In the Matter of Starz

[Indexed as: Starz (Re)]

Ontario Reports

Court of Appeal for Ontario,

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

May 8, 2015

125 O.R. (3d) 663 | 2015 ONCA 318

Case Summary

Criminal law — Appeals — Mootness — Appeal from mental disorder disposition heard after accused receiving discharge without conditions at later hearing — Appeal presenting important issues about rights of NCR accused generally and for board in dealing with Charter applications — Appropriate to entertain appeal despite mootness — Record sufficient and issues fully developed and argued and likely to arise again.

Criminal law — Mental disorder — Charter of Rights — Fundamental justice — Appellant living in community on conditional discharge subject to very liberal conditions — Annual disposition review hearing held 107 days beyond 12-month period stipulated in s. 672.81(1) of Criminal Code — Review board continuing conditional discharge with slightly more liberal conditions — Appellant arguing liberty interest engaged as next disposition order provided more freedom that disposition remaining in place for extra period — Changes in next disposition order were too minor to engage appellant's liberty interest so delay in holding review hearing not violating s. 7 of Charter — No stand-alone s. 7 right to annual hearing — Canadian Charter of Rights and Freedoms, s. 7 — Criminal Code, R.S.C. 1985, c. C-46, Part XX.1, s. 672.81(1).

Criminal law — Mental disorder — Charter of Rights — Procedure — Appellant arguing that because hearings before review board are inquisitorial, with neither party bearing burden of proof, that Charter application should proceed in same way — Review board not required to use inquisitorial approach when hearing Charter application — Appellant bearing usual burden of proof when alleging breach of Charter rights.

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

Criminal law — Mental disorder — Jurisdiction — Board running out of time to deal with appellant's Charter application at 2012 annual disposition review hearing — Board adjourning Charter application and hearing it after it had issued 2012 disposition — Charter application not stand-alone matter but rather being part of 2012 annual review — Board having jurisdiction to hear application — Court of Appeal having jurisdiction to hear appeal from board's Charter decision.

The appellant was found not criminally responsible by reason of mental disorder. Before his 2012 annual disposition review hearing, he was living in the community on a conditional discharge, subject to very liberal conditions. The 2012 review hearing was not held within the 12-month period stipulated in s. 672.81(1) of the Criminal Code, but rather was held 107 days beyond that period. Less than a week before the hearing date, the offender served notice that he was bringing an application alleging that the delay violated his rights under [page664] s. 7 of the Canadian Charter of Rights and Freedoms. He was arrested four days before the hearing was set to commence for violating the terms of his disposition by consuming alcohol. On the date for hearing, the respondent's counsel requested an adjournment on the basis that she had just received the hospital report that day. The hospital and the Attorney General sought an adjournment because they had not received the 15-day notice of the Charter application, as required by the rules governing the procedure of the Ontario Review Board. The hearing was adjourned for one month and a full day was set aside so that the hearing and the Charter application could both be heard. As the hearing on the disposition took the entire day, it was necessary to adjourn the Charter application for about ten weeks. The board continued the appellant's conditional discharge on substantially the same terms as the 2011 disposition, although some of the conditions were slightly more liberal. When the Charter motion was heard, the appellant argued the board should extend its usual inquisitorial method, in which no party bore the burden of proof that a particular disposition was appropriate, to his Charter applications. He asked that the board order costs, damages and declaratory relief pursuant to s. 24(1) of the Charter. The board found that the delay in holding the review hearing did not violate the appellant's rights under s. 7 of the Charter and that in any event it did not have the jurisdiction to grant the requested Charter relief. The appellant appealed.

Held, the appeal should be dismissed.

The appeal was moot as the appellant was granted an absolute discharge at his 2014 review hearing. However, it was appropriate to hear it despite its mootness as the issues raised were likely to arise again, the record was sufficient, the appeal took place within an appropriately adversarial context, and the issues had been fully developed and argued.

The board did not hear the Charter application as a stand-alone matter. Rather, the Charter application was a continuation of the annual review hearing. The board had jurisdiction to decide it, despite having already issued the 2012 disposition. As the Charter decision was a part of the disposition flowing from the 2012 annual review hearing, the Court of Appeal had jurisdiction to hear the appeal.

The review board is not required to use an inquisitorial approach when hearing a Charter application. The inquisitorial nature of a board hearing is intrinsically linked to its function in making a disposition pursuant to s. 672.54 of the Code, not to the determination of a Charter application brought within the annual review process.

The board did not err in finding that the delay did not violate the appellant's rights under s. 7 of the Charter. The 2012 changes in conditions were minor, and the delay did not cause the appellant to suffer a deprivation of liberty significant enough to warrant constitutional protection. There is no stand-alone principle of fundamental justice requiring that not criminally responsible accused persons receive an annual review.

The review board does not have the authority to grant costs, damages or declaratory relief as remedies under s. 24(1) of the Charter. The board is ill-suited to deal with questions of damages and costs, and such determinations are not appropriate to its functions and powers. A review of the board's statutory mandate, structure and function does not show that Parliament intended to empower to board to grant declaratory relief. Its expertise lies in protecting the public from mentally disordered offenders, supervising their treatment and ensuring that they are treated fairly as individuals. Making declarations would [page665] necessarily divert the board's attention from the person before it, because it would have to consider the broader implications for a broader group. If the board could grant declaratory relief, proceedings before the board would likely be protracted, as demonstrated by this case. The power to grant declaratory relief is not necessary because the board has a sufficient statutory arsenal of remedies.

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; 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, consd

