COURT OF APPEAL FOR ONTARIO
CITATION: Klem (Re), 2016 ONCA 119
DATE: 20160212
DOCKET: C60756
Watt, Lauwers and Hourigan JJ.A.
IN THE MATTER OF: ALEX (ALEK) KLEM
AN APPEAL UNDER PART XX.1 OF THE CODE
Suzan E. Fraser and Sarah Harland-Logan, for the appellant
Dena Bonnet, for the respondent, Attorney General
Heard: January 25, 2016
On appeal against the disposition of the Ontario Review Board dated, May 15, 2015.
Lauwers J.A.:
[1] This is an appeal from a disposition in which the Ontario Review Board did not follow the recommendations in submissions put forward by the parties that are said to be joint submissions.
[2] The appeal raises three issues. The first is whether the hearing before the Board proceeded on the basis that there was a joint submission. The second, in the wake of this court’s decision in Re Osawe, 2015 ONCA 280, is whether Board gave the parties adequate notice of its intention not to accept the joint submission.[^1] The third is whether the Board erred in law in receiving into evidence unredacted victim impact statements that contained inadmissible material not authorized under s. 672.5(14) of the Criminal Code, R.S.C. 1985, c. C-46?
[3] For the reasons that follow, I conclude: the hearing did not proceed on the basis of a true joint submission; the Board gave adequate notice to the parties that it had concerns with the proposed disposition in any event; the Board made no reviewable error in admitting the victim impact statements; and the Board’s disposition was reasonable and fully supported by the record. Accordingly, I would dismiss the appeal.
The Factual Context
[4] The facts are not in dispute. The appellant is a 71-year-old married man with two children. He lived and worked in Sudbury. Before the index offences in early October 2010, the appellant had no history of criminal activity, psychiatric disorder or drug abuse.
[5] The appellant’s diagnosis is Psychotic Disorder, due to general medical condition, with delusions currently in remission; hypertension and widespread arteriopathy of aorta, cerebral, vertebral and renal arteries.
[6] As a result of this disorder, the appellant had paranoid delusions and “experienced an episode of prolonged psychosis.” He unsuccessfully sought medical help as his disease progressed. At the time of the index offences, he believed his former employer conspired with a number of people, including the man whom he shot and one of the employees at the shop that he sought to enter, to kill the appellant.
[7] The appellant was charged with attempting to commit murders while using firearm; uttering a threat to cause death or bodily harm; engaging in threatening conduct to person or family members (x 4); breaking and entering with intent; resisting or obstructing public or peace officer; possession of a firearm in a motor vehicle (x 2); possession of weapon for dangerous purpose; and robbery using a firearm, all contrary to the Criminal Code.
[8] On June 14, 2013, the appellant was found Not Criminally Responsible (NCR) on account of mental disorder. The court referred him to the Ontario Review Board for disposition.
The Ontario Review Board’s Dispositions
[9] The Board’s initial disposition, on September 9, 2013, required the appellant to be detained in the general forensic unit of the North Bay Regional Health Centre with accompanied community privileges. At the first annual review hearing, following a joint submission, by disposition dated August 27, 2014, the Board ordered the appellant to be transferred from North Bay, to Ontario Shores Centre for Mental Health Sciences in Whitby (the “Hospital”), since a treatment impasse appeared to have been reached in North Bay.
The Disposition under Appeal
[10] The Board convened an early hearing at the request of the Hospital to review the appellant’s disposition, as provided in s. 672.81(2) of the Criminal Code, because the treatment team felt that Mr. Klem’s disposition was “too restrictive” and he was “at the ceiling of his privileges.”
[11] The Hospital and the appellant presented a joint submission as to the appropriate disposition. The appellant did not testify. The parties agreed that there should be a continuation of the detention order, and that the following changes should be made to its terms:
(a) The Appellant’s hospital and grounds privileges be extended to permit him to access these locations with indirect supervision (as opposed to in the presence of a staff member or approved person only);
(b) The Appellant be granted the additional privilege of attending within 150 kilometres of Ontario Shores, with a staff member, an approved person, or indirectly supervised;
(c) The Appellant be permitted to reside in approved accommodation in the community of Whitby; and
(d) The term preventing the Appellant from attending within the District of Sudbury be varied to permit him to do so with the consent and prior itinerary approval of the person in charge of Ontario Shores (so as to permit him to attend the funeral of any member of his wife’s family who lives in Sudbury, should the need arise).
