Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20241112 DOCKET: COA-24-CR-0335

Roberts, George and Wilson JJ.A.

IN THE MATTER OF: COLIN SOOKRAM AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel: Anita Szigeti, for the appellant Jacob Millns, for the respondent Attorney General of Ontario Julia Lefebvre, for the respondent Person in Charge of Waypoint Centre for Mental Health Care

Heard: October 1, 2024

On appeal from the disposition of the Ontario Review Board, dated February 9, 2024, with reasons dated March 12, 2024.

George J.A.:

[1] The appellant appeals from the February 9, 2024 disposition order of the Ontario Review Board. Relying on jurisprudence from this court – most notably Kelly (Re), 2014 ONCA 269 – he argues that the Board erred by making a detention order that did not include a community living term.

Background

[2] On August 31, 2022, the appellant was found not criminally responsible (“NCR”) on account of mental disorder for manslaughter. After smoking some hash one night with the victim and another acquaintance, the appellant stabbed the victim without warning. He was arrested for second degree murder, and a jury found him guilty of manslaughter. The appellant was 23 years old at the time of the index offence. He is now 29. He has been diagnosed with schizophrenia and cannabis use disorder (in sustained remission).

[3] On February 13, 2023, the Board ordered that the appellant be transferred from the maximum security environment at Waypoint Centre for Mental Health Care (“Waypoint”) to St. Joseph’s Healthcare Hamilton (“St. Joseph’s”), which offers more opportunities for therapy and reintegration into the community. At the time of his 2024 hearing the appellant had not yet been transferred to St. Joseph’s because a bed had not become available. The appellant was transferred to St. Joseph’s in August 2024, shortly before this appeal was heard.

[4] At the 2024 hearing, the appellant’s physician, Dr. Mishra, gave evidence that the appellant’s psychotic symptoms had not recurred, that he was compliant and taking his medication, and that he was polite, respectful, and had caused no behavioural or management problems. Dr. Mishra explained that while the appellant had a “fair understanding” of his condition and could identify symptoms, he would benefit from more consistent therapy. The appellant was doing very well, in Dr. Mishra’s view, though Dr. Mishra emphasized that he had not observed the appellant outside the high-security environment at Waypoint, and could not speculate about how he would progress at St. Joseph’s.

[5] While it was undisputed that the appellant continued to pose a significant threat to public safety, the parties agreed that he should still be transferred to the less secure environment at St. Joseph’s. They differed, however, on the privileges that should be attached to the transfer.

[6] The appellant sought additional privileges at St. Joseph’s, including indirectly supervised community access, as well as community living. His counsel submitted that community access privileges, which would remain at the discretion of the person in charge at St. Joseph’s, would be highly motivating for the appellant, since he would be able to pursue vocational opportunities in which he had already shown an interest at Waypoint. As for community living privileges, although no one proposed that the appellant was ready for community living at the time, the appellant’s counsel emphasized that housing waiting lists were long. Relying on this court’s ruling in Kelly (Re), he argued that placing a person on a waiting list is a sufficient reason to include a community living provision in a disposition, even if the privilege will not be exercised within the year.

[7] The Hospital and the Crown neither supported nor opposed community access privileges. Crown counsel was of the view that it would be “premature” to add them, but conceded that there would be no downside to doing so. The respondents did not, however, support the inclusion of a community living provision.

[8] The Board declined to include the community living term, concluding that “[n]otwithstanding delays associated with community placement it must first be demonstrated, to the satisfaction of the responsible treatment team at St. Joseph’s, that [the appellant] is ready for that transition”.

[9] For the reasons that follow, I would allow the appeal and amend the Board’s February 9, 2024 disposition order to include a community living term.

Analysis

(i) Standard of Review

[10] Under s. 672.78(1) of the Criminal Code, an appeal against a Board’s order can only be allowed if the order 1) is unreasonable or cannot be supported by the evidence, 2) is based on a wrong decision on a question of law, or 3) gives rise to a miscarriage of justice. When, as here, the appeal is grounded in the first branch, the applicable standard is reasonableness simpliciter: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 33; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 34. As the Supreme Court instructed in Vavilov, at para. 85, “a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker”. See also Nguyen (Re), 2020 ONCA 247, 387 C.C.C. (3d) 13, at para. 28; Sim (Re), 2020 ONCA 563, at para. 67; and Kipusi (Re), 2024 ONCA 795, at para. 4. A Board's decision is only owed deference where it meets these criteria: Sim (Re), at para. 68, referring to Vavilov, at para. 85.

(ii) The Positions of the Parties

[11] The appellant submits that a detention order with no possibility of community living was not the least onerous or least restrictive disposition commensurate with public safety. The Board’s refusal to include that term is not supported by the evidence, and is therefore unreasonable.

