Court of Appeal for Ontario

Date: 2017-12-07 Docket: C60572

Judges: Strathy, C.J.O., Doherty and Roberts JJ.A.

In the Matter of: Julius Ohenhen

An Appeal Under Part XX.1 of the Code

Counsel

For the appellant, Julius Ohenhen: Anita Szigeti and Jill R. Presser

For the respondent, the Attorney General of Ontario: Amy Alyea

For the respondent, the Person in Charge of the Centre for Addiction and Mental Health: Michele Warner

Hearing and Appeal

Heard: November 9, 2017

On appeal from: The Disposition of the Ontario Review Board, dated May 7, 2015, with reasons dated June 1, 2015, reported at [2015] O.R.B.D. No. 1168.

Decision

L.B. Roberts J.A.:

Introduction

[1] The appellant confines his appeal to the refusal of the Ontario Review Board ("the Board") to grant the systemic remedies sought by him under s. 24(1) of the Canadian Charter of Rights and Freedoms for the violation of his s. 8 right to be free from unreasonable search and seizure. The respondents concede that the appellant's s. 8 right was violated when unauthorized urine samples were seized from him, but contend that the Board did not have jurisdiction to grant the requested systemic remedies.

[2] The appellant does not appeal from the Board's finding that his ss. 7, 9 and 10 Charter rights were not violated. Nor does he seek to overturn the Board's disposition that he remain detained at the Centre for Addiction and Mental Health ("CAMH"). That decision was overtaken by the Board's subsequent disposition order dated November 1, 2016, which was issued following the next annual review hearing. The appellant appealed from the latter order; this court's judgment with respect to that appeal is under reserve.

[3] I would dismiss this appeal for the reasons that follow.

(i) Mootness of the Appeal

[4] The parties agree that the present appeal is moot because the disposition order under appeal was overtaken by the November 1, 2016 order. The respondents argue that this court should not exercise its jurisdiction to hear the appeal.

[5] I disagree. This appeal raises the significant issue of the scope of the Board's remedial powers under s. 24(1) of the Charter, which is a matter of importance not only to the appellant but to NCR accused persons generally and to the Board: Starz (Re), 2015 ONCA 318, [2015] O.J. No. 2331, at para. 52, leave to appeal refused, [2016] S.C.C.A. 459.

[6] This is an important question capable of repetition, which could prove difficult to review, given the annual review process for the Board's dispositions. Moreover, the record is sufficient and the issue has been fully developed and argued. The Supreme Court in Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326, at para. 15, exercised its discretion to hear an appeal from a superseded disposition for similar reasons. In Starz (Re), at paras. 52-54, this court adopted the reasoning from Mazzei, and determined that the appeal should be heard even though the appellant had since been granted an absolute discharge and was no longer under the Board's jurisdiction.

[7] Accordingly, I would exercise this court's discretion to hear this appeal.

(ii) Factual and Procedural Background

[8] On June 11, 2007, the appellant was found not criminally responsible on account of a mental disorder (NCR) on charges of intimidation and criminal harassment. As a result, he was admitted to CAMH as an in-patient on August 17, 2007. When his annual review hearing was held on February 26 and April 27, 2015, the appellant had been accepted into a community residence that provides a high level of support and supervision.

[9] In advance of the hearing, the appellant brought an application for a declaration that his s. 8 right, among other Charter rights, had been breached because CAMH staff took three urine samples from him without lawful authority under his disposition. On February 18, 2014, the Board had removed the previous requirement from his disposition that the appellant provide urine samples. The appellant provided urine samples on February 27 and March 16, 2014, because he was unaware that the February 18 disposition removed the previous obligation to provide samples. He refused to provide urine samples when requested to do so on two occasions in July, 2014. He gave a urine sample on January 8, 2015 because, he alleged, the nurse threatened to withhold his privileges if he failed to do so.

[10] On his application, the appellant sought both the individual remedy of a declaration that his Charter rights had been violated, as well as the following systemic remedies in relation to CAMH administrative processes and protocols:

(i) a direction to CAMH to overhaul its processes to ensure that dispositions and reasons of the Board in respect of each of their clients are delivered to, received and reviewed by front-line staff charged with the care, observation, treatment or supervision of the client;

(ii) a direction to CAMH to implement a quality assurance protocol to ensure its staff are in fact familiar with the terms and conditions of each of their clients' disposition orders;

(iii) a direction to CAMH to create a protocol, process or policy on what steps staff must take before approaching a client to request a urine sample, to inform themselves about whether they have the authority to make the request, and what they must advise the client with respect to the client's right to refuse to provide a sample, as well as what the sample will be screened for specifically, whether illicit substances or medication compliance, or whatever use the requester intends to make of the sample; and

(iv) a direction to CAMH to provide education to all front-line staff to dispel any notion that all NCR accused persons under the Board's supervision are prohibited from the use of alcohol or substances, or must subject themselves to, or provide samples of their bodily fluids for, any screening for substances, or for any other purpose.