[12] Crown counsel initially refrained from taking a position on proposed changes (a) through (c). On hearing the evidence, Crown counsel adopted the joint position of the Hospital and the appellant.
[13] The Board rejected the proposed disposition that the appellant be permitted to live in the community in approved accommodation, and that he be permitted to attend within 150 kilometres of Ontario Shores. It ordered that the appellant’s hospital, grounds, and community privileges be extended to permit indirect supervision, and that he be permitted, with the consent of the person in charge of the Hospital, to attend within the District of Sudbury.
[14] The record shows the appellant had been uncooperative and dismissive with little insight during his time in North Bay, where the Board’s earlier disposition noted a “treatment impasse,” but that he has made progress since coming to the Hospital. His wife, who only recently became an “approved person,” is now engaged in the appellant’s treatment and is better able to monitor him.
[15] The Board fairly and accurately set out the evidence that it heard from the sole witness, Dr. Pytyck, who has been the appellant’s attending in-patient psychiatrist at the Hospital since his transfer in August 2014.
[16] The Board did not accept Dr. Pytyck’s recommended disposition. The Board stated that it “believes that public safety would be compromised with a term permitting community living at any time over the next 12 months.” This view was based on the appellant’s relatively short stay at the Hospital.
[17] In my view, the nub of the Board’s concern is reflected in its acknowledgement that even Dr. Pytyck thought some delay was warranted:
Dr. Pytyck in her evidence fairly put it that even with a community living clause the hospital wouldn’t place Mr. Klem in the community until approximately nine months from the issuance of the Disposition. This panel is not prepared to give the Hospital the discretion to do so at any point over the next 12 months. In this panel's opinion the issue of community living should be canvassed at the next annual review.
[18] Earlier in its reasons, the Board noted the evidence of the unpredictability of future episodes:
In response to questions from a member of the panel, Dr. Pytyck agreed that the underlying problem is vascular. The rate of any future vascular difficulties is unknown. Dr. Pytyck put it that the team is "cautiously optimistic" that the team would be able to pick up on any signs of vascular difficulty. ·
Dr. Pytyck also agreed that it is "likely" that the vascular difficulties are irreversible.
[19] The Board concluded more time was needed to assess the appellant’s capacity for reintegration into society:
In the Board’s opinion public safety requires a significant period of time in which Mr. Klem demonstrates his ability to safely use indirectly supervised passes. We do not think it appropriate that indirectly supervised community passes be extended to 150 kilometres from Ontario Shores. In the Board’s opinion those passes should be limited to Whitby and Oshawa, and up to 12 hours. […]
We have concluded that the potential risk of very significant harm is such that public safety would be compromised with a community living clause at this time.
[20] The Board pointed out, however:
Our Disposition shall continue the privilege of entering the community of Whitby accompanied by staff or person approved by the person in charge for up to 48 hours. This will permit the hospital to continue to grant those passes as they have been doing recently.
[21] The appellant’s ability to stay overnight on occasion with his wife in her Whitby apartment was maintained.
The Positions of the Parties
[22] The appellant submits the Board erred in law in departing from the joint submission and setting a “more restrictive disposition”; in particular, the Board had a duty to give notice that it did not accept the joint submission, and to provide an opportunity for the appellant to lead further evidence and make further submissions. The appellant also argues that the unredacted victim impact statements, which contained inadmissible prejudicial material, appear to have influenced the Board to reject the joint submission. The result, the appellant asserts, was an unreasonable disposition.
[23] The respondent Crown submits there was no true joint submission in this case and the hearing did not proceed as though there were one. The Board was entitled to reject the proposed disposition and did so for reasons “amply supported by the record.” The Board had discretion to accept the victim impact statements and to disregard the improper portions. There is no basis for finding the disposition was unreasonable or resulted in a miscarriage of justice.
Issue One: Was a joint submission before the Board?
[24] If a joint submission were before the Board, then its obligations under this court’s decision in Osawe came into effect. The appellant argues that even though the Crown reserved on whether to support the proposed disposition at the outset of the hearing, the Crown’s support of it during argument made it the functional equivalent of a joint submission.
[25] I disagree. There were a number of contextual factors in this case that made it clear to the Board and to the parties that some issues were contested.
