COURT OF APPEAL FOR ONTARIO

CITATION: Thurston (Re), 2015 ONCA 351

DATE: 20150519

DOCKET: C59296

Doherty, Cronk and LaForme JJ.A.

IN THE MATTER OF: Stephen Thurston

AN APPEAL UNDER PART XX.1 OF THE CODE

Anita Szigeti, for the appellant

Suzan E. Fraser and Kelley J. Bryan, for the intervener, Mental Health Legal Committee

Michele Warner, for the respondent, Person in Charge of the Centre for Addiction and Mental Health

Grace Choi, for the respondent, Attorney General for Ontario

Heard: February 9, 2015

On appeal against the disposition of the Ontario Review Board, dated August 27, 2014.

Cronk J.A.:

A. Introduction

[1] By disposition dated August 27, 2014, the Ontario Review Board ordered the appellant, Stephen Thurston, detained on the Secure Forensic Unit of the Centre for Addiction and Mental Health (CAMH) in Toronto. The disposition proceeded on a joint submission. Under the agreed terms of the disposition, the person in charge of the hospital may permit Thurston escorted, accompanied or indirectly supervised hospital and grounds privileges, but no access to the community except for necessary medical, dental, legal or compassionate purposes.

[2] In the normal course, and subject to the early review provisions set out in the Criminal Code, R.S.C. 1985, c. C-46, Thurston’s disposition would remain in effect for 12 months, until his next statutorily mandated annual review hearing. However, before the Board, the parties also jointly sought an order that Thurston’s next review hearing be held in six, rather than twelve, months.

[3] The Board rejected the parties’ joint request for an early review hearing. Instead, it ruled that Thurston’s disposition “remain operative until a new Disposition of the [Board] is issued”. Thurston appeals against this ruling.

[4] The only issue on appeal is whether the Board erred in declining to pre-schedule a six-month review hearing. Thurston argues that, in denying this part of the parties’ joint submission, the Board breached natural justice and its duty of procedural fairness. He submits, further, that the Board misapprehended the nature of the joint submission and the evidence supporting the request for an early review hearing. As a consequence, Thurston says, the Board’s ruling on this issue occasioned a miscarriage of justice.

[5] For the reasons that follow, I conclude that hearing fairness was not compromised in this case and that the Board’s denial of an early, six-month review hearing was reasonable on the evidentiary record before it.

[6] Accordingly, I would dismiss the appeal.

B. Background In Brief

[7] Thurston is 39 years of age. He has a 20-year history of various psychiatric difficulties, which have led over the years to numerous hospital admissions and emergency visits and frequent interactions with the police.

[8] On June 13, 2005, Thurston was found not criminally responsible (NCR) on account of mental disorder on one count of sexual assault, two counts of resist arrest and one count of escape lawful custody, all contrary to the Criminal Code. He has remained under the jurisdiction of the Board since 2005.

[9] Thurston’s current diagnoses are schizophrenia, substance dependence disorders (cocaine and cannabis), and antisocial personality traits.

[10] Thurston has been free from active symptoms of psychosis for many years and has complied with his medication regime while detained. However, his substance abuse problems have precipitated repeated absences without leave (AWOLs) from CAMH by Thurston, as well as theft and other property offences in order to fund his use of cocaine.

[11] By a disposition dated February 25, 2014, Thurston was ordered detained on the General Forensic Unit at CAMH, with privileges that included, with the permission of the person in charge of the hospital, indirectly supervised community passes for up to 10 hours a day, indirectly supervised 72-hour passes to visit his mother in Cobourg, Ontario, and community living in accommodations approved by the hospital.

[12] In 2014, Thurston twice went AWOL. First, in early February 2014, shortly before his scheduled annual Board review, Thurston left CAMH without permission and engaged in the use of cocaine. That same month, CAMH learned that he had fraudulently obtained $2,500 in community living benefits from the Ontario Disability Support Program, having claimed that he was no longer living at CAMH.

