COURT OF APPEAL FOR ONTARIO DATE: 20211105 DOCKET: C69119

Watt, Benotto and Trotter JJ.A.

IN THE MATTER OF: McElman Elman AN APPEAL UNDER PART XX.1 OF THE CODE

Andrew Stastny, for the appellant Mark Luimes, for the Attorney General Leisha Senko, for the Centre for Addiction and Mental Health

Heard: September 24, 2021 by video conference

On appeal against the disposition of the Ontario Review Board dated March 4, 2021.

Trotter J.A.:

A. Introduction

1This appeal arises from the Ontario Review Board’s rejection of a joint submission that the appellant be conditionally discharged.

2The appellant, McElman Elman, was found not criminally responsible on two charges of criminal harassment and two charges of failing to comply with a recognizance. He was referred to the Board for a disposition hearing.

3The appellant, the hospital, and the Crown all submitted that a conditional discharge was the appropriate disposition. They differed only on the issue of whether the appellant should be ordered to refrain from consuming cannabis, as opposed to being ordered to undergo treatment.

4The Board imposed a detention order.

5The appellant submits that the proceedings were unfair because the Board failed to provide him with adequate notice of its intention to depart from the joint submission. The hospital and the Crown now contend that there was no joint submission and therefore no obligation to provide notice. In the alternative, they submit that questions posed by Board members during the hearing provided sufficient notice that the joint submission was in peril. Moreover, they say the disposition was reasonable.

6I am of the view that there was a joint submission before the Board on the fundamental issue of whether the appellant should be conditionally discharged as opposed to being detained in a hospital. However, the questions posed by two Board members provided adequate notice that the joint submission was at risk. Therefore, I would dismiss the appeal on this basis. Additionally, the fresh evidence admitted on appeal, which reveals that the appellant has been readmitted to hospital twice since his original disposition hearing, supports the reasonableness of the Board’s conclusion that a detention order was appropriate.

B. Background

7At the time of the proceedings, the appellant was 29 years old. He suffers from schizoaffective disorder (bipolar type) and cannabis use disorder. He has documented psychotic symptoms dating back to 2013.

8The victim of the harassment is a former employee of CAMH. She has never had a personal, medical, or professional relationship with the appellant. However, he believes that she is a supernatural being who is in love with him and guides him. The appellant believes they will be together one day. He experiences auditory hallucinations in the form of the victim’s voice, even though he takes anti-psychotic medication.

9The charges arose because, despite being subject to a s. 810 peace bond, the appellant messaged the victim’s sister and expressed his love for the victim. He wrote to the victim’s mother, claiming he was the victim’s “number 1 admirer”.

10On July 24, 2020, and on consent, the appellant was found not criminally responsible on account of mental disorder: Criminal Code, R.S.C. 1985, c. C-46, s. 16. He was referred to the Board for a disposition hearing: s. 672.47(1). In the meantime, he remained on bail.

C. Proceedings Before the Board

(1) Pre-Hearing Conferences

11Four pre-hearing conferences were conducted by the Hon. Mr. David McCombs. Among other things, these conferences resulted in the preparation of a risk assessment report, written by Dr. Roland Jones.

12Dr. Jones recommended that the least onerous and least restrictive disposition was a conditional discharge with conditions that the appellant: “report to CAMH not less than once every two weeks; that he abstain from illicit substances and from cannabis; and submit urine samples for screening on a random basis when directed by the hospital.”

13At one of the pre-hearing conferences, counsel for the hospital and the Crown indicated that they would seek a non-contact condition to protect the victim. This was uncontroversial. The appellant’s counsel alerted the other parties that he would raise concerns about a cannabis abstention condition, proposing a treatment-based approach instead.

14In his final pre-hearing conference report on December 14, 2020, the Hon. Mr. McCombs wrote, “The sole contested issue will be whether the Board’s disposition should include a requirement that Mr. Elman abstain from cannabis use.”

(2) The Hearing

15On January 21, 2021, the Board conducted the disposition hearing. At the outset of the hearing, the pre-hearing conference reports were identified by the Chairperson and acknowledged to form part of the record of proceedings.

16The parties then stated their positions. The positions of the appellant and the hospital were consistent with the positions they took at the pre-hearing conferences. The Crown advised the Board that it would “reserve” its final decision until the evidence of Dr. Jones was complete. This appears to be a departure from its position before the Hon. Mr. McCombs.

17The Board had the benefit of the risk assessment report prepared by Dr. Jones. It was filed as an exhibit. In his report, Dr. Jones indicated that the appellant has experienced psychotic symptoms since at least 2013. Between 2013 and 2015, he was periodically admitted to Toronto East General Hospital and CAMH. His current diagnosis is schizoaffective disorder (bipolar type) and cannabis disorder.

