In the Matter of Saikaley [Indexed as: Saikaley (Re)]

109 O.R. (3d) 262

2012 ONCA 92

Court of Appeal for Ontario,

Winkler C.J.O., Lang and Watt JJ.A.

February 10, 2012

Charter of Rights and Freedoms -- Remedies for breach of rights -- Appellant having been found not criminally responsible living in community with conditions in disposition order including reporting to hospital -- Appellant apprehended and detained in secure unit of hospital following failure to report -- Criminal Code requiring hospital to advise Review Board of significant increase in restrictions on accused within seven days and Board thereafter to hold hearing "as soon as practicable" -- Due to errors by hospital and Review Board, hearing not commencing for almost five months and Review Board decision not released until almost seven months after appellant apprehended -- Appellant's right rights under s. 7 of Charter violated -- Board ordering appellant's return to community with increased reporting condition and requiring hospital to release accused within 60 days -- Board not erring in refusing to grant appellant's request for absolute discharge as s. 24(1) of Charter remedy because Criminal Code precluding absolute discharge of not criminally responsible accused continuing to pose significant risk to safety of public -- Remedy sought by appellant neither appropriate or just for him or for public.

Criminal law -- Mental disorder -- Dispositions -- Timing of mandatory Review Board hearing following notification of significant increase in restrictions on accused's liberty -- Appellant failing to comply with reporting condition in disposition order while living in community -- Appellant apprehended and detained in secure custody unit of hospital without privileges -- Criminal Code mandating Review Board hearing "as soon as practicable" after Board receiving notice from hospital of significantly increasing the restrictions on [page263] accused -- As result of errors by hospital and Review Board, hearing not commencing for almost five months and Review Board's decision not released until almost seven months after appellant's restrictions significantly increased -- Appellant's rights under s. 7 of Charter violated -- Board ordering appellant's return to community with increased reporting condition and requiring hospital to release him within 60 days -- Board not erring in refusing to grant absolute discharge as s. 24(1) of Charter remedy because Criminal Code precluding absolute discharge of not criminally responsible accused continuing to pose significant risk to safety of public -- Board's unexplained determination that hospital permitted to delay appellant's release into community for up to 60 days after release of disposition order was set aside -- Board concluding that requirement to hold hearing "as soon as practicable" after receiving notice of significantly increased restrictions meaning that generally hearing should be held within no more than 30 days -- Review Board's 30-day guideline set aside given absence of evidence about time administratively required to organize hearing following receipt of notice and lack of explanation for interpretation -- Canadian Charter of Rights and Freedoms, ss. 7, 24(1) -- Criminal Code, R.S.C. 1985, c. C-46, s. 682.81(2.1).

The appellant, who suffered from schizophrenia, was found not criminally responsible on account of mental disorder in relation to charges of criminally harassing police offices and city councillors. At a disposition hearing, the Ontario Review Board concluded that the least onerous and least restrictive disposition was a detention order, but one that provided the hospital with the discretion to permit the appellant to continue living in the community. The appellant was required to report at least monthly. When he reported late the first time, he was warned that he had to comply with the reporting condition of his disposition order. He failed to report the following month. As a result, the hospital had him apprehended and detained him in its secure custody unit, where he remained without privileges for at least six months. Under s. 672.56(2) (b) of the Criminal Code, the hospital was required to give the Board notice of a significant increase in the accused's restrictions after the restrictions had remained in force for more than seven days. As the result of an error, the hospital first notified the Board after only four days after apprehending the appellant. Once the Board received the notice, it was required by s. 672.81(2.1) to hold a hearing to review the restriction decision "as soon as practicable". Due to missteps on the part of the hospital and the Board, and despite the appellant having written to the Board to complain about his detention, the appellant's restriction of liberty hearing did not begin until almost five months and its decision was not released until almost seven months after the significant increase in the restrictions on his liberty. The Board found that the appellant's detention initially met the least onerous and least restrictive disposition standard mandated by s. 672.54 of the Code but that it no longer did so at the time of the hearing. It ordered the appellant's return to the community, but gave the hospital the option of delaying that return for up to 60 days. While it found that the appellant's detention violated his rights under s. 7 of the Canadian Charter of Rights and Freedoms, it refused to grant him an absolute discharge as a remedy under s. 24(1) of the Charter. It increased the frequency of his reporting condition to weekly. The Board also held that the requirement that it hold a hearing "as soon as practicable" after being notified of a significant restriction of an accused's liberty would generally be satisfied if the Board convened a hearing within 30 days of the notice. The appellant appealed.