Other cases referred to

Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, [1989] S.C.J. No. 14, 57 D.L.R. (4th) 231, 92 N.R. 110, [1989] 3 W.W.R. 97, J.E. 89-499, 75 Sask. R. 82, 47 C.C.C. (3d) 1, 33 C.P.C. (2d) 105, 38 C.R.R. 232, 7 W.C.B. (2d) 61; Canada (Prime Minister) v. Khadr, [2010] 1 S.C.R. 44, [2010] S.C.J. No. 3, 2010 SCC 3, 293 B.C.A.C. 144, 71 C.R. (6th) 201, 251 C.C.C. (3d) 435, 206 C.R.R. (2d) 1, EYB 2010-168789, 2010EXP-424, J.E. 2010-219, 397 N.R. 294, 315 D.L.R. (4th) 1; Carter v. Canada (Attorney General), [2015] S.C.J. No. 5, 2015 SCC 5, 17 C.R. (7th) 1, 66 B.C.L.R. (5th) 215, [2015] 3 W.W.R. 425, 320 C.C.C. (3d) 1, 468 N.R. 1, 2015EXP-471, J.E. 2015-245, EYB 2015-247729, 120 W.C.B. (2d) 561, 252 A.C.W.S. (3d) 74; Chaudry (Re) (2015), 125 O.R. (3d) 641, [2015] O.J. No. 2332, 2015 ONCA 317; Conway (Re) (2012), 111 O.R. (3d) 605, [2012] O.J. No. 3604, 2012 ONCA 519, 263 C.R.R. (2d) 360, 295 O.A.C. 88, 102 W.C.B. (2d) 277; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), 1991 CanLII 57 (SCC), [1991] 2 S.C.R. 5, [1991] S.C.J. No. 42, 81 D.L.R. (4th) 121, 122 N.R. 361, J.E. 91-935, 47 O.A.C. 271, 50 Admin. L.R. 44, 91 CLLC Â14,024 at 12217, 4 C.R.R. (2d) 1, 27 A.C.W.S. (3d) 35; Cunningham v. Canada, 1993 CanLII 139 (SCC), [1993] 2 S.C.R. 143, [1993] S.C.J. No. 47, 151 N.R. 161, J.E. 93-847, 62 O.A.C. 243, 11 Admin. L.R. (2d) 1, 80 C.C.C. (3d) 492, 20 C.R. (4th) 57, 14 C.R.R. (2d) 234, 19 W.C.B. (2d) 276; Harrison v. Antonopoulos (2002), 2002 CanLII 28725 (ON SC), 62 O.R. (3d) 463, [2002] O.J. No. 4890, [2002] O.T.C. 987, 46 C.C.L.I. (3d) 89, 31 C.P.C. (5th) 153, 118 A.C.W.S. (3d) 806 (S.C.J.); Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), [2006] 1 S.C.R. 326, [2006] S.C.J. No. 7, 2006 SCC 7, 264 D.L.R. (4th) 10, 346 N.R. 1, J.E. 2006-620, 222 B.C.A.C. 1, 46 Admin. L.R. (4th) 1, 206 C.C.C. (3d) 161, 36 C.R. (6th) 1, EYB 2006-102437, 68 W.C.B. (2d) 722; Monks v. ING Insurance Co. of Canada (2005), 2005 CanLII 21688 (ON SC), 76 O.R. (3d) 146, [2005] O.J. No. 2525, [2005] O.T.C. 513, 23 C.C.L.I. (4th) 307, 25 M.V.R. (5th) 222, 140 A.C.W.S. (3d) 372 (S.C.J.); New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46, [1999] S.C.J. No. 47, 177 D.L.R. (4th) 124, 244 N.R. 276, J.E. 99-1756, 216 N.B.R. (2d) 25, 26 C.R. (5th) 203, 66 C.R.R. (2d) 267, 50 R.F.L. (4th) 63, 552 A.P.R. 25, 90 A.C.W.S. (3d) 698; Penetanguishene Mental Health Centre v. Ontario (Attorney General), [2004] 1 S.C.R. 498, [2003] S.C.J. No. 67, 2004 SCC 20, 237 D.L.R. (4th) 1, 318 N.R. 73, J.E. 2004-737, 185 O.A.C. 201, 16 Admin. L.R. (4th) 1, 182 C.C.C. (3d) 193, 19 C.R. (6th) 1, 116 C.R.R. (2d) 304, 129 A.C.W.S. (3d) 711, 60 W.C.B. (2d) 98; R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15, 38 D.L.R. (4th) 508, 74 N.R. 276, [1987] 3 W.W.R. 699, J.E. 87-516, 13 B.C.L.R. (2d) 1, 33 C.C.C. (3d) 1, 56 C.R. (3d) 193, 28 C.R.R. 122, 15 W.C.B. (2d) 387; Robertson (Re), [2012] O.J. No. 5959, 2012 ONCA 889, 104 W.C.B. (2d) 702; Runnalls (Re), [2013] O.J. No. 2679, 2013 ONCA 386, 107 W.C.B. (2d) 582; 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; [page666] Starz (Re), [2011] O.R.B.D. No. 3026

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 1, 7, 8, 24(1)

Criminal Code, R.S.C. 1985, c. C-46, Part XX.1, ss. 672.5 [as am.], (7), (8) [as am.], (8.1) [as am.], 672.54 [as am.], 672.63, 672.72(1) [as am.], 672.81(1) [as am.], (1.1) [as am.], 672.83(1)

Authorities referred to

Fairley, H. Scott, "Private Law Remedial Principles and the Charter: Can the Old Dog Wag this New Tail?" in Jeffrey Berryman, ed., Remedies: Issues and Perspectives (Scarborough, Ont.: Carswell, 1991)

Hogg, Peter W., Constitutional Law of Canada, 5th ed., looseleaf (Toronto: Carswell, 2007)

Roach, Kent, Constitutional Remedies in Canada, 2nd ed., looseleaf (Toronto: Canada Law Book, 2013)

Sarna, Lazar, The Law of Declaratory Judgments, 3rd ed. (Toronto: Thomson Carswell, 2007)

APPEAL from the dispositions of the Ontario Review Board dated April 17, 2013 and August 27, 2013, 2013 CarswellOnt 15549.

Glen Michael Starz, in person.

Jill R. Presser and Bernadette Saad, as amicus curiae.

Janice Blackburn, for respondent person in charge of the Centre for Addiction and Mental Health.

G. Choi, for respondent Attorney General of Ontario.

The judgment of the court was delivered by

[1] GILLESE J.A.: — In R. v. Conway, [2010] 1 S.C.R. 765, [2010] S.C.J. No. 22, 2010 SCC 22, the Supreme Court held that the Ontario Review Board (the "Board") is a court of competent jurisdiction that can decide issues under the Canadian Charter of Rights and Freedoms arising in the course of its proceedings. A number of important and significant questions have arisen as the Board strives to discharge its obligation to decide Charter issues. This appeal requires the court to address a number of those questions, include the following.

[2] Can the Board hear a Charter application separately from the annual disposition review with which it is associated? If the Board renders a decision on a Charter application separately from an annual review disposition, is there a right of appeal to this court from the Charter decision? Is a delay in hearing an annual disposition review a breach of an NCR accused person's s. 7 Charter rights? Must the Board use an inquisitorial process when it hears a Charter application? What remedies are [page667] available to the Board in the event that it finds a breach of an NCR accused person's Charter rights?

Overview

[3] Mr. Starz was under the Board's jurisdiction. In accordance with s. 672.81(1) of the Criminal Code, R.S.C. 1985, c. C-46, the Board was to have heard the annual review of Mr. Starz's 2011 disposition by the end of December 2012. However, that hearing did not take place until April of 2013.

[4] As part of that annual review hearing, Mr. Starz brought a Charter application in which he alleged that the delay in the hearing breached his s. 7 rights. He sought the remedies of declaratory relief, damages and costs.

[5] The Board dismissed Mr. Starz's Charter application, on the basis that there had been no breach of his s. 7 rights. The Board also held that it did not have the jurisdiction to grant the remedies that Mr. Starz sought.

[6] Mr. Starz, with the aid of amicus curiae, appeals. He contends that the Board erred in both of these determinations.

[7] For the reasons that follow, I would dismiss the appeal.

[8] This appeal was heard together with Chaudry (Re) (2015), 125 O.R. (3d) 641, [2015] O.J. No. 2332, 2015 ONCA 317. In Chaudry, the Board came to the opposite conclusion about its jurisdiction to award costs as a remedy for a breach of Charter rights.

Background

The index offence and NCR designation

[9] In July 2008, Glen Michael Starz (the "appellant") was riding the streetcar when he noticed an elderly woman nearby. According to Mr. Starz, she was looking at him in a "funny way", which distressed him. He pushed her face into the window of the streetcar with a closed fist and then exited the streetcar (the "index offence"). According to the official account of the incident, Mr. Starz punched the victim in the throat with a closed fist.

[10] On September 4, 2008, Mr. Starz was found not criminally responsible by reason of mental disorder on a charge of assault arising from the index offence. He was diagnosed with schizophrenia, paranoid type, with a differential diagnosis of substance-induced psychotic disorder.