[13] Some months later, on June 2, 2014, Thurston again went AWOL. On this occasion, he had been entrusted with another patient’s bank card for the purpose of withdrawing a small amount of money. Instead, Thurston withdrew all the funds (about $400) from the account and remained absent from CAMH for nearly 48 hours. During his absence, he repeatedly used cocaine and did not take his medication. He was apprehended and returned to CAMH. On his return, he refused to provide a urine sample, discuss his absence, or engage with his attending psychiatrist.

[14] On June 12, 2014, as a result of the incidents described above and other concerns, CAMH requested an early Board review of Thurston’s February 2014 disposition. The accelerated review hearing was held on August 20, 2014.

C. Board Hearing

[15] It was undisputed at the August 2014 hearing that Thurston continued to pose a significant threat to the safety of the public and, consequently, that his continued detention at CAMH was required. The only issues for determination were the appropriate place and duration of, and the fit conditions to attach to, his detention.

[16] CAMH, supported by the Crown and Thurston himself, recommended that Thurston’s place of detention be changed from the General Forensic Unit (minimum security) to the Secure Forensic Unit (medium security) at the hospital, with unsupervised hospital and grounds privileges, but with no access to the community. The parties also jointly urged the Board to pre-schedule a review of the proposed disposition after six-months, ahead of the 12-month review required under s. 672.81(1) of the Criminal Code.

[17] CAMH argued that Thurston’s transfer to the Secure Forensic Unit was necessary to prevent further AWOLs, to facilitate his compliance with various hospital rules and to afford Thurston the opportunity to participate in the programming available on the secure unit. Thurston did not challenge these assertions.

[18] The parties sought to justify the request for a six-month review on several bases. CAMH, supported by Thurston, argued that a six-month review would motivate Thurston to make effective use of his time on the Secure Forensic Unit and to address his substance abuse issues; that, without this motivation, Thurston could lose hope and his condition could deteriorate; and that there was a realistic possibility that Thurston could be ready for a transfer back to the General Forensic Unit within six months if he accomplished the goals set for him by his treatment team.

[19] As a result of the joint submission, the hearing before the Board was brief. Thurston’s treating psychiatrist, Dr. Mark Pearce, testified and CAMH filed two hospital reports regarding Thurston’s conduct and progress while detained at CAMH.

[20] The evidence established that Thurston had engaged in a litany of problematic behaviours in the months preceding the August hearing. He had left the hospital on two occasions without permission, during which he used cocaine repeatedly and did not take his medication. On one of these AWOLs, he had stolen all the money in a co-patient’s back account. In respect of another incident, he had been convicted and sentenced on a charge of fraud under $5,000. He had reportedly bullied a co-patient for money and, on different occasions, had tested positive for marijuana use, threatened a nurse, and refused to provide urine samples for testing.

[21] Based on this evidence and the parties’ agreed position, the Board accepted that Thurston’s transfer to the Secure Forensic Unit, with privileges up to and including indirectly supervised hospital and grounds privileges, was necessary and appropriate. The Board held, at p. 5 of its reasons:

Mr. Thurston should be transferred to the Secure Forensic Unit because he has lost the trust of his doctor and treatment team, is at high and constant risk of AWOL, and has been difficult to manage on the general unit (smoking against the rules; testing positive for marijuana; provoking altercations with staff). …

Mr. Thurston has not been placed on a secure unit in some years, and the transfer is a step backward for him. Detention on a secure unit has become necessary, first and foremost, to prevent Mr. Thurston from going AWOL yet again and committing property offences (i.e., theft; fraud) to fund his use of cocaine. Though addiction and cocaine use may be Mr. Thurston’s most critical issues at this time, Dr. Pearce’s evidence was clear that his antisocial behavior is an additional problem. In the circumstances, Mr. Thurston must be placed on the secure unit, with no access to the community, until he regains the trust of his doctor and treatment team, and shows he can follow hospital rules.

