In the Matter of Chaudry

[Indexed as: Chaudry (Re)]

Ontario Reports

Court of Appeal for Ontario,

Gillese, Lauwers JJ.A. and Speyer J. (ad hoc)

May 8, 2015

125 O.R. (3d) 641 | 2015 ONCA 317

Case Summary

Criminal law — Mental disorder — Appeal — Court of Appeal having jurisdiction to hear appeal from decision rendered by Ontario Review Board after restriction of liberty hearing.

Criminal law — Mental disorder — Charter of Rights — Fundamental justice — Review board ordering that respondent be detained within secure forensic assessment unit with certain privileges — Hospital issuing warrant of committal and readmitting respondent to secure forensic assessment unit after respondent's mental state deteriorated — Hospital failing to notify board of restriction on respondent's liberty as required by Criminal Code — Respondent's counsel advising board of restriction and board holding restriction of liberty hearing and ruling that respondent's continued detention in secure forensic assessment unit was not least onerous and least restrictive disposition and violated s. 7 of Charter and ordered hospital to pay costs to the respondent — Evidence not supporting that finding — Respondent acutely psychotic when readmitted to hospital and difficult to manage — Hospital transferring respondent to secure forensic unit and withdrawing his access to grounds until treatment resulting in improvement in mental state — Hospital detaining respondent in least restrictive and onerous conditions — Canadian Charter of Rights and Freedoms, s. 7.

Criminal law — Mental disorder — Charter of Rights — Remedies — Ontario Review Board not having jurisdiction to award costs as remedy under s. 24(1) of Charter — Canadian Charter of Rights and Freedoms, s. 24(1).

The respondent was found not criminally responsible on account of mental disorder. Following his annual disposition hearing, the Ontario Review Board ordered that he be detained within the hospital's secure forensic assessment unit with certain privileges. Less than a month after the hearing, the respondent's mental state deteriorated and he became acutely psychotic. The hospital issued a warrant of committal and readmitted the respondent to the secure forensic assessment unit, where he remained for approximately two months without his former privileges. The review board held a restriction of liberty hearing and concluded that the respondent's rights under s. 7 of the Canadian Charter of Rights and Freedoms were violated because, while his detention in the secure forensic assessment unit was justified at the time of readmission, his detention for the final two weeks without his usual privileges was not "warranted and reasonable". On its own motion, the board ordered costs against the hospital as a remedy under s. 24(1) of the Charter. The board subsequently issued an amended decision which stated that the respondent's continued detention in the secure forensic assessment unit was not the "least onerous and least restrictive decision" and violated s. 7 of the Charter. The hospital appealed.

Held, the appeal should be allowed. [page642]

The Court of Appeal had jurisdiction to hear the appeal. Section 672.72(1) of the Criminal Code gives a party the right to appeal a board "disposition" to the court. The board made the amended decision under s. 672.83 of the Criminal Code. Because "disposition" in s. 672.1(1) is defined to mean a board order made under s. 672.54 and s. 672.54 refers to a board disposition made under s. 672.83, the amended decision fell within the statutory definition of "disposition".

If the respondent's detention in the relevant two-week period met the "least onerous and least restrictive" standard, there was no violation of his s. 7 Charter rights. It was not clear that the board tested the hospital's decision against the least onerous and least restrictive standard. In any event, the evidence did not support the board's finding. The respondent was transferred to the secure forensic unit when he was admitted as he remained acutely psychotic, irritable and difficult to manage. The respondent complained that he should have been permitted to ground privileges during the last two weeks of his hospitalization. He remained in the secure unit for the last two weeks of his stay because there were no beds available in the rehabilitation forensic unit. There was evidence that no patient residing in the secure forensic assessment unit had access to the grounds. There are no secure areas on the grounds and therefore a patient with access could obtain drugs or other contraband for any other person on the hospital grounds and bring such items back into the hospital. "Public safety" includes the safety of fellow patients and staff and the concern about the possibility of contraband being smuggled into the secure unit had an evidentiary foundation. The restrictions on the respondent's liberty were no more than was necessary to protect public safety.

The review board does not have jurisdiction to award costs as a remedy under s. 24(1) of the Charter. Introducing the potential for costs orders would detract from the board's ability to meet its statutory mandate and functions. The board is a non-adversarial body with expertise in the management of supervision and treatment of mentally disordered person found to be not criminal responsible or unfit to stand trial with the twin goals of protecting public safety and ensuring that the persons under its jurisdiction are treated fairly. No party has the burden of proof at its hearings. The potential of a costs order would inevitably raise the stakes for the party facing the allegations, heighten the adversarial tenor of the proceedings and prolong board hearings. Consequently, if costs orders are available, hearings are likely to become more adversarial and less inquisitorial, with a shift in focus away from the twin goals of public safety and the fair treatment of not criminal responsible accused persons. Even if the board had jurisdiction to make a costs order, it deprived the hospital of procedural fairness by doing so on its own motion, where the respondent had not sought costs, without giving the hospital notice and an opportunity to make submissions.

R. 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, 255 C.C.C. (3d) 506, 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, 88 W.C.B. (2d) 441, apld

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 (C.A.); R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, [2001] S.C.J. No. 79, 2001 SCC 81, 206 D.L.R. (4th) 444, 279 N.R. 345, J.E. 2002-9, 154 O.A.C. 345, 159 C.C.C. (3d) 321, 47 C.R. (5th) 316, 88 C.R.R. (2d) 189, REJB 2001-27030, 51 W.C.B. (2d) 452, distd