[11] Mr. Starz remained under the Board's jurisdiction until October of 2014, when he was absolutely discharged. [page668]

[12] The Centre for Addiction and Mental Health ("CAMH") is the hospital that treated and supervised Mr. Starz while he was under the Board's jurisdiction.

The events leading to the appeal

[13] This appeal arises from events surrounding Mr. Starz's 2012 annual disposition review. For ease of reference, I will refer to such reviews simply as annual reviews.

[14] The chain of events begins with Mr. Starz's 2011 annual review, the hearing of which took place on December 14, 2011. By disposition dated December 22, 2011 [ [2011] O.R.B.D. No. 3026] (the "2011 disposition"), Mr. Starz was granted a conditional discharge. The conditions of his discharge required him to reside at a fixed address in Toronto, report to CAMH weekly, and abstain from the non-medical use of alcohol and drugs.

[15] Subsection 672.81(1) of the Criminal Code required the Board to hold an annual review within 12 months of making the 2011 disposition. It reads as follows:

672.81(1) A Review Board shall hold a hearing not later than twelve months after making a disposition and every twelve months thereafter for as long as the disposition remains in force, to review any disposition that it has made in respect of an accused, other than an absolute discharge under paragraph 672.54(a).

[16] Thus, Mr. Starz's next annual review should have taken place no later than December of 2012. However, it did not take place until April of 2013.

[17] In a disposition dated April 17, 2013 (the "2012 disposition"), the Board again ordered that Mr. Starz be conditionally discharged, under similar conditions to those in the 2011 disposition. One difference in the conditions is that the 2012 disposition expressly permitted Mr. Starz to travel outside of Canada for up to 12 days, with CAMH's prior consent. Mr. Starz had that same privilege while under the 2011 disposition, although the 2011 disposition did not expressly say so.

[18] When it became apparent that his 2012 annual review would not be heard within 12 months after his 2011 disposition, Mr. Starz brought an application to the Board in which he alleged that the delay violated his rights under s. 7 of the Charter. He asked that the Board order costs, damages and declaratory relief, pursuant to s. 24(1) of the Charter.

[19] Mr. Starz's Charter application was meant to be heard in conjunction with his 2012 annual review but, due to scheduling difficulties, it was not heard until the summer of 2013. In a ruling dated August 27, 2013 (the "Charter decision"), after finding that Mr. Starz's Charter rights had not been breached and that [page669] it had no jurisdiction to grant the relief that he sought, the Board dismissed the application.

[20] Mr. Starz then appealed both the 2012 disposition and the Charter decision. After his 2013 annual review, Mr. Starz abandoned his appeal against the 2012 disposition but continued to pursue his appeal against the Charter decision.

[21] The Attorney General raised a question about this court's jurisdiction to hear a "stand-alone" appeal from the Charter decision, that is, to hear an appeal from the Charter decision without also hearing an appeal from a disposition. In response, Mr. Starz resurrected his appeal against the 2012 disposition for the limited purpose of determining jurisdictional issues arising from the Board having heard and decided his annual review separately from his Charter application.

The hearing of the Charter application

[22] As previously mentioned, Mr. Starz's 2011 annual review took place in December 2011. In November 2012, through his counsel Bernadette Saad, Mr. Starz began asking the Board to set a date for his next annual review.

[23] On February 13, 2013, the Board gave Ms. Saad a series of dates from which she could choose a hearing date, beginning with March 5, 2013. She selected March 5, 2013.

[24] On February 28, 2013, Mr. Starz served his notice of application for relief pursuant to ss. 7 and 24(1) of the Charter, supported by his affidavit sworn February 27, 2013. This was done after the hearing date of March 5, 2013 had been selected by Ms. Saad and a notice of hearing had been served on the parties advising them of the March 5 hearing date.

[25] On March 1, 2013, Mr. Starz was arrested after he was found in possession of alcohol contrary to the terms of his 2011 disposition. As a result, his meeting with the CAMH psychiatrist responsible for preparing the hospital report in advance of his hearing on March 5 was delayed.

[26] The parties appeared before the Board on March 5, 2013. They all asked that the Board adjourn the hearing of the 2012 annual review and the Charter application, both of which were meant to be heard that day. Ms. Saad, on behalf of Mr. Starz, asked for an adjournment because CAMH had only delivered the hospital report that morning. Counsel for CAMH and the Attorney General sought an adjournment because they had not been given the requisite 15 days' notice of Mr. Starz's Charter application.

[27] The Board adjourned Mr. Starz's annual review and his Charter application to April 4, 2013. Although annual review [page670] hearings are normally scheduled for 1.5 hours, the whole day was set aside so that both matters could be heard "in tandem".

[28] On April 4, 2013, the Board began by hearing the annual review. Mr. Starz argued that he should be discharged absolutely. The Board disagreed because it found that he remained a significant threat to public safety. It concluded that the least onerous and least restrictive disposition was a continuation of Mr. Starz's conditional discharge, on substantially the same terms as the 2011 disposition. The Board rejected Mr. Starz's request that it remove the prohibition against Mr. Starz's use of alcohol. In the 2012 disposition, the Board also directed that Mr. Starz's next annual review take place before December 31, 2013.

[29] While the Board had intended to hear Mr. Starz's Charter application immediately following his annual review on April 4, it was unable to because the annual review hearing lasted the full day. The Board canvassed a number of potential dates for the Charter application to be heard by the same panel and found that July 8, 2013 met the schedules of all concerned. Consequently, it adjourned the hearing of the Charter application to July 8, 2013.

[30] As previously noted, based on the hearing on April 4, on April 17 the Board made the 2012 disposition.

[31] Prior to the hearing of the Charter application on July 8, in compliance with a Board direction respecting disclosure of evidence, CAMH provided Ms. Saad and the Attorney General with the affidavit of Dr. Padraig Darby of CAMH.

[32] On July 8, the same panel of the Board reconvened to hear the Charter application. The parties disagreed about the admissibility of certain evidence, particularly the testimony of Dr. Darby and a series of e-mails regarding scheduling of the hearing date. Counsel for CAMH advised that she would not call Dr. Darby nor tender his affidavit. She advised that Dr. Darby would not attend the Charter application hearing unless compelled to do so.

[33] Counsel for Mr. Starz then asked the Board to summons Dr. Darby. The Board refused, saying that Dr. Darby's evidence would not assist in determining the main issues before it, namely, whether Mr. Starz's s. 7 rights had been violated and whether it had the jurisdiction to order the relief which Mr. Starz sought.

[34] The Board also declined to admit into evidence a number of e-mails regarding the scheduling of Mr. Starz's 2012 annual review. CAMH and the Attorney General had refused to consent to their admission, arguing that they had not been given proper notice that the appellant sought to put the e-mails in evidence, and that their admission would be prejudicial. The Board found [page671] that CAMH and the Attorney General would be prejudiced if they were required to meet a new case at such a late date.

[35] Four exhibits containing e-mail correspondence relating to the selection of the annual review hearing date were admitted on consent. The Board also had before it the appellant's affidavit and his viva voce testimony, as well as the evidence heard on April 4. Through his evidence, Mr. Starz indicated that he had hoped to receive an absolute discharge at his 2012 annual review and so was "frustrated, stressed and anxious" when that annual review was delayed.