[22] However, as I have said, the Board declined to order a six-month review of Thurston’s disposition. It reasoned as follows, at p. 5:

The parties jointly recommended that the Board order a six-month review. Dr. Pearce supported the recommendation in the hope that this timeline might motivate Mr. Thurston to address the problems that have made transfer to the secure unit necessary. It is clear from Ms. Szigeti’s submissions that she regards six months as the time frame in which Mr. Thurston’s return to the general unit can be considered.

Both are laudable objectives, and a joint submission from all parties does carry weight with the Board. In this instance, the joint recommendation is subject to the Board policy, which sets a strict threshold for six-month review. The Board must be convinced, in making such an order, that the circumstances are compelling.

Mr. Thurston’s most recent AWOL was a little more than two months ago, and it involved a theft against a co-patient, cocaine use, and breach of his Disposition. He did not return to the hospital on his own, but was intercepted at an appointment he kept, on Dr. Pearce’s evidence, in the expectation of being paid. Dr. Pearce’s updates since the AWOL pointed to ongoing problems: a positive cannabis screen; smoking on the unit in violation of the rules; and an altercation with a nurse. Although Dr. Pearce did tell the Board that Mr. Thurston has been “a bit better with staff” in August, nothing in the evidence offers a reasoned basis to believe that Mr. Thurston is ready to comply with hospital regulations and regain the trust of his treatment team. An order for six-month review is not warranted in these circumstances.

D. Issues

[23] There is one narrow issue on appeal. Thurston, supported by the intervener the Mental Health Legal Committee, argues the Board’s refusal to pre-schedule a six-month review of his disposition was unreasonable. He submits that, in declining to order a six-month review, the Board i) breached natural justice and it’s duty of procedural fairness; and ii) misapprehended the nature of the parties’ joint submission and the evidence adduced in support of the six-month review request. In these circumstances, Thurston says, the Board’s decision led to a miscarriage of justice.

E. Discussion

(1) Hearing Fairness Issue

[24] Thurston makes several arguments in support of his claim that, in refusing to order a six-month review of his agreed disposition, the Board breached natural justice and its duty of procedural fairness.

[25] Thurston argues that the Board erred by rejecting this part of the joint submission on the basis of a previously undisclosed Board “policy” establishing “a strict threshold for six-month review” – namely, a requirement that “compelling circumstances” be demonstrated to justify an accelerated review.

[26] Thurston maintains that neither he nor the other parties to the hearing were aware of the existence of such a “policy” and that the suggested policy was neither publicly known nor available. Thurston submits that the Board was obliged to tell the parties “about the existence of the policy, the particulars of the ‘strict threshold’ to be met on seeking a six-month review, and what is meant by ‘compelling circumstances’”. The Board’s failure to disclose this information, Thurston says, was a breach of natural justice and of the Board’s duty of procedural fairness.

[27] In a related argument, Thurston contends that the Board’s failure to disclose the existence of the policy – and its associated failure to invite submissions from the parties on the application of the policy to the request for a six-month review – prejudiced him at the hearing. Thurston says that, had he known of the existence of the policy, he might not have supported CAMH’s proposed disposition. At the least, he might have led evidence at the hearing and made further submissions regarding the merits of a six-month review.

[28] Thurston also argues that the Board’s error was exacerbated by two factors, namely i) the Board’s failure to ask questions of any party regarding the six-month review request; and ii) comments by the Chair of the panel to Thurston at the conclusion of the hearing to the effect that Thurston would be returning before the Board in six-months’ time. Thurston says that these factors, in effect, misled the parties into believing that the Board was unconcerned by the joint request for a six-month review.

[29] On the particular facts of this case, I would reject these arguments.

[30] Recently, in Osawe (Re), 2015 ONCA 280, this court held that the Board “owes a duty of procedural fairness to accused persons under its jurisdiction”: at paras. 1 and 36 – 37. In the context of Board hearings, the overriding objectives of procedural fairness are to ensure that the Board’s decisions are made “using a fair and open procedure and that affected individuals can put forward their views and evidence fully and have them considered by the [Board]”: at para. 72.

