The board tasked with reviewing Matthew de Grood's progress and treatment has been found to ignore evidence in other NCR hearings and there are concerns it has become politicized under the United Conservative Party.
On Thursday, de Grood, who was found not criminally responsible (NCR) for killing five people at a house party in 2014, appealed the Alberta Review Board's decision to reject his treatment team's recommendations for further freedoms.
In 2016, a judge ruled de Grood was NCR, finding the killer was in a psychotic state at the time and did not understand that his actions were wrong. He's since lived at a secure psychiatric facility and is on medication.
Lawyers argued Thursday that de Grood was unfairly denied freedoms when the board "engaged in speculation," "dwelled on what ifs" and ignored evidence presented by the the 30-year-old's treatment team last September.
At annual hearings prescribed by the Criminal Code, de Grood goes before the board, which gets an update and hears recommendations on freedoms and privileges from the medical team.
PC, Wildrose, Conservative Party connections
Last September, the board rejected recommendations made by de Grood's treatment team that he be given additional freedoms, with his doctors' approval, that could see him transitioned to a 24-hour supervised group home.
Just one year earlier, the board had accepted the very same recommendation.
But at that time, there were several different board members and a chair who has since resigned, citing a difficult relationship with the justice minister.
In the past 18-months, former justice minister Doug Schweitzer appointed a new chair and several new board members to the Alberta Review Board, and some lawyers are expressing concern that the quasi-judicial board is now politicized.
"This does seem like more political appointments than fair and arms-length appointments," said lawyer Jacqueline Petrie, who handles NCR cases and board reviews out of Edmonton.
Several board members have connections to conservative parties, including former Wildrose interim leader and Progressive Conservative cabinet minister Heather Forsyth, former Manitoba PC MLA Gerald Hawranik as well as Gerald Chipeur, who served as general counsel to the Conservative Party and also did work for the provincial PCs.
Group home recommended if doctors OK
At past hearings, de Grood has been called a "model patient" by members of his treatment team, who generally further recommend freedoms and privileges.
The Supreme Court of Canada has said review boards must work toward the reintegration of NCR patients into the community and must take into account the current mental state of the individual rather than their state at the time of the incident.
The treatment team makes recommendations and the board then issues decisions on what, if any, freedoms will be granted.
In 2019, the board recommended that de Grood could be eased back into the community into a 24-hour supervised group home if his doctors agreed.
Minister's controversial tweet
De Grood would have to have transitioned and stabilized on injectable medication and then be monitored for six months without concern for public safety.
Two days after the panel's 2019 decision under chair Jill Taylor, then-justice minister Schweitzer tweeted, suggesting he was concerned with the board's decision.
A month after that, Taylor resigned less than six months into the role, saying she felt like she'd been pushed out by the minister with whom she'd repeatedly tried to meet.
The day Taylor resigned, the minister released a statement, pointing out that she had been appointed by the NDP government "on the eve of an election" and called her resignation an "opportunity for a reset."
Taylor says she was "shocked" with Schweitzer's tweet and said it was inappropriate for the justice minister to comment on a decision of the judiciary or the board.
Defence lawyer Allan Fay says he was also alarmed at the minister's public statement.
"I'm concerned that following the public statements by then-justice minister after 2019 hearing, the board was entirely replaced," Fay said.
'They're not applying the law'
Petrie says she's heard from colleagues who also handle NCR cases that she's not the only one concerned the quasi-judicial board, which is supposed to consider health-care worker recommendations, has turned into more of a political process.
"I do see individuals with long-term very high profile ties to the conservative government," said Petrie. "I think this current board is particularly problematic."
"They're not applying the law as it's intended," said Petrie.
More and more, Petrie says, she's seeing board decisions getting appealed and says there have been several significant rulings overturning the board's refusals to grant patients' freedoms.
Evidence 'ignored' by board
In fact, last week, the Alberta Court of Appeal overturned an Alberta Review Board decision and granted full discharge to a woman who was found NCR on charges of assault and uttering threats more than two decades ago at the age of 17.
The court of appeal found evidence presented at the hearing "was seemingly ignored by the board."
In another recent decision from the court of appeal, the panel of judges again rejected the board's ruling that restricted the recommended privileges of an NCR patient.
In that case, the court wrote that "the board's disposition was not fair."
"The justification for the board's conclusion does not accord with the hearing evidence."
'Speculation and what ifs'
At de Grood's hearing Thursday, defence lawyer Fay argued the board "engaged in speculation and dwelled on what ifs as opposed to considering the evidence presented by treatment team."
The chair voiced his discomfort with the idea de Grood would be in the community.
"It's not a question of the board's comfort, it's a question of whether the board can reach that level of discomfort based on materials before it," argued Fay, who suggested the board's decision did not align with the treatment team's recommendations.
Once de Grood was at a group home, doctors told the board he would continue to be closely observed and would continue to be under full warrant of committal meaning if there were any concerns, he could be quickly brought back to hospital.
Prosecutor Matthew Greiner argued the board's decision was justifiable. He pointed out that stress plays an aggravating role in de Grood's condition and that his transition into community living was expected to be stressful.
Although de Grood has shown a high level of insight into his condition and a keenness to take his medication, "in event of relapse, insight can't be counted on."
The Crown has already conceded the board's decision to claw back de Grood's other freedoms — his ability to go out for overnight visits and travel for up to a week within the province — was unreasonable.
The Alberta Court of Appeal will issue its de Grood decision in the coming weeks or months.