Events following the Charter decision

[36] The 2012 disposition required that Mr. Starz's next annual review hearing be held prior to December 31, 2013. That occurred, with the hearing taking place on December 9, 2013. By disposition dated December 18, 2013, Mr. Starz was conditionally discharged on substantially the same conditions as the 2012 disposition.

[37] Following Mr. Starz's next annual hearing in October of 2014, Mr. Starz was absolutely discharged.

The Board's Reasons for the Charter Decision

[38] March 5, 2013 -- the date originally scheduled for Mr. Starz's 2012 annual review -- was 74 days beyond the 12-month period stipulated in s. 672.81(1). Because on March 5 the annual review hearing was adjourned to April 4, 2013, the actual hearing of Mr. Starz's 2012 annual review was 104 days beyond the 12-month period.

[39] For the purposes of this appeal, I will assume that the delay in the hearing of Mr. Starz's 2012 annual review was the 104-day period (the "delay"). However, for the purposes of the Charter application, it appears that the delay was only 74 days. I say this as all parties requested an adjournment on March 5, 2013, and the adjournment that was granted was due, in part, to the fact that Mr. Starz had not given the requisite 15 days' notice of his Charter application.

[40] The Board found that Mr. Starz had not been deprived of liberty or security of the person under s. 7 of the Charter for the following reasons. The 2011 disposition remained in effect until the 2012 disposition was made (see s. 672.63 of the Criminal Code). The 2011 disposition granting Mr. Starz a conditional discharge was "extremely liberal", allowing Mr. Starz to live in the community, albeit with the requirement that he meet with his case worker once a week and refrain from using alcohol or drugs. [page672]

[41] The Board found that the major source of Mr. Starz's discomfort was his inability to have a drink of alcohol with his family and friends and his embarrassment when he faced questions from his friends about his inability to drink. However, it noted, although Mr. Starz had sought the removal of the prohibition against consumption of alcohol, both the 2011 and 2012 dispositions continued the prohibition based on the medical evidence that Mr. Starz's use of alcohol or substances would lead to decompensation and violent behaviour, thereby compromising public safety.

[42] Regarding the security of the person claim, the Board relied on New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46, [1999] S.C.J. No. 47, and observed that, for a restriction of security of the person to be made out, the state action must have a serious and profound effect on the person's psychological integrity. The Board found that Mr. Starz's situation did not rise to that level.

[43] The Board also concluded that it did not have the jurisdiction to grant the requested Charter relief, namely, a declaration that Mr. Starz's rights had been violated, an order for damages against CAMH or the Crown, and a costs order.

[44] In reaching this conclusion, the Board relied on Conway, at para. 85, in which the Supreme Court stated that whether a tribunal has the jurisdiction to grant particular remedies under s. 24(1) of the Charter depends on the statutory scheme that governs the tribunal and the scope and nature of the Board's statutory mandate and function.

[45] The Board observed that its functions are to hold initial and annual hearings for both NCR accused and accused who are unfit to stand trial; determine issues of fitness and significant threat; and determine the least onerous and least restrictive dispositions that are consistent with public safety. Its mandate is animated by the twin goals of protecting the public and minimizing intrusions on the liberty interests of those under its jurisdiction.

[46] The Board concluded that it was ill-suited to deal with questions of damages and costs, and that such determinations were not appropriate to its functions and powers. Further, the Board viewed declaratory relief as uniquely within the jurisdiction of the courts and observed that it was open to the appellant to seek such remedies from the appropriate court.

The Issues

[47] The appellant submits that the Board erred [page673]

— in finding that there was no breach of his s. 7 rights;

in holding that it had no jurisdiction to grant costs, damages[^1] or declaratory relief under s. 24(1) of the Charter; and

by failing to use an inquisitorial approach when it heard his Charter application.

Preliminary Matters Going to Jurisdiction

[48] Before addressing these issues, there are two preliminary matters going to jurisdiction which must be decided. First, because Mr. Starz has been absolutely discharged and the Board no longer has jurisdiction over him, is the appeal moot? If so, should this court nonetheless decide the issues raised on the appeal? Second, what are the jurisdictional consequences of the Board having bifurcated the hearing of Mr. Starz's annual review from its hearing of Mr. Starz's Charter application? Did the Board lose jurisdiction to hear the Charter application as a result of that bifurcation? Does this court have jurisdiction to hear an appeal from a decision flowing from a "stand-alone" Charter application?

Mootness

[49] The appellant takes the position that the appeal is not moot. He contends that even though he is no longer under the Board's jurisdiction, he suffered prejudice from the breach of his Charter rights and he is entitled to have the appeal against the Charter decision heard. If the appeal is moot, relying on Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, [1989] S.C.J. No. 14, he urges this court to exercise its discretion to hear it.

[50] CAMH submits that the appeal is moot but asks that it be heard nonetheless.

[51] The Attorney General also submits that the appeal is moot but is not opposed to the appeal being heard.

[52] Assuming that the appeal is moot, in my view, this court should exercise its discretion and hear it. This appeal raises issues of importance not only to the appellant but for NCR accused persons generally, and for the Board. This case raises the issues of the proper approach to be taken by the Board when deciding Charter claims and the Charter remedies that it can [page674] order. Furthermore, because review hearings are heard annually, these issues are generally evasive of review.

[53] In Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), [2006] 1 S.C.R. 326, [2006] S.C.J. No. 7, 2006 SCC 7, the Supreme Court exercised its discretion to hear an appeal from a Board disposition for similar reasons. At para. 15 of Mazzei, the court explained:

[B]ecause the impugned order is "capable of repetition, yet evasive of review". . . the appeal should still be heard. The issue here (the Board's powers) remains unresolved and is likely to come before the courts again. Yet it is "evasive of review" in terms of requiring a "live" dispute between parties in an adversarial context; this is because new orders are continuously crafted, and as is the case here, a controversial order may be quickly overtaken by subsequent orders. This Court should therefore exercise its discretion (as per Borowski) to hear this appeal.

[54] I would conclude by pointing out that any concerns relating to judicial economy are well met in this case. The issues raised on this appeal are likely to arise again and they can be determined effectively: the record is sufficient, the appeal takes place within an appropriately adversarial context, and the issues have been fully developed and argued (see Borowski, at pp. 358-63 S.C.R.).

The bifurcated hearing

[55] As previously explained, because Mr. Starz's 2012 annual review hearing took longer than anticipated, his Charter application was heard separately from it. The annual review hearing took place on April 4, 2013, with the 2012 disposition being released on April 17, 2013, and reasons following on May 3, 2013. Mr. Starz's Charter application was heard on July 8, 2013, with the Charter decision and reasons being released on August 27, 2013.

[56] As I will explain, in my view, neither the Board nor this court lost jurisdiction as a result of these events.

1. The Board's jurisdiction

[57] Two questions have been raised in respect of the Board's jurisdiction. Did the Board have the jurisdiction to hear Mr. Starz's Charter application separately from his annual review hearing? Once the Board issued the 2012 disposition, did it lose jurisdiction to hear what had become a "stand-alone" Charter application?

[58] In my view, the Board did not hear the Charter application separately from Mr. Starz's 2012 annual review hearing. Rather, the correct characterization for what transpired is that [page675] Mr. Starz's 2012 annual review hearing took place over the course of two days, April 4, 2013 and July 8, 2013, with the second of those two days being devoted to hearing oral argument on the Charter application. Thus, the Charter decision is a part of the disposition flowing from Mr. Starz's 2012 annual review. Accordingly, the Board did not hear the Charter application as a stand-alone matter and it had jurisdiction to decide it, despite having already issued the 2012 disposition.

