Court Rules).
Defendant refers to Federal Court Rule 1700
which states as follows:
Rule 1700. (1) A proceeding by or against an infant,
lunatic, person of unsound mind or other person under
disability or not having free exercise of his rights (hereinaf-
ter referred to as a "person under disability") may be
brought or defended and conducted in the Court,
(a) if the person under disability is resident in a province
of Canada, in the manner in which such a proceeding
would be brought or defended and conducted in a superi
or court of the province where the person under disability
is resident (as though any reference to that superior court
in the laws or rules of court of that province regulating
such proceeding in that superior court or regulating any
special step to be taken concerning a person under disa
bility in relation to such a proceeding where a reference,
with necessary modifications, to the Federal Court of
Canada), or
(b) if the person under disability is not resident in a
province of Canada, in the manner in which the proceed
ing would be brought or defended and conducted under
subparagraph (a) if the person under disability were resi
dent in Ontario or Quebec depending upon which of those
two provinces is most appropriate in the opinion of the
Court having regard to the place, if any, where the person
under disability is resident, which opinion may be ascer
tained by an ex parte application either before or after
commencement of the proceeding.
(2) Any failure to comply with the requirements imposed
by paragraph (1) may be remedied with effect retroactive to
the commencement of the proceeding at any stage of the
proceeding or of any appeal.
He argues that Rule 1700 applies to this case
and that by virtue thereof, the New Brunswick
rules apply and in particular Order 16, Rule 17
which states as follows:
17. Where lunatics and persons of unsound mind not so
found by inquisition might respectively before the passing
of this Act have sued as plaintiffs or would have been liable
to be sued as defendants in any action or suit, they may
respectively sue as plaintiffs in any action by their commit
tee or next friend according to the practice of the Supreme
Court at the time of the commencement of these Rules, and
may, in like manner, defend any action by their committees
or guardians appointed for that purpose.
Defendant argues while it is true that the
plaintiff here has not been determined a lunatic
or a person of unsound mind by any judicial or
quasi-judicial determination, that he is, never
theless covered by the words "not so found by
inquisition". I do not accept this contention.
First of all, to get under the New Brunswick
rules at all in this action, the defendant has to
satisfy Federal Court Rule 1700 and I do not
think he has done this. The critical date for the
purposes of this submission is the date on
which the plaintiff commenced this action
namely July 23, 1971. There was no evidence
before me upon which I could conclude that
plaintiff was a "lunatic, person of unsound
mind or other person under disability or not
having free exercise of his rights" as set out in
Federal Court Rule 1700.
Defendant conceded that no proceedings had
ever been commenced against the plaintiff
under the Mental Incompetency Act of New
Brunswick or any other New Brunswick stat
ute. The defendant asks me to conclude that
because a jury found the plaintiff not guilty
because of insanity in 1963 that he is still under
the kind of disability contemplated by Rule
1700 in 1971. I cannot agree with this submis
sion and I therefore hold that the defendant is
not entitled to invoke Federal Court Rule 1700
and the relevant New Brunswick rules.
Defendant's notice of motion also challenged
this Division's jurisdiction on the basis that if
an action of this nature lies, the proceedings
should have been in the Appeal Division by
virtue of section 28 of the Federal Court Act
and that under subsection (3) of section 28,
where the Court of Appeal has jurisdiction, the
jurisdiction of the Trial Division is excluded.
However, in view of the majority decision of
the Federal Court of Appeal in The Matter of an
Application by the Canadian Association of
Broadcasters [1971] F.C. 170, in which that
Court held that it had no jurisdiction under
section 28 in respect to decisions or orders
given or made prior to June 1, 1971 and since
the report of the board of review here was in
December of 1970, it seems to me that there is
nothing in section 28 which prevents this Divi
sion from exercising jurisdiction under section
18. The exercise of such jurisdiction, however,
shall be subject to plaintiff's pleadings being
amended in order to involve the proper parties
and shall be restricted to what is properly the
subject matter of a decision in a declaratory
judgment such as in this case whether "recov-
ered" in section 547 of the Criminal Code must
be restricted so as to relate only to the defini
tion of insanity contained in section 16 of the
Criminal Code.
In conclusion, I have the opinion that the
defendant must fail on all the grounds advanced
in support of the motion. The motion is there
fore dismissed. The costs of this motion will be
costs in the cause.
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.