Court of Appeal for Ontario

Date: February 14, 2018

Docket: C62777

Judges: Laskin, Trotter and Fairburn JJ.A.

In the Matter of: Angela Campbell

An Appeal Under Part XX.1 of the Criminal Code

Counsel

For the Appellant Angela Campbell: Michael Davies and Meaghan McMahon

For the Respondent the Person in Charge of the Royal Ottawa Mental Health Centre: Barbara Walker-Renshaw and John McIntyre

For the Respondent the Attorney General of Ontario: Rachel Young

Heard: September 12, 2017

On appeal from the disposition of the Ontario Review Board, dated September 14, 2016, with reasons reported at [2016] O.R.B.D. No. 2393.

Fairburn J.A.:

OVERVIEW

[1] The appellant was found not criminally responsible (NCR) in 2004. She spent her first ten years as an NCR accused in the Brockville Mental Health Centre. The Ontario Review Board then ordered that she be transferred to the Royal Ottawa Mental Health Centre (the Royal) and detained within their "Secure Forensic Unit". She started abusing substances, ingesting alcohol, cocaine, and amphetamines, about six months after being placed in one of the Royal's two secure units. In an effort to control her behaviour, the Royal removed some of her privileges and eventually moved her from one secure forensic unit to a more secure forensic unit.

[2] Although s. 672.56(2) of the Criminal Code requires that the Board be notified of significant increases in restrictions on liberty that remain in force for a period exceeding seven days, it was about two months before the Royal notified the Board of the appellant's transfer between secure units. At the restriction of liberty hearing that followed under s. 672.81(2.1), the appellant argued that the delay in notification resulted in a s. 7 Charter breach and a s. 24(1) remedy was due.

[3] The Board divided on whether notice was required, with the majority concluding that it was not. Having come to this conclusion, it was unnecessary for the majority to consider the appellant's Charter arguments. The Board went on to unanimously conclude that, regardless of whether notice was required or not, the Royal's decision to transfer the appellant between units was the least onerous and least restrictive measure available in the circumstances.

[4] The appellant raises four grounds of appeal.

[5] The primary ground focuses on whether the Royal should have notified the Board about the change in the appellant's liberty status in accordance with s. 672.56(2) of the Criminal Code:

672.56(2) A person who increases the restrictions on the liberty of the accused significantly pursuant to authority delegated to the person by a Review Board shall …

(b) give notice of the increase as soon as is practicable to the accused and, if the increased restrictions remain in force for a period exceeding seven days, to the Review Board.

[6] The parties maintain that there is significant ambiguity over how to apply s. 672.56(2) and, in particular, how to identify restrictions on liberty rising to the level of requiring notice to the Board. They ask for guidance on this point. As will be explained, although there are some types of increases in restrictions on liberty that will almost invariably result in the requirement for notice to the Board, the question of notice must be approached on a case-by-case basis, having regard to the NCR accused's liberty status both before and following the restrictions imposed.

[7] Applying the analytical framework explained below, I conclude that there was no need for notice in this case. As the second and third grounds of appeal pertain to Charter issues arising from the alleged failure to notify, there is no need to address them.

[8] The final ground of appeal concerns the Board's conclusion that transferring the appellant between units constituted the least onerous and least restrictive measure available in the circumstances. I see no error in the Board's approach to this issue.

[9] Accordingly, I would dismiss the appeal.

BACKGROUND FACTS

[10] What follows is a brief overview of the factual backdrop for this appeal.

[11] The appellant has a long history with mental illness. She has been under the jurisdiction of the Board since June 2, 2004 when she was found NCR at the age of twenty. A 2015 report to the Board suggests that she has a history of "decompensations involving persecutory and grandiose delusions, hypersexuality, disorganized thought process, rapid mood fluctuations, disorganized speech, impulsive and dangerous behaviours, pressured speech, and flight of ideas". She is currently diagnosed with schizoaffective disorder, bipolar type in remission, substance abuse disorders, and antisocial and histrionic personality disorders. She has demonstrated a lack of remorse and what one of her psychiatrists refers to as impulsivity, aggressiveness and a disregard for the safety of others.

[12] In December 2014, the Board concluded that the appellant had met a therapeutic impasse at the Brockville Mental Health Centre. The Board ordered that she be transferred to the Royal and detained within their "Secure Forensic Unit". The Board's disposition included privileges up to and including residing in the community in an accommodation approved by the person in charge of the hospital. The appellant was also ordered to abstain absolutely from the non-medical use of drugs and alcohol.

[13] The Royal has two secure forensic units: the secure forensic rehabilitation unit (FRU) and the secure forensic assessment unit (FAU). There is no dispute that the FAU is the more secure of the two secure units.

[14] The appellant was transferred to the Royal in January 2015. She was originally placed in the FRU. Starting in May, her clinical team detected a pattern of alcohol and drug consumption. The appellant appeared to be obtaining alcohol and drugs while on passes to the hospital grounds. Although the record reveals little clarity around what privileges the appellant had been extended while on the FRU, it is clear that the Royal removed some privileges to control her consumption of illicit substances. While the privileges were removed and reinstated a few times, the appellant continued to access drugs and alcohol, even when completely confined to the FRU. In late August 2015, in an effort to control her consumption of drugs and alcohol, she was transferred to the FAU.

