In the Matter of Osawe

[Indexed as: Osawe (Re)]

Ontario Reports

Court of Appeal for Ontario,

Laskin, van Rensburg and Benotto JJ.A.

April 22, 2015

125 O.R. (3d) 428 | 2015 ONCA 280

Case Summary

Criminal law — Mental disorder — Dispositions — Procedural fairness — Parties putting forward joint submission for appropriate disposition at annual disposition review hearing — Review board rejecting joint submission and imposing more restrictive disposition — Board depriving appellant of fair hearing by failing to give him notice that it was inclined to reject joint submission and opportunity to lead more evidence or make additional submissions — Notice requirement could have been met by questions asked at hearing but not made out here — New disposition hearing ordered.

The appellant was found not criminally responsible on account of mental disorder. At his annual disposition review hearing, the parties put forward a joint submission for the continuance of the appellant's previous disposition. In light of the joint submission, the hearing was brief and only one witness, the hospital's psychiatrist, testified. The review board rejected the joint submission and imposed a more restrictive disposition. The appellant appealed.

Held, the appeal should be allowed.

The board had the authority to reject a joint submission if it was of the view that the joint submission did not meet the requirements of s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46. However, the board had a duty to give the appellant notice that it was considering rejecting the joint submission and imposing a more restrictive disposition and to give the parties an opportunity to lead more evidence and make additional submissions. Although the board can fulfill its duty to give notice in different ways, including by questions at the hearing, it did not give adequate notice in this case, and therefore breached the duty of procedural fairness it owed to the appellant. The disposition is set aside and a new hearing ordered.

College of Physicians & Surgeons of Ontario v. Petrie (1989), 1989 4276 (ON SC), 68 O.R. (2d) 100, [1989] O.J. No. 187, 32 O.A.C. 248, 37 Admin. L.R. 119, 14 A.C.W.S. (3d) 34 (Div. Ct.); Ontario (Attorney General) v. Grady, [1988] O.J. No. 21, 34 C.R.R. 289, 3 W.C.B. (2d) 389 (H.C.J.), consd

Other cases referred to

Ahmed-Hirse (Re), [2014] O.R.B.D. No. 1876; Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, 174 D.L.R. (4th) 193, 243 N.R. 22, J.E. 99-1412, REJB 1999-13279, 14 Admin. L.R. (3d) 173, 1 Imm. L.R. (3d) 1, 89 A.C.W.S. (3d) 777; Hassan (Re), [2011] O.J. No. 3800, 283 O.A.C. 154, 2011 ONCA 561; Kachkar (Re) (2014), 119 O.R. (3d) 641, [2014] O.J. No. 1500, 2014 ONCA 250, 309 C.C.C. (3d) 1, 318 O.A.C. 247, 112 W.C.B. (2d) 466; Kelly (Re), [2015] O.J. No. 634, 2015 ONCA 95; Osawe (Re), [2014] O.R.B.D. No. 794; R. v. Elster, [2011] O.J. No. 4947, 2011 ONCA 701, 98 W.C.B. (2d) 714; R. v. Harley, [2005] O.J. No. 1346, 64 W.C.B. (2d) 582 (C.A.); [page429] R. v. Lepage, 1999 697 (SCC), [1999] 2 S.C.R. 744, [1999] S.C.J. No. 34, 175 D.L.R. (4th) 269, 241 N.R. 142, J.E. 99-1276, 122 O.A.C. 184, 135 C.C.C. (3d) 205, 25 C.R. (5th) 84, 63 C.R.R. (2d) 252, 42 W.C.B. (2d) 392, affg (1997), 1997 2236 (ON CA), 36 O.R. (3d) 3, [1997] O.J. No. 4016, 152 D.L.R. (4th) 318, 103 O.A.C. 241, 119 C.C.C. (3d) 193, 11 C.R. (5th) 1, 47 C.R.R. (2d) 66, 36 W.C.B. (2d) 90 (C.A.); Winko v. British Columbia (Forensic Psychiatric Institute), 1999 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

Criminal Code, R.S.C. 1985, c. C-46, ss. 672.5(13.1), 672.54 [as am.]

Authorities referred to

Barrett, Joan, and Riun Shandler, Mental Disorder in Canadian Criminal Law, looseleaf (Toronto: Carswell, 2006)

APPEAL from the disposition of the Ontario Review Board, [2014] O.R.B.D. No. 793.

Kelley J. Bryan, for appellant.

Maura Jetté, for respondent Attorney General for Ontario.

Michele Warner, for respondent person in charge of the Centre for Addiction and Mental Health.

The judgment of the court was delivered by

LASKIN J.A.: —

A. Introduction

[1] The Ontario Review Board owes a duty of procedural fairness to accused persons under its jurisdiction. This appeal raises an important question about the extent of that duty at a board hearing. The parties put forward a joint submission for an appropriate disposition. The board contemplates rejecting the joint submission, and imposing a disposition more restrictive of the accused's liberty. Should the board give the accused notice of its inclination to reject the joint submission and an opportunity to lead more evidence or make additional submissions?