Other cases referred to

Baragengana (Re), [2013] O.R.B.D. No. 669; C. (M.L.) v. Ontario (Review Board) (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; [page643] Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643, [1985] S.C.J. No. 78, 24 D.L.R. (4th) 44, 63 N.R. 353, [1986] 1 W.W.R. 577, J.E. 86-41, 69 B.C.L.R. 255, 16 Admin. L.R. 233, 23 C.C.C. (3d) 118, 49 C.R. (3d) 35, 15 W.C.B. 331; Chaudry (Re), [2013] O.R.B.D. No. 1955, affg [2012] O.R.B.D. No. 1822; Chaudry (Re), [2013] O.R.B.D. No. 1956; Dasilva (Re), [2011] O.R.B.D. No. 1088; Elster (Re), [2011] O.J. No. 4947, 2011 ONCA 701; Osawe (Re), [2015] O.J. No. 2050, 2015 ONCA 280; Saikaley (Re) (2012), 109 O.R. (3d) 262, [2012] O.J. No. 572, 2012 ONCA 92, 254 C.R.R. (2d) 158, 287 O.A.C. 200, 99 W.C.B. (2d) 472; Starz (Re) (2015), 125 O.R. (3d) 663, [2015] O.J. No. 2331, 2015 ONCA 318; Williams (Re), [2008] O.R.B.D. No. 1883; 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, Part XX.1, ss. 672.1(1) [as am.], 672.4(1), 672.38(1), 672.39, 672.54 [as am.], 672.56(1) [as am.], (2)(b), 672.72(1) [as am.], 672.81 [as am.], (1), (2.1) [as am.], 672.83 [as am.], (1)

Provincial Offences Act, R.S.O. 1990, c. P.33, s. 90(2)

APPEAL from the amended decision of the Ontario Review Board, [2013] O.R.B.D. No. 1956.

Michelle O'Bonsawin and Barbara Walker-Renshaw, for appellant person in charge of the Royal Ottawa Mental Health Centre -- member of the Royal Ottawa Health Care Group.

Michael Davies, for respondent Baber Javed Chaudry.

Grace Choi, for respondent Attorney General of Ontario.

The judgment of the court was delivered by

[1] GILLESE J.A.: — Does this court have the jurisdiction to hear an appeal from a decision rendered by the Ontario Review Board (the "Board") after a restriction of liberty hearing? Does the Board have the power to order costs as a remedy under the Canadian Charter of Rights and Freedoms? Can the Board make a costs order on its own motion? This appeal must answer these important questions.

Overview

[2] In 2006, Baber Javed Chaudry was found not criminally responsible on account of mental disorder in respect of two charges of assault and ordered detained within the secure forensic unit of the Royal Ottawa Mental Health Centre (the "Hospital").

[3] As mandated by s. 672.81(1) of the Criminal Code, R.S.C. 1985, c. C-46, the Board held annual hearings to review Mr. Chaudry's detention. [page644]

[4] Prior to the events that triggered the Board's restriction of liberty hearing that is the subject matter of this appeal, Mr. Chaudry had an annual disposition hearing on July 5, 2012. Following that hearing, the Board made a disposition in which it ordered that Mr. Chaudry be detained within the secure forensic assessment unit of the Hospital, with privileges that included living in the community in Hospital-approved accommodation. Mr. Chaudry was approved to live in the community with his mother and sister.

[5] Less than a month after that annual review hearing, Mr. Chaudry's mental state had deteriorated and he had become threatening towards his mother. The Hospital issued a warrant of committal, dated August 2, 2012, and asked for police assistance in having Mr. Chaudry returned to it.

[6] Mr. Chaudry was then readmitted to the Hospital's secure forensic assessment unit, where he remained for approximately two months before being released back into the community.

[7] The Board held a restriction of liberty hearing.

[8] Through counsel, Mr. Chaudry brought an application within that proceeding, asking the Board to find that the Hospital had infringed his s. 7 Charter rights by (1) mishandling his readmission; (2) failing to notify the Board of his restriction of liberty in a timely way; and (3) detaining him on a more secure ward than was necessary and failing to extend appropriate privileges during his hospitalization. Counsel for Mr. Chaudry initially also sought an order that the Hospital pay the costs of his Charter application. However, at the outset of the Board hearing, Mr. Chaudry withdrew his request for costs.

[9] Before the Board, the Hospital did not dispute that its failure to give timely notice of Mr. Chaudry's restriction of liberty violated his s. 7 Charter rights. However, it submitted that it had already reviewed its procedures and taken the necessary steps to ensure that this problem would not repeated. Apart from this, the Hospital denied that Mr. Chaudry's Charter rights had been infringed by its conduct.

[10] The Board concluded that Mr. Chaudry's s. 7 Charter rights had been breached because the last two weeks of his detention on the secure forensic assessment unit "did not represent the least onerous and least restrictive decision". It was on the basis of this breach that the Board then ordered the Hospital to pay Mr. Chaudry $500 in costs.

[11] The Hospital appeals. It contends that the Board erred both in concluding that Mr. Chaudry's Charter rights had been violated and in making a costs order against it. The Attorney General of Ontario supports the Hospital on both matters. [page645]

[12] Mr. Chaudry takes the opposing view on both matters and, further, asks that the appeal be quashed for lack of jurisdiction.

[13] In my view, this court has jurisdiction to hear the appeal. Furthermore, for the reasons that follow, I would allow the appeal.

[14] This appeal was heard in conjunction with Starz (Re) (2015), 125 O.R. (3d) 663, [2015] O.J. No. 2331, 2015 ONCA 318, which also raises issues about the Board's jurisdiction to award remedies for Charter violations. In the two cases, the Board reached opposite conclusions about its ability to make costs orders.

Background

The index offences

[15] Mr. Chaudry's index offences are two counts of assault.

[16] The first count of assault related to an incident in May 2006 when Mr. Chaudry went to his mother's home and asked her for money to pay for insurance. When she refused, Mr. Chaudry punched her on the side of the face and back of the head. She suffered minor injuries.

[17] The second count of assault arose from an incident in August 2006 when Mr. Chaudry was living in a shelter. He assaulted another resident by pushing his lit cigarette into the victim's calf and burning him.