NOTICE TO THE BOARD AND THE RESTRICTION OF LIBERTY HEARING

[15] The appellant's counsel wrote to the Royal about six weeks following her move to the FAU. He suggested that there had been a "restriction of liberty" requiring the hospital to notify the Board. Eight days later, on October 21, 2015, the Royal sent a letter to the Board notifying it that a "restriction of the liberty of the accused [had] been increased significantly for a period exceeding seven days". The Royal maintains that it provided this notice strictly as a precautionary measure, and denies that notice was statutorily required.

[16] The Board responded by scheduling a restriction of liberty hearing at the same time as the appellant's pending annual review. The restriction of liberty hearing was later adjourned. Despite the appellant being transferred back to the FRU in January 2016, the restriction of liberty hearing eventually went ahead, commencing in May 2016.

THE DECISION UNDER APPEAL

[17] In accordance with the manner in which the legal issue was argued before the Board, its reasons for decision largely focus on whether the transfer from the FRU to the FAU triggered the notice requirement under s. 672.56(2).

[18] In concluding that there was no need for notice, the majority emphasized that the decision to transfer was a treatment one, arising from an effort to control the appellant's consumption of illicit substances that posed a risk to her mental health. Although the majority acknowledged that there were differences in the "security arrangements" between the FRU and the FAU, differences that I will review later, it highlighted that they were both secure units. As the appellant was at the point where she needed one-on-one supervision on the FRU, the majority concluded that moving her to the FAU actually resulted in a less restrictive environment.

[19] The minority judgment narrowed in on the question of notice, specifically rejecting "treatment" as a justification for not giving s. 672.56(2) notice. The minority concluded that notice of the appellant's transfer to the FAU should have been given to the Board and that the failure to do so in accordance with s. 672.56(2) resulted in a s. 7 Charter breach. Although the minority was sensitive to the fact that individuals have different levels of privileges available to them on the FRU, it concluded that a transfer to the FAU meant a total loss of privileges. While the minority did not order a specific remedy, it noted: "It would be of assistance to the accused, the ORB and ultimately the hospital if a policy was put into place which identified any changes to privilege levels which had the potential to exceed 7 days and which was also potentially a significant restriction on the liberty of the accused."

[20] Despite its division on notice, the Board was unanimous that the appellant's move to the FAU was necessary and appropriate in the circumstances.

ISSUES AND ANALYSIS

(a) Overview

[21] I will deal with the issues in the following order. I will first consider preliminary matters related to whether the appeal is moot and the standard of review. I will then discuss the analytical approach to identifying a significant increase in restrictions on liberty, such that notice under s. 672.56(2) is required. This approach draws heavily on the broader statutory and common law context in which the notice provision exists. I will then apply this analytical approach to the factual circumstances of this case.

[22] Finally, I will consider the appellant's submission that the Board erred by concluding that the approach taken by the Royal constituted the least onerous and least restrictive measure available in the circumstances.

(b) Mootness

[23] The appellant was transferred back to the FRU in January 2016, long before the restriction of liberty hearing was held. There is therefore no "live controversy" between the parties and the appeal is moot: Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at p. 353. Although the issue on appeal has been moot for some time, the Royal and the Attorney General do not oppose this court exercising its discretion in favour of deciding the matter. It is an appropriate case in which to do so for three reasons.

[24] First, the appeal raises an important question about when the Board must be notified of a change in the liberty status of an NCR accused. The answer to this question is important to various groups, including NCR accused, hospitals entrusted with their care, and the Board.

[25] Second, bearing in mind the fluidity with which decisions that result in the granting and restricting of liberty interests take place, it can be difficult to have appeals from restriction of liberty hearings resolved while the impugned restrictions remain in effect. Where matters are "evasive of review" because of the speed at which they move, it is sometimes appropriate to hear them although they have become moot: Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326, at para. 15; and Borowski, at p. 360.

[26] Finally, the meaning of s. 672.56(2) is likely to arise again. Having been fully argued, the court is well positioned to determine the legal issue: Starz (Re), 2015 ONCA 318, 125 O.R. (3d) 663, at paras. 53-54, leave to appeal refused, [2016] S.C.C.A. No. 459. I agree that mootness should not stand in the way.

(c) Standard of Review

[27] The standard of review of a Board decision is mandated by s. 672.78 of the Criminal Code. This court may interfere only where the decision is unreasonable and cannot be supported by the evidence, is based on a wrong decision on a question of law, or gives rise to a miscarriage of justice. The standard of reasonableness applies to findings of facts and the drawing of inferences. The Board's disposition can be considered unreasonable when it is not "supported by reasons that can bear even a somewhat probing examination": Mazzei, at para. 17; Saikaley (Re), 2012 ONCA 92, 109 O.R. (3d) 262, at para. 35. The standard of correctness applies to determinations of law: M.L.C. v. Ontario (Review Board), 2010 ONCA 843, 104 O.R. (3d) 450, at para. 21. Deference applies where exercises of discretion by the expert Board are involved: Saikaley, at para. 36.