18Dr. Jones elaborated on the appellant’s obsession with the victim. The appellant sees her as a healer and a goddess, views he has held for a number of years. Dr. Jones said, “And even despite medication, despite treatment, he still continues to hold these beliefs very firmly.” The appellant enjoys hearing the voices and does not want them to stop.

19In his report, Dr. Jones wrote that the appellant is committed to not contacting the victim, but he is waiting for a time when he is permitted to do so. The appellant told Dr. Jones that he searches for the victim’s name on the internet and is always on the lookout for her when he is outside. The appellant said that he would not contact her even if he were aware of where she lived. However, Dr. Jones testified, “it’s not clear to me whether he would initiate contact if he was provided with her address or were to discover it.”

20Dr. Jones recommended that the appellant should refrain from consuming cannabis because of the “strong relationship between cannabis and psychosis…[a]nd it is expected that the cannabis use is contributing or exacerbating the psychotic symptoms he has.” The appellant has expressed a desire to stop consuming cannabis, but has found it difficult to do so.

21Dr. Jones found the appellant to be very cooperative with the assessment and “the whole process”. He testified, “And aside from the delusional beliefs he has, he functions very well in other areas of his life. He’s got very many pro-social attitudes towards work, into bettering himself, but he continues to have these auditory hallucinations and delusions, and has little insight into that.”

22In favouring a conditional discharge, Dr. Jones relied on the fact that the appellant had been on a community treatment order for some time, and it was beneficial. The appellant attended his appointments and was compliant in receiving anti-psychotic medication injections, although he was inconsistent in taking oral mood-stabilizing medication. Dr. Jones further explained:

There haven’t been any incidents of physical violence, and there’s been no recent attempts to contact the victim. And for those reasons, because he appears to be adequately managed in the community, a conditional discharge is felt to be the most appropriate, taking into account the necessity for having the least onerous and least restrictive disposition.

23As discussed in more detail below, one of the Board members, Dr. Gary Chaimowitz, questioned Dr. Jones about the utility of a conditional discharge in the face of the appellant’s ongoing cannabis use. Another Board member shared Dr. Chaimowitz’s concerns, and pursued a similar line of questioning.

24In the face of these questions, Dr. Jones acknowledged that a detention order would make it easier for the hospital to respond to breaches, but maintained that the least restrictive disposition was a conditional discharge. He noted that, if the appellant decompensated, taking action under the Mental Health Act, R.S.O. 1990, c. M-7 would be the appropriate method of returning him to the hospital.

25At the end of the evidentiary portion of the hearing, the parties all made brief submissions. Counsel for the hospital made some preliminary remarks about the appellant being a significant threat to the safety of the public and the serious impact of the appellant’s conduct on the victim. She then essentially reiterated what the Hon. Mr. David McCombs wrote in his final pre-hearing memo: “That being said, just addressing the…one outstanding issue here, specifically the cannabis use term.” She submitted that it should be an outright prohibition.

26The Crown commenced her submissions by saying, “I am going to join the hospital in asking for a conditional discharge”, but requested a non-contact condition. She also submitted that, “I am confident that the Board can craft a condition regarding cannabis that can assist him with the goal of abstinence….”

27Counsel for the appellant supported a conditional discharge and suggested to the Board that, instead of a prohibition on consuming marijuana, a less onerous condition might be imposed, one that required the appellant to seek treatment for cannabis use. The rationale for this request was that, given the appellant’s problems with cannabis, a prohibition condition would likely result in the appellant being immediately in breach of the disposition order.

28The Board members posed no questions to counsel during their final submissions. The propriety of a conditional discharge was not raised. At the conclusion of the hearing, the Chairperson addressed the appellant and said:

Well, you’ve heard what’s going on and you’ve heard a lot of concern about cannabis use and the difficulties of that has with getting you better. What we’ll do now is the Board will meet and make a decision as to what the disposition order should be, and you and your counsel will get that information in about a week’s time, and then there’ll be reasons from the Review Board following that, maybe within three or four weeks.

(3) The Board’s Decision and Reasons

29On January 29, 2021, the Board ordered that the appellant be detained at CAMH, with privileges to live in the community in accommodation approved by the person in charge. He was ordered to abstain from the consumption of cannabis and to report to CAMH not less than once every two weeks.

30On March 4, 2021, the Board released its Reasons for Disposition. The reasons accurately set out the positions of the parties. However, without referring to it as a “joint submission”, the Board rejected the propriety of a conditional discharge. It said:

The Review Board is of the firm view that management of Mr. Elman’s illness and risk to members of the public is best served through a detention order where the Hospital can readily and swiftly respond to any change in Mr. Elman’s mental state and admit him to hospital or more readily arrange programs to deal with what is clearly his commit to the use of cannabis, a destabilizing element and an obstacle to any improvement in his mental health.