Held, the appeal should be allowed in part. [page264]

The Board did not err in refusing to grant the appellant an absolute discharge as a remedy under s. 24(1) of the Charter. The Board found that the appellant continued to suffer from paranoid delusions and posed a significant threat to the safety of the public, and the Criminal Code precluded the Board from granting an absolute discharge to an accused found not criminally responsible, no matter how serious the Charter breach and its effect on the appellant, so long as he remained a significant threat. In any event, an absolute discharge would not have been an "appropriate and just" s. 24(1) remedy to the appellant or the public.

The Board provided no explanation for the proposed 60-day delay in the appellant's release other than to say that such a delay would permit the hospital to implement a plan to safely return him to community living. The Board provided no suggestion as to what that plan would entail, other than a more frequent reporting requirement. The proposed 60-day delay was unreasonable and should be set aside. The increased reporting requirement was reasonable.

Amicus challenged the Board's unexplained conclusion that holding a hearing "as soon as practicable" in s. 672.81(2.1) of the Code after receiving the hospital's notice means that a hearing must generally be held within no more than 30 days after it is received. Amicus suggested that a period of seven to 14 days was appropriate. There was no evidence to support a 30-day period and no evidence showing, from an administrative perspective, how long it usually takes the Board to schedule a restriction of liberty hearing. The Code envisages an expeditious hearing and decision in such circumstances, and contrary to the amicus' suggestion, it is not desirable to impose a rigid time limit. However, in the absence of evidence to support the Board's pronouncement that generally a hearing within 30 days was "as soon as practicable", that finding should also be set aside.

APPEAL from the decision and disposition of Ontario Review Board, [2011] O.R.B.D. No. 676 (Rev. Bd.).

Cases referred toR. v. Conway, [2010] 1 S.C.R. 765, [2010] S.C.J. No. 22, 2010 SCC 22, 75 C.R. (6th) 201, 320 D.L.R. (4th) 25, 402 N.R. 255, 263 O.A.C. 61, 211 C.R.R. (2d) 326, 2010EXP-1926, J.E. 2010-1051, EYB 2010-175167, 1 Admin. L.R. (5th) 163, apld Other cases referred to Barrie Public Utilities v. Canadian Cable Television Assn., [2003] 1 S.C.R. 476, [2003] S.C.J. No. 27, 2003 SCC 28, 225 D.L.R. (4th) 206, 304 N.R. 1, J.E. 2003-967, 49 Admin. L.R. (3d) 161, 122 A.C.W.S. (3d) 606; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, 164 A.C.W.S. (3d) 727, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65, D.T.E. 2008T-223; Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624, [1997] S.C.J. No. 86, 151 D.L.R. (4th) 577, 218 N.R. 161, [1998] 1 W.W.R. 50, 96 B.C.A.C. 81, 38 B.C.L.R. (3d) 1, 46 C.R.R. (2d) 189, 74 A.C.W.S. (3d) 41; Mahe v. Alberta, 1990 CanLII 133 (SCC), [1990] 1 S.C.R. 342, [1990] S.C.J. No. 19, 68 D.L.R. (4th) 69, 105 N.R. 321, [1990] 3 W.W.R. 97, J.E. 90-475, 72 Alta. L.R. (2d) 257, 106 A.R. 321, 46 C.R.R. 193; Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), [2006] 1 S.C.R. 326, [2006] S.C.J. No. 7, 2006 SCC 7, 264 D.L.R. (4th) 10, 346 N.R. 1, J.E. 2006-620, 222 B.C.A.C. 1, 46 Admin. L.R. (4th) 1, 206 C.C.C. (3d) 161, 36 C.R. (6th) 1, 68 W.C.B. (2d) 722, EYB 2006-102437; R. v. C. (M.L.) (2010), 104 O.R. (3d) 450, [2010] O.J. No. 5310, 2010 ONCA 843, 270 O.A.C. 235, 274 C.C.C. (3d) 368, 97 W.C.B. (2d) 114; R. v. Carosella (1997), 1997 CanLII 402 (SCC), 31 O.R. (3d) 575, [1997] 1 S.C.R. 80, [1997] S.C.J. No. 12, 142 D.L.R. (4th) 595, 207 N.R. 321, J.E. 97-358, 98 O.A.C. 81, 112 C.C.C. (3d) 289, 4 C.R. (5th) 139, 41 C.R.R. (2d) 189, 33 W.C.B. (2d) 226; United Food and Commercial Workers, Local 1518 (U.F.C.W.) v. KMart Canada Ltd., 1999 CanLII 650 (SCC), [1999] 2 S.C.R. 1083, [1999] S.C.J. No. 44, 176 D.L.R. (4th) 607, 245 N.R. 1, [1999] 9 W.W.R. 161, J.E. 99-1845, 128 B.C.A.C. 1, 66 B.C.L.R. (3d) 211, 99 CLLC Â220-064, 66 C.R.R. (2d) 205, 90 A.C.W.S. (3d) 892; [page265] Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31, 175 D.L.R. (4th) 193, 241 N.R. 1, J.E. 99-1277, 124 B.C.A.C. 1, 135 C.C.C. (3d) 129, 25 C.R. (5th) 1, 63 C.R.R. (2d) 189, 42 W.C.B. (2d) 381 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 24(1) Criminal Code, R.S.C. 1985, c. C-46 [as am.], Part XX.1 [as am.], ss. 672.47 [as am.], 672.54 [as am.], 672.55(1) [as am.], 672.56, (2), (b), 672.78(1), 672.81(1), (2.1), 672.82 [as am.], 672.83(1) Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A [as am.], s. 75(2) Authorities referred to Sharpe, Robert J., and Kent Roach, The Charter of Rights and Freedoms, 4th ed. (Toronto: Irwin Law, 2009)