[31] In light of the Board’s duty of procedural fairness, I have no hesitation in accepting that, if the Board develops an internal policy that might affect the Board’s evaluation of an appropriate disposition for an NCR accused, the policy should be disclosed to the parties where its existence and content are not otherwise in the public domain. Where the liberty interests of an NCR accused are engaged, fundamental fairness requires no less. In such circumstances, in my view, the Board is obliged, as an institution, to take appropriate steps to publicize the policy or otherwise make it known to the public in a suitable fashion.

[32] Further, if such disclosure has not been made in advance of a Board hearing and the application of the policy is engaged, it is incumbent on the relevant panel of the Board to disclose the policy and to provide the affected parties with an opportunity to lead evidence and make submissions, if so advised, on the import and application of the policy to the case at hand. In some cases, in order to meet this obligation, it may be necessary for the panel to recall the parties and to receive further evidence and submissions.

[33] The objective of such measures, in all cases, is to ensure that the parties to a Board hearing, especially the NCR accused, have an opportunity to fully address the application of any Board policy that may affect the disposition to be imposed and to have their views and evidence, if any, on the matter considered by the Board.

[34] Osawe (Re) also holds, at para. 71, that, “when the Board contemplates rejecting a joint submission and imposing a more restrictive disposition, it must give the accused notice that it may do so and the opportunity to make further submissions and, if necessary, lead additional evidence.” See also Osawe (Re),at para. 37.

[35] In this case, I am not persuaded that Thurston was denied natural justice or procedural fairness at his August 2014 hearing. I agree with the Crown’s submission that the Board adequately fulfilled its duty of procedural fairness and that no miscarriage of justice occurred. I say this for several reasons.

[36] First, the Board’s denial of an accelerated review did not result in the imposition of a more restrictive disposition than that envisaged under the joint submission. This important factor distinguishes this case from Osawe (Re) and related authorities. Here, the Board did not refuse any possibility of an early review. Rather, it held, at p. 6, that if and when Thurston takes steps to change his behaviour “an early review can be requested by any of the parties, and it is Board practice to process such requests expeditiously”.

[37] In any event, the scheduling of a review hearing does not depend upon a panel of the Board’s agreeing to order an early hearing at the time of a disposition hearing. Under the Criminal Code, the Board, in the exercise of its discretion, may order an early review hearing at any time, of its own motion or “at the request of the accused or any other party”: s. 672.82(1). Moreover, the Board is obliged to hold an early review hearing if the person in charge of a hospital where an NCR accused is detained requests an early hearing: s. 672.81(2). That is what transpired in this case in connection with Thurston’s August 2014 review hearing.

[38] Thus, the Board’s refusal to order an early review, at the time of the August 2014 hearing, did not and does not preclude any party, including Thurston, from requesting an expedited review under the relevant provisions of the Criminal Code. That no party had elected to do so by the time of this appeal is no bar to such a request. The point remains that, unlike in Osawe (Re), the Board in this case cannot be said to have “reject[ed] the joint submission and impos[ed] a more restrictive disposition” (emphasis added).

[39] As for the suggested Board “policy”, the record before this court does not confirm its existence or its reach. It is thus unclear to what “policy” the Board was referring in its reasons.

[40] Second, and importantly, I do not read the Board’s reasons as indicating that its rejection of the proposed six-month review was in fact based on a Board policy regarding accelerated review hearings. Immediately after its reference to a Board policy regarding six-month reviews, quoted above, the Board addressed the merits of a six-month review on the facts of this case. Having done so, for clear and cogent reasons, the Board concluded that the pre-scheduling of an accelerated review was not warranted given Thurston’s circumstances at the time of the August hearing. There was ample support for this conclusion on the evidentiary record before the Board, including the evidence of the appellant’s recent behaviours, his ongoing problems while in detention and the opinion of his treating psychiatrist concerning his treatment compliance and progress. No recourse to any internal Board policy was required to reach the conclusion that the pre-scheduling of a six-month review was inappropriate in all the circumstances.