His simple refusal or inability to abstain from cannabis will not get Mr. Elman readmitted to hospital under a conditional discharge. On the other hand, a simple breach of that condition would provide the Hospital with the ability to respond by readmission to hospital if needed if Mr. Elman was on a detention order.

The Board considers this order necessary and appropriate for both Mr. Elman and the victim of the index offence for the reasons provided above. It is only marginally onerous and restrictive for Mr. Elman than the conditional discharge disposition proposed by the Hospital, but as the safety interests of the victim as a member of the public takes priority, the balance weighs in favour of the detention order.

D. Analysis

(1) Introduction

31The Ontario Review Board is not bound by joint submissions. In the leading decision of Re Osawe, 2015 ONCA 280, 125 O.R. (3d) 428, Laskin J.A. wrote, at para. 33: “The board undoubtedly has the authority, indeed the duty, to reject a joint submission if it is of the view that the joint submission does not meet the requirements of s. 672.54 of the Criminal Code.”

32However, the Board owes a duty of procedural fairness to those individuals over which it exercises jurisdiction. This includes a duty to give notice when it considers rejecting a joint submission and imposing a more restrictive disposition. Notice gives the parties an opportunity to address the Board’s concerns, by adducing (further) evidence, making responsive submissions, or both: Osawe, at paras. 36-37; Re Kachkar, 2014 ONCA 34, 119 O.R. (3d) 641, at paras. 42-44.

(2) Was there a joint submission?

33The Crown and the hospital submit that there was no joint submission before the Board because: (i) the Crown “reserved” its decision at the outset of the hearing and did not “join” until the evidentiary portion of the hearing was complete; and (ii) the disagreement over the cannabis condition made the positions of the parties merely “overlapping or parallel”, falling short of a joint submission. I reject both submissions.

34First, in this case, the timing of the Crown’s assent to the joint submission was unimportant in characterizing the nature of what was ultimately presented to the Board. It is the essence of the agreement that is paramount, not when it is conveyed. That the Crown waited until she had heard Dr. Jones’s evidence before deciding whether she would agree to the hospital’s proposal did not detract from the fact that, in the end, all parties were asking for the same order – a conditional discharge. None of the parties wanted a detention order. Evidently satisfied by what she heard during the hearing, the Crown said, “I am going to join the hospital in asking for a conditional discharge.”

35I acknowledge that previous decisions of this court have attached greater importance to the Crown having “reserved” its position at the outset of the hearing: see Re Klem, 2016 ONCA 119, at para. 24; Re Ellis, 2018 ONCA 616, at para. 22. However, the significance of one of the parties “reserving” its position is fact-specific.

36In this case, it is apparent from the pre-hearing conference reports that the parties were joined on the critical issue that the appellant should not be detained in a hospital. This was the common position at the end of the evidentiary phase of the hearing, expressed explicitly by counsel. Their brief submissions further illustrate that they were all acting on the shared assumption that the only contentious issue was the form of the cannabis condition. The Board posed no questions that may have disabused counsel of their mistaken belief.

37Second, I disagree that the positions of the parties were merely “overlapping or parallel”. The parties agreed on the main issue that the Board should not impose the most onerous disposition available in Part XX.1 of the Criminal Code – a detention order. The question of what form the cannabis condition would take did not detract from the fundamental agreement. Whatever form the cannabis condition may have taken, it could have attached to a detention order or a conditional discharge.

38Third, the Board subsequently characterized the positions taken at this disposition hearing as a joint submission. As discussed in the next section dealing with fresh evidence, the appellant has since been before the Board at two restriction of liberty hearings. In its Reasons from one of these hearings, the Board wrote: “On January 21, 2021 the Board held Mr. Elman’s annual hearing, and notwithstanding a joint submission for a conditional discharge, the disposition was a detention order with the privilege to live in the community in approved accommodation” (emphasis added).

39Even if it could be said that the positions of the parties did not technically amount to a joint submission, it did not justify the appellant being stripped of the procedural protections recognized in Osawe. Many of the same fairness concerns prevail when the Board decides to impose a disposition that is more severe than what the Crown or the hospital requests. This principle is reflected in the sentencing jurisprudence on joint submissions.

40In R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, the Supreme Court of Canada confirmed the safeguards that must be observed when a sentencing judge intends to reject a joint submission: notice to the parties and a chance to respond. If, after observing these safeguards, a sentencing judge still intends to reject the joint submission, they must provide reasons for doing so.

41In R. v. Blake-Samuels, 2021 ONCA 77, 69 C.R. (7th) 274, this court extended Anthony-Cook by insisting on the same safeguards in circumstances where, absent a joint submission, a sentencing judge intends to impose a sentence more onerous than the Crown requests. MacPherson J.A. held that the same “fundamental fairness” concerns arise (at para. 32).

