The law courts in Whitehorse. The Yukon Supreme Court has ruled that the Yukon Review Board does not have the jurisdiction to order for hearings to take place outside of the territory. (Mike Thomas/Yukon News file)

Yukon Review Board can’t order hearings outside of the Yukon, court finds

Chad Carlyle applied to Yukon Supreme Court after his review was scheduled for Edmonton

The Yukon Review Board, the independent panel that handles court cases where a person is found not criminally responsible, does not have the authority to hold hearings outside of the territory, the Yukon Supreme Court has ruled.

The decision, issued by Justice Edith Campbell on July 23, also questioned the YRB’s transparency, and was the result of an application filed by a Yukon man detained in an Edmonton hospital whose annual review was suddenly ordered to take place in Alberta instead of Whitehorse.

Chad Carlyle was found not criminally responsible in 2005 of assault, uttering death threats and a probation breach on account of his mental disorders. The Yukon Review Board (YSR) found Carlyle “posed a significant risk to the safety of the public,” Campbell wrote, “and ordered that he be committed to a designated hospital facility.”

Carlyle appeared before the board “regularly” between 2005 and 2017, travelling to Whitehorse from the Alberta Hospital in Edmonton for his annual review in 2017. He resided at the Whitehorse Correctional Centre, which is designated as a hospital, for the duration of his stay.

For his 2018 review, Carlyle again wished to attend the hearing in person. However, the YRB only received notice of his wish about a week before the hearing was scheduled to take place, Campbell wrote, which it said was an insufficient amount of time to arrange for Carlyle’s travel to Whitehorse.

Another date was set for May. The YRB told everyone that Carlyle would be attending via video call, and that the meeting would just be used “to address the issues of accommodations and logistics, with respect to Mr. Carlyle’s attendance in Whitehorse” before being adjourned to a later date.

It was during that meeting that the YRB first raised concerns about where Carlyle would stay in Whitehorse and suggested to hold the rest of the review in Alberta, to the surprise of everyone else.

In early June 2018, the YRB wrote to all parties that it had decided to hold the remainder of Carlyle’s review at the Alberta Hospital.

Carlyle’s lawyer, as well as lawyers for the director of public prosecutions and the director of mental wellness and substance use services, opposed the decision, questions YRB’s jurisdiction as well as informing it that Carlyle was “content to be lodged at the WCC for the relatively brief period that his presence would be required for the hearing.”

However, the YRB issued an interim order on July 25, 2018, officially stating that the review hearing would be held at the Alberta Hospital with the option for parties to appear in Edmonton or by video conference from Whitehorse.

Carlyle filed an application to the Yukon Supreme Court shortly after, seeking a review of the YRB’s decision.

Carlyle, Campbell wrote, argued that there was “no practical need or necessity for the YRB to possess the extraordinary authority to sit outside its jurisdiction,” and that “there was no need in this case to hold a hearing in Alberta.”

“The YRB granted a remedy no one asked for,” Campbell wrote, summarizing Carlyle’s position. “Mr. Carlyle was prepared to travel to the Yukon for his hearing even if it meant spending a few nights at WCC. The Government of Yukon was also prepared to transport and house Mr. Carlyle for his hearing in the Yukon.

“The YRB indicated no concern that Mr. Carlyle would be unable to have a fair hearing in the Yukon. Instead, the YRB appears to have been concerned generally by Mr. Carlyle being housed for a few days at (Whitehorse General Hospital) or at WCC to attend his hearing in the Yukon.”

The YRB, meanwhile, argued that picking the location or venue for a hearing is “left to its discretion on a case-by-case basis, keeping in mind that what is critical is the statutory right of (not criminally responsible) accused persons to be present at their hearing.”

Campbell concluded, after hearing submissions and analyzing the section of the Criminal Code concerning the handling of not criminally responsible cases, that the YRB does not have the jurisdiction to hold dispositions or review hearings outside of the Yukon.

She also found that, if the meeting in May 2018 wasn’t just a preliminary matter but the start of the actual review hearing, “the YRB’s actions were in direct contravention to the statutory right of Mr. Carlyle to appear in person at his review hearing.” As well, the YRB failed to inform other parties beforehand about its concerns about Carlyle’s accommodations in Whitehorse and its idea to hold the review in Alberta, meaning they could not prepare proper replies or evidence.

Campbell quashed the YRB’s order to hold Carlyle’s review at the Alberta Hospital in Edmonton, and ordered that the YRB issue a new order for Carlyle to be brought to the Yukon for the completion of his annual review hearing.

Contact Jackie Hong at jackie.hong@yukon-news.com

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