Samuel Saikaley, acting in person. Michael Davies, amicus curiae. Michelle O'Bonsawin, for respondent Royal Ottawa Health Care Group. Joanne Stuart, for respondent Attorney General.

The judgment of the court was delivered by

LANG J.A.: -- I. Introduction

[1] This appeal challenges the terms of the relief provided by the Ontario Review Board (the "Board") following a hearing into the prolonged and unduly onerous restriction placed on the appellant's liberty by the hospital that was charged with his care. The appellant claims relief on two bases: first, as relief available to him under the provisions of the Criminal Code, R.S.C. 1985, c. C-46; and, second, as the "appropriate and just" remedy for the breach of his s. 7 rights under the Canadian Charter of Rights and Freedoms (the "Charter").

[2] The appellant's primary argument is that the Board erred in relying on the evidence and opinion of his psychiatrist, Dr. Booth. He also argues that the relief granted by the Board was inadequate in two ways: first, because it failed to grant him an absolute discharge; and, second, because it increased the frequency of his reporting obligation.

[3] Amicus contends that the Board order for Mr. Saikaley's return to the community should not have provided the hospital with the option of delaying that return for up to 60 days. [page266] Amicus also argues for more extensive Charter relief, including a procedural review and staff education, to ensure that hearings are held in compliance with the provisions of the Criminal Code and the Charter. Finally, he submits that restriction hearings should be held within seven to 14 days, rather than the 30 days proposed by the Board. The Board and the hospital argue that the relief granted by the Board was adequately responsive both with respect to the Criminal Code and the Charter remedies.

[4] In my view, the Board made no error in refusing Mr. Saikaley an absolute discharge or in increasing his reporting requirement. However, it is also my view that there was no basis in the evidence for the Board to delay his return to the community for up to 60 days. In addition, there was no evidence to conclude that the "as soon as practicable" timing of a restriction hearing generally means within 30 days.

[5] Since the imposition of these time frames was not supported by the evidence, and not explained in the Board's reasons, I would allow the appeal to the extent of striking both time frames from the Board's decision. I would not add terms to the Board's decision providing for the procedural review and education requested by amicus. In my view, the details of implementation are properly left to the hospital and the Board to develop their own internal mechanisms to ensure compliance with the Criminal Code and the Charter. I would otherwise dismiss the appeal.

II. Background

(1) Mr. Saikaley's pre-August 2010 circumstances

[6] The appellant, Samuel Saikaley, lived in the community until his apprehension in August 2010. He did so both before and after he was charged with three counts of criminally harassing certain police officers and city councillors in July 2007. In April 2010, Mr. Saikaley was found not criminally responsible ("NCR") for these charges on the basis that he was suffering from a mental disorder that rendered him incapable of appreciating the nature and quality of his act or knowing that it was wrong.

[7] The Board's initial disposition allowed Mr. Saikaley to live in the community at the discretion of the Royal Ottawa Mental Health Centre ("Hospital"), but it required him to report to the Hospital at least monthly. Over the next two months, Mr. Saikaley demonstrated difficulty complying with this requirement. In response, the Hospital had the appellant apprehended and detained him in its secure custody unit where he remained without privileges for at least six months. [page267]

[8] In removing Mr. Saikaley from the community, the Hospital had significantly increased the restriction on his liberty. In those circumstances, the Hospital was required by s. 672.56(2) (b) of the Criminal Code to give the Board notice of the increased restriction, although not until that restriction had remained "in force for a period exceeding seven days". Once the Board received the notice, it was required by s. 672.81(2.1) to "hold a hearing to review [the restriction] decision . . . as soon as practicable".

[9] Due to missteps on the part of the Hospital and/or the Board, Mr. Saikaley's restriction of liberty hearing, which ought to have been held "as soon as practicable", did not begin until more than four months after his initial detention.

