In the Matter of Kachkar
[Indexed as: Kachkar (Re)]
Ontario Reports
Court of Appeal for Ontario,
Goudge, van Rensburg and Pardu JJ.A.
April 1, 2014
119 O.R. (3d) 641 | 2014 ONCA 250
Case Summary
Criminal law — Mental disorder — Dispositions — Ontario Review Board accepting joint submission that respondent be detained in medium security unit at hospital and permitted to access hospital grounds escorted by staff — Board adding condition permitting escorted access to community in discretion of hospital — Community access condition supported by evidence and not unreasonable — Board not owing duty of procedural fairness to Crown in circumstances of this case — If board did owe Crown duty of procedural fairness, board not breaching that duty by failing to give Crown opportunity to make submissions about community access condition before it attached condition to disposition.
The respondent was found not criminally responsible on account of mental disorder in respect of a charge of first degree murder. At the respondent's first hearing before the Ontario Review Board, the board accepted a joint submission by counsel that the respondent be detained in a medium security unit at the hospital and, in the discretion of the hospital, given privileges to access the hospital grounds escorted by hospital staff. The board added a condition giving the respondent privileges, in the discretion of the hospital, to enter the community escorted or accompanied by staff. The Crown appealed, arguing that the board's decision to grant the hospital discretion to allow the respondent access to the community was made without supporting evidence and was therefore unreasonable, and that the board denied the Crown procedural fairness by imposing the additional condition without giving the Crown an opportunity to make submissions about the condition.
Held, the appeal should be dismissed.
The community access condition was supported by the evidence and was not unreasonable. Adding the community access condition to the board's disposition was clearly less onerous and less restrictive to the respondent than limiting him to access to the hospital grounds alone, and the evidence supported the conclusion that the condition was consistent with public safety.
The board did not owe the Crown a duty of procedural fairness in the circumstances of this case. The Crown was not an individual and did not have a right, privilege or interest that was affected by the board's disposition. The Crown's interest is in ensuring compliance with s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46. If it considers that a disposition does not do so, its right is to appeal on the grounds of reasonableness rather than assert a breach of procedural fairness. If that conclusion is wrong and the board does owe the Crown a duty of procedural fairness, that duty was not breached by the failure to give the Crown an opportunity to make submissions about the community access condition before it was attached to the disposition.
Cases referred to
Cardinal v. Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643, [1985] S.C.J. No. 78, 24 D.L.R. (4th) 44, 63 N.R. 353, [1986] 1 W.W.R. 577, J.E. 86-41, 69 B.C.L.R. 255, 16 Admin. L.R. 233, 23 C.C.C. (3d) 118, 49 C.R. (3d) 35, 15 W.C.B. 331; [page642] Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), [2004] 2 S.C.R. 650, [2004] S.C.J. No. 45, 2004 SCC 48, 241 D.L.R. (4th) 83, 323 N.R. 1, J.E. 2004-1367, 17 Admin. L.R. (4th) 165, 121 C.R.R. (2d) 261, 49 M.P.L.R. (3d) 157, 132 A.C.W.S. (3d) 3; Kachkar (Re), [2013] O.R.B.D. No. 1350; Penetanguishene Mental Health Centre v. Ontario (Attorney General), [2004] 1 S.C.R. 498, [2003] S.C.J. No. 67, 2004 SCC 20, 237 D.L.R. (4th) 1, 318 N.R. 73, J.E. 2004-737, 185 O.A.C. 201, 16 Admin. L.R. (4th) 1, 182 C.C.C. (3d) 193, 19 C.R. (6th) 1, 116 C.R.R. (2d) 304, 129 A.C.W.S. (3d) 711, 60 W.C.B. (2d) 98; R. v. Owen, [2003] 1 S.C.R. 779, [2003] S.C.J. No. 31, 2003 SCC 33, 225 D.L.R. (4th) 427, J.E. 2003-1142, 173 O.A.C. 285, 174 C.C.C. (3d) 1, 11 C.R. (6th) 226, 57 W.C.B. (2d) 192; Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31, 175 D.L.R. (4th) 193, 241 N.R. 1, J.E. 99-1277, 124 B.C.A.C. 1, 135 C.C.C. (3d) 129, 25 C.R. (5th) 1, 63 C.R.R. (2d) 189, 42 W.C.B. (2d) 381
Statutes referred to
Criminal Code, R.S.C. 1985, c. C-46, Part XX.1 [as am.], ss. 672.5(3), (5), (11), 672.54, 672.78(1)(a)
Authorities referred to
Brown, Donald J.M., and John M. Evans, Judicial Review of Administrative Action in Canada, looseleaf, vol. 2 (Toronto: Canvasback Publishing)
APPEAL by the Crown from the disposition of the Ontario Review Board dated April 29, 2013, [2013] O.R.B.D. No. 1349.
