Court of Appeal for Ontario
CITATION: Girard (Re), 2016 ONCA 985
DATE: 20161228
DOCKET: C62512
Juriansz, Watt and Roberts JJ.A.
IN THE MATTER OF: Robin Girard
AN APPEAL UNDER PART XX.1 OF THE CODE
Counsel: Robin Girard, in person Howard L. Krongold, amicus curiae Kevin Rawluk, for the Attorney General of Ontario Janice Blackburn, for the Person in Charge of North Bay Regional Health Centre
Heard: December 20, 2016
On appeal against the disposition of the Ontario Review Board dated July 12, 2016.
Reasons for Decision
Juriansz J.A.:
[1] After the hearing of this matter on December 20, 2016 the appeal was allowed for reasons to follow. These are the reasons.
[2] In 2014, the appellant was found NCRMD on counts of resisting a peace officer and of failing to attend court. He was detained at North Bay Regional Health Centre. The Ontario Review Board found him a significant threat to the safety of the public. He was diagnosed with oppositional defiant disorder and cannabis use disorder.
[3] On June 30, 2016, the Board held its third hearing to review Girard’s disposition. Girard was to participate via videoconference and was unrepresented by counsel. At the very outset of the hearing the appellant objected to being addressed by his name, preferring the title “General Executor”. He also objected to the Chair being a member of the Board. In short order, the situation deteriorated and the Chair excluded the appellant from the hearing by having both the audio and video connections turned off.
[4] The transcript evidently begins after the Chair has addressed the appellant as “Mr. Girard”. The transcript after that until he is excluded is as follows:
Mr. Girard: “General Executor”, please. We have a problem with “Mister”.
The Chair: The record states that your name is officially for us “Mr. Girard”, and that is the way I’m going to address you.
Mr. Girard: No, you will not address us like that. And who am I talking to?
The Chair: You’re talking to Guy Goulard, I will be introducing the chair…
Mr. Girard: Well, we object about you being present at the Board because – because of you we have this …
The Chair: Mr. Girard, …
Mr. Girard: … ORB.
The Chair: Mr. Girard – Mr. Girard, …
Mr. Girard: There is no “Mister”. Don’t call us “Mister”.
The Chair: I will give you one more chance then we will proceed in your absence. Is that clear?
Mr. Girard: You – you will call us “General Executor”, and we object to the constitution of this Board as you are – this is a great prejudice to our most fundamental rights. You …
The Chair: Okay.
Mr. Girard: … have been – object to you being on the Board because you – you …
The Chair: Mr. Girard, …
Mr. Girard: The last time – the last time – don’t call us “Mister”. The last time you told us that we have a mental illness, and you are not in that position. I don’t think you are psychiatrist to determine that.
The Chair: I will give you five seconds to change your mind or you’re cut off, and we’ll proceed in your absence. Is that clear?
Mr. Girard: You have no authority to do so. You have no jurisdiction.
The Chair: Cut off the – both the sound and image. We are proceeding in your absence, sir. Is the Crown okay with that?
[5] At this point, the appellant was cut off. The Chair noted that the Crown was “okay” with his exclusion. Amicus was appointed to represent the appellant’s interest. The hearing continued and was completed in his absence. The Board ordered a conditional discharge on conditions that were significantly less restrictive than those of the 2015 disposition.
[6] The Criminal Code grants the Chair of the Board the discretion to order that the accused be removed during the hearing. Section 672.5(10)(b)(i) provides “The court or the chairperson of the Review Board may… (b) cause the accused to be removed and barred from re-entry for the whole or any part of the hearing…(i) where the accused interrupts the hearing so that to continue in the presence of the accused would not be feasible.” The statutory precondition to the exercise of the power is that it would not be feasible to continue in the presence of the accused because of his or her interruptions.
[7] Section 672.5(10)(b)(i) does not seem to have been judicially interpreted. However its wording mirrors that of s. 650(2)(a) of the Criminal Code. Section 650(2)(a) permits a judge presiding over a criminal trial to exclude the accused from the trial where the accused “misconducts himself by interrupting the proceedings so that to continue the proceedings in his presence would not be feasible”. Section 650(2)(a) has been the subject of much judicial consideration.
[8] It is well-established that the power to exclude an accused from his trial under s. 650(2)(a) is to be exercised exceedingly sparingly and only when there is really no alternative. For example, in R. v. Fabrikant (1995), 1995 CanLII 5384 (QC CA), 97 C.C.C. (3d) 544, Proulx J.A. of the Québec Court of Appeal said at paragraph 49:
As in Canada, the American courts have taken the position that any limitation on such fundamental rights as the right to be present, to present his case and to be heard can happen only after a trial court has looked "for corrective measures that do least injury to these rights consistent with the preservation of an orderly court atmosphere.
[9] The same principles developed under s. 650(2)(a) should apply to s. 672.5(10)(b)(i). The language of the two provisions is almost identical. An NCR accused’s liberty interests are at stake just as they may be in a criminal trial.
[10] In my view, the Chair failed to exercise the required judicial patience and restraint before resorting to his power under s. 672.5(10)(b)(i). He made no effort to determine whether corrective measures or accommodations would have made it feasible to proceed with the appellant present.
[11] The most obvious corrective measure is that the Chair could consider addressing the appellant other than by calling him “Mr. Girard”. It is worth observing that at the 2015 disposition hearing the Board (the same Chair at the June 2016 hearing) had called him “André” and the hearing proceeded uneventfully. In 2016, the disposition hearing was adjourned after first coming before a differently constituted Board. The Chair of that Board recognized that the appellant preferred the title “Executor Girard”.
[12] I further observe that the Consent and Capacity Board in its decision dated May 2, 2014 accommodated the appellant’s preference as to how he should be named. The Consent and Capacity Board followed the example set up by the Supreme Court in Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R 722. In that case, the Supreme Court noted the appellant preferred to be called "Professor Starson" rather than by his legal name, and referred to him according to his preference throughout its reasons.
[13] Here, the Chair’s five second ultimatum to the appellant makes clear he was not open to attempting to find an alternative acceptable way of addressing the appellant.
[14] Even if there were some clinical reason for refusing to accommodate the appellant’s preference, the Chair could have taken a short adjournment to allow the elevated atmosphere to calm down.
[15] Finally, if all reasonable measures failed to prevent the appellant from persisting in interrupting the hearing, the Chair could have considered the less drastic measure of cutting off the appellant’s microphone only and allowing him to continue to be able to observe and listen to the hearing, and to provide any submissions through the amicus.
[16] In my view, the Board’s action was hasty and precipitous and not in accordance with s. 672.5(10)(b)(i).
[17] I add that the Chair ought to have allowed the appellant to articulate his objections to the Chair presiding and to the Board’s jurisdiction to reject him, and to have ruled upon them after listening to and considering them.
[18] I would allow the appeal, set aside the Board’s disposition, and remit the matter to the Board for a rehearing before a differently constituted panel as soon as is practicable. Until the next disposition following the rehearing, the appellant is subject to the conditions listed in the July 12, 2016 disposition that has been set aside.
Released:
“DEC 28 2016” “R.G. Juriansz J.A.”
“RGJ” “I agree David Watt J.A.”
“I agree Lois Roberts J.A.”