[2] The appellant, Edward Osawe, has been detained under the board's jurisdiction at the Centre for Addiction and Mental Health ("CAMH") since November 2010. At his annual review in February 2014, all parties -- the hospital, the Crown and Osawe -- put before the board a joint submission for the continuation of Osawe's previous disposition. Under this disposition, Osawe, subject to the hospital's permission, had unaccompanied[^1] hospital and grounds privileges; unaccompanied entry into the [page430] community; and even the possibility of living in the community in supervised accommodation.

[3] The board released its decision the following month. It rejected the joint submission: for unaccompanied hospital and grounds privileges, the board substituted hospital and grounds privileges only if accompanied by staff; for unaccompanied entry to the community, it substituted entry to the community accompanied by staff or by a person approved by the person in charge; and it eliminated the possibility of community living altogether.

[4] Osawe submits that the board denied him a fair hearing by not giving him notice of its inclination to reject the joint submission and an opportunity to lead further evidence and make further submissions. Alternatively, Osawe submits that the board's disposition was unreasonable.

[5] The Crown submits that the board's duty of procedural fairness did not require it to give Osawe explicit notice it might reject the joint submission, and that the accused is not entitled to make further submissions after the board begins deliberating. In addition, the Crown submits that the questioning by some board members during the hearing gave Osawe sufficient notice they were concerned about the joint submission. The Crown also submits that the board's disposition was reasonably supported by the record.[^2]

B. Background

[6] To put my discussion of the issue in context, I will say a few words about Osawe; the index offence that brought him under the board's jurisdiction; his detention at CAMH; the board's 2013 disposition; and the outstanding charge of sexual assault that he was facing at the time of his 2014 hearing, which seems to have prompted the board to reject the joint submission. I will then summarize the hearing before the board and the board's reasons for rejecting the joint submission.

(a) Edward Osawe

[7] Edward Osawe is now 36 years old. He was born in Nigeria, but immigrated to Canada with his family when he was a teenager. He had difficulty at school, and only completed grade nine. He worked for brief periods in 2005 and 2007, [page431] but otherwise has been supported by the Ontario Disability Support Program. He went through periods of homelessness and frequently used drugs and alcohol.

(b) The index offence

[8] The index offence took place in March 2009 at the Museum subway station in Toronto. Osawe committed an unprovoked attack on a 57-year-old woman who was standing on the platform waiting for a train. He approached her and struck the right side of her head with a steak knife. She suffered a six-centimetre cut, which required staples. Osawe fled, but was later caught and charged with assault causing bodily harm. He had no previous criminal record, although he had received diversions in the past.

[9] At a hearing in October 2010, Osawe was found not criminally responsible on account of mental disorder. At the time of the hearing, he was diagnosed with schizophrenia, anti-social personality traits and borderline-mild mental retardation. He had a documented history of using marijuana, crack cocaine and inhalants, and of drinking alcohol. He was also diagnosed as being capable of consenting to sexual activity and "marginally capable" of consenting to treatment.

(c) Osawe's detention at CAMH

[10] Osawe has been under the board's jurisdiction continuously since November 2010, and during that time has been detained at CAMH. At successive hearings, the board has found that Osawe continues to pose a significant threat to the safety of the public. Osawe does not challenge that finding.

[11] While at CAMH, Osawe has consistently complied with his medication regime, and has participated in a wide range of programs, both on the hospital grounds and in the community.

[12] Beginning in October 2011, Osawe began to receive passes for "indirectly supervised" or unaccompanied privileges. He used them appropriately save for one incident in February 2013, when he tested positive on a urine screen for the use of "spice", a synthetic form of cannabis. After this incident, his privileges were suspended for a time before being reinstated.

[13] In March 2012, Osawe applied for admission to a 24-hour supported residence. At the time of his 2014 annual disposition review hearing, he was still waiting for appropriate housing to become available.

[14] Osawe does have a history of aggressive and inappropriate sexual behaviour while residing at CAMH. On one occasion, he engaged in a shouting match with another patient; on another occasion, he held and pulled the hand of a female patient; [page432] and on yet another occasion, he was seen kissing a female patient. He has participated in a sexual behaviour group at the hospital. While in the group, he admitted he thinks about having sex with a woman, and even sexually assaulting a woman.

(d) The board's 2013 disposition

[15] In its 2013 disposition, the board ordered that Osawe be detained on the general forensic unit of CAMH, and, with the permission of the hospital, be allowed unaccompanied hospital, grounds and community privileges.