Eric Siebenmorgen, for appellant Her Majesty the Queen.
Peter Copeland, for respondent Richard Kachkar.
Barbara Walker-Renshaw, for respondent Person in Charge of the Ontario Shores Centre for Mental Health Sciences.
The judgment of the court was delivered by
GOUDGE J.A.: —
Introduction
[1] On March 27, 2013, the respondent was found not criminally responsible on account of mental disorder ("NCR") in respect of a charge of first degree murder. He was subsequently held at the Toronto Jail until his first hearing before the Ontario Review Board (the "board") on April 26, 2013.
[2] At the commencement of the hearing, counsel for the Crown and counsel for the respondent made a joint submission that they considered would impose the least onerous, least restrictive conditions on the respondent consistent with public safety. Their submission was that the respondent be detained in a medium security unit at the Ontario Shores Centre for Mental Health Sciences (the "hospital") and, in the discretion of the hospital, be given privileges to access the hospital grounds escorted by hospital staff. In the view of both counsel, this [page643] discharged the board's obligation under s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46, to make the least onerous, least restrictive disposition consistent with public safety.
[3] After hearing the evidence, the board accepted these conditions but added a condition giving the respondent privileges, in the discretion of the hospital, to enter the community of Whitby, escorted or accompanied by staff.[^1]
[4] The Crown appeals from this decision. It argues that the board's decision to grant the hospital discretion to allow the respondent access to the community was made without supporting evidence and is therefore unreasonable. It also argues that in imposing this additional condition without according the Crown a prior opportunity to make submissions about the condition, the board denied it procedural fairness.
[5] For the reasons that follow, I cannot accept either argument. I would therefore dismiss the appeal.
The Index Offence
[6] The index offence took place on January 12, 2011. A few days before that, the respondent appeared unannounced at a friend's apartment in Toronto. He was unshaven and had no clothes or luggage with him. He had abruptly left the shelter in St. Catharines, where he had been staying for about a week prior to travelling to Toronto.
[7] Several days later, on the morning of January 11, the respondent simply left the apartment. After walking for most of the day, he went to a medical clinic where the doctor advised him to go to hospital. Instead, he went to the Good Shepherd Shelter on Queen Street, where he was assigned a bed. Shortly before 5:00 a.m. the next morning, he suddenly left the shelter, running away through the snow in his bare feet.
[8] The respondent was next seen at about 5:00 a.m. in a nearby Tim Horton's restaurant. Just outside, a truck equipped with a snowplow had been left unoccupied, but with the engine running. The respondent ran out of the restaurant, got in the truck and drove away. About 45 minutes later, Sergeant Ryan Russell, who was on duty at the time, spotted the respondent driving the stolen snowplow north on Avenue Road. Sergeant Russell gave chase and caught up to it. At that point, the [page644] respondent made a U-turn and drove directly towards the police car. Sergeant Russell got out of his car and tried to get the snowplow to stop. However, the respondent made no attempt to do so. He continued driving at the police car, striking Sergeant Russell, dragging him for a number of metres, and killing him. The respondent was arrested shortly thereafter and charged with first degree murder for intentionally killing a police officer on duty. At the conclusion of his trial on March 27, 2013, the jury did not convict the respondent, but found him not criminally responsible on account of mental disorder.