[28] The meaning of a significant increase in restrictions on liberty is a question of law and must be determined on the standard of correctness. A reasonableness standard drives the review of the Board's decision regarding whether the liberty restrictions placed on the appellant constituted the least onerous and least restrictive measure in the circumstances.

(d) The Meaning of Significantly Increasing Restrictions on Liberty

(i) Parties' Positions

[29] When interpreting the meaning of s. 672.56(2), the appellant emphasizes that we ought not to lose sight of the fact that it is only a notice provision. She argues that notice to the Board of increases in restrictions on liberty constitutes a critical statutory safeguard for the NCR accused's liberty. Accordingly, the appellant maintains that any decision that has a "meaningful" or "not insignificant impact" on the liberty of an NCR accused requires notice. The appellant rejects the proposition that characterizing something as treatment excuses the need for notice.

[30] The Royal responds that imposing a notice requirement in the wake of any hospital decision that has a "meaningful" impact on liberty sets the notice bar too low. The Royal maintains that Parliament must have had in mind a "high threshold" when it inserted the word "significantly" into the notice provision. The hospital urges the court to adopt an interpretation that gives the word "significantly" a robust meaning, which respects the distinct roles of the Board and hospitals.

[31] The Attorney General for Ontario submits that where a decision is made "outside the range of daily adjustments required to fine tune the accused's liberty in accordance with the trajectory expected at the previous annual Board hearing", the threshold for notice under s. 672.56(2) will be met. Crown counsel maintains that the expected trajectory can be gleaned from the Board's dispositions and written reasons for those dispositions.

[32] Although none of the parties' positions provides a complete answer to how s. 672.56(2) should be approached, each offers valuable input into how the analytical approach should evolve. For instance, I agree that the notice provision must be seen as an important liberty safeguard; that whatever the test for notice, it must be one that respects the dual roles of the Board and hospitals; and that the NCR accused's liberty must be considered within the context of his or her clinical progress.

(ii) The Current Approach to Notice

[33] The parties agree that, as it currently stands, hospitals are without clear guidance on when notice to the Board of a significant increase in restrictions on liberty is required.

[34] The appellant and the Royal point to Board decisions that they maintain reveal a divergence of opinion on what constitutes a significant increase in restrictions on liberty. They contrast cases where the Board has concluded that revocations of community access privileges have resulted in a need for notice, with those where the Board has come to a different conclusion. They contrast cases where transferring a person from one secure setting to another has not resulted in the need for notice, with those where moving someone from a general to secure unit, or secure to near or complete seclusion, has resulted in the need for notice.

[35] In an effort to achieve some consistency in the approach to notice, the Forensic Directors Group of Ontario has developed a document entitled: "Restriction of Liberty Notification Guidelines". Steve Duffy is the Director of the Royal's Patient Care Service for Forensic Inpatients and Integration. He testified at the hearing in this case that he attends meetings of the Forensic Directors Group of Ontario. The group is comprised of ten hospitals that have forensic programs. Mr. Duffy testified that the group developed these Guidelines to identify those situations where notice under s. 672.56(2) should be given.

[36] The Guidelines set out three categories of situations. The first category describes what "will be considered a Restriction of Liberty" and reported to the Board. Only two situations are included in this category: (1) a transfer from a general level of security to a secure level for a period lasting longer than 7 days; and (2) withdrawal of permission to live in the community for a period lasting longer than seven days. Mr. Duffy testified that because the appellant did not fit within one of these categories, notice was not required.

[37] The second category describes what "will not be considered a Restriction of Liberty, but will be reported to the ORB for their information only" (emphasis in original). This category involves three situations: (1) where the patient has been secluded for a period exceeding 7 days; (2) where the patient has been living in the community, but voluntarily agrees to an inpatient admission; and (3) where the patient is living in the community on a conditional discharge, but is involuntarily admitted to the hospital under the Mental Health Act, R.S.O. 1990, c. M.7.

[38] The final category involves what "will not be considered a Restriction of Liberty, and will not be reported to the ORB" (emphasis in original). This category explicitly excludes one type of situation from the requirement for notice: a "significant reduction in hospital or town privileges of an inpatient, even if for a period exceeding 7 days."

[39] The categorical approach set out in the Guidelines conflicts with some of the Board's prior jurisprudence. For instance, the Guidelines suggest that there is no "restriction of liberty" where an NCR accused is secluded for more than seven days (conflicting with Ince, Jardine, Hazzard, and Huang). The Guidelines also suggest that there is no "restriction of liberty" where an NCR accused loses his or her community privileges (conflicting with Ly and Kelly).

[40] While the Forensic Directors' Guidelines demonstrate a responsible desire to achieve some consensus about when notice to the Board is required under s. 672.56(2), this type of categorical approach risks both undershooting and overshooting the statutory mark. For instance, one can imagine situations where a significant reduction in "hospital or town privileges" may result in a significant increase in restrictions on liberty. An NCR accused who has been permitted to return to stay at her family home for 72 hours every weekend for a lengthy period of time may well experience a significant increase in restrictions on her liberty if this privilege is revoked. Yet the Forensic Directors' Guidelines suggest that this type of restriction will not be reported.

