Court of Appeal for Ontario

Date: 2017-09-20 Docket: C62916 Judges: Watt, Epstein and Brown JJ.A.

In the Matter of: Jason Murray

An Appeal Under Part XX.1 of the Criminal Code

Parties:

• Jason Murray, acting in person
• Kelley Bryan, appearing as amicus curiae
• Katherine Beaudoin, for the Attorney General of Ontario
• Janice Blackburn, for St. Joseph's Healthcare Hamilton

Heard: September 8, 2017

On appeal against the disposition of the Ontario Review Board dated September 9, 2016 and October 24, 2016.

Reasons for Decision

I. Introduction

[1] The appellant, Jason Murray, appeals from two dispositions of the Ontario Review Board (the "Board"): an Initial Disposition dated September 9, 2016 and the Current Disposition dated October 24, 2016.

[2] The index offences all occurred in January 2016: failure to comply with probation (6 counts); carrying a concealed weapon; and mischief under $5,000. On July 7, 2016 the appellant was found not criminally responsible of the index offences on account of mental disorder. The trial judge remanded the appellant to the St. Joseph's Healthcare Hamilton (the "Hospital") pending disposition by the Board.

[3] In its Initial Disposition, the Board found the appellant suffered from a delusional disorder and was a significant threat to public safety. The Board ordered his detention on a general forensic unit of the Hospital, with privileges up to accompanied community passes.

[4] On October 4, 2016 the Hospital transferred the appellant to a secure forensic unit under the Mental Health Act, R.S.O. 1990, c. M.7. On October 12, 2016 the Hospital asked the Board for an early full review of the Initial Disposition pursuant to s. 672.81(2) of the Criminal Code, R.S.C. 1985, c. C-46, as well as a restriction of liberties hearing pursuant to s. 672.56(2).

[5] The Board held the hearing on October 19, 2016. In its Current Disposition, the Board ordered the appellant detained on a secure forensic unit of the Hospital, with the same privileges as contained in the Initial Disposition.

[6] The appellant submits the Board's findings in both dispositions that he is a significant threat to the safety of the public were unreasonable. In his appeal of the Initial Disposition, the appellant asks this court to substitute an absolute discharge or a conditional discharge under which he can return to live in the community. In his appeal of the Current Disposition, the appellant seeks an absolute discharge or, alternatively, a return to the Hospital's general ward with community privileges. Amicus submits both hearings were procedurally unfair and a new hearing should be directed. The respondents take the position both appeals should be dismissed.

[7] The appellant filed a significant amount of fresh evidence on the appeals. Although the respondents submit the materials do not meet the criteria for the admission of fresh evidence, they were content we review the materials, which we have done.

[8] The appellant's next annual review is scheduled for September 22, 2017.

II. Appeal of the First Disposition

[9] Amicus argues that the Board's first hearing was procedurally unfair. The appellant contends he received a fair hearing, but the Initial Disposition was unreasonable. The respondents submit the appeal of the Initial Disposition is moot.

[10] We accept the respondents' submission. The Initial Disposition is no longer in force; it was replaced by the Second Disposition. The appeal from the Initial Disposition is moot.

[11] Amicus submits that if the appeal from the Initial Disposition is moot, this court should exercise its discretion to hear it. We disagree. The appeal of the Current Disposition will provide the opportunity to consider the live issues between the parties.

[12] Accordingly, the appellant's appeal from the Initial Disposition is dismissed as moot.

III. Appeal of the Second Disposition

[13] Amicus submits the second hearing was procedurally unfair because the Board placed inappropriate limits on the role of amicus and failed to provide adequate assistance to the appellant who was self-represented. Amicus also contends the Current Disposition detaining the appellant on the secure forensic ward fell outside the range of reasonable outcomes and was not the least onerous and restrictive disposition available in the circumstances.

[14] The appellant disagrees with amicus; he submits he received a fair hearing from the Board. However, he contends the Current Disposition was unreasonable.

The Fairness of the Hearing

[15] At both hearings, counsel, Mr. Kerr, was available to act for the appellant. The appellant wished to represent himself and declined the appointment of counsel. As a result, the Board appointed Mr. Kerr as amicus for both dispositions.

[16] Before us, amicus, Ms. Bryan, submits the Board fell into error by preventing Mr. Kerr from playing an expansive role of "acting for the accused." As a result, the Hospital's evidence was not tested seriously in any way, including exploring whether the appellant could be detained on a general unit, but with less restrictive mechanisms to manage his risk.

[17] Amicus further argues the Board failed to provide the appellant with the assistance required by a self-represented litigant. In particular, the Board failed to inquire into the appellant's request that community living be included in his disposition.

[18] We are not persuaded by these submissions.