[10] When the hearing began, the Board accepted an agreed statement of facts. From those facts and the other admissions and evidence, it was abundantly clear that the Board and the Hospital were in breach of the Criminal Code's scheduling requirement and that Mr. Saikaley's right to liberty and security of the person was infringed, contrary to s. 7 of the Charter. On their face, the breaches were serious. They had a serious impact on Mr. Saikaley.

[11] There were only two live issues before the Board. The first issue was whether the appellant's continuing hospitalization met and continued to meet the least onerous and least restrictive disposition standard mandated by s. 672.54 of the Criminal Code, as well as the appropriate relief if it did not. The second issue was the appropriate remedy under s. 24(1) of the Charter for the s. 7 Charter breach.

[12] Regarding the first issue, the Board concluded that the Hospital had significantly restricted the appellant's liberty when it apprehended him. While the Board found that his detention in the Hospital initially met the least onerous and least restrictive disposition standard, it found that his detention no longer met that standard at the time of the hearing. Consequently, the Board ordered Mr. Saikaley's release from the Hospital and his return to the community, subject to the potential 60-day delay. Specifically, the decision set out the Board's expectation that the Hospital would "implement a plan to safely return [Mr. Saikaley] to community living within 60 days", provided there was no new development in the interim to justify his continued detention. At the same time, the Board increased Mr. Saikaley's reporting requirement from monthly to weekly.

[13] Regarding the Charter issue, the Board refused to grant Mr. Saikaley his requested remedy of an absolute discharge. Instead, the Charter remedy took the form of a reiteration and interpretation of the requirements for notice and a timely [page268] restriction hearing prescribed by s. 672.56 and s. 672.81(2.1) of the Criminal Code. In particular, the Board provided that a notice from a hospital to the Board should be in writing and contain the details of the increased restriction. It also interpreted the statutory language of "as soon as practicable" to mean that a restriction hearing should be held "generally within no more than 30 days" after the required notification is received by the Board.

(2) Mr. Saikaley's mental health history

[14] To review the Board's decision in context, it is helpful to consider Mr. Saikaley's background, which informs the degree of risk posed by his mental illness and the appropriate conditions necessary to balance his liberty interest with the public safety interest.

[15] Mr. Saikaley was not troubled by mental illness as a young man. He had no history of and no criminal record for violent or physically aggressive behaviour. Indeed, he was successfully married and employed.

[16] In 1999, when he was 32 years of age, Mr. Saikaley began to exhibit symptoms of schizophrenia. Although he functioned in the community without apparent incident for several years, Mr. Saikaley began suffering from the delusion that the police were conspiring against him. His marriage failed. He believed that one officer in particular caused its breakdown and that the officer was torturing and interfering with him through the use of microwave technology. Mr. Saikaley was said to have attempted to protect himself from the police microwaves by wearing a tinfoil hat and sleeping under a metal bed.

[17] Mr. Saikaley could not understand that his conspiracy theory resulted from mental illness. To him, it was very real. He was living it. In the language of mental health professionals, he lacked insight into his illness in the sense that he was unable to assess any treatment recommendation.

[18] In July 2007, the police laid criminal harassment charges against Mr. Saikaley. The charges stemmed from his repeated communications to police officers and city councillors. Pending his trial in 2010, Mr. Saikaley continued to live in the community in an apartment provided by his family, whom he saw frequently. He complied fully with the terms of his bail. Following the April 2010 verdict of not criminally responsible, Mr. Saikaley's case was referred to the Board for disposition.

[19] At its disposition hearing on June 15, the Board concluded that the least onerous and least restrictive disposition available for Mr. Saikaley under s. 672.54 of the Criminal Code was a detention order, albeit one that provided the Hospital with the [page269] discretion to permit him to continue living in the community. In order to monitor his status in the community, the Board required Mr. Saikaley to report to the Hospital at least monthly. The Hospital designated Dr. Booth as the psychiatrist to whom Mr. Saikaley was required to report.

(3) Mr. Saikaley's failure to report

[20] Mr. Saikaley arrived eight hours late for his first post-disposition reporting on June 30, 2010. When he arrived, Dr. Booth explained to him that he was obliged to report monthly.

[21] Despite that explanation, Mr. Saikaley did not attend for his July 28 scheduled appointment. Mr. Saikaley testified that he had telephoned Dr. Booth's assistant on several occasions beforehand, telling her that he planned to be out of town and seeking an appointment after his return. He was not given a later appointment because Dr. Booth's schedule was busy. Nonetheless, Mr. Saikaley failed to appear at the scheduled time for his July 28 appointment. However, as Dr. Booth explained at the December 2010 restriction hearing, Mr. Saikaley's illness left him with memory problems and disorganized thinking that undoubtedly contributed to his failure to comply.

[22] When Mr. Saikaley missed the July appointment, Dr. Booth initiated his committal to the Hospital on the basis that Dr. Booth was unable to monitor the risk that Mr. Saikaley presented in the community.