Diagnosis and history of disposition orders

[18] Mr. Chaudry was diagnosed with a psychotic disorder in 2000. On October 4, 2006, when he was 27 years old, Mr. Chaudry was found not criminally responsible on account of mental disorder in respect of the index offences. He has remained under the jurisdiction of the Board since that time. His current diagnoses are schizophrenia and cannabis dependence.

[19] Mr. Chaudry resides in the community with his mother and sister. He has lived with them while subject to detention orders.

[20] At the time of his first hearing before the Board, Mr. Chaudry was detained at the Hospital, but he was later discharged to live at a local group home. In 2008, the Hospital contemplated recommending an absolute discharge but reconsidered after Mr. Chaudry resumed cannabis use. In 2009 and 2010, Mr. Chaudry was granted conditional discharges. However, in 2010, he relapsed and resumed using cannabis. He was voluntarily readmitted to the Hospital where he remained from October 2010 to January 2011. He was then discharged and returned home to live with his mother and sister. [page646]

[21] In April 2011, Mr. Chaudry went on a trip to Pakistan with his mother and sister. Unfortunately, he forgot his medication. Although his medication was couriered to him, he went almost two weeks without it. When he returned to Canada, he reported auditory hallucinations and decreased sleep. Following his annual hearing in June 2011, the Board ordered that Mr. Chaudry be detained in the Hospital with privileges up to and including living in the community.

[22] At Mr. Chaudry's 2012 annual review, the Board accepted the parties' joint submission that he continued to pose a significant threat to the safety of the public. By disposition dated July 5, 2012 [[2102] O.R.B.D. No. 1822] (the "2012 disposition"), the Board ordered that Mr. Chaudry be detained within the secure forensic assessment unit of the Hospital, with privileges that included living in the community.

Circumstances leading to Mr. Chaudry's readmission to Hospital

[23] Following the 2012 disposition, Mr. Chaudry continued to reside with his mother and sister. However, his condition began to deteriorate. In the week preceding his readmission to the Hospital, Dr. Ward and members of Mr. Chaudry's family observed that he was showing signs of increased psychosis, grandiose delusions and bizarre persecutory ideation. Dr. Ward was Mr. Chaudry's attending psychiatrist and had been since 2006. During an interview with Dr. Ward, Mr. Chaudry said that he was a Superior Court judge and discussed a grand plan for himself and the universe.

[24] Dr. Ward was concerned that Mr. Chaudry's behaviour was similar to the behaviour that Mr. Chaudry exhibited at the time of the index offences. On July 24, 2012, she gave Mr. Chaudry a prescription for a new medication and discussed with him the possibility of his readmission to the Hospital.

[25] On July 28, 2012, Dr. Ward received an e-mail from Mr. Chaudry's sister, who is a medical doctor. In her e-mail, Mr. Chaudry's sister said that he had deteriorated since the 2012 disposition. He was increasingly disturbed by voices and he could be heard to be shouting loudly and telling them to "shut up". She said that she and his mother had never seen Mr. Chaudry as disturbed and angered by the voices that he was hearing. She noted that he was also easily aggravated and very aggressive, particularly towards their mother. She indicated that both she and Mr. Chaudry's mother supported his readmission into the Hospital. [page647]

[26] On August 2, 2012, a bed became available at the Hospital. A forensic outpatient nurse contacted Mr. Chaudry and asked him to voluntarily return to the Hospital. At first, Mr. Chaudry said that he needed a day to prepare, and then he said that it would be a week before he would be ready. When the nurse told Mr. Chaudry that Dr. Ward wanted him admitted immediately, he became extremely angry and verbally abusive.

[27] Dr. Ward was concerned that if she asked Mr. Chaudry's mother or sister to bring him into the Hospital he might pose a threat to them so she sent a Form 49 warrant of committal to the police, asking that they apprehend Mr. Chaudry and bring him to the Hospital.

[28] Although the Form 49 ordered that Mr. Chaudry be brought to the Hospital, the Hospital's cover letter stated that if the police were unable to take Mr. Chaudry to the Hospital between the hours of 8:00 a.m. and 5:00 p.m., they should take him to the Ottawa Hospital, Civic Campus (the "Civic Campus") for medical clearance. The Hospital has since changed its procedures to provide that when the police rely on a Form 49, the patient is to be taken to the Hospital no matter what time of day he or she is apprehended.

Mr. Chaudry's readmission and detention

[29] The police apprehended Mr. Chaudry at his home on the evening of August 2. They handcuffed him and took him to the Civic Campus. There, a doctor was called to do an assessment of Mr. Chaudry.

[30] Mr. Chaudry's mother and sister had followed the police to the Civic Campus. They waited there with Mr. Chaudry and the police.

[31] At approximately 11:30 p.m., the police removed Mr. Chaudry's handcuffs and left. Eventually, a doctor assessed Mr. Chaudry and sent him and his family to the Hospital. When they arrived at the Hospital, the doors were locked. At the insistence of Mr. Chaudry's mother, Mr. Chaudry was admitted at approximately 1:30 a.m.

[32] Dr. Ward testified that Mr. Chaudry was even more delusional at the time of his readmittance than he had been prior to her decision to have him readmitted. He remained acutely psychotic until the middle of September.

[33] Mr. Chaudry was housed in the secure forensic assessment unit from the time of his readmission on August 3, 2012, until October 2, 2012, when he was discharged and resumed living at his mother's home. During his previous Hospital [page648] stay, Mr. Chaudry had been detained in the forensic rehabilitation unit.

[34] Dr. Ward testified that patients in the secure forensic assessment unit have access only to a specific yard and gym. They are not permitted privileges such as access to other units in the Hospital or its grounds.

[35] In the forensic rehabilitation unit, however, patients may be permitted to visit other parts of the Hospital or its grounds, or even to enter the community if their condition warrants this privilege.

[36] Dr. Ward testified that while Mr. Chaudry's condition justified his admission to, and detention in, the secure forensic assessment unit for much of his period of hospitalization, towards the end of that period he could have been transferred to the forensic rehabilitation unit. He was not transferred because there were no beds available in the forensic rehabilitation unit.