[16] The terms of the board's formal order, which the parties jointly submitted should be continued in 2014, are as follows [at para. 3]:

2. IT IS FURTHER ORDERED that the person in charge of the Centre for Addiction and Mental Health, Toronto create a program for the detention in custody and rehabilitation of the accused within the General Forensic Unit of the Centre for Addiction and Mental Health, Toronto in which the person in charge, in his or her discretion, may permit the accused:

(a) to attend within or outside of the hospital for necessary medical, dental, legal or compassionate purposes;

(b) hospital and grounds privileges, indirectly supervised;

(c) to enter the community of Toronto, accompanied by staff or [a] person approved by the person in charge;

(d) to enter the community of Toronto, indirectly supervised; and

(e) to live in the community in supervised accommodation approved by the person in charge;

[17] In its reasons for its 2013 disposition, the board noted that Osawe was "ready for the transition to community living".

(e) The outstanding sexual assault charge

[18] The incident giving rise to this charge occurred in September 2013. Osawe and a female patient at CAMH had agreed to meet at a nearby hotel to have sexual intercourse. Both used unaccompanied passes into the community to visit the hotel.

[19] The female patient and Osawe gave conflicting accounts about what actually occurred. The female patient said that she changed her mind after arriving at the hotel, but that Osawe had sexual intercourse with her anyway and then left the hotel. Osawe denied that he had sexual intercourse with her. He said that when he arrived at the hotel, he went back to the hospital to get a longer pass. And when he returned to the hotel, the female patient had left. [page433]

[20] Osawe was charged with sexual assault causing bodily harm. At the time of his Ontario Review Board hearing, the charge was outstanding and a preliminary inquiry was scheduled for June 2014. Because of the charge, Osawe's unaccompanied privileges both on and off the hospital grounds were temporarily scaled back. They were gradually being restored when the board hearing took place in February 2014.

[21] On his appeal, Osawe tendered fresh evidence, which showed that in June 2014, the sexual assault charge was stayed because the complainant was unwilling to testify. Osawe entered into a peace bond.

(f) The 2014 board hearing

[22] In the light of the joint submission, the hearing was brief. It lasted only 30 minutes. The only witness to testify was Dr. Padraig Darby, the hospital's psychiatrist. And at the beginning of his evidence, Dr. Darby said he would be brief because of the joint submission.

[23] Dr. Darby testified that Osawe had had "a relatively good year on the general unit". His mental status was stable; he complied with his medication; he co-operated in attending therapeutic group sessions; and he had no suspected drug use. Despite the outstanding charge, Dr. Darby testified "we certainly don't feel that any more restrictive disposition is required".

[24] Dr. Darby also testified about the importance of maintaining the community living privilege in the board's disposition. He thought supervised community living was a realistic possibility for Osawe in the coming year, though he acknowledged that even if housing in the community became available, Osawe would not be placed there until the outstanding charge of sexual assault had been resolved. Another reason Dr. Darby wanted the community living privilege to remain in the disposition was so Osawe would not lose his spot on the long waiting list.

[25] After board members questioned Dr. Darby -- a matter I will return to later in these reasons -- the chairperson invited further submissions, but added:

THE CHAIRPERSON: Thank you. Then we have a joint submission and we have ample evidence in oral evidence. If there is anything you want to add by way of submission, we'll hear that, but I don't want everybody to just repeat what we just heard so . . .

(g) The board's 2014 disposition

[26] The five-member board released its disposition on March 11, 2014, with unanimous reasons following on April 3 [Osawe (Re), [2014] O.R.B.D. No. 794]. As I have said, the board rejected [page434] the joint submission by substituting hospital, grounds and community privileges only if accompanied by staff, instead of unaccompanied privileges, and by removing Osawe's community living privileges altogether. The relevant terms of the board's formal disposition are [at para. 3]:

2. IT IS FURTHER ORDERED that the person in charge of the Centre for Addiction and Mental Health, Toronto create a program for the detention in custody and rehabilitation of the accused within the General Forensic Unit of the Centre for Addiction and Mental Health, Toronto in which the person in charge, in his or her discretion, may permit the accused:

(a) to attend within or outside of the hospital for necessary medical, dental, legal or compassionate purposes;

(b) hospital and grounds privileges, accompanied by staff; and

(c) to enter the community of Toronto, accompanied by staff or person approved by the person in charge.

[27] Section 672.54 of the Criminal Code, R.S.C. 1985, c. C-46 required the board to impose "the least onerous and least restrictive" disposition for the accused. In the board's opinion, these terms constituted the least onerous and least restrictive disposition.

[28] The board addressed why it rejected the joint submission for unaccompanied privileges and passes into the community: it was concerned about public safety in the light of the outstanding charge [at para. 27]:

In coming to [this] conclusion the Board notes the joint recommendation of the parties but rejects this recommendation of [the] parties. The Board does not accept that the safety of the public can be adequately managed under the terms of the present disposition. The allegations against Mr. Osawe are very serious and pending determination of these charges steps must be taken to ensure the protection of the public. The Board is not confident that Mr. Osawe can be given indirectly supervised time in the community or even on the hospital grounds. Mr. Osawe's thinking about sexual behaviour, quite separate and apart from the new allegation, is very concerning to the Board.

