Mental health centres in legal wrangle with Ontario Review Board.

A long-term patient of the Penetanguishene Mental Health Centre, Christian Herbert Harold Magee brought the Centre into a legal wrangle with the Ontario Review Board.

After many appeals for transfer from the maximum security mental health facility to the medium security Centre for Addictions and Mental Health in Toronto, the Ontario Review Board okayed Magee's request and directed that he be moved to Toronto. There he would be closer to his family (or the one daughter who maintained contact).

Magee has been detained in Penetanguishene since 1977 after two trials in which he was charged as a brutal serial murderer and rapist. He was found not guilty by reason of insanity and confined to the Oak Ridge division of the Penetanguishene Centre.

The administrator and professional staff challenged the Review Board, claiming it has erred by applying the wrong legal test under the Criminal Code. They also argued that the disposition order is unreasonable and cannot be supported by the evidence considered at the Review Board hearing. Numerous mental health care professionals have assessed Mr. Magee during his detention at Oak Ridge, the maximum security division at Penetanguishene. He was diagnosed at that facility as suffering from "antisocial personality disorder; narcissistic personality disorder; psychosexual disorder; sexual sadism; transvestic fetishism;" and "potentially dangerous to young females and children." This diagnosis remained essentially unchanged over the years. His prognosis is "extremely poor" and he constituted "a very significant treatment challenge."

At Oak Ridge, Magee has been a "good institutional citizen" who functioned well within the confines of the maximum security division. Within these confines of the institution, he has a high degree of freedom and busies himself in the woodworking shop and other facilities. He presents little problem to the staff.

At the Toronto Centre for Mental Health, a new security arrangement would have to be made to assure public safety. Both the Toronto Centre and Penetanguishene staff believe that Magee would be disturbed by the change. Because the Toronto facility is geared to therapy and returning their patients to the community, they could offer few of the programs and services available at Oak Ridge. Special arrangements would have to be made for his secure custody and he would be more confined than he is in his present situation. In their opinion, the Oak Ridge facility would continue to provide the least onerous and restrictive setting at this time.

Appeal Court Justice J.A. Cronk, writing for the three judges states: "In all these circumstances, in my view, the Review Board's conclusion that its disposition was the "least onerous and least restrictive" disposition available for this accused, is tainted by legal error."

The Appeal Court has accepted the arguments of the two mental health facilities together with the Crown Attorney that the Board's disposition "is unreasonable and cannot be supported by the evidence." The justices set aside the Review Board's disposition order and referred the matter back to the Board for a rehearing.

Mental Health Centre, Penetanguishene v. Magee