[41] Third, I would reject the contention that Thurston was prejudiced by the Board’s failure explicitly to inform the parties that it might reject the six-month review component of the joint submission.

[42] This was a straightforward hearing, held on CAMH’s request for an early reconsideration of the terms of Thurston’s February 2014 disposition. The live issues at the hearing were few in number and narrow in scope, involving Thurston’s appropriate placement, the variation of his privileges to exclude access to the community and the timing of his next review hearing. All parties clearly understood that these were the only germane issues as they formed the specific subject matter of the joint submission. The issue whether the Board should advance the timing of Thurston’s next review was therefore clearly in play at this hearing.

[43] There is no question that the Board is not obliged to accept a joint submission: Osawe (Re), at paras. 33 and 57; Hassan (Re), 2011 ONCA 561, 283 O.A.C. 154, at paras. 24 – 26; R. v. Lepage (1997), 1997 CanLII 2236 (ON CA), 36 O.R. (3d) 3 (C.A.), at p. 28, aff’d 1999 CanLII 697 (SCC), [1999] 2 S.C.R. 744. Indeed, this court has held that automatic acceptance of a joint submission is inconsistent with the Board’s statutory mandate: Osawe (Re), at paras. 33 and 57; Hassan (Re), at para. 25.

[44] The parties were not entitled, therefore, to assume that the Board would accept their joint submission, in whole or in part. Given the limited nature of the matters at issue, it was incumbent on the parties to address the merits of the components of the disposition they urged, including the timing of Thurston’s next review hearing, in their submissions.

[45] That is precisely what occurred in this case. During the hearing, Thurston’s counsel cross-examined Dr. Pearce, Thurston’s treating psychiatrist, on the issue of a six-month review. She also made submissions to the Board on why the joint submission should be accepted, including specifically on why, in her view, a six-month review hearing should be ordered. In these circumstances, the merits of the pre-scheduling of a six-month review having been squarely in issue, no notice from the Board that it might reject the request for an accelerated review hearing was required to ensure hearing fairness. Thurston had full and fair opportunity to be heard on the exact point now in dispute on appeal.

[46] Notably, there was no suggestion before the Board that Thurston had agreed to a transfer to the Secure Forensic Unit at CAMH in exchange for a six-month review. In her submissions to the Board, Thurston’s counsel made clear that Thurston was seeking the requested transfer because he would benefit from the additional programming available on the Secure Forensic Unit and from the opportunity to reside “on a unit that is designed to afford him as much liberty in terms of passes with staff as possible”. Thus, the parties, including Thurston, viewed Thurston’s transfer and restriction of privileges as advantageous to his treatment and liberty interests regardless of the timing of his next review hearing.

[47] Finally, the Board held, at p. 5 of its reasons, that “nothing in the evidence offers a reasoned basis to believe that Mr. Thurston is ready to comply with hospital regulations and regain the trust of his treatment team.” This conclusion was firmly grounded in Dr. Pearce’s testimony and the contents of the hospital reports, which detailed Thurston’s history (including his recent history) of AWOLs from the hospital, his behavioural problems while in detention, his illicit drug use, his property crimes involving other patients, and his difficulties with his treatment team and hospital staff.

[48] In light of this evidence, it is difficult to conceive that either the evidence bearing on the issue of a six-month review or the submissions of counsel would have been any different had the parties been informed by the Board that an accelerated review hearing might be refused. On the uncontested evidence of Thurston’s conduct and course at CAMH, it was open to the Board to conclude, as it essentially did, that it was unrealistic to think that Thurston would improve sufficiently within six months so as to warrant early reconsideration of his disposition.

[49] For all these reasons, I see no breach of procedural fairness or natural justice, nor any miscarriage of justice, in the Board’s decision to deny an accelerated review of Thurston’s disposition.

