COURT OF APPEAL FOR ONTARIO
MacPherson, Simmons and Blair JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Nelson Shaun Runnalls
Appellant
Nelson Runnalls in person Michael Davies as Amicus Curiae
Grace Choi for the Attorney General of Ontario Janice E. Blackburn, for the respondent, the person in charge of the Northeast Mental Health Centre.
Heard: June 18, 2009
On appeal from the disposition of the Ontario Review Board under s. 672.81(1) of Criminal Code, R.S.C. 1985, c. C-46 dated March 14, 2008 with reasons dated September 25, 2008.
Simmons J.A.:
Introduction
1The appellant appeals from a disposition of the Ontario Review Board made on March 14, 2008 ordering that he be detained at the minimum secure unit of the Northeast Mental Health Centre--North Bay Campus. The disposition arose from a hearing on March 10, 2008 that was held pursuant to an endorsement of this court dated January 25, 2008.
2Both the appellant and Amicus Curiae appointed to assist the court raised issues on appeal. I will deal with their issues in turn.
I. The Appellants' Grounds of Appeal
The Appellant's Grounds of Appeal
3The appellant submits that the Board erred in admitting the Hospital Report and his treating psychiatrist's report as exhibits at the hearing because both documents refer to charges against him that were stayed, withdrawn or dismissed. I disagree.
4In my view, the statement in this court's January 25, 2008 endorsement that “[T]he Board's assessment of risk cannot take into consideration charges that did not result in convictions”, related to the Board's reference in its decision to the appellant's C.P.I.C. records and therefore was limited to the Board's direct review of the C.P.I.C. records. It did not bar the Board from attributing such weight as it deemed appropriate to actuarial risk assessment tools that take account of all entries on an accused's criminal record.
5In any event, on the record before the Board in this case, there was a clear evidentiary basis for relying on the risk assessment tools even though they take account of such entries. Finally, I note that in setting out a statement of the appellant's criminal record in its reasons, the Board complied with this court's January 25, 2008 endorsement.
6The appellant also claims that the disposition is unreasonable and not supported by the evidence. I will address this ground when dealing with the submissions of the Amicus.
II. The Issues raised by Amicus Curiae
The Issues Raised by Amicus Curiae
7The first issue raised by the Amicus is that the six months taken by the Board to issue its reasons for disposition in this case is unreasonable and has resulted in prejudice to the appellant. The Board issued its disposition on March 14, 2008 in relation to the hearing held on March 10, 2008, but did not deliver its reasons until September 25, 2008.
8Particularly because of the Board's statutory mandate to conduct annual review hearings of the status of persons found not criminally responsible and because of an NCR accused's statutory right of appeal, it is essential that the Board be in a position to issue its reasons for disposition in a timely way. This would generally mean much more quickly than within six months of a hearing.
9As pointed out by Mr. Davies in his able submissions, particularly where an NCR accused is detained it is important that he or she understand both the reasons for the detention and what the Board thinks should be done to obtain a more favourable disposition. Similarly, it is important that the Hospital have a full appreciation of the scope of the disposition and how the Board intends it should be implemented.
10That said, I am unable to discern any basis for awarding any form of remedy on the facts of this case. Nothing in the Board's reasons points to the existence of any error or oversight in the formal disposition that was issued. Moreover, there is nothing in the Board's reasons to suggest that they are not a true articulation of its reasoning. Albeit delayed, it is anticipated that the appellant’s next annual review will now be held promptly, in August of this year.
11However, like the panel of this court in R. v. Roberts, [2007] O.J. No. 4016, I would urge the Board to take all necessary steps to ensure that reasons are delivered forthwith. In Roberts, this court said:
Although the Board gave its decision in a timely fashion, it did not provide reasons for some six months. It is crucial to the process that the reasons be made available as soon as reasonably possible. We intend no criticism as we are unaware of the circumstances that caused the lengthy delay in the delivery of reasons in the matter. We urge the Board to take all necessary steps to ensure that reasons are delivered forthwith.
12Absent exceptional circumstances, I would suggest a range of three to four months as a reasonable outside limit for the release of such reasons. However, for the reasons outlined above, I would not give effect to this ground of appeal in the present circumstances.
13The second issue raised by the Amicus is that the Board's refusal to grant a conditional discharge is unreasonable because it is premised on errors in law and fails to give adequate weight to the appellant's history of good behaviour and stated willingness to comply with any conditions imposed in a conditional discharge.
14I would not give effect to this ground of appeal either.
15In its reasons, the Board noted the appellant’s longstanding lack of insight into his mental illness, his substance abuse disorder and his need for medications, as well as a recent history of temporary non-compliance with the monitoring conditions in a disposition order. In the light of these circumstances, the Board concluded that if the appellant is to live in the community, the protection of the public requires that the Hospital be in a position to approve his housing and that, at least initially “a significant degree of supervision” would be required. These requirements can only be satisfied under the authority of a detention order.
16Based on my review of the record, the Board’s conclusions in this regard were supported by the evidence. Accordingly, they are entitled to deference from this court.
17The Board also said that, because of the appellant's pattern of testing limits, the Hospital needed to be in a position to return the appellant to the Hospital expeditiously should the appellant not comply with the conditions of his order while living in the community. Although it is true that an NCR accused on a conditional discharge can be returned to the Hospital in the event of a breach or anticipated breach of condition, I am not satisfied that this statement amounted to an error in law.
18Where an NCR accused is on a detention order, a return to the Hospital can be effected by Hospital staff in the event of a deterioration in condition without involving a peace officer or invoking civil processes. Having regard to the potential need to return the appellant in the event he fails to fully comply with his conditions, I see nothing unreasonable about the Board's decision
19Finally, I am not persuaded that the Board's statement that a condition ordering the appellant to take psychiatric treatment cannot be imposed in this case is an error in law. If, as Mr. Davies submitted, there is a distinction to be made between the appellant’s ability to consent to treatment and his ability to consent to a condition in a disposition order requiring treatment, it is a distinction without a difference in this case, where the condition in question would effectively involve consenting to treatment. In any event, on my reading of the Board's reasons, its real concern was the impracticality of making an order with which there is no reason to believe the appellant will comply.
III. Disposition
Disposition
20The appeal is therefore dismissed.
RELEASED: June 22, 2009 “JCM” “Janet Simmons J.A.”
“I agree J.C. MacPherson J.A.”
“I agree R.A. Blair J.A.”