Court of Appeal for Ontario

Date: 2017-12-28 Docket: C63491

Justices: Sharpe, Watt and Roberts JJ.A.

In the Matter of: Ramanan Muthulingam

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• Jonathan Fernandes, for the appellant, Ramanan Muthulingam
• Susan Magotiaux, for the respondent, the Attorney General of Ontario
• Logan Crowell, for the respondent, Ontario Shores Centre for Mental Health Sciences

Heard and released orally: December 21, 2017

On appeal from: The disposition of Ontario Review Board, dated February 15, 2017, with reasons dated March 6, 2017.

Reasons for Decision

[1] The appellant appeals against a disposition of the Ontario Review Board detaining him at the Secure Forensic Service of the Ontario Shores Centre for Mental Health Sciences, with hospital and grounds privileges, as well as entry into the community for up to 10 hours, accompanied by staff or by an approved person.

[2] The appellant advances two principal grounds of appeal. He says that the Board's core finding, that he remained a significant threat to the safety of the public, is unreasonable. He also submits that the Board erred in law in rendering its decision in contravention of s. 14 of the Evidence Act, R.S.O. 1990, c. E.23 which requires corroboration of a party's own evidence in actions against certain groups of persons, including patients in psychiatric facilities.

[3] In our view, both grounds of appeal fail.

[4] There was ample evidence adduced before the Board to establish the significant threat threshold. During the review period in issue, the appellant remained floridly psychotic. He lacked insight into the index offence. He refused treatment. He continued to deny that he had a mental illness. He had made specific threats to harm a treating psychiatrist, threats that revealed a persistent delusion that was linked to the index offence. These delusions remained unabated.

[5] The combined force of this constellation of factors provided a sound evidentiary basis for the Board's finding that the significant threat threshold had been met.

[6] The Evidence Act of this province applies to proceedings over which the legislature of this province has jurisdiction. Part XX.1 of the Criminal Code, which establishes review boards and defines their jurisdiction, is not something over which the legislature of the province of Ontario has jurisdiction. It follows that s. 14 of the Evidence Act of this province does not apply to Review Board proceedings, either directly because of its introductory language – "an opposite or interested party in an action" – or through its referential incorporation by s. 40 of the Canada Evidence Act, R.S.C. 1985, c. C-5, as amended, which, after all, is to be accorded a narrow scope under R. v. Albright, [1987] 2 S.C.R. 383. It follows that the Board did not err in failing to apply s. 14.

[7] The appellant has also filed an application seeking a declaration that the psychological security of his person was infringed because, detained by an order of the Ontario Review Board, he received "extremely high doses" of anti-psychotic medication which resulted in serious psychological harm. This freestanding claim is advanced here for the first time. It is unrelated to the appeal against the disposition of the Review Board, thus is not cognisable on an appeal under Part XX.1. It lacks meaningful evidentiary support. It seeks from a reviewing court, whose jurisdiction is statutory, a remedy available, if at all, in discrete proceedings in the superior court.

[8] The appeal against the disposition of the Review Board, the application for declaratory relief under the Charter and the related application to admit fresh evidence in support of that Charter application, are dismissed.

"Robert J. Sharpe J.A." "David Watt J.A." "L.B. Roberts J.A."