[59] The Board is a court of competent jurisdiction that is entitled to decide Charter issues that arise in the course of its proceedings: Conway, at para. 84. In the present case, Mr. Starz brought his Charter application in the course of his annual review. The Board decided the Charter application as part of its statutory power to conduct annual review hearings and render dispositions, pursuant to Part XX.1 of the Criminal Code. Thus, in my view, from a legal perspective the Charter application was part of the 2012 annual review.

[60] The same is true from a factual perspective. A review of the sequence of events bears out that the Charter application was part of Mr. Starz's 2012 annual review.

[61] Ms. Saad selected March 5, 2013 as the date for Mr. Starz's 2012 annual review hearing. On February 28, 2013, she served the Charter application documents, in which she asked that the application be heard with Mr. Starz's 2012 annual review. The Charter application was made returnable the same date as the annual review, namely, March 5.

[62] The same panel of the Board remained seized throughout Mr. Starz's 2012 annual review hearing. And when that panel decided the Charter application, it took into consideration evidence that it had heard during the first day of the annual review.

[63] I do not accept that because the Board issued the 2012 disposition prior to hearing the Charter application, it lost jurisdiction over the latter. The Charter application was brought and decided as part of Mr. Starz's 2012 annual review hearing.

[64] I would go further and commend the Board for giving priority to the annual review part of the hearing and for issuing the 2012 disposition as promptly as possible. Had the Board waited until it could release the 2012 disposition and the Charter decision simultaneously, the appellant would have had to wait an additional four months to receive his disposition. That disposition relaxed his conditions, albeit minimally. Thus, Mr. Starz was not prejudiced by the bifurcation of the hearing -- he benefitted from it. [page676]

[65] Regardless, however, of whether a disposition increases or relaxes the liberty interests of the accused person, it is important that dispositions be rendered in as timely a fashion as possible. As this court observed in Saikaley (Re) (2012), 109 O.R. (3d) 262, [2012] O.J. No. 572, 2012 ONCA 92, at para. 72, "[a]ll institutions responsible for the vulnerable community of detained NCR patients . . . are obliged to ensure that the hearings to which patients are entitled are conducted and a decision is rendered as expeditiously as is practicable". Each disposition provides the Board with the opportunity to meet its mandate of protecting the public while maximizing the NCR accused person's liberty: 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. 44. The Board is required by s. 672.81(1) to review dispositions every 12 months. The Board should strive to meet that mandate as closely as possible to the legislated 12-month period. By giving the 2012 disposition promptly -- and not waiting until it could also give its decision on Mr. Starz's Charter application -- the Board did precisely that.

[66] In short, in my view, the Board acted properly in hearing the annual review first and in issuing its disposition promptly. This did not cause the Board to lose jurisdiction to hear the Charter application associated with that annual review.

2. This court's jurisdiction

[67] The jurisdiction of this court to hear appeals in matters involving mental disorder comes from s. 672.72(1) in Part XX.1 of the Criminal Code. Subsection 672.72(1) permits a party to appeal to this court against a "disposition" made by the Board.[^2] Section 672.72(1) reads as follows:

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.

[68] As I have just explained, Mr. Starz's 2012 annual review hearing consisted of two parts. The first part led to the 2012 disposition, in which the Board made a disposition that ensured the conditions imposed on Mr. Starz were the "least onerous and least restrictive", consistent with public safety. The second part [page677] of the annual review hearing led to the Charter decision, in which the Board ruled on the Charter application which Mr. Starz had brought as part of his annual review.

[69] On this reasoning, the Charter decision is a part of the disposition flowing from Mr. Starz's 2012 annual review hearing. As we have seen, s. 672.72(1) gives this court the jurisdiction to hear an appeal from such a disposition. Accordingly, it has the jurisdiction to hear an appeal from the Charter decision.

[70] I note that my conclusion is consistent with this court's existing practice. In Conway (Re) (2012), 111 O.R. (3d) 605, [2012] O.J. No. 3604, 2012 ONCA 519, the NCR accused person brought a Charter application in the course of a Board hearing that included his annual review, a restriction of liberties hearing and a review of a prior disposition. The Board issued a new disposition and dismissed the Charter application. On appeal, this court reviewed the Board's Charter decision and dismissed the appeal.

Did the Board Err in Finding that Mr. Starz's S. 7 Rights Had Not Been Breached?

The appellant's position

[71] The appellant submits that the Board erred in finding that the delay did not breach his s. 7 Charter rights. He contends that the liberty interest protected by s. 7 is engaged by the mere possibility of imprisonment -- detention need not be mandatory. He says that whether a particular delay triggers s. 7 must be determined in light of the context and circumstances of an individual case.

[72] The appellant also submits that the Board failed to consider his actual deprivation of liberty. He says the delay prolonged the time during which he was subject to the risk of detention in hospital or jail for violating the terms of the conditional discharge contained in the 2011 disposition. Furthermore, during the delay, the appellant was required to live under the more restrictive terms of the 2011 disposition. The 2012 disposition, while still a conditional discharge, increased his autonomy because it lessened his reporting requirements and provided that he could travel outside of Canada for up to 12 days, with CAMH's prior consent. The delay caused him to lose that increased autonomy for 104 days. As well, during the delay he lost the opportunity to be absolutely discharged.

[73] The appellant further argues that the Board erred by failing to consider the deprivation of security of his person, in the form of the impact of the delay on his psychological integrity. [page678]

[74] Finally, the appellant says, it is a principle of fundamental justice that the liberty and security of an NCR accused person be impaired as little as possible while still ensuring the protection of the public. Therefore, the deprivation of his liberty and security interests caused by the delay offended the principles of fundamental justice.

Analysis

[75] I see no error in the Board's finding that the delay did not violate the appellant's s. 7 rights.

[76] Not every delay in holding an annual review hearing within the statutory timeline will result in a finding that the NCR accused person's s. 7 Charter rights have been breached. To establish a violation of s. 7, the claimant must first show that the impugned state conduct interfered with or deprived him or her of life, liberty or security of the person. The claimant must then show that the deprivation was not in accordance with the principles of fundamental justice: Carter v. Canada (Attorney General), [2015] S.C.J. No. 5, 2015 SCC 5, 17 C.R. (7th) 1, at para. 55. If the claimant proves a violation of s. 7, the state is required to prove under s. 1 of the Charter that the deprivation can be demonstrably justified in a free and democratic society: Carter, at para. 94.

[77] In the Board context, the NCR accused person's liberty interest is impacted by more than just the choice among the three primary dispositions, namely, an absolute discharge, a conditional discharge and a hospital detention. A variation in the conditions of a conditional discharge can have serious ramifications for his or her liberty interest: Penetanguishene Mental Health Centre v. Ontario (Attorney General), [2004] 1 S.C.R. 498, [2003] S.C.J. No. 67, 2004 SCC 20, at para. 24. Accordingly, where the Board imposes conditions on an NCR accused person as part of a conditional discharge, the package of conditions, taken as a whole, must be the least onerous and least restrictive conditions consistent with public safety, the accused's mental condition and other needs, and his or her eventual reintegration into society: Penetanguishene, at paras. 3, 56, 71. The least onerous and least restrictive standard does not violate s. 7 because it ensures that the NCR accused's liberty is trammelled no more than necessary to protect public safety: Winko, at para. 71.