[41] By way of another example, an NCR patient who is detained on a general unit, but is confined to her room and subject to one-on-one security in that unit, may experience a significant restoration of liberty if she were moved to a more secure unit, but become free of minute-to-minute oversight. Yet, the Forensic Directors' Guidelines require notice based on the mere fact of a transfer from a general to secure unit, despite the restoration of liberty that might result. Indeed, the fact that a secure hospital setting may sometimes serve to increase an NCR accused's liberty interests was commented upon in Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20, [2004] 1 S.C.R. 498, at para. 34 ("Tulikorpi"): a "severely restricted NCR accused… might find more programs and amenities accessible within the secure perimeter at [a hospital] than at a less secure hospital where he might be 'restricted to the ward he is placed in'."

[42] The number of permutations and combinations of possibilities impacting liberty are impossible to calculate. Each NCR accused is unique, with complex individual needs that must be accommodated in the context of a complex hospital setting. Accordingly, while certain types of restrictions on liberty will act as likely predictors of the need for notice, an individualized assessment is called for in each case.

[43] The approach to this assessment is tied to a proper understanding of the notice provision and its place within the broader legislative context.

(iii) The Principles of Statutory Interpretation

[44] The principles of statutory interpretation are well-settled. The words of a provision are to be read "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26; and Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87.

[45] These principles guide the interpretative approach in this case.

(iv) What is the "grammatical and ordinary" meaning of s. 672.56(2)?

[46] Recall that s. 672.56(2) reads: "A person who increases the restrictions on the liberty of the accused significantly pursuant to authority delegated to the person by a Review Board shall …" give notice to the Board "if the increased restrictions remain in force for a period exceeding seven days" (emphasis added). The Board's jurisprudence reveals that the words "significantly" and "increases" are often left unmentioned when considering s. 672.56(2). For instance, the decisions often speak in terms of a "significant restriction of liberty" or a "restriction of liberty". Indeed, in this very case, the Board's ultimate disposition reads: "the actions of the hospital did not amount to a significant restriction of liberty as contemplated by section 672.56(2)".

[47] It is neither a restriction on liberty nor a significant restriction on liberty that triggers the need for notice. While perhaps awkwardly phrased, s. 672.56(2) directs its attention to significant increases in restrictions on liberty. As the Attorney General points out, the word "significantly" acts as an adverb, modifying the verb "increases". The object to which the modified verb relates is "restrictions on the liberty of the accused".

[48] When the words "significantly" and/or "increases" are left out of the notice equation, the meaning of s. 672.56(2) is fundamentally altered. The use of the words "significantly" and "increases" focus the s. 672.56(2) notice provision on the escalation of restrictions on liberty relative to what they were before the hospital decision was made. When s. 672.56(2) is afforded its proper grammatical and ordinary meaning, the provision focuses on two points in time: (1) the NCR accused's liberty status before the increase in restrictions; and (2) the NCR accused's liberty status after the increase in restrictions.

[49] I now turn my attention to the word "significantly" and, in particular, how significant the increase in restrictions on liberty must be in order to require that the Board be notified. The answer to this question lies in the context in which s. 672.56(2) resides.

(v) What is the "entire context" for the notice provision?

[50] I agree with the appellant that notice under s. 672.56(2) provides an important safeguard for liberty. This court has characterized the notice provision in exactly this way in the past: M.L.C., at para. 24; and Saikaley, at para. 68. This does not mean, though, that the notice provision contained in s. 672.56(2) is the only liberty safeguard afforded to NCR accused. There are many liberty safeguards in place and the need for notice to the Board of an increase in restrictions on liberty must be construed against this backdrop.

[51] Part XX.1 of the Criminal Code is a statutory scheme that assigns specific roles to the Board and hospital. Both of these expert bodies are obligated to make decisions with the NCR accused's liberty interests front of mind.

[52] The Board's oversight of an NCR accused is governed by its overriding need to safeguard liberty as much as possible, while having regard to its paramount focus – the safety of the community. As noted in R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, at para. 88, "an NCR patient's liberty interest has been held to be the Board's 'major preoccupation' within the fence posts staked by public safety". See also: Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528, at para. 19.

[53] Throughout its interaction with the NCR accused, the Board is governed by the need to afford the NCR accused the "utmost liberty compatible with his or her situation". This requires the imposition of the least onerous and least restrictive disposition possible in the circumstances: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 42.

[54] Consistent with the Board's need to safeguard liberty as much as possible, the conditions included in Board dispositions must also conform to the least onerous and least restrictive standard: Tulikorpi, at paras. 44-45, 51-52; Winko, at paras. 16, 71, and at paras. 148, 165, per Gonthier J.; and Mazzei, at paras. 27-28.

[55] Another important liberty safeguard rests in the statutory requirement for a yearly review under s. 672.81(1). This means that, without consent, an NCR accused never goes longer than twelve months before the Board receives an update on the NCR accused's progress. The yearly review allows the Board to assess the NCR accused's course over the past year and determine how best to address his or her needs for the next year, with the ultimate goal always being reintegration of the individual into the community.