[11] The respondents conceded and the Board found that the appellant's s. 8 Charter right was infringed when the urine samples were taken after the requirement had been removed from the appellant's most recent disposition. The Board granted the individual remedy requested by the appellant, finding that his s. 8 Charter right had been breached.[1]

[12] However, the Board determined that it did not have jurisdiction to grant the systemic remedies requested by the appellant. In the alternative, the Board concluded that even if it did have such jurisdiction, it would not exercise it in this case primarily because CAMH had already implemented almost[2] all of the steps that were being requested by the appellant.

(iii) Analysis

[13] I agree with the respondents that the Board does not have the jurisdiction to grant the systemic remedies requested by the appellant.

[14] It is well established that the Board is a court of competent jurisdiction, and that it is entitled to determine Charter issues that arise in the course of Board proceedings in relation to individual NCR accused persons: R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, at para. 84; Chaudry (Re), 2015 ONCA 317, [2015] O.J. No. 2332, at para. 103, leave to appeal refused, [2016] S.C.C.A. No. 460. Accordingly, as this court concluded in Starz (Re), at para. 110: "It follows that the Board is entitled to make findings that an NCR accused person's Charter rights have been infringed, and can order appropriate remedies."

[15] However, Parliament did not "imbue the Board with free remedial rein": Conway, at para. 97. As this court explained in Starz (Re), in the context of declaratory orders, the Board does not have jurisdiction to make the kind of broad orders that go beyond the circumstances of the individual NCR accused person before it. The court's analysis at para. 111 applies with equal force to the present case:

The essential point for this discussion is that the Board's focus is necessarily on the NCR accused person before it. Its role is not to make broad or general pronouncements but, rather, to ensure that the particular NCR accused person is subject to the least onerous and least restrictive conditions consistent with public safety. To that end, the Board has the power to make remedial orders directed at the particular NCR accused person. Making declarations – given their broader range and purpose – would necessarily divert the Board's attention from the person before it because it would have to consider the broader implications for a broader group. Not only would it detract from the Board's primary role and functions, it is likely to protract proceedings before the Board.

[16] The role of the Board is to determine the appropriate disposition for each individual NCR accused person who appears before it. Its jurisdiction does not extend to the kind of systemic, institutional orders sought here. The Board's statutory mandate as a specialized tribunal under Part XX.1 of the Criminal Code is the ongoing supervision of the treatment, assessment, detention and discharge of NCR accused persons in a "responsive, Charter-compliant fashion", with the broad power to attach individualized conditions: Conway, at para. 94; Chaudry (Re), at para. 93. In particular, the Board can make appropriate orders to ensure that the Charter rights of individual NCR accused persons are respected, and that its dispositions in relation to those individuals are followed.

[17] While the Board's jurisdiction does not extend to the imposition of systemic changes on the institutions in which NCR accused persons are detained, practically speaking, its orders may still affect institutional practices and procedures as they relate to an individual NCR accused person. The Board has the power to bind hospital authorities and to impose binding conditions regarding or supervising the medical treatment of the individual NCR accused persons who reside there: Mazzei, at para. 39.

[18] If CAMH had taken no steps to remedy the Charter breaches in this case, the Board would have had the jurisdiction to make appropriate remedial orders, so long as they were in relation to the appellant. This could logically include orders that would affect CAMH's processes and protocols as they related to the appellant, to ensure that the content of his disposition was known and respected in order to obviate the risk of further breaches occurring. This is consistent with the Board's mandate under the NCR regime, which as explained above, directs the Board's focus to the specific NCR accused person before it in each case, pursuant to an "individualized 'assessment-treatment'" model: Mazzei, at para. 28; Starz (Re), at para. 111. The Board has the power to redress any aspect of the appellant's detention that does not meet the least onerous and least restrictive standard: Chaudry (Re), at para. 98.

[19] I also observe that, while the Board does not have the jurisdiction to order at large that an institution make broad, systemic changes to its processes, it is open to the Board to make findings and non-binding suggestions as to what should be done to rectify systemic problems: Chaudry (Re), at para. 99.

Disposition

[20] The Board did not err in determining that it lacked jurisdiction to grant the systemic remedies requested by the appellant. Accordingly, I would dismiss the appeal.

Released: December 7, 2017

"L.B. Roberts J.A."

"I agree G.R. Strathy C.J.O."

"I agree Doherty J.A."

Footnotes

[1] The Board initially issued a declaration that the appellant's s. 8 Charter right had been breached. However, after reviewing this court's decision in Starz (Re), 2015 ONCA 318, the Board revised its June 1, 2015 reasons to make a "finding" to the same effect.

[2] The appellant submits that CAMH did not implement the important step of occasional random checks to ensure that staff were collecting urine samples in a Charter-compliant manner and in accordance with the dispositions of NCR accused persons.