Court of Appeal for Ontario

CITATION: Kalra (Re), 2014 ONCA 233

DATE: 20140327

DOCKET: C57583

BEFORE: Doherty, Laskin and Feldman JJ.A.

IN THE MATTER OF: GAURAV KALRA

AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel: Gaurav Kalra, appearing in person Anita Szigeti and Jill R. Presser, as amicus curiae Michael Fawcett, for the Crown

Heard: March 19, 2014

On appeal against the disposition of the Ontario Review Board, dated September 6, 2013.

ENDORSEMENT

[1] The appellant was found NCR in 2010. He has resided in the Secure Treatment Unit at the Brockville Mental Health Centre (“Brockville Hospital”) since 2011. The appellant suffers from schizophrenia.

[2] The index offences involved the harassment of a former high school classmate. While the offences were serious and no doubt terrifying for the victim, the appellant’s conduct did not involve personal violence. He has no other criminal involvement. The appellant’s mental disorder manifests itself primarily in non-violent and passive conduct.

[3] The appellant has progressed well in the Brockville Hospital. He continues, however, to lack insight into the nature of his disorder. There is a risk that he would not comply with his medication requirements if he were living outside of the hospital. The appellant’s parents, while loving and fully supportive of their son, lack a full appreciation of the nature his problems.

[4] At the hearing, the medical staff took the position that the Board should make a detention order with a condition allowing the appellant to reside with his parents if the medical staff agreed. The medical staff favoured a detention order primarily because the appellant was undergoing a drug treatment program involving a gradual reduction in the levels of the anti-psychotic medication the appellant was taking. The aim of the program was to both determine the appropriate level of medication for the appellant and demonstrate to the appellant his need for medication. The medical staff believed that the appellant should remain under a detention order so that the hospital could closely monitor him as his medication was being reduced and, if necessary, adjust that medication. The staff further believed that there would be a significant risk to the public if the drug reduction program were continued while the appellant was living in the community under an order that was less restrictive than a detention order.

[5] The Board found that the appellant constituted a significant threat to the safety of the public. The Board also agreed with the medical staff that in light of the drug reduction program, a detention order was necessary. However, the Board declined to include a term allowing the appellant to live with his parents if the hospital staff agreed. The Board said:

Given that the hospital is embarking on what is described in the hospital report, page 24, as a medication holiday to prove to Mr. Kalra that he either does or does not have a mental illness, the Board finds that it is too great a risk to the public to allow the privilege of overnight visits with his parents or the privilege to live in the community in approved accommodation.

[6] Amicus argues that the evidence did not establish that the appellant posed a significant threat to the safety of the public and that the Board should have ordered an absolute discharge. Alternatively, she submits that a conditional discharge allowing the appellant to live with his parents was the least onerous and least restrictive disposition available on the evidence.

[7] We are satisfied that there was evidence upon which the Board could conclude that the appellant posed a significant threat to the safety of the public. The appellant’s conduct that led to the NCR finding, the nature of his mental disorder, his lack of insight and the concerns that he would not comply with medication requirements, taken together, provide a basis for a determination that the appellant posed a significant threat to the safety of the public.

[8] The Board did not explore in any detail the question whether the appellant posed a significant risk to the safety of the public. This is understandable as it was conceded before the Board that the evidence was sufficient to clear the significant threat threshold. The Board’s determination that the appellant posed a significant threat to the safety of the public was reasonable on this record.

[9] We do, however, agree with the second submission of amicus. The Board erred in failing to impose a conditional discharge. As we read the Board’s reasons, it imposed a detention order because of the risk posed to the community were the appellant to be in the community while undergoing the drug reduction program instituted by the hospital. With respect, restrictions on the appellant’s liberty cannot be justified on the basis of a risk created by a course of treatment which, while appropriate within the hospital, is viewed as inappropriate in the community. The Board should have considered the nature of the risk posed by the appellant by reference to treatments, if any, that were available within the community and appropriate for the appellant. If such a treatment program existed, the Board should have considered the risk factors by reference to that program and not the program being followed in the hospital.

[10] The question for the Board in choosing between a conditional discharge and a detention order was not whether the hospital’s proposed drug treatment plan could be carried out safely outside of the hospital, but whether terms and conditions could be imposed that would adequately address public safety concerns were the appellant to be granted a conditional discharge. If those concerns could be adequately addressed, then a conditional discharge was the least onerous and least restrictive disposition available.

[11] In considering whether appropriate conditions could be fashioned, the Board had to take into account the willingness of the appellant and his substitute decision-makers (his parents) to consent to a term in the conditional agreement requiring the appellant to take whatever psychiatric treatment the hospital personnel mandated. We were advised during oral argument that the appellant and his parents are still prepared to provide that consent.

[12] We are satisfied that a conditional discharge is the appropriate order. In coming to that conclusion, we have considered the following:

• the nature of the index offences;
• the absence of any criminal activity or other violence in the appellant’s past apart from the index offences;
• the appellant’s progress in the two years he has been in the Brockville Hospital;
• the support of the parents of the appellant and their developing appreciation for the nature of their son’s mental illness;
• the absence of any relapse by the appellant during the time period in which his medication has been significantly reduced; and
• the appellant’s willingness to consent to an order requiring him to comply with the treatment prescribed by the hospital, and his parents’ willingness to consent to a similar order in their capacity as his substitute decision-maker.

[13] The disposition of the Board should be set aside and a disposition ordering a conditional discharge on the following terms should be substituted:

a) The appellant is to reside with his parents at 6 Wolfgang Drive, Nepean, Ottawa;

b) The appellant is to notify the Person in Charge and the Ontario Review Board of any change in address within 24 hours of moving;

c) The appellant is to report to the Person in Charge of the Brockville Mental Health Centre or its designate at least twice per week at times directed by the hospital;

d) The appellant will consent, to the extent that he can consent, to take the psychiatric treatments as prescribed by the relevant medical personnel at the Brockville Mental Health Centre.

e) To the extent that the appellant’s consent is ineffective, his parents as the appellant’s substitute decision-makers will consent to any treatment prescribed by the hospital personnel at Brockville Mental Health Centre.

f) The appellant shall refrain from contact or communication direct or indirect with Victoria Frank, Sandra Frank or Robert Frank.

g) The appellant shall not attend within 500 metres of 18 Cherrywood Drive, Guelph, Ontario; and

h) The appellant shall not attend within 500 metres of any known place of worship, education, employment or residence of Victoria Frank, Sandra Frank or Robert Frank.

[14] For the purposes of this disposition, the Brockville Mental Health Centre or its designate is specified as the place to which a police officer may deliver the accused in the event of a breach or suspected breach of the order.

“Doherty J.A.”

“John Laskin J.A.”

“K. Feldman J.A.”