[29] But the board also said it would have concerns about giving Osawe unaccompanied privileges even if the charge was resolved favourably [at para. 28]:

Should the outstanding charges against Mr. Osawe be resolved in his favour with no findings of guilt the Board would still have very serious concerns about Mr. Osawe having indirectly supervised community access, and also hospital and grounds. Mr. Osawe seems to have very little understanding [of] the impropriety of acting on his sexual thoughts.

[30] Indeed, the board said it could not understand how the hospital could even contemplate community living for Osawe [at para. 29]: [page435]

The Board is confounded to understand how the clinical team could still be questioning the possibility of placing Mr. Osawe in the community at all given his present thinking, let alone still considering the possibility of a placement that included female residents, vulnerable or not.

[31] With this background, I turn to the issue on appeal.

C. Was Osawe Denied a Fair Hearing?

[32] Two principles are at play on this appeal. The first is the board's right to reject a joint submission. The second is the board's duty to give an accused a fair hearing. Both sides agree on these principles.

[33] The board has the undoubted authority, indeed the duty, to reject a joint submission if it is of the view that the joint submission does not meet the requirements of s. 672.54 of the Criminal Code. This principle has been affirmed by this court several times. For example, in Hassan (Re), [2011] O.J. No. 3800, 2011 ONCA 561, 283 O.A.C. 154, at para. 25, we said:

However, the Board does not necessarily err because it declines to follow a hospital's or Crown's recommendation. Automatically adhering to the position of a hospital or Crown would mean abdicating its own role. A review board is composed of medical and legal experts with specialized knowledge and experience in mental health and in risk assessment and management. Parliament has vested these boards with authority to make their own independent and often difficult determinations after weighing the package of factors in s. 672.54 of the Code.

[34] In R. v. Lepage (1997), 1997 2236 (ON CA), 36 O.R. (3d) 3, [1997] O.J. No. 4016, 152 D.L.R. (4th) 318 (C.A.), at para. 73, affd 1999 697 (SCC), [1999] 2 S.C.R. 744, [1999] S.C.J. No. 34, Doherty J.A. stated the principle succinctly: "[t]he court or Review Board is not required simply to choose among the various dispositions put forward by the parties but must make the appropriate disposition regardless of the positions taken by the parties to the inquiry".

[35] At the same time, the board has an obligation, both under the Criminal Code and at common law, to give an accused person before it a fair hearing. It has that obligation because its decisions affect an accused's rights, privileges and indeed liberty. See Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, at para. 20; and Kachkar (Re) (2014), 119 O.R. (3d) 641, [2014] O.J. No. 1500, 2014 ONCA 250, 309 C.C.C. (3d) 1, at paras. 42-44.

[36] The dispute in this appeal is over the content of this duty -- what procedural rights does the duty of fairness require at a hearing of the Ontario Review Board? Osawe contends that before the board rejects a joint submission, it must give the accused notice that it may do so, and a corresponding opportunity [page436] to lead more evidence or make additional submissions. The Crown contends that this kind of notice is not required, and indeed requiring it would undermine the board's collective process of deliberation. But the Crown also says that Osawe did receive notice through the questioning of Dr. Darby that at least some members of the board were concerned about the joint submission.

[37] I have concluded that the board did have a duty to give Osawe notice it was considering rejecting the joint submission and imposing a more restrictive disposition. The board also had a corollary duty to give Osawe and the other parties an opportunity to lead further evidence or make further submissions to address the board's concerns. Although the board can fulfill its duty to give notice in different ways, including by questions at the hearing, in this case it did not give adequate notice and therefore breached the duty of procedural fairness it owed to Osawe.

(a) The board's duty of fairness: basic principles

[38] The content of the duty of procedural fairness -- what procedures the duty of fairness requires in a given case -- varies depending on the rights affected and the statutory context. But as L'Heureux-Dubé J. explained in Baker, at para. 22, the overriding goal of procedural fairness is

to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.

(Emphasis added)

[39] With that goal in mind, the court considers a list of criteria to determine the procedures required to ensure a fair hearing before a particular tribunal. Although not exhaustive, the list typically includes the following:

-- the importance of the decision to the individual affected;

-- the statutory scheme, the nature of the decision and the process followed in reaching a decision;

-- the tribunal's own procedures;

-- the legitimate expectations of the person challenging the decision.

See Baker, at paras. 23-28.

[40] These criteria support Osawe's position that the board was obliged to give him notice of its inclination to reject the joint [page437] submission and impose a more restrictive disposition. Without notice, the goal of procedural fairness -- giving Osawe an opportunity to put forward his views and evidence fully and have them considered by the board -- could not be met.