The restriction of liberty hearing

[37] Section 672.56(2)(b) of the Criminal Code required the Hospital to notify the Board that it had, for a period exceeding seven days, significantly increased the restrictions on Mr. Chaudry's liberty. The Hospital failed to give the Board the required notice. According to Dr. Ward, this failure was due to inadvertence on the Hospital's part when a key member of its staff was away on holidays.

[38] On September 26, 2012, Mr. Chaudry's counsel informed the Board of the situation and requested a restriction of liberty hearing.

[39] The Board held a hearing into the restriction of Mr. Chaudry's liberty on May 27, 2013. At that time, the Board also considered Mr. Chaudry's application for a determination that his Charter rights had been violated by the manner of his readmission to, and continued detention in, the Hospital. Although Mr. Chaudry sought, in his application, an order requiring that the Hospital pay the costs of the application, he abandoned that request at the hearing. Consequently, the Hospital did not address the costs issue in its submissions to the Board.

The Board Decisions

[40] By decision dated May 30, 2013 [ [2013] O.R.B.D. No. 1955] (the "initial decision"), the Board stated that the restriction of Mr. Chaudry's liberty by readmission to the Hospital [at para. 5] "was warranted, and . . . represented the least [page649] onerous and least restrictive decision". The initial decision also affirmed that the 2012 disposition remained appropriate.

[41] In reasons dated August 1, 2013 [ [2013] O.R.B.D. No. 1956] (the "Board reasons"), the Board gave reasons for its decision in this matter. The Board reiterated its determinations in the initial decision and explained why it had reached them. It explained that the restriction on Mr. Chaudry's liberty by readmission to the Hospital was reasonable and warranted, given his condition at that time. It also found that the Hospital's decision to request police assistance in apprehending Mr. Chaudry was justified. It observed that in light of comments made by Mr. Chaudry, it was reasonable for the Hospital to have been concerned that Mr. Chaudry did not wish to be hospitalized and, based on Mr. Chaudry's decompensated and increasingly aggressive state, it was reasonable for the Hospital to have been concerned for his mother's safety. The Board found that the Hospital was justified in using a Form 49 to have Mr. Chaudry brought in by police. It further found that it had no concerns about the police actions.

[42] The Board went on [at para. 96] to indicate that it was "significantly disturbed and concerned" by the "inappropriate way" in which Mr. Chaudry had been readmitted to the Hospital. It referred to the delay between Mr. Chaudry's apprehension and his readmission to the Hospital, and the way Mr. Chaudry and his family were treated by the Hospital staff when they arrived. The Board found that this chain of events was the result of the Hospital's decision to request that Mr. Chaudry be brought to the Civic Hospital if he were not apprehended between the hours of 8:00 a.m. and 5:00 p.m.

[43] The Board said that Mr. Chaudry ought to have been taken directly to the Hospital where personnel and procedures should have been in place for a quick admission. It concluded on this issue by noting that the Hospital had made significant changes to its policies and procedures in regard to readmission, and was hopeful that the new procedures would ensure that similar events were not repeated.

[44] The Board concluded that Mr. Chaudry's detention in the secure forensic assessment unit was justified at the time of readmission, given his medical condition. However, it stated that Mr. Chaudry's continued detention in that unit up to the time of his discharge, and his inability to exercise privileges he would otherwise have been entitled to exercise, were not [at para. 7] "warranted and reasonable" and constituted a violation of his rights under s. 7 of the Charter. [page650]

[45] The Board noted that it was unaware of any precedent in which the Board had ordered costs to a party on a Charter application. However, it concluded that allowing costs was the only available remedy for the violation of Mr. Chaudry's Charter rights. It then ordered the Hospital to pay the sum of $500 in costs to Mr. Chaudry's counsel.

[46] On August 22, 2013, the Board issued an amended decision which reflected the Board reasons (the "amended decision"). The amended decision stated that while Mr. Chaudry's initial readmission to the Hospital was warranted, his continued detention on the secure forensic assessment unit was not the least onerous and least restrictive decision, contrary to s. 7 of the Charter.

The Issues

[47] The Hospital raises three issues on appeal. It submits that the Board

(1) erred in finding that Mr. Chaudry's continued detention on the secure forensic assessment unit was not the least onerous and least restrictive disposition and was contrary to s. 7 of the Charter;

(2) does not have the jurisdiction to award costs as a remedy under s. 24(1) of the Charter; and

(3) erred in ordering costs against the Hospital on its own motion.

[48] Mr. Chaudry raises a further issue. He submits that there is no statutory right of appeal from the Amended Decision and, therefore, this court is without jurisdiction and the Hospital's appeal must be quashed.

[49] Because Mr. Chaudry's submission goes to the threshold question of whether this court has the jurisdiction to hear the Hospital's appeal, I will deal with it first.

Does this Court have Jurisdiction to Hear the Appeal?

[50] As I will explain, a careful review of the relevant legislative provisions leads to the conclusion that this court has jurisdiction to hear an appeal from a Board decision rendered after a restriction of liberty hearing.

The right to appeal a Board "disposition" to this court

[51] This court's jurisdiction to hear appeals in matters involving mental disorder comes from s. 672.72(1) of the Criminal Code, [page651] which gives a party the right to appeal a Board "disposition" to this court:

672.72(1) Any party may appeal against a disposition made by a court or a Review Board, or a placement decision made by a Review Board, to the court of appeal of the province where the disposition or placement decision was made on any ground of appeal that raises a question of law or fact alone or of mixed law and fact.

(Emphasis added)

[52] "Disposition" is defined in s. 672.1(1) to mean "an order made by a . . . Review Board under section 672.54 . . .".