The Evidence before the Board
[9] At the time of the index offence, the respondent was 44 years old. He had been living apart from his wife and family for some time, but had no criminal record.
[10] At the hearing, the board was provided with a large portion of the trial judge's charge to the jury, including a detailed review of the evidence at his trial. In addition, a number of victim impact statements prepared for the trial were filed.
[11] Dr. Philip Klassen, a forensic psychiatrist, gave expert evidence at the hearing. He had previously given evidence at the respondent's trial, and had conducted a psychiatric assessment of him in preparation for doing so.
[12] Dr. Klassen's opinion was that the respondent suffered from a long-standing mental illness that had waxed and waned since 2004 or 2005 and caused significant dysfunction in his life. His illness displayed episodic periods of intensification and psychotic behaviour. These psychotic fluctuations and the respondent's functional decline led Dr. Klassen to conclude that psychosis not otherwise specified, rather than schizophrenia, was likely the right diagnosis.
[13] Dr. Klassen's view was that this vulnerability to psychosis made it appropriate to put the respondent on a trial of anti-psychotic medication, as a prophylactic to minimize the likelihood of future psychotic episodes.
[14] Dr. Klassen testified that in his opinion, the index offence took place during such a psychotic episode, one that "spooled up" or intensified over a period of about two weeks. Over that period, the respondent increasingly displayed marked paranoid psychotic symptoms. Dr. Klassen noted that the impulsivity that characterized the index offence took place in the context of this episode, although over most of his life, the respondent has not been particularly impulsive, except in the context of psychosis.
[15] Ultimately, Dr. Klassen testified that the respondent remains a significant threat to public safety based on the [page645] extreme severity of the index offence rather more than the risk of future similar conduct, which Dr. Klassen viewed as low.
[16] Dr. Klassen concluded by noting that in the hospital, the respondent would be under intense scrutiny by professionals trained to watch for the development of a psychotic episode. If he were treated with anti-psychotic medication and if there was no evidence of paranoid psychosis, Dr. Klassen did not view the respondent as a flight risk if on an escorted or accompanied pass. Based on the respondent's level of risk to public safety, Dr. Klassen thought that either escorted or accompanied passes would be appropriate. Dr. Klassen was also clear, however, that granting the respondent privileges would depend on the respondent's behaviour, his response to treatment, his proper engagement with his treatment team and would occur only when the hospital felt the respondent was ready.
[17] Finally, the board heard a number of victim impact statements, beginning with Sergeant Russell's wife, Christine. They were emotionally powerful, poignant and heart-rending.
[18] At the conclusion of the evidence, counsel for the Crown and for the respondent made clear that because they had made a joint submission at the outset, they were not seeking to use their opportunity to make closing submissions. The board then reserved its decision.
The Board Decision
[19] The board accepted Dr. Klassen's evidence that the respondent suffers from a major mental illness, psychosis not otherwise specified. It concluded its decision [Kachkar (Re), [2013] O.R.B.D. No. 1350] as follows [at para. 77]:
In making the Disposition, The Board has concluded it should contain provisions for escorted and accompanied passes, and as noted earlier in these Reasons, such privileges will only be granted when the hospital is satisfied that it is appropriate to do so, based on Mr. Kachkar's mental state, his participation in treatment at Ontario Shores and his response thereto. While the joint recommendation from the parties was for escorted hospital and grounds passes only, the Board felt this was not compatible with its obligation to balance public safety and the least onerous and the least restrictive disposition for the individual. While we are mindful that public safety is paramount in the twin aims of Part XX.1, we do not believe that a pass into the community, accompanied or escorted by staff, if determined to be appropriate by the person in charge at Ontario Shores, can put the public at risk.
