Court of Appeal for Ontario

CITATION: Kalra (Re), 2016 ONCA 390

DATE: 20160524

DOCKET: C61214

Weiler, Simmons and Epstein JJ.A.

IN THE MATTER OF: Gaurav Kalra

AN APPEAL UNDER PART XX.1 OF THE CODE

Meaghan McMahon, for the appellant

Michelle O'Bonsawin, for Royal Ottawa Mental Health Care Group

Michael Fawcett, for the Attorney General of Ontario

Heard: April 27, 2016

On appeal against the disposition of the Ontario Review Board dated July 30, 2015.

ENDORSEMENT

[1] On June 2, 2010, Mr. Kalra was found Not Criminally Responsible (NCR) on charges of criminal harassment, mischief under $5,000, failure to comply with a recognizance, and transportation fraud. At the time of his 2015 hearing before the Ontario Review Board, Mr. Kalra was subject to a conditional discharge. Following the hearing, the Board found that Mr. Kalra remained a significant risk to the public and that the maintenance of the conditional discharge on the same terms and conditions (except for one variation – reporting twice monthly instead of twice weekly) – was necessary and appropriate.

[2] Mr. Kalra appeals, arguing that the Board unreasonably concluded that he remained a significant threat to the safety of the public. Before this court, Mr. Kalra maintains, as he did before the Board, that the appropriate disposition is an absolute discharge.

[3] The index offences occurred in 2009, when Mr. Kalra was living with his family in Ottawa. The incidents of criminal harassment related to a complainant with whom Mr. Kalra had attended high school. In February of that year, Mr. Kalra went to the complainant’s house in Guelph and refused to leave. In March, Mr. Kalra’s mother reported him missing. Police located him in Guelph. Mr. Kalra told the police that he was there to visit the complainant. The police cautioned Mr. Kalra for trespassing and criminal harassment and told him to have no further contact with the complainant. On March 16, 2009, Mr. Kalra left a nonsensical phone message for the complainant. A week later, Mr. Kalra called the complainant’s home and asked to speak to the complainant. Later that day, Mr. Kalra went to the complainant’s house and refused to leave until the complainant’s brother agreed to give his sister a letter Mr. Kalra had written to her. Mr. Kalra returned to the house again later that evening and was arrested for criminal harassment.

[4] The mischief charge relates to an incident on November 9, 2009 when Mr. Kalra took his parents’ van from Ottawa to Guelph. He drove the van through the complainant’s garage door, damaging the door and a vehicle inside the garage, and then fled. At the scene, the complainant’s brother found a note addressed to the complainant. On November 10, Mr. Kalra again attended at the complainant’s residence. He was arrested by police, without incident. Police laid a second charge of criminal harassment with respect to these events.

[5] After being found NCR in 2010, Kalra was diagnosed with schizophrenia and, on May 20, 2011, was transferred to the Secure Treatment Unit at the Brockville Mental Health Centre. There, Mr. Kalra’s condition deteriorated. He was found incapable of consenting to treatment and his parents were made substitute decision-makers.

[6] Changes in his medical treatment over time led to a degree of improvement in Mr. Kalra’s condition. In August 2012, although still under a detention order, Mr. Kalra was granted community visits that allowed him to visit his parents, in Ottawa. In October 2012 these visits were suspended because Mr. Kalra refused to allow the treatment team to conduct a risk assessment.

[7] At the 2013 hearing of the Board, evidence was led about Mr. Kalra’s and his family’s lack of insight into his mental illness and Mr. Kalra’s expressed desire to try a “medication holiday.” The Board ordered a continuation of the detention order and revoked the condition allowing Mr. Kalra to live in the community in supervised accommodation. Mr. Kalra appealed this disposition. In March 2014, this court allowed the appeal, quashed the detention order, and imposed a conditional discharge requiring Mr. Kalra to live with his parents in Ottawa: see Kalra (Re), 2014 ONCA 233.

[8] Mr. Kalra sought an absolute discharge at his hearing in 2014, but the Board upheld the previous disposition of a conditional discharge. Mr. Kalra’s appeal to this court was dismissed: see Kalra (Re), 2015 ONCA 262.