[26] First, the hearing context was somewhat unusual in that, apart from the immediate parties, three victims were present in the hearing room and one was present via videoconferencing, each of whom requested the opportunity to read their victim impact statements. They uniformly opposed the extension of privileges. In addition, a member of the media was present. It was not likely that the Board would simply accept a number of contested privileges.
[27] Second, the Board saw its task as working from its prior disposition. The Board Chair noted that: “What we are doing today is dealing with the request from the hospital to add three privileges.” But that prior disposition, only five months previous, found the appellant “remains a significant threat.” The Board needed evidence before departing from its prior understanding.
[28] Third, the Crown’s reservation was not merely formal or perfunctory. In fact, the Crown advised that it would be: “seeking, by way of an additional condition, in order prohibiting Mr. Klem from entering the District of Sudbury,” with some exceptions. This was specifically noted by the Chair before evidence was called, when he observed that Crown counsel: “hasn’t quite committed himself to any position which is fair and fine.”
[29] In the specific context of this hearing, it was clear from the outset that a number of issues were in contention and the hearing progressed on the basis that there was no joint submission. The appellant could not reasonably have expected that the Board would simply adopt the proposed disposition. I would not find that this hearing involved a joint submission that attracted the application of Osawe.
[30] I now turn to the second issue, although it is not strictly necessary to analyse given the outcome of the first issue.
Issue Two: Did the Board give the parties adequate notice of its intention not to accept the joint submission?
[31] On the assumption that there was a functional joint submission in this case, I begin by setting out the governing principles and then address their application.
The Governing Principles
[32] As I noted in Benjamin (Re), 2016 ONCA 118, this court has provided guidance to the Ontario Review Board about the adequacy of notice required to inform parties making a joint submission that it may not be accepted, particularly in Osawe (Re), at para. 73. I will not repeat that discussion here. Further, in Benjamin (Re)I noted, at para. 23, the context of the matter and what occurred at the hearing can indicate the proposed disposition will not be easily accepted by the Board and must be amply demonstrated on the evidence.
The Principles Applied
[33] I draw here on the review of the proceedings before the Board set out in the previous section of these reasons, which sets the context.
[34] First, nothing in the Chair’s statements or approach would have signalled the Board’s acquiescence to the proposed disposition. During the cross-examination of Dr. Pytyck, the chair interjected: “So that everyone understands and I have no idea if the Board is going to permit community living, but if the Board did permit and if Mr. Klem then took up residence in Whitby, how would the hospital follow him…”
[35] Second, the Crown’s cross-examination of Dr. Pytyck, and the cross examinations carried on by members of the Board were substantive and relatively lengthy. All five Board members asked Dr. Pytyck probing and pointed questions.
[36] Dr. Braden asked Dr. Pytyck about the underlying vascular problems, which are likely progressive and irreversible. She responded that vascular disorders are unpredictable and could change, “literally within an instant.”
[37] Dr. Pytyck accepted Dr. Chatterjee’s observation that “vascular processes tend to have sort of step-wise and sudden deteriorations”. Dr. Pytyck said she was aware of the possibility that there could be an acute event and the onset of psychoses could be very rapid, but also indicated that with respect to the index offence, there was “at least a year of events that did not involve any psychotic symptoms.” There was then approximately one to two weeks of paranoia that preceded the index offences and it was in the context of a withdrawal of anti-hypertensives and Benzodiazepines. She agreed that this was “pretty rapid”. Dr. Chatterjee asked questions about the release plan for the appellant to begin to reside in the community. She noted that, “we don’t have a huge period of stability.”
[38] Ms. MacIntyre asked Dr. Pytyck questions about the Klems’ family and/or friends. They have no roots in the Whitby community, and as Ms. MacIntyre stated, “that leaves an awful lot on, on the shoulders of Mrs. Klem.” The appellant was estranged from both of his children. In response to a question from Justice McRae, Dr. Pytyck indicated that she felt that the appellant had a “testy interpersonal style”.
[39] In my view, these questions by panel members sought to get at the heart of the security concerns that the Board had about extending the appellant’s privileges. It was fully open to the appellant’s counsel to have called the appellant and his wife to provide additional evidence, but that did not occur.
[40] In my view, while the Chair did not state at the outset that the proposed disposition was in issue, the context of this hearing, together with the pointed questions asked by the Crown and the members of the panel, made it very clear that panel members were highly doubtful about the wisdom of the privileges proposed to be extended in the joint submission so shortly after the previous disposition. In my view the notice was adequate, procedurally fair and in compliance with Osawe.
