Court of Appeal for Ontario

Date: January 26, 2018

Docket: C62946 and C62913

Judges: Watt, Tulloch, Pardu, Benotto and Roberts JJ.A.

C62946

In the Matter of: Julius Ohenhen

An Appeal Under Part XX.1 of the Code

C62913

In the Matter of: Gaurav Kalra

An Appeal Under Part XX.1 of the Code

Counsel

For the appellant, Julius Ohenhen: Anita Szigeti and Joseph Berger

For the appellant, Gaurav Kalra: Jill R. Presser and Andrew Menchynski

For the respondent, Her Majesty the Queen: Amy Alyea

For the respondent, the Person in Charge of the Centre for Addiction and Mental Health: Gavin S. MacKenzie

For the respondent, the Person in Charge of Royal Ottawa Mental Health Centre: Barbara Walker-Renshaw and John McIntyre

Heard: June 30, 2017

On appeal against the disposition of the Ontario Review Board dated November 1, 2016.

On appeal against the disposition of the Ontario Review Board dated October 18, 2016.

Tulloch J.A.:

A. Introduction

[1] Both appellants appeal the detention orders imposed on them by the Ontario Review Board in November 2016.

[2] The common issue raised in these appeals is whether an accused who has been found not criminally responsible on account of mental disorder and incapable of consenting to his own treatment under the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A., can fulfill the consent requirement for the condition regarding psychiatric or other treatment under s. 672.55(1) of the Criminal Code, R.S.C. 1985, c. C-46.

[3] This court has provided inconsistent conclusions on this issue in the past, although, for the most part, it has answered that the condition is unavailable to such accused persons, since they cannot consent to the treatment, they cannot consent to the condition.

[4] Both appeals were ordered to be heard before a five-judge panel of this court, in keeping with this court's practice when it wishes to consider overruling a past decision.

[5] For the reasons that follow, I agree with the appellants that they were capable of fulfilling the s. 672.55(1) consent requirement.

[6] Because of the passage of time since the dispositions before us, I will not otherwise consider the reasonableness of the Board's dispositions. I would allow the appeals and remit them back for re-hearing before the Board.

B. Background

(1) Mr. Ohenhen

(a) Index Offences and Criminal History

[7] Mr. Ohenhen has an extensive criminal record that began when he was a youth. Between January 1990 and October 2003, he faced 33 criminal charges including charges of assault, assault with a weapon, aggravated assault, uttering threats, criminal harassment, and possession of a prohibited weapon. He has also been found to have breached court orders.

[8] Mr. Ohenhen's index offences concern matters going back to 1992 involving the same female victim. He was convicted of criminally harassing her in 1992. He contacted her again through correspondence in 2003, and was charged with uttering threats and criminal harassment. In 2006, he contacted her by sending her a letter in which he threatened to kill her and her family. Around the same time, he also called a Crown attorney pretending to be a police officer.

(b) Mr. Ohenhen Under Board Supervision

[9] On June 11, 2007, Mr. Ohenhen was ordered to be detained at a medium secure unit of the Centre for Addiction and Mental Health (CAMH). He has been diagnosed as schizophrenic and suffering from an Anti-Social Personality Disorder.

[10] In October 2007, he was found to be incapable of consenting to psychiatric treatment. This finding was upheld by the Consent and Capacity Board in 2008.

[11] For the first two years after admission to CAMH, he exhibited periods of verbal and physical aggression, instability and threatening behaviour. He began to receive antipsychotic medication in 2009, and responded well. In 2010, he was transferred to a minimum secure unit. He stopped showing signs of aggression and violence, although he continued to lack understanding of his psychiatric illness. While he did not perceive the need to take his medication, under the supervision of his mother, who is his substitute decision-maker, he did take the medication as prescribed.

[12] In 2014, Mr. Ohenhen challenged his capacity finding again before the Consent and Capacity Board. At that hearing, he testified to his desire to stop taking medication if he was found to be capable of making treatment decisions.

[13] In July 2015, the Board made a detention order with community living privileges. Mr. Ohenhen was placed in high-support housing with adequate medical supervision. His condition has been relatively stable since that time.

(c) The Disposition Under Appeal

[14] Following a hearing on November 1, 2016, the Board decided to continue the detention order with community living privileges.

[15] The Board concluded that Mr. Ohenhen posed a significant threat to public safety. In that regard, the Board noted his significant record of anti-social behaviour including assaults, use of weapons, and homicidal ideation. It determined that a detention order was both necessary and appropriate.

[16] The Board accepted the testimony of Dr. Liu that a detention order was necessary, even though Mr. Ohenhen was a rule-governed person who would comply when told that he must do something. Dr. Liu noted that he had some history of non-compliance with taking medications. This concerned Dr. Liu, since, in his medical opinion, Mr. Ohenhen needed to take anti-psychotic medication on a permanent basis.

[17] Dr. Liu found Mr. Ohenhen to be in need of continued psychiatric treatment, as he had poor insight into his illness. The doctor noted that he had reiterated that if he was not compelled to take his medication, then he would not do so.

[18] The hospital submitted to the Board that Mr. Ohenhen required external constraint to maintain his current clinical stability, given his lack of insight. Mr. Ohenhen's clinical team also indicated that it required the authority to approve his housing, and the ability to rapidly re-admit him to the hospital should his mental state deteriorate, or should he stop taking his medication. The Board noted that his risk to the community had been managed by the high level of support he received through his supervised housing and his outpatient care.

[19] After considering all of the evidence, the Board ordered that Mr. Ohenhen be detained at the General Forensic Unit of CAMH pursuant to terms and conditions which allowed him to live in the community in approved accommodation.