[9] At the 2015 Board hearing that gives rise to this appeal, Dr. Gray, a psychiatrist, testified on behalf to Mr. Kalra’s treatment team. He expressed the view that Mr. Kalra continues to suffer negative symptoms. Significantly, Mr. Kalra lacks insight into his mental illness and does not accept his diagnosis. If he were granted an absolute discharge, given his stated intention to stop taking his medication, Mr. Kalra would likely return to the mental state that he was in at the time of the index offences. Dr. Gray’s opinion was that Mr. Kalra continued to meet the threshold of significant risk.

[10] The hospital was also of the view that Mr. Kalra continued to pose a significant risk to the safety of the public but agreed with the Crown that his reporting obligations could be reduced to not less than 2 times per month.

[11] Mr. Kalra submitted that the threshold was not met as outside of the index offences he had exhibited no other violent or criminal-type behaviour.

[12] Upon reviewing the evidence, including the risk assessments conducted, the Board found that Mr. Kalra remained a significant risk. The medical evidence demonstrates that he suffers from schizophrenia and has likely not been forthcoming with all of his symptoms. Furthermore, Mr. Kalra continues to deny the index offences. He refuses to participate in any form of programming and his parents either do not accept their son’s diagnosis or cover up for him and make excuses for his behavior. The Board noted that Mr. Kalra continues to be incapable of consenting to treatment. The Board was persuaded that if he were granted an absolute discharge there was a foreseeable and substantial risk that Mr. Kalra would commit a criminal offence.

[13] The Board concluded that maintenance of the current conditional discharge remained necessary and appropriate and was the least onerous and least restrictive disposition in accordance with the test set out in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625.

[14] On appeal, Mr. Kalra, relying on the fact that since May 2011, he has not exhibited any aggressive, violent or criminal behaviour, and that since being granted a conditional discharge, he has fulfilled all conditions of his disposition, submits that he does not meet the threshold of significant risk.

[15] We disagree. The Board’s assessment that there was a substantial risk that Mr. Kalra would commit a serious criminal offence, reflects logical and common-sense reasoning. The Board relied on risk factors including Mr. Kalra’s active symptoms of mental illness, his lack of insight, his refusal to participate in rehabilitative efforts and, of particular concern, his stated intention to stop taking his medication if discharged. Significantly, the opinion of his treatment team was that, against the background of these various factors, the chances were “very high” that Mr. Kalra would engage in serious criminal misconduct if he were granted an absolute discharge.

[16] Considering the entirety of the record, we cannot say that the Board’s disposition continuing the conditional discharge was unreasonable or reflected a failure of the Board to approach its task in accordance with the binding authorities.

[17] The appeal is therefore dismissed.

The Crown’s Additional Issue

[18] In ordering Mr. Kalra’s conditional discharge in 2014, this court included a term of release stating that Mr. Kalra or his substitute decision-makers must consent to psychiatric treatment prescribed by medical personnel.

[19] Mr. Kalra is incapable of consenting to treatment. His current treatment is therefore dependent on his substitute decision makers’ consent. However, s. 672.55 of the Criminal Code provides that for an NCR accused to receive treatment, the individual must consent. Because of the wording of s. 672.55 of the Code, this court has held that a conditional discharge is inappropriate in circumstances where the NCR accused’s continued consent to treatment is needed to manage his risk and the accused is incapable of providing that consent. See: R. v. Coles, 2007 ONCA 806 and Lamb (Re), 2014 ONCA 169.

[20] The Crown requests that this court direct the Board to consider the effectiveness and legality of the condition that has been in place since this court’s decision in 2014 and to consider the least restrictive and least onerous means to meet Mr. Kalra’s needs and manage his risk on an understanding that a conditional discharge may be inappropriate if medical treatment is a necessary condition of Mr. Kalra’s release and he cannot consent to it.

[21] We understand the Crown’s concern. However, as the Crown did not cross-appeal, we are of the view that this is a matter for the Board’s consideration at the next hearing scheduled to take place in July 2016.

“K.M. Weiler J.A.”

“J. Simmons J.A.”

“Gloria Epstein J.A.”