[19] The October 19, 2016 hearing considered evidence on two issues: (i) whether the appellant remained a significant threat to the safety of the public; and (ii) whether he should be detained on the Hospital's general or secure forensic unit. The hearing understandably focused on the second issue as only six weeks had elapsed since the Initial Disposition, the appellant continued to suffer from delusional disorder, continued to have no insight into his mental illness, and continued to refuse treatment by medication.

[20] Two witnesses testified at the hearing: Dr. Prat, a Hospital psychiatrist, and the appellant.

[21] The transcript of the hearing shows the Board recognized and discharged two of its important duties: (i) to ensure the unrepresented appellant understood the process and was able to participate to the extent necessary to ensure a fair hearing: Runnalls (Re), 2011 ONCA 364, 106 O.R. (3d) 291, at para. 21; and (ii) to act as an inquisitorial tribunal, searching out and considering not only evidence that supports restrictions on the accused but also evidence that supports an absolute discharge or release subject to the minimal necessary restraints: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 54.

[22] Dr. Prat was questioned extensively by Board members about: how the appellant acted and was managed on the general unit; alternatives to transferring the appellant to the secure unit; the reasons for his transfer; his current course of treatment; and the availability of privileges. During the appellant's testimony, the Chair asked a number of questions to elicit from the appellant his evidence about the events on which the Hospital relied to transfer him to a secure unit.

[23] During the Hospital's closing submissions, one Board member asked counsel why the Hospital was taking the position the appellant should not have indirect grounds privileges. The Chair asked the appellant's attending psychiatrist, Dr. Ferencz, to provide a detailed answer to the member's inquiry. The Chair also questioned the appellant during his closing argument in order to obtain a clear understanding of the disposition he proposed.

[24] Given the inquisitorial manner in which the Board conducted the hearing, we are not persuaded by amicus' argument that the Board failed to provide adequate assistance to the appellant in the circumstances.

[25] Nor do we accept the submission that the Board unduly limited Mr. Kerr's role as amicus at the hearing. The Board did not limit Mr. Kerr, as amicus, from playing the important role of presenting issues favouring the accused that otherwise might not be raised: R. v. LePage, at para. 29. At the end of the Board's questions, the Chair asked Mr. Kerr whether there was "anything arising from the Board members questions." Mr. Kerr responded: "No thank you." Further, Mr. Kerr made brief closing submissions, arguing it was "a little questionable" about whether the Hospital had the grounds to transfer the appellant to a secure unit. The record indicates Mr. Kerr's limited participation was more a function of the single-issue nature of the hearing combined with the Board's extensive questioning of Dr. Prat, than any effort by the Board to limit his role as amicus.

The Reasonableness of the Board's Current Disposition

[26] The appellant submits the Board should have granted him an absolute discharge. Amicus argues the detention of the appellant on the secure forensic unit was unreasonable because the Board failed to explore less restrictive dispositions.

[27] The test for review of findings of fact and determinations with respect to questions of mixed fact and law is reasonableness: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779. The Board's finding that the appellant was a significant threat to the safety of the public was supported by the evidence: the appellant's lack of insight into his major mental illness and his need for medication; his prior convictions for assault, uttering threats, and assault with a weapon; and the unanimous opinion of the appellant's treatment team that he met the threshold for significant threat to the safety of the public, as explained in the Administrator's Report to the Board.

[28] The Board's decision to continue the appellant's detention on the secure forensic unit was reasonable and supported by the evidence of the events that led the Hospital to transfer him.

[29] We note, however, that the Board refused the Hospital's request to delete the appellant's indirectly supervised hospital and grounds privileges. The Board stated: "We have considered this request and are not persuaded that Mr. Murray would not be able to utilize such a privilege at some point over the next 12 months." As well, the Board specifically referred to the evidence of Dr. Ferencz that the Hospital would seek an early review if it concluded the appellant could be detained on the general forensic unit without compromising public safety. No doubt both issues will be canvassed at the appellant's upcoming annual review.

IV. The Jurisdictional Issue

[30] Finally, amicus submits the Board lacked jurisdiction under Part XX.1 of the Criminal Code to review the appellant's restriction of liberty because the Hospital used provisions of the Mental Health Act to transfer him to the secure forensic unit. However, amicus submits the Board's lack of jurisdiction had no effect on its ultimate disposition.

[31] We see no need to address this jurisdictional argument. In its October 12, 2016 letter to the Board, the Hospital sought a full review of the Initial Disposition as an early review pursuant to s. 672.81(2) of the Criminal Code. Given that request, the Board clearly had jurisdiction under Part XX.1 to consider the appellant's continued detention on the Hospital's secure forensic unit.

V. Disposition

[32] For the reasons set out above, we dismiss the appeal.

"David Watt J.A." "Gloria Epstein J.A." "David Brown J.A."