(i) The importance of the decision to Osawe

[41] This criterion is critical to assessing what procedures are required for a fair hearing: "the more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated". See Baker, at para. 25.

[42] The population of those under the jurisdiction of the board is a vulnerable population. Each accused has a mental disorder, and each is detained or at least has limited freedom. Thus, the terms of a disposition are profoundly important to an individual accused.

[43] For Osawe, the board's disposition was not a minor departure from the terms proposed in the joint submission. It was an important variation, and a significant restriction of his liberty, which no doubt has had an appreciable impact on his day-to-day living and on his future plans and aspirations. He can no longer go into the community or even on the hospital grounds unaccompanied. With the removal of his community living privileges, his ultimate wish to be reintegrated into the community has evaporated, at least in the short term. The importance of the board's decision to Osawe alone argues for notice, so that he could have had an opportunity to address through evidence or submissions the board's concern about accepting the joint submission.

(ii) The statutory scheme, the nature of the decision and the process followed in reaching a decision

[44] Three important considerations underlie these criteria: the board's role, the nature of the hearing when a joint submission is put forward and the institutional constraints on requiring notice.

The board's role

[45] As is now well established in the case law, the board's role is inquisitorial, not adversarial. The board has the evidentiary and legal burden of establishing that a not criminally responsible accused person poses a significant threat to public safety, and, if so, the least onerous and least restrictive disposition consistent with public safety. See [page438] Winko v. British Columbia (Forensic Psychiatric Institute), 1999 694 (SCC), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31, at paras. 54-55.[^3]

[46] The board's role requires it to search out all information relevant to its disposition. That role favours the notice Osawe contends for. In the context of a joint submission, if the board does not give the accused sufficient notice that it may depart from that submission, it may not have all the information relevant to its decision about the appropriate disposition.

The nature of the hearing when a joint submission is put forward

[47] Joint submissions can play an important role in proceedings before the board. They can narrow the issues in dispute, or, as in this case, even eliminate the issues in dispute. And by doing so, they can reduce the time and costs of board hearings. Thus, it seems to me that the board's procedures should encourage, not undermine, the use of joint submissions.

[48] When the parties put forward a joint submission, the hearing will likely be shortened. It was so in this case. It lasted only 30 minutes. Dr. Darby was the sole witness and even he prefaced his evidence by stating that in the light of the joint submission he was going to be brief. Had the parties known the board was inclined to reject the joint submission, likely Dr. Darby would have testified at greater length about why the hospital recommended continuing the terms of Osawe's previous disposition. And Osawe's attending psychiatrist, Dr. Prendergast, could have testified and, for example, addressed the board's concerns about Osawe's sexual thoughts.

[49] Some might suggest that the board's inquisitorial role requires it to have a full evidentiary record in every case, even in a case where the parties have put forward a joint submission. But I would reject that suggestion. In many cases where the parties put forward a joint submission and only a brief evidentiary record to support it, the board will have all the information it needs to discharge its inquisitorial function and make the appropriate disposition. See, for example, Kelly (Re), [2015] O.J. No. 634, 2015 ONCA 95. [page439]

[50] In those cases where the board feels it does not have enough information, presumably it can say so, or call for more evidence. To require the parties who have made a joint submission to put forward the kind of evidentiary record they would put forward in a contested hearing would undermine the benefits of a joint submission.

Institutional constraints

[51] The board sits in panels of five. It deliberates collectively. And Parliament has undoubtedly placed its faith in the "collective wisdom" of this expert tribunal. The Crown submits that to give effect to Osawe's position would threaten the integrity of the board's collective deliberations. I do not agree with the Crown's submission.

[52] The statutory scheme the board operates under expressly contemplates that the board may be required to adjourn its proceedings to obtain further evidence. Section 672.5(13.1) of the Criminal Code states:

672.5(13.1) The Review Board may adjourn the hearing for a period not exceeding thirty days if necessary for the purpose of ensuring that relevant information is available to permit it to make or review a disposition or for any other sufficient reason.

[53] And as Doherty J.A. said in Lepage, at para. 73:

If, in the course of its inquiry, the court or Review Board determines that additional information is needed before it can decide whether it is of the opinion that an absolute discharge is appropriate, then the court or Board can take the necessary steps to obtain that information. It, of course, may also adjourn the inquiry for that purpose.

[54] If the parties put forward a joint submission at a hearing, and then in the course of its deliberations the board becomes inclined to reject the joint submission, it can notify the parties and invite them to lead further evidence or to address its concerns. Doing so would be consistent with the board's obligation to seek out all information relevant to its disposition. And it would be a procedure authorized by the Criminal Code. Seeking out this further evidence would not interfere with the board's collective deliberations; on the contrary, the additional evidence may promote the wisdom of those deliberations.