[56] In between Board reviews, the hospital takes over. As a practical matter, the hospital must be granted sufficient latitude to deal with the predictably unpredictable nature of mental illness, the daily fluctuations that occur, and the responses required in the multifaceted institutional settings where NCR patients often reside. As noted in Tulikorpi, at para. 69, there is a day-to-day fine-tuning that must take place to keep patients and staff safe, and to deliver care. Each NCR accused is unique and each brings his or her clinical strengths and challenges. Needs will constantly vary and the hospital will have to be at the ready to respond. It is essential that hospitals be provided with sufficient flexibility to respond to patient needs: M.L.C., at para. 28.

[57] To ensure that patient needs are met in between yearly reviews, the Board has jurisdiction under s. 672.56(1) "to delegate to the person in charge of the hospital" the authority to make decisions increasing and decreasing restrictions on liberty "within any limits and subject to any conditions set out in that disposition". Decisions made under this delegated authority are "deemed for purposes of [the Criminal Code] to be a disposition made by the Review Board". Accordingly, between yearly reviews, the hospital is entrusted with implementing the Board's disposition.

[58] This does not mean, though, that the hospital exercises unbridled authority between yearly Board reviews. Leaving aside the presumption of expertise, competence, and professionalism of the attending hospital staff working in the area of mental health, when the hospital makes decisions under the Board's delegated authority, it is bound to stay within the envelope of conditions provided in the Board's disposition, an envelope set with the "major preoccupation" of liberty in mind.

[59] The hospital's decision-making power is further constrained by the same legal considerations that bind the Board in arriving at an appropriate disposition. Like the Board, keeping in mind the paramount concern for public safety, the hospital must make decisions that provide an NCR accused with the utmost liberty compatible with his or her situation. The hospital must remain vigilant about interfering with liberty interests as little as possible, making decisions that are the least onerous and least restrictive to the NCR accused's liberty: M.L.C., at paras. 28, 43-45; and Chaudry (Re), 2015 ONCA 317, 125 O.R. (3d) 641, at para. 72. This requirement acts as yet another important liberty safeguard for the NCR accused.

[60] There are other safeguards too. For instance, s. 672.81(2) allows the hospital to ask for a hearing to review a disposition under s. 672.54(b) or (c). A hearing is mandatory in these circumstances. Section 672.82(1) also allows the Board to hold a hearing to review any of its dispositions at any time on its own motion or pursuant to the request of the NCR accused or any other party. Although an NCR accused who asks for a hearing under s. 672.82(1) is deemed to abandon any appeal he or she may have outstanding under s. 672.72, there is nothing to prevent the NCR accused who feels aggrieved by a hospital decision from at least bringing it to the Board's attention and seeking redress: R. v. Petroniuk, 2014 ONSC 6951, at paras. 23-24.

[61] Together, these liberty safeguards, embedded in the Part XX.1 statutory scheme and interpreted by the common law, combine to provide a robust system of protection for an NCR accused's liberty. It is against the backdrop of all of these protections that s. 672.56(2) notice must be understood.

(vi) How significant is "significantly"?

[62] When notice is given by the hospital under s. 672.56(2), a mandatory s. 672.81(2.1) restriction of liberty hearing results. Setting the notice bar too high risks sacrificing the liberty interests of a particularly vulnerable group of people, ones who have committed criminal acts, but who bear no criminal responsibility for those acts – people who are as entitled to as much liberty as the next person, but for the safety risk they present to the public.

[63] At the same time, setting the notice bar too low will not only result in unnecessary mandatory hearings under s. 672.81(2.1), but could interfere with the fundamental work of institutions that administer care to NCR patients. Section 672.56(2) is not intended to transform the Board into a body that second-guesses all or even most hospital decisions that adversely impact liberty. After all, the expert Board delegates to expert hospitals the power to adjust liberty up and down as called for. This delegation is done with confidence that the hospital, which is entrusted with the NCR accused's care between annual reviews, will act professionally, ethically, and in accordance with the guiding legal authorities. Hospitals must be left to do their work free from constant review and all of the demands that a decision-notice-review-decision-notice-review approach would impose.

[64] Considering these constraints and the contextual framework within which s. 672.56(2) notice operates, the word "significantly" must be granted its proper due. As previously reviewed, the NCR accused's liberty is attended to in a multitude of ways. Considered in its proper context, then, the purpose of s. 672.56(2) is to act as a final liberty safeguard, allowing for a second-look at those hospital decisions that have such serious ramifications for the liberty of the NCR accused, that they should be examined ahead of the next yearly review.

[65] This approach requires that the hospital consider the NCR accused's liberty status both before and after decisions that result in increased restrictions on liberty. At the first stage, the NCR accused's liberty norm must be identified. Calibrating the liberty norm requires consideration of the duration and pattern of liberty the NCR accused was experiencing before the decision or decisions resulting in increased restrictions on liberty. Determining the liberty norm does not ask what the individual may have been entitled to, but what he or she was actually experiencing before the increased restrictions were put in place. The liberty must be of sufficient duration to have become, objectively speaking, the NCR accused's norm.