[78] It was the appellant's burden to establish that the delay led to a breach of his s. 7 rights. That is, the appellant's burden was to prove that the delay deprived him of liberty or security of the person in a manner that did not respect the principles of fundamental justice. He failed to discharge that burden. [page679]

[79] I will first consider whether the delay engaged the appellant's liberty interest under s. 7. The appellant says his liberty interest was engaged because, during the delay, he lived under more restrictive conditions than were determined necessary under the 2012 disposition. During the delay, the 2011 disposition continued in force: s. 672.63. The conditions in the 2012 disposition differed from those in the 2011 disposition in three ways:

(1) The 2011 disposition required the appellant to report to the hospital not less than once per week.

The 2012 disposition required the appellant to report to the hospital not less than once every two weeks.

(2) The 2011 disposition required the appellant to notify the Board within 24 hours of any change of address or telephone number. In place of this condition, the 2012 disposition permitted the appellant to travel outside of Canada for up to 12 days, with the hospital's consent.

However, as the Board's reasons for the 2012 disposition indicate, the appellant had already been free to travel outside of Canada under the 2011 disposition and the inclusion of this condition was to simply clarify that.

(3) The 2011 disposition required the hospital to notify the Board and the police if Mr. Starz contravened its terms and if he were arrested for a breach or anticipated breach, he was to be delivered to the hospital.

The 2012 disposition did not include this condition.

[80] These changes in conditions in the 2012 disposition do not, in themselves, establish that the delay resulted in a deprivation of liberty under s. 7 of the Charter. Consider, for instance, Cunningham v. Canada, 1993 CanLII 139 (SCC), [1993] 2 S.C.R. 143, [1993] S.C.J. No. 47, where the appellant, a prisoner, had a high expectation that he would be released on mandatory supervision on a certain date. A legislative amendment reduced that expectation of liberty by curtailing the probability of the appellant's release on mandatory supervision. The Supreme Court ultimately concluded that the amendment engaged the appellant's s. 7 liberty interest. However, in drawing that conclusion, McLachlin J. (as she then was) made the following observation, at p. 151 S.C.R.:

I conclude that the appellant has suffered deprivation of liberty. The next question is whether the deprivation is sufficiently serious to warrant [page680] Charter protection. The Charter does not protect against insignificant or "trivial" limitations of rights . . . It follows that qualification of a prisoner's expectation of liberty does not necessarily bring the matter within the purview of s. 7 of the Charter. The qualification must be significant enough to warrant constitutional protection.

[81] In this case, the changes in conditions were minor. As the Board stated, both during and after the delay, the appellant was living in the community on a conditional discharge subject to very liberal conditions. Thus, even if the 2012 annual review hearing had been held before the end of December 2012, and the 2012 disposition with its slightly more liberal conditions been in place earlier, the appellant did not suffer a deprivation of liberty significant enough to warrant constitutional protection.

[82] Further, it is speculative to posit that the appellant would have been given an absolute discharge earlier but for the delay. In this regard, it is noteworthy that Mr. Starz met the significant threat threshold in his annual hearing in April 2013 and his following annual review hearing in December 2013. Indeed, the appellant did not receive an absolute discharge until October of 2014.

[83] Furthermore, for a restriction of security of the person to be made out, the impugned state action must have a serious and profound effect on a person's psychological integrity -- it must cause something greater than ordinary stress and anxiety: G. (J.), at para. 60. The Board did not fail to recognize the appellant's emotional, physical and psychological reaction to the delay. Rather, the Board found that the impact of the delay on the appellant's psychological integrity was not sufficiently severe to amount to a restriction on the security of his person.

[84] I see no basis on which to interfere with that finding.

[85] On the appellant's testimony, he was frustrated and stressed by the delay and sometimes found it difficult to sleep. He was also embarrassed by his inability to drink alcohol with his family and friends. It was open to the Board to find that these consequences did not constitute a "serious and profound effect" on Mr. Starz's psychological integrity.

[86] Finally, I would not accede to the submission that the statutory requirement that an annual review be held no later than 12 months following a prior disposition is an established principle of fundamental justice. In Winko, the Supreme Court considered whether s. 672.54 violated the s. 7 principles of fundamental justice through vagueness, overbreadth or by improperly placing the onus on the accused to prove lack of dangerousness. The court concluded that s. 672.54 did not violate s. 7. In drawing its conclusion, the Supreme Court did not [page681] conclude that the annual review requirement was a stand-alone principle of fundamental justice. Rather, the requirement of an annual review hearing was but one of the many statutory protections of the NCR accused person's liberty interests that led to the scheme under Part XX.1 being found not to infringe s. 7.

[87] Furthermore, while s. 672.81(1) does mandate that the Board hold an annual review hearing every 12 months to review a disposition, that timing requirement is not absolute. For example, s. 672.81(1.1) empowers the Board to extend the time for holding a disposition review hearing to a maximum of 24 months, on consent of the NCR accused person and the Attorney General, if the accused person is represented by counsel. And, s. 672.63 expressly provides that a disposition remains in force until the Board holds a hearing and makes another disposition.

Did the Board Err in its Ruling on Remedies?

[88] In my view, the Board did not err in finding that it did not have the authority to grant the remedies of costs, damages and declaratory relief.

[89] In the companion case of Chaudry, I review Conway, the leading Supreme Court case on the Board's authority to order remedies under s. 24(1) of the Charter. Rather than repeating the analysis in Chaudry, I will summarize it.

[90] The Board is a court of competent jurisdiction and, therefore, can decide questions of law, including Charter issues, arising in the course of its proceedings. To determine whether it can grant the particular remedies sought by the appellant is a matter of discerning legislative intent, through a consideration of the Board's statutory mandate, structure and function.

[91] In Conway, the Supreme Court analyzed the Board's mandate, structure and functions. That analysis can be summarized as follows. The Board is established, and governed by, 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, with due regard for the paramount consideration of public safety.

[92] 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 [page682] and tasks call for significant expertise and the Board's membership reflects this.

[93] As discussed more fully below, the Board's role in making dispositions under s. 672.54 is inquisitorial, not adversarial: Winko, at para. 54. Accordingly, when making dispositions under s. 672.54, the Board is required to search out and consider all relevant evidence, including evidence that supports restricting the accused's liberty, to meet public safety needs, and evidence that supports increasing the accused's liberty.

Costs

[94] As I explain in Chaudry, 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, and divert attention away from the twin goals of public safety and the fair treatment of NCR accused persons. Moreover, the Board's expertise is in how best to manage a patient's risk to the public. Its expertise is not in assessing and fixing costs.

Damages

[95] In my view, this same reasoning applies to the question of damages. I see nothing in Part XX.1 that indicates that Parliament intended to empower the Board to make orders for damages. Just as in the case of claims for costs, the potential for making an order for damages would bring an adversarial tenor to Board hearings, which would detract from the inquisitorial approach the Board is to take and which would divert the Board's attention from the twin goals of public safety and the fair treatment of NCR accused persons.