(iii) The board's procedures

[55] Counsel advised us that the board does not presently have a procedural rule addressing joint submissions. Nor does it have a rule that would preclude giving notice of its inclination to [page440] reject a joint submission and giving the parties an opportunity to put more evidence before it.

[56] Rather, the board's own rules supplement the Criminal Code provisions. I would interpret these rules as giving the board the authority to reconvene a hearing if, during its deliberations, it begins to feel uncomfortable with a joint submission or inclined to reject it. Rule 1 of the Ontario Review Board's Rules of Procedure provides that all of its rules are to be liberally construed "to secure the just, most expeditious and least expensive determination of every matter". Rule 3 states that "[w]here any matter of procedure is not provided for by these Rules, the Chairperson of the Review board or the presiding Alternate Chairperson shall determine the procedure to be followed". The board's own rules thus are sufficiently broad and flexible to accommodate the giving of notice where the board is inclined to reject the joint submission, even where the inclination to do so arises during the board's deliberations.

(iv) Osawe's legitimate expectations

[57] In this case, this criterion is neutral. Osawe could not legitimately expect that the board would automatically accept the joint submission. In Canada, the notion of legitimate expectations does not create substantive rights: see Baker, at para. 26. And, although the board frequently adopts joint submissions, it does not always do so. As I have already said, automatic acceptance of a joint submission is inconsistent with the board's statutory mandate.

[58] Moreover, no evidence was put before us about the general practice or procedure of the board when faced with a joint submission it does not wish to adopt, nor about what procedure Osawe might have expected. Osawe's legitimate expectations in this case do not assist in determining the content of the board's duty of fairness.

(b) Case law

[59] This court has not squarely addressed the issue raised on this appeal: whether the board must give an accused notice of its inclination to reject a joint submission and impose a more restrictive disposition. The issue has been raised in at least two cases, but not decided. See R. v. Harley, [2005] O.J. No. 1346, 64 W.C.B. (2d) 582 (C.A.) and Kachkar (Re). Nonetheless, decisions in two other cases -- R. v. Elster, [2011] O.J. No. 4947, 2011 ONCA 701 and Ontario (Attorney General) v. Grady, [1988] O.J. No. 21, 34 C.R.R. 289 (H.C.J.) -- support Osawe's position that notice is required. [page441]

[60] In Elster, the board imposed a condition in a detention order that the accused could live in the community only in "supervised accommodation". None of the parties had made submissions on the meaning of, or the need for, "supervised accommodation". In a brief endorsement, this court held that the board erred in law by imposing the term without hearing submissions from the parties [at paras. 4 and 8]:

The Board should not have imposed the term . . . without allowing the parties an opportunity to make submissions as to the need for, meaning of, and availability of "supervised accommodation" in Mr. Elster's particular circumstances. In effect, the Board imposed a further limitation of Mr. Elster's liberty without any submissions as to the need for that limitation and without a clear understanding of the effect of that limitation on Mr. Elster.

The Board's failure to entertain submissions from the parties before imposing a "supervised accommodation" limitation on Mr. Elster's liberty, combined with the uncertainty as to the meaning of that phrase, compels the conclusion that the Board erred in law in unilaterally imposing that term.

[61] In other words, absent notice that the board was considering imposing a requirement of supervised accommodation, the parties had no opportunity to address its necessity. The lack of an opportunity to do so made the further restriction on Elster's liberty unfair. This unfairness is equally pronounced when the board departs from a joint submission and, without notice, imposes terms more restrictive of an accused's liberty.

[62] Grady was decided under the Lieutenant Governor warrant system in place before 1992.[^4] Still, Grady is relevant.

[63] In that case, the board had recommended Grady be transferred from a medium security facility to the maximum security facility at Penetanguishene, and the Lieutenant Governor accepted the recommendation. No evidence was led before the board to justify this heightened restriction on Grady's liberty, and the board did not give notice it was considering such a recommendation.

[64] On judicial review, Callaghan A.C.J.H.C. quashed the board's recommendation, holding that Grady had been denied procedural fairness. At p. 308 C.R.R., he wrote: [page442]

The issue of Penetanguishene was not raised in the materials before the board or in the course of the hearing. Although there was an opportunity for Mr. Grady's counsel to make submissions, it would have been foolish for him to make reference to all potential outcomes; as a practical reality, the materials before the board and the response of the board thereto set the agenda for status hearings. It is clear that the Penetanguishene recommendation could not reasonably have been anticipated and to the extent that there was, therefore, no opportunity to make submissions in respect of this option, the rules of fairness were denied.

[65] At p. 320 C.R.R., Associate Chief Justice Callaghan expanded on why fairness required the parties to have been given an opportunity to make submissions on the possible transfer to Penetanguishene before the board made its recommendation:

When the decision-maker disposes of a matter on the basis of facts in respect of which the parties have not had an opportunity to make submissions, fairness requires that the decision-maker must give the parties such an opportunity before making a final disposition.