[66] The pre-existing liberty norm cannot always be determined by looking to the very moment before a decision is made that results in increases in restrictions on liberty. Decision by decision, an NCR accused's liberty interests may be whittled away over a period of time. While any one decision may not result in a significant increase in restrictions on liberty, all of the decisions combined may have this effect. Accordingly, when determining the NCR accused's liberty norm, hospitals should take a contextual approach, one that considers the individual's pattern of liberty in the recent past.

[67] Once the liberty norm is determined, it must be compared against the NCR accused's liberty status following the increases in restrictions. Only where the change in liberty status clearly deviates from the NCR accused's liberty norm must the hospital notify the Board. The change in liberty status must be so significant that a reasonable person, considering all of the circumstances, would think that the Board should be called on to consider whether the hospital properly applied the least onerous and least restrictive test ahead of the next annual review.

[68] As with all tests, over time, jurisprudence will breathe life into this analysis. Certain circumstances will emerge which, by their very nature, will suggest a significant enough increase in restrictions on liberty that they will point toward the probable need for notice. For instance, if an NCR accused has been living in the community or afforded significant community access for long enough that it has become the individual's liberty norm, then removal of these privileges for more than seven days will almost invariably result in the need for notice. Equally, where an NCR accused residing in a general unit and accessing multiple privileges is placed in a secure unit or in isolation for more than seven days, this will almost always trigger the need for notice. These are only examples. While Board decisions and appeals can drive the application of the test, an individualized assessment is still required in each case.

[69] Moreover, I agree with the appellant that, when the hospital is in doubt, notice should be given. Indeed, based on the Forensic Directors' Guidelines, it appears that hospitals are already providing notice, even where they conclude that they are under no obligation to do so. This kind of responsible notice is encouraged. While notice under s. 672.56(2) will generate an automatic review under s. 672.81(2.1), it is always open to the hospital to simply inform the Board about a decision that has changed the NCR accused's liberty status. This kind of notification would be by way of information only and not constitute official notice under s. 672.56(2), thereby avoiding an automatic hearing. Having received such information, if the Board deems it appropriate to hold a hearing, the Board has discretion to do so under s. 672.82(1) and (1.1): Petroniuk, at para. 26.

(vii) Applying the Test to this Case

[70] The appellant was declared NCR in 2004. When the Board ordered that the appellant be transferred to the Royal in January 2015, it specified that she be detained within the "Secure Forensic Unit", but did not distinguish between the rehabilitation (FRU) and assessment (FAU) units.

[71] The FRU has a single locked door controlled at the nurses' station. The FAU has triple locked doors, two of which are controlled by security personnel.

[72] On the FRU, privileges are extended based on clinical decisions about patient needs and threats. If the patient's situation permits, it is possible to have a cell phone, internet access, unsupervised visits with guests and family, and food ordered in each night. Visitors may come and go in accordance with permission granted. Those living on the FRU may also be granted off-unit privileges, including to the hospital grounds and, where appropriate, the community for short times. However, medical staff may restrict the patient's privileges on the FRU to essentially nothing.

[73] According to Dr. Watts, a psychiatrist working at the Royal, if an individual has had their off-unit privileges revoked for more than a week or two on the FRU, the medical team considers moving the person to the FAU.

[74] Those detained in the FAU have fewer available privileges. Although they may have access to music devices, such as iPods, they are not permitted to have cell phones. While computers are provided, patients cannot obtain unsupervised internet access. Visits are supervised. Patients are not permitted onto the general hospital grounds or into the community, but have a yard with a wall around it dedicated to their use. Although a "healthy canteen" comes into the unit, there are restrictions on how often patients are permitted to order food. Visits with family and friends may only take place with a staff member present.

[75] Things appeared to go well for the appellant's first number of months detained on the FRU. However, a report to the Board suggests that by May 2015 there were "consistent reports of alcohol, cocaine, amphetamine, and other drug use whenever [the appellant] was given off-ward privileges". The appellant continually violated the Board's requirement that she refrain from the consumption of illicit drugs and alcohol.

[76] After each incident of alcohol or drug ingestion, the Royal would restrict the appellant's privileges in an effort to modify her behaviour and avoid further decompensation of her mental status. The appellant entered into a cycle of having her privileges revoked and returned. Despite the Royal's efforts, the appellant continued to have alcohol and drugs in her system throughout the summer of 2015. In July, she was found intoxicated after an excursion to the hospital grounds. In early August, her urine tested positive for amphetamines. On one occasion she managed to obtain alcohol while confined to the FRU.

[77] Dr. Ward was the appellant's treating psychiatrist while she was in the FRU. Although there is no clarity around exactly what privileges the appellant had during her time in the FRU, it is clear that she at least had some access to the general hospital grounds and may have been permitted to enter the community to visit with her mother and/or a friend. It is unclear whether she was permitted an overnight visit with her mother. In one part of the Royal's December 2015 report to the Board, there is reference to the fact that the appellant had "successful overnight passes to her mother's house without issue". Elsewhere, the same report refers to the fact that the appellant had not spent more than 22 days outside of the hospital since she was placed on a detention order some years earlier in 2004.