[53] Section 672.54 refers to, among other things, a Board disposition made under s. 672.83:

672.54 When a court or Review Board makes a disposition under . . . section . . . 672.83 . . .[^1]

[54] In the present case, as I will explain, the Board made the Amended Decision under s. 672.83. Because "disposition" in s. 672.1(1) is defined to mean a Board order made under s. 672.54 and s. 672.54 refers to a Board disposition made under s. 672.83, the Amended Decision falls within the statutory definition of "disposition" and this court has jurisdiction to hear an appeal against it. [page652]

The amended decision is a disposition under s. 672.83

[55] I will now explain how it is that the amended decision is a disposition by the Board under s. 672.83.

[56] Section 672.56(1) gives the Board the power to delegate to the person in charge of the hospital the authority to direct that the restrictions on an accused person's liberty be increased or decreased. Such a direction is deemed to be a Board disposition:

672.56(1) A Review Board that makes a disposition in respect of an accused under paragraph 672.54(b) or (c) may delegate to the person in charge of the hospital authority to direct that the restrictions on the liberty of the accused be increased or decreased within any limits and subject to any conditions set out in that disposition, and any direction so made is deemed for the purposes of this Act to be a disposition made by the Review Board.

(Emphasis added)

[57] In the present case, by means of para. 2 of the 2012 disposition, the Board delegated to the Hospital the authority described in s. 672.56(1), namely, the authority to direct that the restrictions on Mr. Chaudry's liberty be increased or decreased subject to certain conditions.

[58] Under s. 672.56(2)(b), the Hospital was required to give notice to the Board because it had significantly increased the restrictions on Mr. Chaudry's liberty and the increased restrictions had remained in force for more than seven days:

672.56(2) A person who increases the restrictions on the liberty of the accused significantly pursuant to authority delegated to the person by a Review Board shall

(b) give notice of the increase as soon as is practicable to the accused and, if the increased restrictions remain in force for a period exceeding seven days, to the Review Board.

[59] Section 672.81(2.1) required the Board to hold a hearing to review the Hospital's decision to significantly increase Mr. Chaudry's liberty restrictions:

672.81(2.1) The Review Board shall hold a hearing to review a decision to significantly increase the restrictions on the liberty of the accused, as soon as practicable after receiving the notice referred to in subsection 672.56(2).

[60] As I have explained, s. 672.56(1) deemed the Hospital's decision to increase the restrictions on Mr. Chaudry's liberty to be a Board disposition (the "deemed Board disposition"). When the Board held the hearing as required under s. 672.81(2.1), s. 672.83(1) required the Board to review the deemed Board disposition and make any other disposition that it considered appropriate: [page653]

672.83(1) At a hearing held pursuant to section 672.81 . . . the Review Board shall, except where a determination is made under subsection 672.48(1) that the accused is fit to stand trial, review the disposition made in respect of the accused and make any other disposition that the Review Board considers to be appropriate in the circumstances.

(Emphasis added)

[61] As required by s. 672.83(1), the Board reviewed the deemed Board disposition. The result of that review was the amended decision. Thus, the amended decision was the disposition that the Board considered to be appropriate, in the circumstances. In the amended decision, the Board confirmed the Hospital's decision to readmit Mr. Chaudry and ordered that the 2012 disposition continue.

[62] Although the Board called the amended decision a decision -- not a disposition -- and although the style of cause of the amended decision refers to "a hearing held pursuant to section 672.81(2.1)", in fact, the amended decision is the Board's disposition made pursuant to s. 672.83.

[63] To be clear, in my view, for this court to have jurisdiction over the appeal, it was not necessary that the Board order the 2012 disposition to continue. When the Board reviews a disposition at a restriction of liberty hearing under s. 672.83(1), it must make "the disposition that [it] considers appropriate". Accordingly, whatever disposition it makes pursuant to s. 672.83(1) is subject to appeal under s. 672.72(1).

Summary and concluding remarks on this issue

[64] In sum, therefore, because

s. 672.1(1) defines "disposition" to mean a Board order made under s. 672.54;

-- s. 672.54 refers to a Board disposition under s. 672.83; and

s. 672.83 requires the Board to review the deemed Board disposition made under s. 672.56(1) and make such disposition as it considers appropriate,

the amended decision falls within the statutory definition of "disposition" in s. 672.1(1). Thus, this court has jurisdiction to hear the Hospital's appeal against that disposition (i.e., the amended decision) under s. 672.72(1) of the Criminal Code.

[65] I would add two final comments.

[66] First, this interpretation accords with the court's past practice of hearing appeals of Board decisions arising from restriction of liberty hearings: see, for example, Saikaley (Re) (2012), 109 O.R. (3d) 262, [2012] O.J. No. 572, 2012 ONCA 92. [page654] Second, this interpretation is consistent with the legislative intent underlying Part XX.1 of the Criminal Code, which is to give NCR accused persons the right of appeal from Board decisions that affect their liberty interests.

[67] For these reasons, I would reject Mr. Chaudry's request that the Hospital's appeal be quashed for want of jurisdiction.

Did the Board Err in Finding that Mr. Chaudry's Continued Detention on the Secure Forensic Assessment Unit Was Not the Least Onerous and Least Restrictive Disposition and Contrary to S. 7 of the Charter?

[68] In its amended decision, the Board stated that Mr. Chaudry's "continued detention on the [Secure] Forensic Assessment Unit did not represent the least onerous and least restrictive decision, contrary to section 7 of the Charter" (the "finding"). From the Board reasons, it appears that the finding is based on the Board's view that in the last two weeks of Mr. Chaudry's stay in the Hospital, while housed in the secure forensic assessment unit, Mr. Chaudry should have been given the privileges associated with detention on the forensic rehabilitation unit.

[69] The Hospital submits that the finding was unreasonable and unsupported by the evidence. It contends that the Board did not conduct any analysis of whether Mr. Chaudry's detention in the relevant two-week period met the least onerous and least restrictive standard. In this regard, the Hospital notes that the least onerous and least restrictive standard is informed by a number of factors, including the treatment needs of the accused and the need to protect the public. The Hospital further submits that the Board's s. 7 finding is devoid of analysis and unfounded in the evidence.