[T]he board decided the matter on the basis of an interpretation of the facts that could not have been reasonably anticipated and was not raised at the hearing and there was no opportunity to make submissions in respect thereof. Counsel to Mr. Grady quite properly restricted his submissions to issues that arose from the materials and the testimony before the board. The board should have given him an opportunity to make submissions in respect of matters about which it was concerned that were not raised at the hearing or in the materials.

In my view, the board should have indicated that, on its view of the facts, it was considering a transfer to Penetanguishene and asked for submissions in respect of that opinion. If, in spite of submissions to the contrary, the board had decided such a transfer was in order, the review of the decision would be a more difficult matter. It should be noted, however, that it is equally possible with direct evidence on the issues of treatment and security needs associated with Mr. Grady, that the board might have realized there was no evidence to support a transfer and accepted the hospital's recommendation.

[66] Callaghan A.C.J.H.C.'s comments in Grady on procedural fairness have particular relevance to the case before us. Where all parties have put forward a specific set of terms, absent notice, one cannot reasonably expect any of the parties to predict the board's objections to the terms and to lead evidence or make arguments that might answer these objections. In the present case, the brevity of the hearing strongly suggests that none of the parties anticipated the board would be sufficiently concerned about the joint submission to reject it.

[67] Of course, trial judges in criminal proceedings deal with joint submissions all the time, as do many professional bodies when they deal with disciplinary penalties for their members. [page443] I accept the Crown's submission that the dictates of procedural fairness in these other proceedings will differ from what fairness requires in Ontario Review Board proceedings.

[68] Still, I regard the reasoning of the Divisional Court in College of Physicians & Surgeons of Ontario v. Petrie (1989), 1989 4276 (ON SC), 68 O.R. (2d) 100, [1989] O.J. No. 187, 32 O.A.C. 248 (Div. Ct.) as being relevant to the present case. In Petrie, the Discipline Committee departed from a joint submission requesting an unpublished reprimand, and instead imposed a published reprimand and a licence suspension. The Divisional Court held that the Discipline Committee had denied Petrie procedural fairness, writing, at para. 5:

While it is within the jurisdiction of the committee to reject a joint submission, we are of the view that when a committee with disciplinary power rejects such a submission and proposes to impose a sentence of a more severe character, then the rule of audi alteram partem should be invoked, and the committee should afford counsel the opportunity to make representations addressing the issue of the more severe penalty.

[69] And then in words that in my opinion apply to Ontario Review Board proceedings, the Divisional Court said, at para. 8:

It is our view that a tribunal imposing a more substantial penalty than that which has been recommended on a joint submission should follow carefully that fundamental principle and indicate to those appearing before it that it is considering imposing such a penalty and request submissions thereon.

[70] On my review, the case law fully supports Osawe's contention that he was entitled to notice the board was considering rejecting the joint submission and imposing a more restrictive disposition.

(c) The board's duty of fairness requires it to give notice it may reject the joint submission and impose a more restrictive disposition

[71] I have concluded that when the board contemplates rejecting a joint submission and imposing a more restrictive disposition, it must give the accused notice that it may do so and the opportunity to make further submissions and, if necessary, lead additional evidence

[72] This procedure upholds the overriding objectives of procedural fairness, which are to ensure that administrative decisions are made using a fair and open procedure and that affected individuals can put forward their views and evidence fully and have them considered by the decision maker. This conclusion is also supported by the case law for hearings before both the board and other administrative tribunals. [page444]

[73] Notice may be given in different ways. The presiding board chairperson may express the board's concerns about accepting a joint submission at the hearing itself and ask the parties whether they wish to lead additional evidence. If necessary, the board can adjourn its hearing so the parties can obtain the further evidence they require. Or, the board's concerns about accepting a joint submission may be evident to the parties from the questions posed during the hearing by various board members. If the parties have adequate notice from the board's questions, then the parties may ask for an opportunity to lead additional evidence or make additional arguments to address these concerns. Or, in some cases, concerns about the joint submission may arise after the board begins its deliberations, in which case the board may need to notify the parties and request further submissions or evidence.

[74] The form of notice the board gives may vary, and the board has a broad power to determine its own procedures. But, though notice may be given in different ways, it must satisfy the objective of allowing the accused a meaningful opportunity to present the evidence and argument relevant to the board's disposition.

(d) The board did not give Osawe notice

[75] As I have said, one way the board may give notice is by the questions board members pose during the hearing. Because the board's role is inquisitorial, after a witness testifies, typically each of the board members will ask the witness questions. In Harley, in a brief endorsement, this court concluded that the many questions the board asked the hospital psychiatrist showed that it had concerns about the joint submission. If notice were required -- a point the court did not decide -- the board's questions provided adequate notice. The Crown says that is true in this case as well. She points especially to the following exchange near the end of the hearing between Dr. Darby and the psychiatrist member of the board, Dr. Johnstone:[^5]

Q. I apologize, but having heard the Crown's brief précis of the synopsis, does it remain your opinion that it's -- the Hospital is able to safely manage these limited passes that Mr. Osawe has?