Analysis
[20] In this court, the Crown raises no issue about the board allowing the respondent both kinds of passes (either escorted by or accompanied by staff), although the joint submission was [page646] for only escorted passes. Its arguments focus on the decision to permit the respondent access to the community, not just access to the hospital grounds. The Crown argues that in permitting access to the community, the board rendered a decision that is unreasonable because it is unsupported by the evidence and that the board did so in a way that denied the Crown procedural fairness.
[21] In considering these issues, it is important to remember that, despite the respondent's actions on January 12, 2011 and their tragic consequences, he was not convicted, but found not criminally responsible on account of mental disorder. The existence of a distinct NCR status in our law reflects the moral conviction that those suffering from mental disorders that render them incapable either of appreciating the nature and quality of their criminal act or of knowing that these acts were wrong are exempted from criminal responsibility. As McLachlin J. (as she then was) said in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31, at para. 31: "Criminal responsibility is appropriate only where the actor is a discerning moral agent, capable of making choices between right and wrong."
[22] The jury at his trial concluded that the respondent could not do so. The jury recognized that the respondent is not criminally responsible but ill. As McLachlin J. said, at para. 41 of Winko, supra: "Providing opportunities [for such people] to receive treatment, not imposing punishment, is the just and appropriate response." That is, an NCR accused like the respondent is dealt with pursuant to the regime provided by Part XX.1 of the Criminal Code, rather than being held accountable in any penal sense. Under that regime, the board is to provide the NCR accused with opportunities to receive appropriate treatment, while at the same time protecting public safety. In this process, "the offender is to be treated with dignity and accorded the maximum liberty compatible with Part XX.1's goals of public protection and fairness to the NCR accused": Winko, supra, at para. 43.
[23] It is in this context that the issues raised by the Crown must be considered.
The Reasonableness of the Community Access Condition
[24] The Crown argues that the board's decision to grant the hospital the discretion to allow the respondent access to the community is unreasonable. It says that there was no evidence that spoke to the appropriateness of community access or whether that could be done without compromising public safety, [page647] which is particularly important in light of the way the index offence was committed.
[25] In my view, this argument must be rejected. Section 672.78(a) of the Criminal Code provides the standard of review that this court is to apply in this case, namely, whether the board's decision is unreasonable and cannot be supported by the evidence. The Crown says that the community access condition is unreasonable because it cannot be supported by the evidence.
[26] There is no doubt that the "least onerous, least restrictive consistent with public safety" requirement extends to conditions that form part of the board's disposition: see Penetanguishene Mental Health Centre v. Ontario (Attorney General), [2004] 1 S.C.R. 498, [2003] S.C.J. No. 67, 2004 SCC 20, at para. 44. Adding the community access condition to the board's disposition is clearly less onerous and less restrictive to the respondent than limiting him to access to the hospital grounds alone. But the community access condition must also be consistent with public safety. The question to be asked is whether, as the Crown argues, that conclusion cannot be supported by the evidence.
[27] In my view, Dr. Klassen's evidence provided ample support to sustain the conclusion that the community access condition would not compromise public safety. In particular, he found the respondent's illness to display episodic periods of psychotic behaviour which "spooled up" or grew intense over periods of perhaps several weeks. During these episodes, the respondent could exhibit impulsive behaviour like that of January 12, 2011 although he was not generally impulsive. Dr. Klassen's opinion was that if the respondent were on anti-psychotic medication and were closely scrutinized for psychotic episodes by the professional staff at the hospital, he would not be a flight risk on escorted or accompanied passes. Dr. Klassen testified that the respondent could properly be given either type of pass when the hospital felt he was ready for them. Dr. Klassen drew no distinction between passes to access the hospital grounds and passes to access the community.
[28] This evidence was more than sufficient to support the conclusion that the community access condition was consistent with public safety.