[41] The Board gave reasons for its disposition that were amply supported by the record.
Issue Three: Did the Board err in law by receiving into evidence four unredacted victim impact statements that contained inadmissible material?
[42] The appellant submits that the Board erred in law by receiving into evidence four unredacted victim impact statements that contained material not permitted by s. 672.5(14) of the Criminal Code.[^2] The Board declined to admit a proposed victim impact statement from the appellant’s daughter, noting that she did not fall within the definition of “victim” under the Criminal Code.
[43] While, I agree that the victim impact statements contained impermissible material that was inflammatory in nature, the Board’s acceptance of the unredacted statements into evidence did not taint its disposition.
The Governing Principles
[44] The Criminal Code sets the boundaries of the admissible content of victim impact statements. At the time of the hearing, ss. 672.5(14)-(15) of the Criminal Code provided:
672.5(14) A victim of the offence may prepare and file with the court or Review Board a written statement describing the harm done to, loss suffered by, the victim arising from the commission of the offence.
672.5(15) The court or Review Board shall ensure that a copy of any statement filed in accordance with subsection (14) is provided to the accused or counsel for the accused, and the prosecutor, as soon as practicable after a verdict of not criminally responsible on account of mental disorder is rendered in respect of the offence.
[45] Under these provisions, the Board was only permitted to allow as a victim impact statement “a written statement describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.” In an ideal world, victims would complete their impact statements in full compliance with the requirements of the Criminal Code.[^3]
[46] If the statements go beyond what which is admissible, a number of preliminary steps could be taken.
[47] Those taking the statements from the victims could advise on how the statements would need to be revised to comply with the Criminal Code.
[48] Counsel for the accused and the Crown could discuss redacting offending comments from the statements before they are tendered to the Board.
[49] Further, it would be open to the parties to request the Board to rule on the admissibility of comments on which counsel could not agree. In such cases, the Board would hear submissions from the parties and decide whether to admit the statements in whole, with offending portions excised, or at all: see, e.g. Ibrahim (Re), [2012] O.R.B.D. No. 1593, at para. 27; Coles (Re), [2010] O.R.B.D. No. 941, at paras. 4-7; Wallace (Re), [2008] O.R.B.D. No. 2164, at paras. 4-8.
[50] The Board could also, on its own initiative, direct counsel to meet and attempt to come to an agreement on which portions of the victim impact statements should be redacted during a break in the hearing: Kachkar (Re), [2014] O.R.B.D. No. 1356,
[51] Lastly, it would be open to the Board to admit a victim impact statement in full, while taking into consideration only those parts of the statement that comply with the Criminal Code. The Board could identify its concerns with the statements and advise the parties that it will only consider the non-offending portions of the statement. This could be done on the Board’s own motion, or in response to concerns or objections raised by counsel: White (Re), [2012] O.R.B.D. No. 1641, at para. 11; Agathos (Re), [2009] O.R.B.D. No. 1157, at para. 2; Laguta (Re), [2012] O.R.B.D. No. 2374, at para. 3.
The Principles Applied
[52] The appellant submits, fairly, that the victim impact statements admitted into evidence were “replete with highly prejudicial material that falls outside of the permitted topics”. The appellant asserts that the impermissible comments consist of: “Unproven, prejudicial allegations regarding the index offences (which are characterized as attempted mass murder); and “regarding the Appellant’s present character and dangerousness”; “Irrelevant commentary on unrelated events and society at large”; and “Entreaties to the Board to restrict the Appellant’s freedom (often in conjunction with assertions of this NCR accused’s moral blameworthiness).” Without detailing the inadmissible comments, these are fair descriptions.
[53] The impermissible comments in the victim impact statements reflect the understandable anger and animosity the victims feel, together with fear about the appellant’s true dangerousness, and suspicion about his true state of mind. They also reflect distress that the appellant may resume a more normal life considerably sooner than he would if he had been sentenced as a criminal and had not been found NCR. The appellant asserts that prejudice flows from the inflammatory nature of these comments and feelings, which could unduly influence the Board.
[54] Although most of the content of the victim impact statements was permissible under the Criminal Code, some elements clearly fell outside of what is authorized and what the Board is allowed to consider. The Board did not ask the parties to agree on redactions, nor did it explicitly state that it would consider only those aspects of the statements admissible under the Criminal Code.