42I would apply the same principle here. The Board was required to give notice of its intention to reject the positions of the parties before imposing a disposition that none of them wanted – a detention order under s. 672.54.

(3) Was adequate notice given?

43The Board did not provide explicit notice of its concern with the joint submission. However, notice need not be explicit; it may take different forms. This was explained by Laskin J.A. in Osawe, at para. 73:

Notice may be given in different ways. The presiding board chairperson may express the board’s concerns about accepting a joint submission at the hearing itself and ask the parties whether they wish to lead additional evidence. If necessary, the board can adjourn its hearing so the parties can obtain the further evidence they may require. Or, the board’s concerns about accepting a joint submission may be evidence to the parties from the questions posed during the hearing by various board members. If the parties have adequate notice from the board’s questions, then the parties may ask for an opportunity to lead additional evidence or make additional arguments to address these concerns. Or, in some cases, concerns about the joint submission may arise after the board begins its deliberations, in which case the board may need to notify the parties and request further submissions or evidence. [Emphasis added.]

44Subsequent decisions of this court have recognized that notice may be given indirectly or implicitly, by Board members asking questions that “are significantly probing about the core elements of the joint submission”: see Re Benjamin, 2016 ONCA 118, at para. 22. Ultimately, whether the questions posed by the Board constitute sufficient notice is a contextual inquiry: Re Nguyen, 2020 ONCA 247, 387 C.C.C. (3d) 13, at para. 20.

45The questions posed by two Board members in this case constituted notice that the joint submission was in peril. The line of questioning pursued by Dr. Chaimowitz was specific, extensive, and probing on the issue of whether a conditional discharge, as opposed to a detention order, would permit the hospital to effectively respond to any decompensation triggered by the appellant’s cannabis use. Dr. Chaimowitz engaged Dr. Jones in a thoughtful discussion of this issue, during which he posed the following, probing questions:

Absent a detention order, the hospital has, in my view, essentially no tools at its disposal besides suggesting psychoeducation. What do you think the hospital would do when, once the Board issues a disposition under conditional or detention, what would the hospital do with the positive tests and how would that play out?

So that would be my question. I mean, do you think a conditional discharge is going to be sufficient in protecting the public, i.e., managing the risk posed by ongoing marijuana use?... Do you think a conditional discharge would be sufficient with that condition in the disposition to manage risk? [Emphasis added.]

46Another Board member pursued a similar theme, asking questions that revealed the same skepticism that a conditional discharge would be efficacious in managing the appellant’s risk.

47Consequently, I would find that the Board provided adequate notice that it was concerned with the joint submission; but it was far from ideal. It would have been preferrable had the Chairperson explicitly expressed the Board’s reservations about the joint submission, either at the outset of the hearing, or later in the proceedings when they became manifest. Similar concerns were expressed by Lauwers J.A. in Benjamin, at para. 34.

48At the end of the hearing, Board members could have briefly withdrawn to confer on this issue. Upon resumption of the hearing, questions could have been posed to the parties about the feasibility of a conditional discharge. Instead, the Board members remained silent. This important issue – whether the Board would accede to the joint submission – should not have been left to guesswork. However, in all of the circumstances, I cannot conclude that the hearing was procedurally unfair.

49I would dismiss this ground of appeal.

E. The Fresh Evidence

50With admirable candour, counsel for the appellant, Mr. Stastny, provided us with an update of his client’s circumstances since the Board’s decision. Unfortunately, things have not gone well.

51As noted above, the Board’s order permitted the appellant to reside in approved housing in the community. After the Board’s order, his treatment team changed. The new team approached the appellant’s situation differently than Dr. Jones.

52On March 15, 2021, when the appellant reported to CAMH as he was required to do, he was not allowed to leave. The hospital initiated restriction of liberty proceedings under s. 672.56(2) of the Criminal Code.

53On April 7, 2021, with the consent of the appellant, the Board ordered that the appellant remain at CAMH until it was considered appropriate to discharge him into the community. This did not happen until June 7, 2021.

54The appellant was readmitted to hospital on June 29, 2021. This occurred after he failed a cannabis screen. He had also failed to maintain contact with his forensic outpatient worker. Another restriction of liberty hearing was held on August 4, 2021 at CAMH. This time it was contested. However, the Board ordered that the appellant remain at CAMH.

55At the hearing of the appeal, we were advised that the appellant remains detained at the hospital. Although not before us for adjudicative purposes, these post-hearing events, along with the subsequent Board decisions, support the wisdom of the Board’s earlier decision that a detention order was required in the circumstances.

56The appellant has been before the Board three times this calendar year – at his original disposition hearing, and at his two restriction of liberty hearings. The Board is closely monitoring the appellant’s situation. They will do so again at his annual hearing, now scheduled for January 20, 2022.

F. Disposition

57I would dismiss the appeal.