[29] In addition, however, the hospital filed fresh evidence in this court that also supports the community access condition. In R. v. Owen, [2003] 1 S.C.R. 779, [2003] S.C.J. No. 31, 2003 SCC 33, at para. 71, Binnie J. made clear that on appeal, fresh evidence that is trustworthy and touches on the issue of risk to public safety should be admitted in this kind of case as being in the interests of justice. That aptly describes this fresh evidence. [page648] It consisted of evidence from Dr. Karen DeFreitas, the medical director of the hospital who was the respondent's attending psychiatrist until July 2013 and who also reviewed the notes of the psychiatrist who has been dealing with him since then. Her affidavit concludes with this:
In my clinical opinion, Mr. Kachkar's current clinical condition supports the terms provided by the Board in the April 29th disposition, including the accompanied hospital and grounds privileges, and the accompanied community privileges.
[30] In summary, Dr. Klassen and Dr. DeFreitas provide strong evidentiary support for the community access condition that the board attached to the respondent's disposition. It cannot therefore be said that the condition is unreasonable.
Denial of Procedural Fairness
[31] The Crown further argues that in making its disposition in this case, the board added the community access condition to those proposed by the parties in their joint submission without first providing the Attorney General with the opportunity to make submissions on the condition. The Crown says that this denied it the procedural fairness to which it was entitled.
[32] In evaluating this argument, it is important to be mindful of the nature of the board process. It is inquisitorial, not adversarial. The NCR accused is assigned no burden. Rather, the burden is on the board to gather and consider the relevant evidence. A party does not come to the board with the obligation to make its case: see Winko, supra, at para. 54.
[33] The Criminal Code does give the Crown, represented by the Attorney General, certain statutory rights in relation to board hearings. Section 672.5(3) requires the board, on application, to designate the Attorney General as a party to the hearing. In other words, the Attorney General has the opportunity to participate in board hearings, but no obligation to do so. Section 672.5(5) gives a party the right to receive notice of the hearing. Section 672.5(11) gives a party the right to call evidence, cross-examine witnesses and make submissions. In this proceeding, the Crown does not assert a violation of any of these statutory rights.
[34] What the Crown does assert is a right to be heard on the community access condition before the board added it to the disposition.
[35] The Crown seeks to draw support for this from the criminal law concerning joint submissions on sentence. In my view, however, the analogy is not helpful. While the criminal law sets out when a judge can depart from a joint submission, and the [page649] limited opportunity to make further argument the judge should offer, it does not require that the judge who declines to accept that submission must afford counsel the opportunity to make submissions on the very sentence the judge proposes to impose prior to the judge doing so.
[36] The Crown's main submission is that as an administrative tribunal, the board owed a common law duty of procedural fairness to it as a party which the board did not observe.
[37] I agree with the Crown that the statutory procedural rights accorded by the Criminal Code to the parties do not preclude any common law rights of procedural fairness to which these parties may also be entitled. Those statutory provisions do not expressly purport to create such a result. Nor do they do so by necessary implication.
[38] Rather, the question is whether the circumstances here meet the common law requirements to trigger a duty on the board to accord procedural fairness to the Crown as a party before it.
[39] In Cardinal v. Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643, [1985] S.C.J. No. 78, at p. 653 S.C.R., Le Dain J. succinctly defined the circumstances in which the duty of procedural fairness arises:
This Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual.
[Citations omitted]
[40] For the duty to arise, several criteria must be met. There can be no doubt that one of these is present here. The board is clearly a public authority making an administrative decision when it makes its disposition concerning the respondent.
[41] However, for the purposes of the duty of procedural fairness analysis, I do not think that the Crown can be said to be an individual, nor to have a right, privilege or interest that is affected by the board's disposition.