[70] Mr. Chaudry argues that the finding was proper and reasonable, based on Dr. Ward's own testimony that in the last two weeks of his detention, he could have been housed in the forensic rehabilitation unit but was not moved there because no beds were available. He submits that the Board was entitled to conclude from this evidence that his liberty had been infringed to a greater extent than necessary to protect public safety. Given this conclusion, Mr. Chaudry says that a finding that his s. 7 rights had been breached was inevitable.

[71] I would accept the Hospital's submission on this issue.

[72] As I have explained above, when the Hospital exercised its delegated authority to direct that the restrictions on Mr. Chaudry's liberty be increased, it acted pursuant to s. 672.56(1). In the exercise of that delegated authority, any [page655] restrictions that the Hospital placed on Mr. Chaudry had to fall within the envelope of conditions enumerated by the Board in the 2012 disposition. The Hospital was required to give due regard to Mr. Chaudry's liberty interest in light of the twin goals of public safety and treatment: C. (M.L.) v. Ontario (Review Board) (2010), 104 O.R. (3d) 450, [2010] O.J. No. 5310, 2010 ONCA 843, at paras. 27-28. Further, the Hospital was obliged to ensure that the conditions it imposed met the "least onerous and least restrictive" standard: C. (M.L.), at para. 45.

[73] Similarly, when the Board reviewed the Hospital's decision to significantly restrict Mr. Chaudry's liberty pursuant to s. 672.81(2.1), it was required to determine whether the Hospital's decision met the least onerous and least restrictive standard: C. (M.L.), at para. 46.

[74] If the Hospital's decision met the least onerous and least restrictive standard, then there was no violation of Mr. Chaudry's s. 7 rights. This conclusion follows from the Supreme Court's reasoning in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31, at para. 71, that the least onerous and least restrictive standard does not violate s. 7. The court held that the standard is not overbroad and ensures that the NCR accused's liberty will be intruded upon no more than is necessary to protect public safety.

[75] Thus, the question for the Board was whether, in failing to give Mr. Chaudry the privileges associated with detention on the forensic rehabilitation unit during the last two weeks of his hospitalization, the Hospital breached the least onerous and least restrictive standard. The Board concluded that it had. In my view, it erred in reaching that conclusion.

[76] To begin, it is not clear to me that the Board tested the Hospital's decision against the least onerous and least restrictive standard. Although the words "least onerous and least restrictive" appear in the amended decision, they do not appear in the Board reasons. Rather, at p. 19 of the Board reasons, the Board states that Mr. Chaudry's continued detention on the secure forensic assessment unit without being able to exercise privileges that he otherwise would have been entitled to exercise was "not reasonable and warranted". Later on that same page, the Board again states that Mr. Chaudry's inability to exercise the privileges that his condition would have warranted was "not warranted and reasonable", and therefore violated Mr. Chadury's s. 7 rights. With respect, the Board was required to assess whether the Hospital's decision to significantly restrict Mr. Chaudry's liberty satisfied the least onerous and least [page656] restrictive standard, and not whether the decision was warranted and reasonable.

[77] In any event, however, the finding is not supported by the evidence.

[78] Dr. Ward testified that Mr. Chaudry was acutely psychotic until two weeks prior to his discharge. During the period of acute psychosis, he had significant hallucinations, irritability and disorganization and could not be transferred to the forensic rehabilitation unit. While on the secure forensic assessment unit, Mr. Chaudry had visits with his family and he had access to a large yard, the gym and treatment groups. He did not have access to the rest of the Hospital or its grounds.

[79] Once Mr. Chaudry's condition began to improve, the Hospital promptly began planning to discharge him to the community. Although Mr. Chaudry was well enough to have been transferred to the forensic rehabilitation unit in the last two weeks of his Hospital stay, there were no beds available in the forensic rehabilitation unit at that time.

[80] Dr. Ward testified that the Hospital does not have secure access to its grounds (apart from the grounds to which Mr. Chaudry had access), which means that its grounds are basically open to the public. A patient that has access to those grounds has the potential to obtain contraband, such as drugs. Dr. Ward explained that allowing a patient to go back and forth between the two units creates a risk that contraband will move between them. Thus, giving Mr. Chaudry access to the Hospital grounds would have created the risk that contraband such as drugs could be moved into the secure forensic assessment unit. Illegal drugs on the secure forensic assessment unit, in which seriously ill patients are resident, poses a safety risk to the other patients on that unit and to the staff who care for them.

[81] In my view, "public" safety concerns include concerns about other patients and Hospital staff. Thus, Dr. Ward's evidence demonstrates that, in establishing Mr. Chaudry's privileges in the last two weeks of his hospitalization, the Hospital carefully considered and balanced Mr. Chaudry's treatment needs with public safety concerns. The restrictions were no more than what was necessary to protect public safety.

[82] A concluding comment is in order. On several occasions, the Board has exhorted the Hospital to find a way to allow the NCR accused person to exercise the privileges that his or her condition warrants, even if the person is detained on the secure forensic assessment unit because of a lack of beds in the forensic rehabilitation unit: see, for example, Williams (Re), [2008] O.R.B.D. No. 1883, at para. 21; [page657] Dasilva (Re), [2011] O.R.B.D. No. 1088, at para. 23; and Baragengana (Re), [2013] O.R.B.D. No. 669, at para. 30. In those cases, the particular security concerns expressed by Dr. Ward do not appear to have been raised. Based on that evidence, I have concluded that Mr. Chaudry's privileges were limited no more than necessary to protect public safety. Nothing I have said, however, is intended to diminish the strength of the Board's exhortations that the Hospital find a way to allow NCR accused persons to exercise the privileges their condition warrants.