[78] The appellant was transferred to the FAU in late August 2015. Dr. Ward testified that by that time, all of the appellant's privileges on the FRU had already been removed. In Dr. Ward's opinion, the appellant's cravings for drugs and alcohol were so strong that the only way to have kept her on the FRU would have been to detain her in her room with one-on-one security. According to Dr. Ward, this would have restricted the appellant from "pretty much everything she had", and may have been more restrictive of her liberty than detaining her in the FAU.

[79] Dr. Watts, the appellant's receiving psychiatrist in the FAU, explained that creating an environment where the appellant could be kept free of alcohol and drugs was essential to prevent an escalation in her behavior, including violent conduct and eventual decompensation of her schizoaffective disorder.

[80] There is no suggestion that the Royal acted outside of the envelope of conditions provided in the appellant's disposition. Indeed, while I recognize the appellant's difficulties with substance abuse, it was she who breached the disposition's conditions, by breaching the order that she abstain absolutely from the non-medical use of alcohol, drugs and any intoxicants.

[81] While I accept the fact that the hospital's decisions were made in an effort to protect the appellant's well-being, I reject the majority view that the fact that these decisions could be described as treatment justified a lack of notice. I agree with the minority's position that "treatment" can result in a significant increase in restrictions on liberty. Like the minority, I agree that whether a change to an NCR accused's liberty norm is for treatment or not does not answer whether it constitutes a significant increase in restrictions on liberty.

[82] When before the Board, the appellant argued that it was the transfer from the FRU to the FAU that caused the significant increase in restrictions on liberty. Before this court, the appellant expanded her argument to include the removal of privileges ahead of her transfer between units. While I accept that in determining the appellant's liberty norm, the removal of privileges in the time-period proximate to the transfer can be taken into account, the record does not reveal with any precision what privileges she was enjoying while detained on the FRU.

[83] This complicates the calibration of her liberty norm – the first stage of the requisite analysis. Although she was transferred to a more secure unit when she went to the FAU, the question is not whether she had a potential for more liberty in the FRU, but whether she was actually experiencing a significantly enhanced form of liberty while there.

[84] Although it is clear that she must have had some grounds privileges while living on the FRU – her access to alcohol and drugs on the grounds being the best indication – there is little information about how she was living on the FRU. Mr. Duffy had not read the appellant's chart. He could only testify that he believed that she had hospital, grounds, and community access. Dr. Watts confirmed that she was obtaining illicit substances while on the hospital grounds. He could not recall "exactly what frequency she was able to go off the ward", but testified to the typical situation. He explained that although the appellant had off-ward privileges at some points:

[I]t changed depending on each relapse. Dr. Ward would restrict a privilege for a day or two or perhaps a few days and then she would get them back again when she was showing good behaviour again; but it was happening very frequently over a period of time.

[85] Dr. Ward's testimony was consistent with that of Dr. Watts. Dr. Ward agreed that the appellant would exercise privileges for a number of weeks, do well, take drugs or alcohol, and then the privileges would be taken away for a few days.

[86] None of the three witnesses who testified from the Royal, Mr. Duffy, Dr. Watts or Dr. Ward, believed that the appellant had been subjected to a significant increase in restrictions on liberty. While the appellant correctly points out that notice was ultimately given under s. 672.56(2), the hospital argues that nothing should be taken from this fact. According to the hospital, the notice was provided only in response to the appellant's request that notice be given and out of an abundance of caution.

[87] Dr. Watts' and Dr. Ward's testimony at the hearing provides the clearest information about the appellant's liberty status while on the FRU, prior to her transfer to the FAU. It appears that she found herself in a cycle of having her grounds privileges revoked and reinstated based on her problems with substance abuse.

[88] Although the evidence demonstrates that those living on the FRU have certain privileges available to them, the privileges are extended only based upon a clinical assessment. The Royal maintains that there was no evidence before the Board as to what privileges the appellant had been extended. At its highest, I find that it is unclear what privileges were extended to the appellant before her transfer to the FAU and, therefore, it remains unclear what her liberty norm was prior to being confined on the FRU and then transferred to the FAU. If she had such privileges, they were not consistent, having been removed multiple times when she was found to have ingested drugs and alcohol.

[89] Moreover, even assuming the appellant's pre-existing liberty norm in the period of time proximate to her move to the FAU included multiple visits to the grounds every day, and perhaps some community visits with her mother, there is little known about her actual liberty status after being transferred to the FAU – the second stage of the requisite analysis.

[90] In these circumstances, comparing the appellant's pre-existing liberty norm with her liberty status following the increases in restrictions on liberty does not lead to the conclusion that the increase was so significant that a reasonable person, considering all the circumstances, would think that the Board should be called on to consider whether the hospital properly applied the least onerous and least restrictive test ahead of the next annual review.

[91] Both the FRU and the FAU are secure units and the Board, in its disposition, left it open to the Royal to determine where the appellant was best placed in those units. There is simply too little information about the appellant's liberty norm before the restrictions placed on her, and too little known about the appellant's liberty status following her transfer to the FAU, to conclude that the restrictions placed on her liberty were so significant that the Board had to be notified.

