CITATION: Runnalls (Re), 2011 ONCA 364

DATE: 20110509

DOCKET: C52689

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Blair and Epstein JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

The Person in Charge of the Northeast Mental Health Centre

Respondent

and

Nelson Shaun Runnalls

Appellant

Nelson Runnalls, appearing in person Michael Davies, as amicus curiae

Grace Choi, for the respondent, Her Majesty the Queen Janice Blackburn, for the respondent, the Person in Charge of the Northeast Mental Health Centre

Heard: April 28, 2011

On appeal from the disposition of the Ontario Review Board dated July 23, 2010.

ENDORSEMENT

[1] In 2004, the appellant was found not criminally responsible on account of a mental disorder on a number of criminal charges. Since then, he has been detained at the North Bay Psychiatric Hospital.

[2] The Ontario Review Board conducted an annual review hearing on July 12, 2010. In its disposition on July 23, 2010, the Board continued the appellant’s detention subject to conditions. The appellant, who represents himself on this appeal, appeals the disposition and requests that this court substitute a conditional or absolute discharge.

[3] This court appointed Mr. Michael Davies to act as amicus curiae on the appeal. Amicus argues that the Board erred by failing to appoint counsel or amicus curiae to assist the appellant at his hearing or, in the alternative, by failing to provide proper assistance to the appellant to assure a full and fair hearing.

[4] We will address the arguments of the amicus curiae first. At the commencement of the hearing before the Board, the appellant sought an adjournment to await the appeal of the previous year’s disposition. The appellant also requested an adjournment so that he could have an independent psychiatric assessment. Both requests were denied.

[5] During the course of the discussion relating to the adjournment requests, counsel for the hospital indicated that the hospital would prefer to see the appellant represented by counsel. The appellant, who had been represented by counsel on other occasions, had not requested counsel. In the ensuing discussion, the following exchange took place between the Chair and the appellant:

The Chair: ... Would you get a lawyer if you got an adjournment?

The appellant: Well, if.

The Chair: [y]ou really do need counsel.

The appellant: Well, what do you need counsel for ...

The Chair: To defend you, to act for you, who knows what he’s doing.

[6] On returning, the Board dismissed the appellant’s application for an adjournment, concluding that the appellant elected not to have a lawyer and that a further psychiatric examination would be redundant.

[7] In his Notice of Appeal, the appellant did not rely on the Board’s failure to appoint counsel as a reason for setting aside the Board’s disposition.

[8] Section 672.5(7) of the Criminal Code provides that an accused has the right to be represented by counsel at a hearing before the Board.

[9] Section 672.5(8) casts a duty on the Board to appoint counsel in certain circumstances. It provides in part as follows:

(8) If an accused is not represented by counsel, … Review Board shall, either before or at the time of the hearing, assign counsel to act for any accused

(a) …

(b) wherever the interests of justice so require.

[10] In R. v. LePage (2006), 2006 CanLII 37775 (ON CA), 214 C.C.C. (3d) 105, this court held that s. 672.5(8) confers the authority upon the Board to appoint counsel to represent the NCR accused or to appoint amicus curiae. The Board may choose to appoint an amicus curiae when an accused does not wish to have counsel represent him or her.

[11] The question arises whether the Board properly considered the test in s. 672.5(8) in deciding to proceed with the appellant’s hearing without appointing counsel.

[12] We start by noting that the language of the section is mandatory. The Board shall appoint counsel if “the interests of justice so require”. In Ontario, we are fortunate to have a number of lawyers, such as Mr. Davies, who are available to act for an NCR accused or as amicus curiae in these types of cases. Indeed, the Board often appoints counsel.

[13] In considering whether the “interests of justice” require the appointment of counsel, the Board should determine whether there can be a fair hearing if it proceeds with the NCR accused unrepresented. A variety of factors may be relevant to such a consideration, including the wishes of the NCR accused, the mental state of the NCR accused and his or her capacity to participate in the hearing without the assistance of counsel, the history of the proceedings, the nature of the issues likely to arise, and the impact of any delay in obtaining counsel. There may well be other factors. No factor is determinative. In the end, the Board should assess the totality of the circumstances in arriving at its decision.

[14] A Review Board should take care in drawing conclusions about an NCR accused’s capacity to participate in a hearing without counsel based on his or her involvement in earlier hearings or other legal proceedings. Annual review hearings are mandatory. An NCR accused does not initiate an annual review. Moreover, an NCR accused’s mental state may vary significantly from one year to the next depending on a variety of factors. Given that NCR accused are among the most vulnerable persons in the justice system and given that annual reviews engage their liberty interests, it is important that Review Boards carefully consider whether the interests of justice require that an NCR accused be represented before proceeding on an unrepresented basis.