[83] In the circumstances of this case, however, as I have explained, the Hospital met the least onerous and least restrictive standard and, therefore, there was no breach of Mr. Chaudry's s. 7 rights.

[84] Accordingly, I would allow this ground of appeal.

Does the Board Have Jurisdiction to Award Costs as a Remedy Under S. 24(1) of the Charter?

[85] The Hospital submits that the Board does not have the jurisdiction to award costs as a remedy under s. 24(1) of the Charter.

[86] I agree. In my view, given the statutory framework governing the Board, including its mandate, structure and functions, Parliament did not intend that the Board be empowered to order costs as a s. 24(1) remedy.

The Board's remedial jurisdiction: General principles

[87] Section 24(1) of the Charter provides:

24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[88] In R. v. Conway, [2010] 1 S.C.R. 765, [2010] S.C.J. No. 22, 2010 SCC 22, at paras. 81-82, the Supreme Court set out two questions that must be addressed when a remedy is sought from an administrative tribunal under s. 24(1) of the Charter:

(1) Does the tribunal have the jurisdiction to decide questions of law?

(2) If so, can the tribunal grant the particular remedy being sought?

[89] Conway itself, at para. 84, answered the first question in the affirmative in respect of the Board. As a quasi-judicial body with significant authority over a vulnerable population, the [page658] Board is a court of competent jurisdiction with authority to decide questions of law and Charter questions that arise in the course of its proceedings.

[90] I turn, therefore, to the second question. In the present case, that question becomes: can the Board make a costs order as a s. 24(1) remedy for a Charter breach?

[91] Justice Abella explains, at para. 82 of Conway, that answering the second question is necessarily an exercise in discerning legislative intent:

[W]hat will always be at issue is whether the remedy sought is the kind of remedy that the legislature intended would fit within the statutory framework of the particular tribunal. Relevant considerations in discerning legislative intent will include those that have guided the courts in past cases, such as the tribunal's statutory mandate, structure and function (Dunedin [R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575]).

The statutory framework which governs the Board

[92] Are costs orders the kind of remedy that the legislature intended would fit within the Board's statutory framework? Let us begin by considering the statutory framework that governs the Board, including its mandate and functions.

[93] The Board was established by, and operates under, Part XX.1 of the Criminal Code. It is a specialized statutory tribunal with ongoing supervisory jurisdiction over the treatment, assessment, detention and discharge of those accused persons who have been found not criminally responsible by reason of mental disorder. The review board regime is intended to reconcile the twin goals of protecting the public from dangerous offenders and treating the NCR accused person fairly and appropriately.

[94] The Board's statutory mandate is to manage and supervise the assessment and treatment of all such persons in Ontario by holding annual hearings and making dispositions. Its functions and tasks call for significant expertise and the Board's membership reflects this. It sits in five-member panels that include the chairperson (a judge or a person qualified for or retired from the bench), a psychiatrist and a second psychiatrist or a person with training and experience in the field of mental health who is entitled to practice medicine or psychology: Conway, at para. 95; and Criminal Code, ss. 672.38(1), 672.39, 672.4(1).

[95] The Board's method is inquisitorial, not adversarial: Winko, at para. 54. In the Board proceedings, the NCR accused bears no onus of proof. Rather, the Board is required to search out and consider all relevant evidence, including evidence that [page659] supports restricting the accused's liberty and evidence that supports increasing the accused's liberty.

Analysis

[96] In my view, introducing the potential for costs orders would detract from the Board's ability to meet its statutory mandate and functions. The potential of a costs order would inevitably raise the stakes for the party facing the allegations, heighten the adversarial tenor of the proceedings and prolong Board hearings. Consequently, if costs orders are available, hearings are likely to become more adversarial and less inquisitorial, with a shift in focus away from the twin goals of public safety and the fair treatment of NCR accused persons. The Board's expertise is in "how best to manage a patient's risk to the public": Conway, at para. 95. Its expertise is not in assessing and fixing costs.

[97] Moreover, as Abella J. noted in Conway, at para. 103, Charter rights can be effectively vindicated through the exercise of statutory powers and processes. In this case, the statutory powers given to the Board provide it with a sufficient arsenal of remedies.

[98] As explained above, pursuant to ss. 672.81(2.1) and 672.83(1), the Board reviewed the Hospital's decision to significantly restrict Mr. Chaudry's liberty (the deemed Board disposition) and had the power to make any other disposition that it considered appropriate, in the circumstances. Accordingly, the Board had the power to redress any aspect of Mr. Chaudry's detention that did not meet the least onerous and least restrictive standard.

[99] Further, the Board can make findings and non-binding recommendations, which would provide guidance to hospitals on the proper discharge of their obligations.

[100] That this can be an effective remedy is borne out by the facts of this case. By the time the Board heard this matter, the Hospital had already investigated what had taken place, and reviewed its procedures and policies both for admitting individuals on detention orders and for notifying the Board about restriction of liberty hearings.

[101] Indeed, the Hospital had already implemented important changes both to its procedures for such readmissions and to ensure that notice is properly given. Under the new admission procedure, when the Hospital requests that the police apprehend a patient, the police are to bring the patient to the Hospital at any time of day. (Recall that under the old procedure, at the [page660] Hospital's direction, the police took Mr. Chaudry to the Civic Campus because he was apprehended after 5:00 p.m.)

[102] Furthermore, under the new notice procedure, when the Hospital issues a Form 49 warrant of committal, a letter advising the Board of this is immediately drafted and placed in the patient's file. That letter is then automatically sent to the Board seven days later, pursuant to s. 672.56(2)(b).

[103] Although I have concluded that the Board's statutory mandate, structure and functions are not consistent with any legislative intent that the Board have the power to award costs, my conclusion does not undermine the important role that the Board plays in respect of Charter issues. The Board has the jurisdiction to apply the Charter to issues that arise in the proper exercise of its statutory functions. This ensures that the Board will play a primary role in determining Charter issues that fall within its specialized jurisdiction.