[92] If the record supported that, while detained on the FRU, the appellant had established a consistent pattern of community visits with her mother, access to the hospital grounds, access to and use a cell phone and the internet, ordering in food and so on, her movement to the FAU could have triggered the need for notice. In other words, although I do not rule out that there are situations where transfers from the FRU to the FAU at the Royal could constitute a significant increase in restrictions on liberty, this is not one of those cases. As it stands, the factual record does not support this conclusion.

[93] Given the conclusion that the appellant was not the subject of a significant increase in restrictions on liberty, the Royal was under no obligation to notify the Board of the restrictions. As notice was not required, there is no need to consider the appellant's argument that her s. 7 rights were breached by a failure to provide notice in a timely way.

(e) The Least Onerous and Least Restrictive Finding

[94] The Board was unanimous in concluding that the decision to move the appellant from the FRU to the FAU constituted the least onerous and least restrictive means available to address the appellant's substance abuse issues, which compromised her mental status. This determination was reasonable, supported by the evidence, and disclosed no error of law.

[95] The appellant simply asserts that the Board made an unreasonable decision. The standard of review for an unreasonable decision under s. 672.78(1)(a) is explained in R. v. Owen, 2003 SCC 33, at para. 33 as follows:

[T]he Court of Appeal should ask itself whether the Board's risk assessment and disposition order was unreasonable in the sense of not being supported by reasons that can bear even a somewhat probing examination … If the Board's decision is such that it could reasonably be the subject of disagreement among Board members properly informed of the facts and instructed on the applicable law, the court should in general decline to intervene.

See also: Centre for Addiction and Mental Health v. J.J., 2009 ONCA 680, at para. 8; Mental Health Centre Penetanguishene v. Ontario, 2010 ONCA 197, at paras. 64-66; Saikaley, at para. 35.

[96] The Board found that the appellant's transfer to the FAU was necessary because her consumption of intoxicants posed a risk to her mental status, her treatment needs, and the safety of the public. There is a clear body of evidence supporting this conclusion. The facts demonstrate that over a number of months, the treatment team attempted to manage the appellant's access to drugs and alcohol, but she continued to access and consume them. This was risking her well-being. Moreover, the evidence clearly showed that she posed an increased risk to the community when abusing drugs and alcohol. The risk to the community includes the risk to other patients and hospital staff: Chaudry, at paras. 80-81.

[97] The majority also found that by the time the appellant moved to the FAU, it would have been more onerous and restrictive to keep her on the FRU. This conclusion was supported by the evidence that she was confined to the FRU, her privileges had been revoked, and she was heading in the direction of one-on-one supervision.

[98] Ultimately, the Board was alive to the legal standard that had to be applied, and its conclusion was reasonable given the evidence before it. There is no error in the Board's approach.

CONCLUSION

[99] I would dismiss the appeal.

Released: February 14, 2018

"Fairburn J.A." "I agree. John Laskin J.A." "I agree. G.T. Trotter J.A."

Footnotes

[1] The appellant maintains that by failing to meet its statutory obligation to notify the Board under s. 672.56(2) of the Criminal Code, the Royal violated her s. 7 Charter right to life, liberty and security of the person. As a remedy under s. 24(1) of the Charter, the appellant asks that the Royal be directed to "review its procedures concerning restrictions of liberty".

[2] While the words "necessary and appropriate" have replaced the "least onerous and least restrictive" terminology that used to appear in s. 672.54, this court has held that they mean the same thing. In other words, "necessary and appropriate" dispositions are those that conform to the "least onerous and least restrictive" standard: Osawe (Re), 2015 ONCA 280, 125 O.R. (3d) 428, at para. 45; and Ranieri (Re), 2015 ONCA 444, 336 O.A.C. 88, at paras. 19-21.

[3] Ly (Re), [2013] O.R.B.D. No. 327, at paras. 35, 37-38; and Kelly (Re), [2014] O.R.B.D. No. 1098, at paras. 20, 49. See also: Vale (Re), 1997 CarswellBC 3273, at paras. 7, 28 (B.C.R.B.).

[4] J.F. (Re), [2014] O.R.B.D. No. 683, at paras. 21, 36, 38-41; and Pasha (Re), [2014] O.R.B.D. No. 641, at paras. 4, 41.

[5] Robitaille (Re), [2014] O.R.B.D. No. 910, at paras. 6, 34.

[6] M.L.C., at paras. 2, 17; Saikaley (Re), at para. 8; Firman (Re), [2012] O.R.B.D. No. 2403, at para. 4; Ginn (Re), [2012] O.R.B.D. No. 2083, at para. 9; Volhovski (Re), [2014] O.R.B.D. No. 54, at para. 4; Ince (Re), [2012] O.R.B.D. No. 2338, at para. 62; Jardine (Re), [2015] O.R.B.D. No. 857, at paras. 8, 38-39; Hazzard (Re), [2015] O.R.B.D. No. 2435, at para. 35; and Huang (Re), [2016] O.R.B.D. No. 1768, at para. 42.

[7] See for example: Ince, at para. 62; Jardine, at para. 8; Hazzard, at paras. 3, 35; Huang, at para. 42; Robitaille, at paras. 3, 6, 34; Firman, at paras. 4, 18; Ginn, at para. 8; and Volovski, at para. 4.