[96] I would add this. Because the time necessary to quantify damages is often great, if the Board engaged in that process, it could seriously erode the Board's overall functioning. As I have already explained, the Board is to decide Charter issues arising in the course of its proceedings. Thus, if the Board were required to delve into the quantification of damages during such proceedings as annual reviews, the Board would necessarily have less time in which to fulfil its statutorily mandated duty to review an NCR accused person's disposition every 12 months: Criminal Code, ss. 672.81(1) and 672.83(1). As emphasized above, it is vital that the Board strive to fulfill its duty within the legislated [page683] 12-month period. It does not make sense to give the Board the power to order a remedy when there is every likelihood that the proper exercise of that power would erode its ability to fulfill its primary mandate.

[97] Indeed, this case makes that very point. This court was told that annual review hearings are normally scheduled for 1.5 hours. To accommodate Mr. Starz's Charter application, the Board set aside a full day for his annual review hearing. Despite that additional time, the hearing could not be completed in the allotted time. As we have seen, an additional full day was required, despite no evidence being adduced on costs or damages.

[98] If the Board did not have statutory remedial powers at its disposal, it might be that the power to order costs or damages could be implied so that the Board could meaningfully address Charter breaches. However, as I explain below, that is not the case: the Board has an arsenal of statutory remedial powers.

[99] It is apparent from the Board reasons that the panel of the Board that heard this case shares these concerns. It concluded that (1) the Board is ill-suited to deal with questions of damages and costs; and (2) such determinations are not appropriate to the Board's functions and powers.

[100] I agree.

Declaratory relief

[101] I now turn to whether the Board can grant declaratory relief.

[102] A declaratory judgment is a formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs -- it is restricted to a declaration of the parties' rights and does not order any party to do anything: Harrison v. Antonopoulos (2002), 2002 CanLII 28725 (ON SC), 62 O.R. (3d) 463, [2002] O.J. No. 4890 (S.C.J.), at para. 27; Monks v. ING Insurance Co. of Canada (2005), 2005 CanLII 21688 (ON SC), 76 O.R. (3d) 146, [2005] O.J. No. 2525 (S.C.J.), at para. 12. In other words,

[t]he essence of a declaratory judgment is a declaration, confirmation, pronouncement, recognition, witness and judicial support to the legal relationship between parties without an order of enforcement or execution.[^3]

[103] Particularly in the constitutional context, a declaration is, in effect, "an in rem vindication of an individual's or group's Charter claim which can apply equally for and to the community [page684] at large": H. Scott Fairley, "Private Law Remedial Principles and the Charter: Can the Old Dog Wag this New Tail?" in Jeffrey Berryman, ed., Remedies: Issues and Perspectives (Scarborough, Ont.: Carswell, 1991), at p. 323. By definition, a declaration "necessarily transcend[s] the immediate interests of the parties who originally sought relief": ibid. As Professor Roach observes in Constitutional Remedies in Canada, 2nd ed., looseleaf (Toronto: Canada Law Book, 2013), at para. 12.370, "declarations enable courts to state general principles of law, while leaving it to the government to decide the precise steps necessary to comply with the Constitution".

[104] I make these observations about the nature of declaratory relief to distinguish declarations from orders. There is no question that the Board has the power to make findings -- such as that the applicant's Charter rights have been breached. There is also no question that the Board has the power to make orders in relation to the parties before it. (This power is discussed more fully below.) But, the question is not whether the Board can make findings or orders. The question is whether the Board can grant declaratory relief.

[105] Bearing in mind that a declaration has a broader import and transcends the immediate interests of the party who sought such relief, in my view, the Board does not have such a power. Once again, this conclusion flows from the analysis mandated by Conway. Before turning to that analysis, it is helpful to place the discussion in context.

[106] It is well established that an administrative tribunal cannot make a general declaration of invalidity, although it may treat an impugned provision as invalid for the purposes of the matter before it. As the Supreme Court said in Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), 1991 CanLII 57 (SCC), [1991] 2 S.C.R. 5, [1991] S.C.J. No. 42, at p. 17 S.C.R.:

[A] formal declaration of invalidity is not a remedy which is available to the Board. Instead, the Board simply treats any impugned provision as invalid for the purposes of the matter before it. Given that this is not tantamount to a formal declaration of invalidity, a remedy exercisable only by the superior courts, the ruling of the Board on a Charter issue does not constitute a binding legal precedent, but is limited in its applicability to the matter in which it arises.

(Emphasis added)

[107] Peter W. Hogg explains in Constitutional Law of Canada, 5th ed., looseleaf (Toronto: Carswell, 2007), at pp. 40-52 to 40-53:

[A] decision by a tribunal that a law is unconstitutional is no more than a decision that the law is inapplicable in the particular case. It is not [page685] a binding precedent. According to the [Supreme] Court, only "superior courts" have the power to issue binding declarations of invalidity that will invalidate a law with general effect.

[108] It is also clear that a court can give a declaratory remedy so long as it has jurisdiction over the issue at bar, the question before the court is real and not theoretical, and the person raising it has a real interest to raise it: Canada (Prime Minister) v. Khadr, [2010] 1 S.C.R. 44, [2010] S.C.J. No. 3, 2010 SCC 3, at paras. 46-48.

[109] Bearing in mind that declaratory relief is materially different from both orders and general declarations of invalidity, I return to the question at hand: can the Board grant declaratory relief? Based on the Conway analysis, in my view it cannot.

[110] The Board is entitled to decide Charter questions that arise in the course of its proceedings: Conway, at para. 84. It follows that the Board is entitled to make findings that an NCR accused person's Charter rights have been infringed, and can order appropriate remedies.

[111] Once again, however, a review of the Board's statutory mandate, structure and function does not show that Parliament intended to empower the Board to grant declaratory relief. I will not repeat the description of the Board's mandate, role and functioning, set out above. The essential point for this discussion is that the Board's focus is necessarily on the NCR accused person before it. Its role is not to make broad or general pronouncements but, rather, to ensure that the particular NCR accused person is subject to the least onerous and least restrictive conditions consistent with public safety. To that end, the Board has the power to make remedial orders directed at the particular NCR accused person. Making declarations -- given their broader range and purpose -- would necessarily divert the Board's attention from the person before it because it would have to consider the broader implications for a broader group. Not only would it detract from the Board's primary role and functions, it is likely to protract proceedings before the Board. And, importantly, as I will now explain, the power to grant declaratory relief is not necessary because the Board has a sufficient statutory arsenal of remedies.

The statutory arsenal of remedies

[112] Having concluded that the Board does not have the power to grant declaratory relief, damages or costs, it is important to harken to the comments of Abella J., at para. 103 of Conway: Charter rights can often be effectively vindicated through the exercise of statutory powers and processes. [page686]

[113] The Board's statutory powers provide it with a robust arsenal of remedies. To begin, the Board has the statutory authority to redress any aspect of a conditional discharge that does not meet the least onerous and least restrictive standard. As this court observed in Saikaley, at para. 46, the Board has the power to include conditions in a disposition that are flexible, individualized and creative, in order to supervise the NCR accused person in a responsive, Charter-compliant fashion.

[114] Moreover, as a remedy for Charter infringements, it is open to the Board to provide hospitals with guidance on their obligations under the Criminal Code and Charter. For example, in Saikaley, the NCR accused person's s. 7 Charter rights were infringed by a significant delay in holding a restriction of liberty hearing. The Board's Charter remedy was a reiteration and interpretation of the requirements for a timely restriction of liberty hearing. In particular, the Board advised that a notice of a restriction of liberty from a hospital should be in writing and contain details of the increased restriction.