[42] In my view, the duty of fairness extends to those impacted by the administrative decision-making process in the sense that they have a right, privilege or interest that they can claim as their own that is affected, usually adversely, by the decision. While the jurisprudence has increasingly extended this notion to include, for example, corporations either private or public, see D. Brown and J.M. Evans, Judicial Review of Administrative Action in Canada, looseleaf, vol. 2 (Toronto: Canvasback Publishing), at p. 7-54, the Attorney General representing the Crown sits uncomfortably in [page650] this company. Even with an expanded definition, the Crown cannot be described as an individual.
[43] Nor do I think that the Attorney General can be said to be advancing a right, privilege or interest that the Crown can claim as its own. Indeed, the Attorney General does not purport to rely on a Crown right or privilege to trigger the duty of procedural fairness. Rather, the Attorney General argues that the Crown is owed procedural fairness because of its interest in ensuring as far as possible a board disposition that is least onerous and least restrictive to the respondent consistent with public safety. In other words, the Crown's interest is in ensuring compliance with s. 672.54 of the Criminal Code. That is the interest that is said to trigger its entitlement to procedural fairness.
[44] In my view, the Attorney General does not advance an interest that the Crown can claim as its own. What is being asserted is the public interest, not a private interest. This is to be contrasted with the respondent's liberty interest, which is clearly his own and equally clearly affected by the board's disposition.
[45] Nor can it be argued that the interest asserted by the Crown is adversely affected by the board's disposition. The Criminal Code requires the board to comply with s. 672.54. It must ensure that its disposition is least onerous and least restrictive to the respondent while protecting public safety. The Crown can hardly claim that a disposition that does so adversely affects the interest the Crown advances so as to trigger an entitlement to procedural fairness. If the Crown considers that a disposition does not do so, its right is to appeal on the grounds of unreasonableness rather than assert a breach of procedural fairness.
[46] To summarize, I do not think that the circumstances of this case place on the board a common law duty of procedural fairness to the Crown. What remains to the Crown are the procedural protections offered to the Attorney General by the provisions of the Criminal Code.
[47] If I am wrong, and the Crown is owed a duty of procedural fairness by the board, the content of that duty must be determined in the context of this case. In Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), [2004] 2 S.C.R. 650, [2004] S.C.J. No. 45, 2004 SCC 48, at para. 5, McLachlin C.J.C. said this:
The content of the duty of fairness on a public body varies according to five factors: (1) the nature of the decision and the decision-making process employed by the public organ; (2) the nature of the statutory scheme and the precise statutory provisions pursuant to which the public body operates; (3) the importance of the decision to the individuals affected; (4) the legitimate [page651] expectations of the party challenging the decision; and (5) the nature of the deference accorded to the body: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817.
[48] In my view, the decisive factor in these circumstances is the third one, the importance of the decision to the individuals affected. In the words of McLachlin C.J.C., at para. 9, "[t]he stringency of procedural protection is directly proportional to the importance of the decision to the lives of those affected and the nature of its impact on them".
[49] The importance of the board's decision to the Crown relates directly to its interest in ensuring so far as possible that the disposition is least onerous and least restrictive to the respondent consistent with public safety. However, that interest is fully protected by according to the Attorney General the opportunity to urge upon the board the disposition that the Attorney General says will achieve this result. The Attorney General had that opportunity in this case. Procedural fairness requires no more. Protection of the interest advanced by the Attorney General does not require that the Attorney General be given the right to make submissions about the community access condition before the board attaches it to the disposition. That would not enhance protection of the interest relied on by the Crown. Thus, even if the Crown is owed a duty of procedural fairness by the board in the circumstances of this case, I would conclude that the duty was met.
[50] In short, even though it might have been desirable for the board to offer a more fulsome explanation of why it went beyond the joint submission, I conclude that the Crown's procedural fairness argument fails.
[51] For these reasons, the appeal is dismissed.
Appeal dismissed.
Notes
[^1] Provincial guidelines define "escorted" by staff as being in close proximity to and within sight of at least one accompanying staff person. The guidelines define "accompanied" by staff as being usually within sight of at least one accompanying staff person.