[55] Although counsel for the appellant before the Board did not object to the inclusion of the statements, he noted that in one of the statements, there were “a few comments that exceed what is usually allowed”. Crown counsel agreed that “some of the content of [the] . . . statements goes beyond the four corners of what’s permitted under the Code, however, I’m confident, as I’m sure the rest of the parties are that the Board will sift the grain from the chaff as it were”. The issue of the admissibility of parts of the victim impact statements, however, was squarely before the Board.
[56] The Board could have directed counsel immediately to work to redact the statements before proceeding, but was not obligated to do so. This would have introduced a delay into the hearing and could have put the Board in the difficult position of resolving disputes about the redactions in front of the victims themselves. Instead, the Board simply allowed the victims their say. Ultimately, the victim impact statements do not seem to have influenced the Board’s decision. The sole reference to the victim impact statements in the Board’s reasons was to fairly acknowledge that “the events of the index offence have a significant impact on the lives of each of the victims.” This description of the Board’s use of the statements conforms with what is permissible under s. 672.5(14) of the Criminal Code.
[57] In my view the Board had discretion to proceed as it did. The Board can reasonably be expected to know the relevant law and take it into account. In White (Re), the same presiding Chair as here pointed out that some portions of the victim impact statements in that case went beyond the four corners of the Criminal Code provisions and advised the panel would only consider the portions that complied with the Criminal Code. I note as well that four of five panel members here, including the presiding Chair, also sat on the Board in Kachkar (Re), where the Board requested counsel to meet during a break and attempt to agree on the redaction of offending portions of the victim impact statements in that case.
[58] While it would have been preferable for the Board to tell the parties that it would only consider the admissible parts of the statements, or to direct the parties to redact the statements, I reject the appellant’s argument that the Board’s failure to do so automatically renders the Board’s decision unreasonable.
[59] Clearly the Board, and especially the presiding Chair, were attuned to the issues surrounding the permitted use of portions of the victim impact statements. The issue was left to the Board, as Crown counsel noted, to separate “the grain from the chaff” and it was not necessary for the Board to explicitly state that it would do so. There is no evidence that the Board improperly relied on the inadmissible evidence. To the contrary, the Board increased the appellant’s privileges despite the urging of the victims not to do so. The Board did not commit a reviewable error by admitting the victim impact statements.
Disposition
[60] To summarize, in the specific context of this hearing, the appellant could not reasonably have expected that the Board would simply adopt the proposed disposition. I would not find that this hearing involved a joint submission that attracted the application of Osawe (Re).
[61] Assuming, however, that the case is to be considered on the basis that it did, the context of this hearing together with the pointed questions asked by the Crown and the members of the panel made it very clear that they were highly doubtful about the wisdom of the joint submission so shortly after the previous disposition. In my view, the notice was adequate and procedurally fair in keeping with Osawe.
[62] There is no reason to assume the Board did not simply disregard the non-compliant portions in its deliberations. The Board did not err in admitting the non-compliant portions of the victim impact statements.
[63] Finally, the Board gave reasons for its disposition that were amply supported by the record.
[64] I would dismiss the appeal.
Released: February 12, 2016 “DW” “Lauwers J.A.”
“I agree David Watt J.A.”
“I agree C.W. Hourigan J.A.”
[^1]: The reasons in Osawe were released on April 22, 2015, the day after the Board hearing in this case. The Board’s decision was released on May 22, 2015.
[^2]: Amendments to this section of the Criminal Code and Form 48.2 (“Victim Impact Statement – Not Criminally Responsible”) came into force after the hearing before the Board, and should reduce the risks of inappropriate comments being included in the statement.
[^3]: I observe the relevant provisions have since been amended and now include the requirement that victim impact statements in this context adhere to Form 48.2 (“Victim Impact Statement – Not Criminally Responsible”), which provides:
> This form may be used to provide a description of the physical or emotional harm, property damage or economic loss suffered by you arising from the conduct for which the accused person was found not criminally responsible on account of mental disorder, as well as a description of the impact that the conduct has had on you. […]
The Form specifies that the Victim Impact Statement may not include, for example: “any statement about the conduct of the accused that is not relevant to the harm or loss suffered by you”; “any unproven allegations”; […] “or except with the court’s or Review Board’s approval, an opinion or recommendation about the disposition.”