[23] When Mr. Saikaley was apprehended on August 14, he was wearing a piece of metal over his groin. While Mr. Saikaley explained that this may have been to protect a cyst on his testicle, Dr. Booth saw it as consistent with previous concerns about police use of microwave rays. In his view, Mr. Saikaley continued to suffer from the same delusion that led to his earlier criminally harassing behaviour. [See Note 1 below]

(4) Mr. Saikaley's hospitalization

[24] The Hospital detained Mr. Saikaley in its assessment unit, which is a double-locked secure forensic unit. The unit, which is described as "super-maximum" security, has no [page270] programming for the patients and the patients are not permitted to exercise any off-unit privileges. Mr. Saikaley only left the unit to attend hearings and medical appointments. His detention persisted from August 14, 2010 through his restriction hearing that concluded on January 18, 2011, the Board's decision of February 11, 2011 and for some or all of the 60-day time frame that the Board gave the Hospital to release Mr. Saikaley.

(5) The delay in holding the hearing

[25] While the unreasonable delay in holding the restriction hearing is admitted, the record does not contain evidence about why the delay happened, nor did the Board make any findings on this issue. Apparently, the hearing moved forward on the agreed-upon basis that there would be no attribution of blame. [See Note 2 below]

[26] Nonetheless, the agreed statement of facts provides some detail about the chronology of events. I turn to that chronology of agreed facts because it illustrates the seriousness of the breach and the duration of the harm suffered by Mr. Saikaley.

[27] On August 18, 2010, the Hospital notified the Board that Mr. Saikaley had been admitted. The notification did not ask the Board to schedule a restriction hearing. In any event, the notice was premature because it was sent after Mr. Saikaley had been in custody for only four days, rather than after the seven days required by the Criminal Code. Despite these defects, the Board had historically scheduled restriction hearings in response to similarly worded and premature letters from the Hospital.

[28] On September 15, 2010, the Hospital notified the Board of the need for a restriction hearing and proposed hearing dates based on Dr. Booth's availability. The Board's response was that a hearing was not necessary "based on the material that the Board had received".

[29] Mr. Saikaley wrote to the Board on October 20 pointing out that his "civil liberties had been illegally restricted" since August 14 and that he was entitled to a restriction hearing. The Board did not respond to Mr. Saikaley, but made a further inquiry of the Hospital, which responded on October 22 confirming that Mr. Saikaley remained an in-patient.

[30] On October 26, counsel on behalf of the Board informed the Hospital that the Board would contact the parties to schedule a hearing. No hearing was scheduled. On November 16, the [page271] Hospital wrote the Board again, seeking a hearing on an urgent basis. The Board did not respond. The Hospital followed up again on November 24.

[31] On November 29, the Board scheduled the required hearing for December 8. However, the three-day hearing did not actually begin until December 22, 2010 and, as I have observed, concluded January 18, 2011. The Board's decision and disposition were released on February 11, 2011. [See Note 3 below] Reasons followed on June 3, 2011.

[32] On this record, it seems that the delay in holding the required hearing resulted from a series of unfortunate missteps and decisions on the part of both the Hospital and the Board. That said, no findings were made by the Board to explain what went wrong. Nonetheless, the parties agree that the delay did not result from bad faith or any malice towards Mr. Saikaley.

III. Issues

[33] The appellant and/or amicus argue that the Board erred in the following ways: (1) refusing to grant an absolute discharge, particularly on the basis of Dr. Booth's evidence; (2) allowing the Hospital to continue the appellant's unwarranted detention for up to 60 additional days; (3) increasing the reporting requirement from monthly to weekly; (4) proposing that a restriction hearing should be held "generally within no more than 30 days"; and (5) failing to require the Board and the Hospital to review their procedures and conduct staff education to ensure compliance with the Charter and the Criminal Code.

IV. Analysis

(1) Standard of review

[34] The standard of review was not a matter of controversy. Section 672.78(1) of the Criminal Code provides that an appeal [page272] may only be allowed if a Board order is unreasonable or 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.

[35] The Supreme Court of Canada has instructed appellate courts not to "'be too quick to overturn' a review board's 'expert opinion' on how best to manage a patient's risk to the public" (citations omitted): R. v. Conway, [2010] 1 S.C.R. 765, [2010] S.C.J. No. 22, 2010 SCC 22, at para. 95. However, the Board's risk assessment and disposition can be considered unreasonable when not "'supported by reasons that can bear even a somewhat probing examination'": Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), [2006] 1 S.C.R. 326, [2006] S.C.J. No. 7, 2006 SCC 7, at para. 17.