[15] While the reasons of the Board for proceeding without appointing counsel for the appellant are brief, we do not conclude that the Board erred in reaching the conclusion to proceed. Both the Chair and counsel for the hospital had expressed the desirability of appointing counsel, no doubt because hearings with counsel tend to be more focussed. The appellant had indicated that he did not need counsel. Obviously, the Board was alive to the issue when it retired. After returning, the Chair said:

We discussed it back and forth and we see no reason to adjourn this case again. It was adjourned in May. There has to be some finality to these hearings, so we’re going to proceed this afternoon. It’s very regretful that Mr. Runnalls does not have counsel, I think that is his choice though. Certainly counsel is available for him, and I’m sure that he could have retained a lawyer but he elected not to.

His request for a further psychiatric examination I think is rather redundant in view of the number of years that he has been under psychiatric care, and previous examination, lengthy psychological examination and I see numerous psychiatric examinations, so we will proceed.

[16] In these circumstances, it is not unreasonable to conclude that this specialized Board, chaired by a retired Superior Court judge, was aware of the requirement set out in s. 672.5(8) of the Criminal Code and considered whether it could proceed to have a full and fair hearing without the benefit of having the appellant represented. It decided that it could.

[17] We note that in making its decision, the Board would have had the benefit of the hospital report detailing the history of the appellant’s detention and his mental health problems. The Board would also have been aware that the appellant had participated in a number of other hearings, on some occasions with counsel. In addition, it appears that the appellant had the benefit of discussions with counsel prior to the July 12th hearing. He told the Board that Michael Davies, the amicus curiae in the present appeal, had recommended that he seek “a proper psychological assessment” at his July 12th hearing.

[18] For the above reasons, we are not persuaded that the Board failed to apply the proper test in not appointing counsel or amicus curiae.

[19] We reviewed the transcript of the hearing which took place with the appellant unrepresented. We do not think that the manner in which the Board conducted the hearing constituted a miscarriage of justice. Nor are we of the view that the Board’s disposition in continuing the appellant’s detention constituted a miscarriage of justice. We set out our reasons for this latter conclusion below. Accordingly, we would not interfere with the Board’s disposition on the basis that it failed to appoint counsel pursuant to s. 672.5(8) of the Criminal Code.

[20] The amicus curiae also argues that the Board erred in failing to provide appropriate assistance to the appellant during the conduct of the hearing. Amicus suggests that the Board should have explained the process that would be followed, the order of events and the ways the appellant could participate in much the same manner that a judge presiding at a criminal trial would do for an unrepresented accused: see for example, R. v. Tran (2001), 2001 CanLII 5555 (ON CA), 55 O.R. (3d) 161 (C.A.).

[21] We consider it essential that a Review Board conducting a hearing for an unrepresented NCR accused ensure that the accused understands the process and is able to participate to the extent necessary to ensure a fair hearing. We stop short, however, of adopting any hard and fast rules as to how a Board should carry out this responsibility. As mentioned above, the Review Board is a specialized body, some of whose members have legal and medical backgrounds. The nature of review hearings will vary. The backgrounds and capacities of NCR accused will also vary widely. What is important in this respect is that the Board ensure that the NCR accused understands the nature of the process and is able to participate in the hearing. If the Board is not satisfied with respect to these matters, then it should adjourn the hearing and exercise its authority to appoint counsel or amicus curiae.

[22] The appellant’s familiarity with the Board, of course, is not determinative of the issue of whether he understood the nature of the process and could participate. However, the transcript of the hearing shows that the appellant understood the process and was able to participate. While the appellant’s cross-examination of the only witness called was unfocussed with respect to certain points, he did elicit several very relevant points that were of assistance to the Board.

[23] In the end, we are not persuaded that the failure of the Board, in this case, to explicitly outline the process that would be followed or to otherwise assist the appellant, resulted a miscarriage of justice. That said, it seems to us that the best practice for hearings of this nature would be for the Board to have a direct discussion with an unrepresented accused to satisfy itself that the accused understands the process and is able to participate.

[24] Finally, we turn to the appellant’s argument that the Board’s decision to continue his detention was not warranted on the evidence. We do not accept this argument.

[25] The test for review is one of reasonableness: see R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779. The Board’s reasons for disposition set out many significant factors supporting its decision, including the appellant’s failure to have insight into his mental illness and need for medication; the unlikelihood that the appellant would continue his medication on his own; his history of alcohol and cannabis use; his history of aggressive and violent behaviour when under the influence of these substances; his refusal of counselling for substance abuse; his lack of acknowledgement of a problem with substance abuse and its impact on his behaviour; his association with individuals involved with illicit substance abuse; his past criminal record for violence and breaches of court orders; and his refusal of educational interventions, which impeded rehabilitation goals.

[26] In our view, the decision of the Board to continue the detention was reasonable and supported by the evidence.

[27] In the result, the appeal is dismissed.

“D. O’Connor A.C.J.O.”

“R.A. Blair J.A.”

“Gloria Epstein J.A.”