[12] The respondents, pointing to the serious nature of the index offence and the relatively short period of time that the appellant has been under the Board’s jurisdiction, argue that the Board was right to conclude that a community living term was not appropriate until such time as the appellant was actually ready to transition into the community. In other words, the Board was “not required to pre-emptively include a community living privilege that would not be exercised in the following year to avoid potential waitlists at an unknown time in the future”.

Kelly (Re)

[13] The appellant and the respondent Crown fundamentally disagree on the correct interpretation of this court’s decision in Kelly. In Kelly, this court concluded that the Board erred by denying the hospital’s request to include a community living term, even though the offender would not be ready to make a transition into the community during the year following his annual hearing. The court held, at para. 11:

The Board’s refusal was inconsistent with the overriding need to achieve a disposition that is the least onerous and least restrictive. As a practical matter, there is a shortage of places in supervised accommodation and a significant waiting list. In our view, the Board should take that practical reality into account, especially where there is evidence that the requested provision is also recommended for therapeutic reasons. The inevitable result of the Board’s refusal to consider the provision recommended by the treatment team would be to subject the appellant to a more severe restraint than is warranted by his condition. [Emphasis added.]

[14] The Crown argues that in this passage this court found that the Board had erred by misapprehending the evidence – i.e., by failing to address the therapeutic benefits of the community living term. The present case is distinguishable, the Crown asserts, because the appellant’s counsel did not make submissions and Dr. Mishra did not testify about the therapeutic value of community living.

[15] The appellant interprets para. 11 of Kelly quite differently. His counsel focuses on this court’s use of the word “especially”, which she says must mean that the inclusion of a community living term (as a path to being placed on a housing waitlist) is not limited to situations where the term is recommended by the hospital. She argues further that in cases like this, where there is no evidence that the public would be placed at risk by including a community living term, the Board can safely presume that the prospect of moving into the community would motivate the appellant to pursue and achieve his therapeutic objectives. In other words, this is a matter of common sense.

[16] However, the Crown argues that Kelly does not stand for the proposition that a Board errs when it does not include a community living term to avoid future waitlists. It takes the position that the Board must only “consider” the inclusion of the term, and that when the Board does so, as it did here, its decision is owed deference.

(iii) Discussion

[17] I agree with the Crown that the Board must “consider” a community living term where one is requested. However, it must do so in accordance with the four factors in s. 672.54 of the Criminal Code: the safety of the public, the mental condition of the accused, the reintegration of the accused into society, and the other needs of the accused. Under s. 672.54, the Board’s disposition must be necessary and appropriate in the circumstances, namely, the least onerous and least restrictive of the accused’s liberty consistent with public safety, his mental condition and “other needs”, and his eventual reintegration into society: Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20, [2004] 1 S.C.R. 498, at paras. 3, 24.

[18] Although public safety is the overarching consideration, in this case the Board’s reasons do not reflect any attention to the mental condition of the accused or his reintegration into society. A Board’s reasons are not owed deference where they do not take the proper factors into account.

[19] While a board’s primary objective is to ensure public safety, it also has an obligation to consider an accused’s long-term reintegration into society (by ensuring they have sufficiently supportive housing when discharged), and their mental condition. As the Supreme Court held in Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528, at para. 19:

The objective is to reconcile the twin goals of public safety and treatment. In this process of reconciliation, public safety is paramount. However, within the outer boundaries defined by public safety, the liberty interest of an NCR accused should be a major preoccupation of the Review Board when, taking into consideration public safety, the mental condition and other needs of the individual concerned, and his or her potential reintegration into society, it makes its disposition order.

[20] Here, while the Board clearly considered public safety in declining to order the community living term, it did not consider the appellant’s reintegration into society. Nor did it analyze the appellant’s mental condition, beyond a superficial examination of the index offence and to note that he had not been observed outside of a maximum security facility. All of the relevant factors needed to be balanced and weighed against each other. More specifically, public safety concerns needed to be weighed against the fact that the appellant had progressed through the security level system at Waypoint in the minimum required time, had been medication compliant, presented no behavioural management issues, had achieved greater degrees of off-unit access in a linear fashion, and had maintained a close relationship with his supportive family. Because the Board failed to balance all these factors transparently in its reasons, it is not possible to discern how public safety concerns overwhelmed everything else.

[21] When the Board considered the inclusion of the community living provision, it concluded:

Notwithstanding delays associated with community placement it must first be demonstrated, to the satisfaction of the responsible treatment team at St. Joseph’s, that [the appellant] is ready for that transition. Dr. Mishra has only observed [the appellant] within the context of Waypoint’s high secure forensic structure. This determination is therefore appropriately left for St. Joseph’s subsequent to their assessment of [the appellant]’s progress once he is afforded and assessed in relation to indirect community access. [Emphasis added.]