[36] Deference will generally be accorded to a tribunal's interpretation of its home statute or statutes that are "closely connected to its function", and may also be warranted where a tribunal has developed expertise in applying a general rule of common or civil law in specific statutory contexts: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, at para. 54. Correctness is the appropriate standard of review for constitutional questions, particularly questions of Charter interpretation: see Barrie Public Utilities v. Canadian Cable Television Assn., [2003] 1 S.C.R. 476, [2003] S.C.J. No. 27, 2003 SCC 28, at para. 66, and United Food and Commercial Workers, Local 1518 (U.F.C.W.) v. KMart Canada Ltd., 1999 CanLII 650 (SCC), [1999] 2 S.C.R. 1083, [1999] S.C.J. No. 44, at paras. 69-70. However, where the question is one of discretion, deference usually applies automatically: see Dunsmuir, at para. 53. The determination of an appropriate s. 24(1) Charter remedy generally involves an exercise of discretion: R. v. Carosella (1997), 1997 CanLII 402 (SCC), 31 O.R. (3d) 575, [1997] 1 S.C.R. 80, [1997] S.C.J. No. 12, at para. 48.

(2) The legislative context

(a) The [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

[37] It is important to review the Board's decision in the context of Part XX.1 of the Criminal Code, which deals with those who have been found not criminally responsible on account of mental disorder. Such a verdict diverts the person to a stream that provides care under the supervision of a hospital: see Conway, at paras. 87-88.

[38] In crafting a disposition for a NCR accused that is the least onerous and least restrictive, s. 672.54 of the Criminal Code requires the Board to take "into consideration the need to protect the public from dangerous persons, the mental condition [page273] of the accused, the reintegration of the accused into society and the other needs of the accused". To achieve this balance, the Criminal Code provides three possible dispositions: an absolute discharge, a conditional discharge or a detention order.

[39] The Board only has jurisdiction to grant an absolute discharge if the patient is "not a significant threat to the safety of the public". A patient is not a "significant threat" unless the patient poses a "real risk" of serious physical or psychological harm to the public arising from conduct that is criminal in nature: Conway, at para. 91, citing Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31, at paras. 57 and 62.

[40] After the patient is first declared NCR, the court or Board makes its initial disposition (s. 672.47). The Board reviews its disposition annually to ensure that it continues to meet the least onerous and least restrictive standard (s. 672.81(1)). The Board may also hold a discretionary hearing at any time (s. 672.82). Finally, the Board must hold a restriction hearing to review a hospital's decision to significantly increase the restriction on the liberty of the accused (s. 672.81(2.1)). At a restriction hearing, the Board has the authority to alter the patient's disposition as it considers appropriate (s. 672.83(1)).

[41] In crafting an initial detention order, the Board typically provides "the person in charge of the hospital" with a broad range of conditions for the patient's care. These conditions may be "flexible, individualized, [and] creative", although they may not include conditions that prescribe the patient's treatment: see Conway, at paras. 94 and 97. See, also, s. 672.55(1) of the Criminal Code and Mazzei, at paras. 50-54. With this flexibility, the hospital can exercise its discretion to decide whether hospitalization or community living best balances the goals set out in the Criminal Code. The hospital may also exercise its discretion to increase or decrease restrictions on the patient's liberty during the continuance of the disposition.

[42] However, as I have already explained, if a hospital significantly increases the patient's restrictions for more than seven days, it must give notice to the Board (s. 672.56(2)), and the Board must review those restrictions "as soon as practicable after receiving the notice" (s. 672.81(2.1)).

[43] As this court pointed out in R. v. C. (M.L.) (2010), 104 O.R. (3d) 450, [2010] O.J. No. 310, 2010 ONCA 843, at paras. 34-35, the Board reviews the Hospital's decision to ask whether it met the least onerous [and] least restrictive standard at the time it was imposed and whether it continued to do so at the time of the restriction hearing. [page274]

(b) The [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[44] In Conway, the Supreme Court concluded that the Board is a court of competent jurisdiction for the purpose of determining whether there has been a breach of the Charter. In that case, by way of a Charter remedy, Mr. Conway requested an absolute discharge and terms regarding his treatment and housing. At para. 85, the Supreme Court instructed that the proper approach to the issue was to ask first whether the remedies sought were ones "that Parliament appeared to have anticipated would fit within the statutory scheme governing the Ontario Review Board". Thus, the Board must look first within the confines of its own statutory mandate for the appropriate remedy, exercising its discretion "in accordance with Charter values": see Conway, at para. 103.

[45] No remedy is available for a Charter breach if it is expressly prohibited by Part XX.1. Thus, Mr. Conway was not entitled to an absolute discharge or to a treatment order because those remedies were expressly prohibited by Part XX.1: Conway, at para. 97.