(2) Misapprehension of Evidence Issue

[50] Thurston’s claim that the Board misapprehended the nature of the joint submission and the evidence relied on by the parties in support of a six-month review may be dealt with summarily.

[51] As I have said, the joint submission put before the Board pertained to only three issues i) whether the appellant should be transferred from the General Forensic Unit (minimum security) to the Secure Forensic Unit (medium security) at CAMH; ii) whether his privileges should be limited to indirectly supervised hospital and grounds privileges; iii) and whether a mandatory six-month review should be ordered. The Board’s reasons indicate that it fully appreciated all these aspects of the joint submission.

[52] The Board’s reasons also confirm that it understood the core evidence bearing on the issue of a six-month review. The Board was not required to detail in its reasons all the evidence adduced at the hearing, especially where the evidence was brief, uncontradicted and relied on by all the parties to support the joint submission. I see no basis on which to conclude that the Board ignored or misunderstood any of the pertinent evidence before it.

(3) Jurisdictional Issue

[53] It is appropriate to address one further issue.

[54] The Board’s ruling regarding the duration of Thurston’s August 2014 disposition is set out in the Board’s formal disposition order, dated August 27, 2014. As I have said, the order provides that the August 2014 disposition “will remain operative” until a new Board disposition is issued.

[55] I make two observations regarding this provision. First, the language regarding the duration of the disposition is unnecessary – the result intended would follow in any event under the relevant statutory scheme for NCR accuseds set out in the Criminal Code.

[56] Second, even though this language is contained in the Board’s formal disposition order, there is a strong argument that a Board decision regarding the timing of a review hearing is not part of a “disposition” within the meaning of that term under s. 672.1(1) of the Criminal Code.[^1] The question is important for two reasons. If, as a matter of law, the timing of a review hearing is not properly to be regarded as part of a Board disposition, then this court has no jurisdiction under s. 672.72(1) of the Criminal Code to hear an appeal against a Board ruling on that issue. Further, and on the same basis, the Board’s statutory obligation under s. 672.54 of the Criminal Code to impose a disposition “that is necessary and appropriate in the circumstances” (formerly, “the least onerous and least restrictive” disposition) on an NCR accused would not be engaged in respect of the timing of a review hearing.

[57] The court raised this jurisdictional issue with the parties at the outset of this appeal hearing. In response, Crown counsel pointed out that, at the appellant’s August 2014 hearing, all parties asked the Board to address the timing of Thurston’s next review as part of the Board’s disposition, in accordance with what appears to be the Board’s normal practice. The hearing proceeded on this basis. In these circumstances, the Crown takes the position that Thurston is entitled to appeal this aspect of the Board’s decision to this court. All parties to the appeal support the Crown’s position.

[58] In these somewhat unusual circumstances, I should not be understood as accepting that a Board ruling on the timing of an NCR accused’s next review hearing forms part of a Board “disposition” under Part XX.1 of the Criminal Code so as to trigger a right of appeal to this court from that ruling. Nothing in these reasons should be taken as endorsing that proposition.

Disposition

[59] For the reasons given, I would dismiss the appeal.

Released:

“MAY 19 2015” “E.A. Cronk J.A.”

“DD” “I agree Doherty J.A.”

“I agree H.S. LaForme J.A.”

[^1]: For example, ss. 672.81(1.2) and (1.32) of the Criminal Code permit the Board, after making a disposition, to extend the time for holding a subsequent review hearing in certain circumstances. Section 672.81(1.5) provides that a Board extension decision is “deemed” to be a disposition for the purpose of the appeal provisions under the Criminal Code. Thus, s. 672.81(1.5) affords some support for the view that a Board decision concerning the timing of a review hearing is not otherwise part of a Board “disposition”; the s. 672.81 (1.5) deeming provision would be unnecessary if a Board ruling to extend the time for a review hearing were already part of a Board disposition.