[104] I would conclude on this ground of appeal by observing that, in my view, the Board erred in relying on R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, [2001] S.C.J. No. 79, 2001 SCC 81 ("Dunedin") when it ordered the Hospital to pay costs.

[105] In Dunedin, the respondents were charged under the Ontario occupational health and safety legislation with failing to comply with safety requirements on a construction project. They sought Crown disclosure but, ultimately, had to bring a motion to obtain it. A justice of the peace, acting under the Provincial Offences Act, R.S.O. 1990, c. P.33 (the "POA"), heard the motion and ordered disclosure. He also ordered the Crown to pay costs of the motion to the respondents. The Supreme Court upheld the costs order, ruling that justices of the peace acting under the POA have the power to make costs orders against the Crown for Charter breaches.

[106] In my view, there are two crucial differences between the statutory mandates, functions and powers of a provincial court operating under the POA, and the Board operating under Part XX.1 of the Criminal Code. The first is that s. 90(2) of the POA expressly empowers provincial courts to make orders for the payment of costs in certain circumstances. The second is that the use of costs orders by the provincial courts to discipline untimely disclosure is integrally related to their function as quasi-criminal trial courts: Dunedin, at para. 93.

[107] Neither of these considerations applies to the Board. There is no equivalent provision in Part XX.1 of the Criminal Code to s. 90(2) of the POA, nor is the Board a quasi-criminal court that determines the guilt or innocence of accused persons. Rather, the Board's supervisory jurisdiction is over the [page661] treatment and assessment of those persons who have been found by a court to be unfit to stand trial or not criminally responsible by reason of mental disorder.

[108] For these reasons, I would allow this ground of appeal.

Did the Board Err In Ordering Costs Against the Hospital on its Own Motion?

[109] At the beginning of the Board hearing, Mr. Chaudry, through his counsel, made it clear that he was not seeking the costs of his Charter application. As a result, the Hospital made no submissions on that matter. Nonetheless, the Board made a costs order against the Hospital.

[110] Mr. Chaudry submits that, in making the costs order, the Board did not deprive the Hospital of procedural fairness because its process is inquisitorial and the Board is obliged to arrive at the conclusion it thinks proper, no matter what position the parties have taken.

[111] I would not accept this submission. In my view, the Board owed the Hospital a duty of procedural fairness. It breached that duty by making the costs order on its own motion, without giving the Hospital notice that it might be subject to such an order, and without giving the Hospital the opportunity to make submissions on the matter.

[112] In Kachkar (Re) (2014), 119 O.R. (3d) 641, [2014] O.J. No. 1500, 2014 ONCA 250, 309 C.C.C. (3d) 1, this court considered the circumstances in which the Board owes a duty of procedural fairness to the parties before it. At para. 39, Goudge J.A., writing for the court, quoted the following from Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643, [1985] S.C.J. No. 78, at p. 653 S.C.R.:

This Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual.

[Citations omitted]

[113] In Kachkar, the parties made a joint submission on the accused's disposition. The Board accepted the joint submission, but also granted the accused additional privileges. On appeal, the Crown argued that it was denied procedural fairness because it was not given the opportunity to make submissions on the additional privileges. This court disagreed. It held that the Crown was not entitled to procedural fairness in those circumstances for two reasons. First, the Crown was not an "individual". Second, the Crown was not advancing before the Board [page662] an interest it could "claim as its own": Kachkar, at para. 44. The Crown's interest -- ensuring that the Board made a disposition that was the least onerous and least restrictive disposition consistent with public safety -- was "the public interest, not a private interest": Kachkar, at paras. 43-44.

[114] The facts of the present case, however, are materially different from those in Kachkar. The Board is clearly a public authority and it made an administrative decision when it ordered costs against the Hospital. The Hospital, for the purposes of the duty of procedural fairness analysis, is a person whose rights or interests have been affected by the Board decision. Unlike the Crown in Kachkar, the Hospital's interest in avoiding the costs order is an interest that it can claim as its own. The costs order is a significant decision and, as it adversely affects the Hospital's interests, the Hospital would have legitimately expected to have been heard on the matter before the Board decided it.

[115] See, also, Elster (Re), [2011] O.J. No. 4947, 2011 ONCA 701 and Osawe (Re), [2015] O.J. No. 2050, 2015 ONCA 280. In Elster, this court set aside a condition of a disposition order, in part because the Board had imposed the condition without having first heard from the parties on the matter. In Osawe, this court set aside the Board's disposition because it rejected a joint submission without giving notice to the parties that it was inclined to so do.

[116] Accordingly, in my view, the Board owed the Hospital a common law duty of procedural fairness in relation to the matter of costs. The Board breached that duty by failing to give the parties the opportunity to address the matter before deciding it.

[117] I would add this. While it is procedural fairness that dictates setting aside the costs order in this case, concern for the integrity of the Board's decision-making process leads to a similar conclusion. Enabling the parties to be heard on matters that affect their rights, privileges or interests ensures that the Board has the necessary information to properly consider and decide such matters.

[118] Accordingly, even if the Board has the power to make an order as to costs, I would set aside the costs order in question on the basis of the Board's breach of its duty of procedural fairness.

Disposition

[119] For these reasons, I would allow the appeal, set aside the amended decision, including the costs order, and reinstate the initial decision.

Appeal allowed.

[^1]: Section 672.54 of the Criminal Code was amended in 2014. The previous version of s. 672.54, in force at the time of the Board hearing and quoted above, reads as follows:

Where a court or Review Board makes a disposition under subsection 672.45(2) or section 672.47 or 672.83, it shall, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is the least onerous and least restrictive to the accused:

(a) where a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused and, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely;

(b) by order, direct that the accused be discharged subject to such conditions as the court or Review Board considers appropriate; or

(c) by order, direct that the accused be detained in custody in a hospital, subject to such conditions as the court or Review Board considers appropriate.

End of Document