[46] The Supreme Court observed that, subject to these prohibitions, the Board may use its statutory jurisdiction to include conditions that are "flexible, individualized, [and] creative" in order to supervise the patient "in a responsive, Charter-compliant fashion" and that Charter wrongs "can be effectively vindicated through the exercise of statutory powers and processes": Conway, at paras. 94 and 103.

[47] In my view, this guidance is sufficient to deal with the issues in this appeal. Accordingly, it is unnecessary to consider whether Conway, particularly having regard to the wording of para. 103, leaves open the possibility of a stand- alone Charter remedy in another case.

[48] I turn to apply Conway to the specific remedies sought by Mr. Saikaley in this case.

(3) Application to this case

(a) Absolute discharge

[49] Mr. Saikaley sought an absolute discharge as the appropriate remedy for the breach. Mr. Saikaley's argument on this point included challenges to the reliability of Dr. Booth's evidence. Indeed, Mr. Saikaley successfully highlighted some inconsistencies in Dr. Booth's testimony at the restriction hearing.

[50] However, the Board concluded on all the evidence that it accepted that Mr. Saikaley's mental illness continued to burden him with the type of delusions that led to his earlier criminally [page275] harassing behaviour. As a result, the Board concluded that Mr. Saikaley continued to pose a significant risk to the safety of the public.

[51] In addition, the evidence as a whole strongly supported the Board's conclusion that "a detention disposition (albeit one that permits him to live in the community in accommodation approved) is the least onerous least restrictive".

[52] Thus, there is no error in the Board's finding that Mr. Saikaley needed "adequate monitoring of his mental state (and thereby his risk)" and that his "treatment team must have the ability to closely supervise and monitor him". Since Mr. Saikaley posed a significant threat, the Criminal Code precluded the Board from granting him an absolute discharge no matter how serious the breach and its effect on Mr. Saikaley.

[53] In any event, an absolute discharge would not have been available to Mr. Saikaley under s. 24(1) of the Charter. That provision limits a remedy to one that is "appropriate and just in the circumstances". It would have been neither appropriate nor just to Mr. Saikaley or the public to release him into the community without supervision.

[54] I would not give effect to this ground of appeal.

(b) Return to the community within 60 days

[55] Amicus challenges the decision to give the Hospital up to 60 days to release Mr. Saikaley, particularly in light of the Board's decision that Mr. Saikaley could be managed in the community. In arriving at that decision, the Board rejected Dr. Booth's opinion that Mr. Saikaley's ongoing detention was necessary. The Board did not agree that Mr. Saikaley's behaviour in expressing his "intention to report staff [as well as Dr. Booth] to their respective professional bodies" amounted to a "threat" that justified his ongoing detention. The Board also observed that Mr. Saikaley had complied with the Hospital's telephone restriction. In his testimony, Mr. Saikaley also expressed a willingness to comply with a weekly reporting requirement.

[56] Significantly, the Board observed that Mr. Saikaley had lived untreated in the community for three years without incident. On the basis of the evidence, the Board concluded that Mr. Saikaley could be "managed in the community, even while he remains untreated", and that his continued detention was not necessary. However, the Board provided no explanation for the proposed 60-day delay in Mr. Saikaley's release other than to say that such a delay would permit the Hospital to "implement a plan to safely return Mr. Saikaley to community living". [page276]

[57] The Board provided no suggestion as to what that plan would entail, other than a more frequent reporting requirement. In those circumstances, it is necessary to look at the record before the Board to see whether the decision to grant the Hospital up to 60 days to release Mr. Saikaley was supported by the evidence.

[58] However, the evidence only demonstrated a plan to return Mr. Saikaley to his apartment with the anticipated ongoing support of his family. It may have been that the Hospital needed a brief time to ensure that Mr. Saikaley's living arrangements were appropriate and to put in place a reporting schedule that would accommodate his difficulties with memory and disorganized thinking. It also may be that the Board considered that a delay would give the Hospital the opportunity to take action if any new issues arose between the end of the hearing in January and its decision in February. However, neither the record nor the Board's reasons suggest either of these considerations led to its decision to impose the delay. Moreover, neither consideration would explain the length of the delay.

[59] In my view, this aspect of the Board's decision does not stand up to even a somewhat probing examination. I would conclude that the proposed 60-day delay in returning Mr. Saikaley to the community is unreasonable.

[60] In addition, the imposition of the unexplained delay is not consistent with the guidance given in Conway that the relief granted should be "in accordance with Charter values". A further unwarranted detention would not be in accordance with those values.

[61] I would allow the appeal to the extent of deleting the 60-day delay imposed by the Board. I would not substitute any different time period because the issue has been rendered moot by the passage of time.

(c) Weekly reporting requirement

[62] Mr. Saikaley challenges the Board's decision to increase his reporting requirement from monthly to weekly. Although he testified that he would co-operate with such a requirement, it is his position that its imposition was not justified on the record. I do not agree.