[22] The Board’s analytical path was flawed. This articulation of the test – that there must be evidence the appellant is ready for a transition to the community – accounts for public safety concerns, but it does not account for any of the other factors in s. 672.54. The appellant’s reintegration into society would be significantly hindered by delaying his placement on the waitlist for another year. And although counsel did not make submissions to this effect before the Board, common sense dictates that, if community access would be motivating to the appellant and would facilitate his education and future employment, then so too would the prospect of community living.

[23] Further, the Board’s formulation of the test suggests that the treatment team at St. Joseph’s would have no input into the determination to implement the community living term. But this is not the case. A community living term would only permit the appellant to live in the community should the person in charge at St. Joseph’s, in their discretion, authorize it. The appellant’s residence would also have to be approved by the person in charge. And, while no one expressed any concerns that St. Joseph’s would exercise its discretion improperly, even if someone had, as this court held in Kelly, at para. 11, “[i]f the Board was concerned that the treatment team might use the provision prematurely, it could have made provision for reporting or returning to the Board for approval before it was implemented”. This condition offers a sensible compromise when the lingering concerns are rooted in the accused not having been observed in a less secure setting. Particularly given that the appellant’s counsel drew the Board’s attention to Kelly, the Board ought to have considered these possible safeguards and justified any finding that they were inadequate in its reasons.

[24] As in Kelly, there was no downside to including a community living term, even if for the sole purpose of placing the appellant on a housing waitlist. Not only was there was no evidence that including such a term would endanger the public, there was no evidence before the Board that including the term would have any negative consequences at all. The term was sought only because it would enable St. Joseph’s to place the appellant on a waitlist for housing, which made good sense given the systemic issues that everyone acknowledged give rise to lengthy delays.

[25] Further, the term was important to the Board’s mandate of imposing the “least onerous and least restrictive” disposition possible: Kelly, at para. 11. As this court noted in Simonic (Re), 2024 ONCA 573, at para. 15: “Given that at least some providers of community living will not place a patient on a waitlist until they are granted community living privileges, the denial of a community living clause could mean that a patient would face the prospect of remaining in an inappropriately restrictive environment for an excessive length of time while waiting for the disposition to be revisited at the next annual review.” I acknowledge that in both Simonic and Kelly there was evidence that including the community living term would be therapeutically beneficial, and that there was no such evidence here. But in the appellant’s case, as in Kelly and Simonic, not including the term would mean subjecting the appellant to more onerous and restrictive conditions than necessary, for longer than necessary, given that he would face a significant wait time even after there was evidence that he was ready for the transition.

[26] And, contrary to the Crown’s argument, this court’s decision in Armstrong (Re), 2019 ONCA 907, did not compel the Board to decline to include the community living term. In Armstrong, while the Board did decide not to include the term, there was strong evidence that to do so would have negative consequences: the doctor testified that the accused had a personality disorder, that he had assaulted a co-patient because of his frustration with being “held back” from privileges he felt entitled to, and that to include such a term would lead to a therapeutic impasse. The Board in Armstrong accepted the doctor’s evidence, which is why the term was not included.

[27] There was no evidence to support such a finding in the appellant’s instance. Dr. Mishra’s evidence was that the appellant had never displayed any sense of entitlement, and had not pushed rules or boundaries. While Dr. Mishra was hesitant to recommend the community living term, this was because he had only observed the appellant in the high security environment at Waypoint. Put another way, although Dr. Mishra stressed that he could not make a recommendation himself at this point, he did not say that the recommendation would not be open to anyone, and he did not mention any specific reason to think that the appellant would behave differently in a less secure setting.

[28] In my view, the Board did not adequately justify in its reasons its refusal to include a community living provision in the appellant’s disposition, despite the evidence that there were significant safeguards available and no downside to doing so. This lack of justification, together with the Board’s failure to consider the provision in light of the appellant’s long-term reintegration into society and his mental condition, rendered the disposition unreasonable. The appropriate question was not whether the Board had sufficient evidence to satisfy it that the appellant was ready to transition to community living, but whether, in crafting the “least onerous and least restrictive” disposition available given the evidence and the balance of the four factors in s. 672.54 of the Criminal Code, the Board could include a community living provision with conditions.

Conclusion

[29] For these reasons, I would allow the appeal. I would amend the disposition order to provide that the appellant is permitted to live in the community in accommodation to be approved by the person in charge at St. Joseph’s Healthcare Hamilton, and that St. Joseph’s must give notice to the Board in the event that it is considering discharge to the community, so that the Board may approve any implementation of this term.

Released: November 12, 2024 “L.B.R” “J. George J.A.” “I agree. L.B. Roberts J.A.” “I agree. D.A. Wilson J.A.”