A. Yes, we believe we can. [page445]

Q. How do you do that?

A. He has been quite amenable to direction. The team waited a considerable period of time before re-instituting passes after the allegations and the -- he's basically allowed very brief periods of time on the hospital grounds. There hasn't been concern about AWOL's in the past.

B. Well, obviously there is a process leading up to these privileges that allowed him to make this arrangement to the hotel room?

A. Yes.

Q. And so, there was some confidence, apparently misplaced at that point. So, how do you know that that -- because it doesn't sound like there is a lot of change so, can you tell us what's different now than at that time?

R. I don't think things are substantially different than they were at that time.

S. So, how does the Hospital come to that conclusion that they can be confident?

T. I think that's a clinical judgment that Mr. Osawe was spoke to clearly, very firmly, about what the limits of the passes are. At that time he had far more extensive passes.

Q. Thank you.

A. His passes at that point had included passes for up to two hours.

[76] I do not regard this exchange, or indeed any of the questions from the board members, as amounting to adequate notice -- for four reasons.

[77] First, though Dr. Johnstone's questions might suggest some concern about unaccompanied passes, he does not suggest he is considering rejecting the joint submission. Certainly, the questions do not suggest the alarm reflected in the board's reasons when it said it was "confounded" by the hospital's recommendation to keep open the possibility Osawe could live in the community.

[78] Second, the parties at the hearing were in the best position to assess whether the board had a heightened concern about the joint submission. As none of the parties asked to lead further evidence or make further submissions, or even ask the board members whether they had any concerns about the joint submission, I doubt the parties believed the joint submission was in jeopardy.

[79] Third, other questions by board members suggested the board was quite content to accept the joint submission, and was simply seeking additional information. One example is another exchange between Dr. Darby and Dr. Johnstone, where Dr. Johnstone asked about the waiting list for accommodation in the community: [page446]

Q. Do you have any information for us as to just how long the waiting list . . .

A. No.

Q. . . . might be?

A. Those things, I end up finding, are often quite unpredictable and certainly people will say it could be a matter of years, but then things can suddenly appear . . .

Q. M'hmm.

A. . . . unpredictably.

Q. So, it's reasonable to have that in his Disposition . . .

A. I think it is, yes.

Q. . . . despite all the barriers, the issues around the outstanding court date?

A. Yes, we believe it is, yes.

Q. Thank you, Doctor.

[80] Finally, if any doubt may have existed about the board's willingness to accept the joint submission, that doubt was seemingly put to rest by the board chairperson's brief closing comments, which I quoted earlier:

THE CHAIRPERSON: Thank you. Then we have a joint submission and we have ample evidence in oral evidence. If there is anything you want to add by way of submission, we'll hear that, but I don't want everybody to just repeat what we just heard so . . .

[81] For these reasons, I would not give effect to the Crown's submission that the board's questions amounted to adequate notice.

D. Conclusion

[82] The board's failure to give Osawe notice it was inclined to reject the joint submission, and an opportunity to lead more evidence or make further submissions, deprived Osawe of a fair hearing. On this basis alone, I would allow the appeal. It is therefore not necessary to deal with Osawe's submission that the board's disposition was unreasonable.

[83] I would allow the appeal, set aside the board's disposition dated March 11, 2014 and order a new hearing.

Appeal allowed.

[^1]: The term used by the board is "indirectly supervised". It means unaccompanied. I use the term "unaccompanied" throughout these reasons.

[^2]: Since the argument of this appeal, Osawe has had another hearing. Although that hearing might have rendered our decision moot, we have decided to give these reasons because of the importance of the issue to board proceedings.

[^3]: In July 2014, after this case was heard, Parliament amended s. 672.54 of the Criminal Code to require that the board make the "necessary and appropriate" disposition. Since the amendment, the board has held that "the necessary and appropriate disposition" is also the least onerous and least restrictive disposition. See Ahmed-Hirse (Re), [2014] O.R.B.D. No. 1876, at para. 35.

[^4]: Before 1992, the review board served only as an advisory body to the Lieutenant Governor. Although the board had recognized expertise in the field of mental health, it had no authority to make or review a disposition. It could only make recommendations to the Lieutenant Governor, who had discretion to accept or reject them. See Joan Barrett and Riun Shandler, Mental Disorder in Canadian Criminal Law, looseleaf (Toronto: Carswell, 2006), c. 7 at p. 7-1, consulted on March 31, 2015.

[^5]: The exchange took place after the board had marked as an exhibit a synopsis of the outstanding sexual assault charge.

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