[63] While the Board did not expressly address this issue, it is implicit in its reasoning that the increased reporting requirement was an important component of its decision to release Mr. Saikaley to live in the community with supervision. The Board has indicated that this requirement will enable the treatment team to assess Mr. Saikaley with more frequency and [page277] closely monitor his mental health status. Given the concern of managing Mr. Saikaley's risk in the community, the increased reporting requirement is a reasonable condition that is entitled to deference.

[64] Accordingly, I would not give effect to this ground of appeal.

(d) Hearing as soon as practicable -- within 30 days

[65] No issue was taken with the Board's guidance that a hospital must give detailed written notice as soon as practicable after the expiration of the seven-day period and the hospital must follow up if the Board fails to schedule a timely restriction hearing. However, amicus takes issue with the Board's unexplained conclusion that "as soon as practicable" in s. 672.81(2.1) of the Criminal Code means that a restriction hearing must generally be held "within no more than 30 days" from the date notice is received.

[66] The Board made this finding after observing correctly that a restriction hearing should be timely and that any delay should not be prolonged. However, there was no evidence to support the 30-day time frame. It is also difficult to justify in this case given the fact that the Board made no finding about what caused the delay. In addition, there was no evidence before the Board from an administrative perspective about the time frame generally necessary to schedule a restriction hearing.

[67] On appeal, amicus argues that "as soon as practicable" should be interpreted to mean a period of seven to 14 days after receipt of the required notice. Amicus analogizes to the time frame within which the Ontario Consent and Capacity Board holds hearings under the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A. In oral argument, amicus also analogized to Criminal Code time frames for bail hearings.

[68] In my view, these analogies are not helpful. The Health Care Consent Act, s. 75(2) specifies that a hearing must begin within seven days after the receipt of an application. Similarly, the bail provisions of the Criminal Code provide clear time periods within which an arrested person must be brought before a court. However, Parliament did not impose a set time frame with respect to restriction hearings. Instead, Parliament provided flexibility with its choice of the language "as soon as practicable". From this plain language emerges Parliament's clear intention that the restriction hearing be set, held and concluded expeditiously. Undoubtedly, this is because an expeditious hearing provides an important safeguard in all cases where a patient's liberty has been significantly restricted. [page278]

[69] In the absence of evidence or explanation for the 30-day time period, I would allow the appeal to the extent of setting aside the Board's reference to that time frame.

(e) Review procedures and educate staff

[70] Finally, amicus argues that the Board should have included a requirement that both the Board and the Hospital review their procedures and educate their staff concerning compliance with the requirements for holding a restriction hearing.

[71] The Board's decision expressly outlines the requirement for a timely restriction hearing. In my view, the Board did not err in leaving the particulars of implementation to the institutions, particularly in light of the myriad of options available: see Mahe v. Alberta, 1990 CanLII 133 (SCC), [1990] 1 S.C.R. 342, [1990] S.C.J. No. 19, at p. 393 S.C.R.; Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624, [1997] S.C.J. No. 86, at para. 96. See, also, Robert J. Sharpe and Kent Roach, The Charter of Rights and Freedoms, 4th ed. (Toronto: Irwin Law, 2009), at pp. 378-80, for more discussion regarding declaratory relief as a remedy.

[72] It is not for the court to administer the minutiae of the institutions' implementation. I would give the Board's remedy the deference to which it is entitled. I would also observe that all institutions responsible for the vulnerable community of detained NCR patients, including the courts, are obliged to ensure that the hearings to which patients are entitled are conducted and a decision is rendered as expeditiously as is practicable.

V. Result

[73] Accordingly, I would allow the appeal to the extent of removing the 60-day delay on the patient's return to the community. In addition, I would remove the 30-day suggested period for holding a restriction hearing and leave the time frame as specified in the Criminal Code -- "as soon as practicable" after receiving the hospital's notice. I would otherwise dismiss the appeal.

Appeal allowed in part.

Notes

Note 1: On the basis of an assessment conducted after Mr. Saikaley was apprehended, Dr. Booth concluded that Mr. Saikaley was incapable of making his own treatment decisions. This conclusion was upheld by the Consent and Capacity Review Board. Apparently, that decision was under appeal at the time of the Board hearing. We were told by counsel that it remained outstanding at the time the appeal in this court was heard.

Note 2: This is based in part on the January 4, 2011 transcript of the Board hearing, at p. 234, where the alternate chair commented to the Hospital counsel that "there was an agreement we not ascribe blame".

Note 3: Pursuant to s. 672.83(1) of the Criminal Code, when the Board conducts a restriction hearing under s. 672.81(2.1), the Board must review the disposition made in respect of the patient and may make any other disposition it considers to be appropriate in the circumstances. This explains why the Board issued both a decision and a disposition.