[115] Furthermore, the Board's power to make orders also provides it with an effective and flexible remedy to redress a Charter breach. This case provides a good example of this power and its utility as a remedy. In the 2012 disposition, the Board ordered that Mr. Starz's 2013 annual review hearing was to be held within eight months of the delayed 2012 hearing. This exercise of the Board's statutory powers had the effect of putting Mr. Starz back on the review schedule that he would have been on, absent the delay.

Did the Board Err in its Approach to Hearing Charter Applications?

[116] The appellant submits that the Board erred by failing to adopt an inquisitorial approach in conducting the hearing of the Charter application. While acknowledging that the burden of proof rests on the applicant to establish the breach of his or her Charter rights, the appellant argues that the inquisitorial model mandated by Part XX.1 of the Criminal Code should extend to Charter hearings as well. He contends that this will ensure fairness to the vulnerable accused person and allow such persons to assert their Charter rights in an accessible forum. In this case, he submits that failure to implement an inquisitorial approach led the Board to err by excluding relevant emails on the basis of inadequate notice and failing to inquire into whether Dr. Darby's evidence would be of assistance.

[117] I do not accept that the Board erred in the manner in which it conducted the Charter application. [page687]

[118] In reaching this conclusion, I begin from the well-established rule that, outside of the Board context, the Charter claimant bears the burden of proving that his or her Charter rights have been infringed. In R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15, at p. 277 S.C.R., Lamer J. stated:

The appellant, in my view, bears the burden of persuading the court that her Charter rights or freedoms have been infringed or denied. That appears from the wording of s. 24(1) and (2), and most courts which have considered the issue have come to that conclusion . . .The appellant also bears the initial burden of presenting evidence. The standard of persuasion required is only the civil standard of the balance of probabilities[.]

See, also, more recently, Carter, at para. 80.

[119] I then ask: does the fact that the application is brought within the context of the Ontario Review Board alter the legal framework for the determination of Charter applications? In my view, it does not. The inquisitorial nature of a Board hearing is intrinsically linked to its function in making a disposition pursuant to s. 672.54 -- not to the determination of a Charter application brought within the annual review process.

[120] In Winko, the Supreme Court discussed the regime for dealing with persons with mental disorders created by Part XX.1 of the Criminal Code, and observed that it created an inquisitorial regime that departs from the traditional adversarial model. At para. 54, McLachlin J. (as she then was) states:

The regime's departure from the traditional adversarial model underscores the distinctive role that the provisions of Part XX.1 play within the criminal justice system. The Crown may often not be present at the hearing. The NCR accused, while present and entitled to counsel, is assigned no burden. The system is inquisitorial. It places the burden of reviewing all relevant evidence on both sides of the case on the court or Review Board. The court or Review Board has a duty not only to search out and consider evidence favouring restricting NCR accused, but also to search out and consider evidence favouring his or her absolute discharge or release subject to the minimal necessary restraints, regardless of whether the NCR accused is even present . . .The legal and evidentiary burden of establishing that the NCR accused poses a significant threat to public safety and thereby justifying a restrictive disposition always remains with the court or Review Board.

(Emphasis in original)

[121] The inquisitorial process cannot be separated from the fact that under s. 672.54 of the Criminal Code, no party has a legal onus. The Board must search out and consider evidence relevant to the appropriate disposition for the accused person. Accordingly, the Board bears the legal and evidentiary burden of establishing whether the NCR accused poses a significant threat to public safety and, if so, of determining the least onerous and least restrictive disposition for the NCR accused person. In other [page688] words, because the parties bear no onus, the onus is on the Board, and as a result, the Board must adopt an inquisitorial procedure when acting under s. 672.54.

[122] A Charter application is fundamentally different from a disposition under s. 672.54. A Charter application alleges wrongdoing and entails establishing some degree of fault-finding and/or liability. I do not accept that alleging a Charter breach places an onus on the Board to search out evidence about the conduct of the employees of parties who would otherwise make their own decisions on how to respond to the allegations. The process must be fair to all parties, not just the NCR accused person.

[123] Consider, for example, Runnalls (Re), [2013] O.J. No. 2679, 2013 ONCA 386, 107 W.C.B. (2d) 582, where the appellant argued that the Board erred in failing to address his Charter applications. The appellant had made no submissions in support of his Charter applications before the Board. One of his Charter applications alleged a violation of s. 8, without providing particulars; the other application did not specify which Charter right was breached. This court dismissed the appeal, concluding that the Board did not err in its treatment of the appellant's Charter applications. This court makes no suggestion in Runnalls that the Board was required to search out evidence touching on the Charter allegations. While the court is not explicit on this point, Runnalls supports the conclusion that the Board need not adopt an inquisitorial approach to Charter applications.

[124] However, as the Attorney General observes, there may be cases where the same evidence bears on both the accused's Charter application and on the appropriate disposition for the accused. In those situations, Winko requires the Board to maintain its inquisitorial function in relation to all evidence relevant to the NCR accused's disposition under s. 672.54, even if some of that evidence is relevant to a Charter application.

[125] To the extent that there is a concern about an unrepresented NCR accused person having the burden to prove a Charter claim, without the help of an inquisitorial Board, I note that this can be addressed through s. 672.5 of the Criminal Code. Section 672.5 sets out the procedure for Board hearings to make or review dispositions. Subsection 672.5(7) gives the accused person the right to be represented by counsel and s. 672.5(8) requires the Board to assign counsel to act for the accused person "wherever the interests of justice so require". Furthermore, under s. 672.5(8.1), where counsel is assigned under s. 672.5(8), and the accused does not receive legal aid, the Attorney General [page689] must pay counsel's fees and disbursements to the extent the accused cannot pay.

[126] Finally, I do not accept that the Board erred by failing to admit various scheduling e-mails and Dr. Darby's evidence on the second day of the hearing.

[127] Decisions as to the admissibility of evidence and the form in which evidence should be presented are within the Board's discretion. This court is to intervene only if the Board's decision is unreasonable or deprived the appellant of a fair hearing: Conway (Re), supra, at para. 10. See, also, Robertson (Re), [2012] O.J. No. 5959, 2012 ONCA 889, 104 W.C.B. (2d) 702, at para. 2, where this court stated that the Board has the right to control its own processes within the fairness parameters established by the case law.

[128] The Board's evidentiary rulings in the present case do not run afoul of these requirements. Rather, as the Board's reasons demonstrate, there were cogent reasons for refusing to admit the evidence in question. Furthermore, as the Charter decision makes clear, at the first of the two hearing days, the Board heard evidence relating to the delay.

[129] A final word is in order in respect of Dr. Darby's affidavit, which the appellant sought to introduce by way of fresh evidence. As in my view the Board made no error in refusing to issue a summons for Dr. Darby's testimony, I would not admit the fresh evidence on appeal.

Disposition

[130] Accordingly, I would dismiss both the application to admit fresh evidence and the appeal.

Appeal dismissed.

[^1]: On appeal, Mr. Starz did not pursue his claim for damages.

[^2]: A fuller discussion of the definition of "disposition", and its effect on this court's appellate jurisdiction, can be found in the companion case of Chaudry, at paras. 50 and following.

[^3]: Lazar Sarna, The Law of Declaratory Judgments, 3rd ed. (Toronto: Thomson Carswell, 2007), at p. 3.