[20] Given the Board's finding that a detention order was the necessary and appropriate disposition rather than a conditional discharge, the Board held that it did not have to consider the issue of whether the appellant could consent to a s. 672.55(1) condition.

(2) Mr. Kalra

(a) Index Offences

[21] On June 2, 2010, Mr. Kalra was found not criminally responsible on account of mental disorder on charges of criminal harassment, mischief under $5,000, transportation fraud, and failure to comply with a recognizance.

[22] Those charges related to a series of incidents that took place a year earlier, in 2009, involving a young female former classmate. At the time, Mr. Kalra was 24 years old. He was living with his parents in Ottawa. He had withdrawn socially, lost interest in his studies, and was unable to maintain employment. He repeatedly went missing from home.

[23] In February 2009, he showed up uninvited and unwanted at the complainant's home in Guelph. She called local police, who then spoke to Mr. Kalra. A couple of weeks later, in March 2009, he returned to Guelph. He called the complainant from the bus station. He was later cautioned by police about trespassing and criminal harassment. Nonetheless, three days later, he called the complainant again, leaving a voicemail message on her phone.

[24] About a week later, he called the complainant once more. After being told that she was not home, he came to the complainant's home, stood on her front lawn, and said he would not leave until a letter he had brought with him was delivered to the complainant. He left on foot but then returned five hours later and stood on the lawn. Police were contacted and arrested him for criminal harassment.

[25] Mr. Kalra was released on bail on condition that he reside with his father in Ottawa and that he have no contact with the complainant. Despite those terms, he went missing on several occasions, sometimes taking his father's vehicle.

[26] On November 9, he took his father's vehicle and crashed it through the complainant's garage door. He then fled on foot. An envelope and a note to the complainant were found at the scene. A day later he returned. The police came and arrested him. Police found a note to the complainant stuck to the front door of her home. Mr. Kalra was then charged with mischief under $2,000 for the garage crash and for failure to comply with the terms of his recognizance.

(b) Mr. Kalra Under Board Supervision

[27] Mr. Kalra has been subject to the Board's dispositions since September 1, 2010. Central to the main issue in these appeals, in 2011 he was found incapable of consenting to medical treatment under the Health Care Consent Act. Although both parents have been approved as substitute decision-makers, his father has served as his substitute decision-maker ever since.

[28] Under the Board's initial dispositions, Mr. Kalra was detained in hospitals. This continued until March 2014. While under detention, his condition improved. He participated in programming, including stress management, medication management, and psychotherapy sessions.

[29] Mr. Kalra has consistently sought less onerous, less restrictive dispositions from the Board, appealing the Board's dispositions in each of the last four years.

[30] In March 2014, this court allowed his appeal: Kalra (Re), 2014 ONCA 233 ("Kalra 2014"). The Board had imposed a detention order because it felt that the hospital's proposed drug treatment program could not be carried out safely in the community. That proposed program involved a gradual reduction in the levels of the anti-psychotic medication that he was taking. The detention order would then allow the hospital to closely monitor Mr. Kalra as his medication was reduced, and, if necessary, make adjustments.

[31] This court set aside that disposition and substituted a conditional discharge. While agreeing that it was reasonable for the Board to find Mr. Kalra posed a significant threat to the safety of the public, this court held that the Board should have considered whether those safety concerns could be addressed through the terms and conditions of a conditional discharge. Without reference to other decisions of this court, the court in Kalra 2014 held the following:

In considering whether appropriate conditions could be fashioned, the Board had to take into account the willingness of the appellant and his substitute decision-makers (his parents) to consent to a term in the conditional agreement requiring the appellant to take whatever psychiatric treatment the hospital personnel mandated.

Kalra 2014, at para. 11.

[32] In its substituted conditional discharge order, the court included the following treatment conditions:

d) The appellant will consent, to the extent that he can consent, to take the psychiatric treatments as prescribed by the relevant medical personnel at the Brockville Mental Health Centre.

e) To the extent that the appellant's consent is ineffective, his parents as the appellant's substitute decision-makers will consent to any treatment prescribed by the hospital personnel at Brockville Mental Health Centre.

Kalra 2014, at para. 13.

[33] At the next two Board reviews, the Board imposed conditional discharges with treatment conditions, the same disposition substituted by this court in Kalra 2014. Mr. Kalra complied with those dispositions without incident.

[34] When Mr. Kalra appealed the Board's disposition in 2015, the Crown, in response to the appeal, challenged the legality of imposing a treatment condition on an individual who was incapable of consenting to medical treatment.

[35] In dismissing the appeal, this court noted the inconsistency between the decision in Kalra 2014 and decisions of this court in R. v. Coles, 2007 ONCA 806 and Lamb (Re), 2014 ONCA 169. However, because the Crown raised this issue without cross-appealing, the court felt that it was unable to decide the issue, and instead said that it was for the Board to decide at the next review: Kalra (Re), 2016 ONCA 390.

(c) The Disposition Under Appeal

[36] At Mr. Kalra's next review in 2016, the legality of his treatment condition was challenged. The Board split on this issue 3-2. A majority of the five-member Board found that the treatment condition was not allowed under s. 672.55(1) of the Criminal Code:

[G]iven the clear language of s. 672.55 of the Criminal Code, consent to the inclusion of a treatment condition in a conditional discharge must be provided by the accused, and if he or she is incapable of providing such consent, the Board cannot include such a condition in its disposition.

[37] The Board majority imposed a detention order with community living. In doing so, it stated that it would have imposed that same order even if it had held that it could have included a treatment condition.

[38] The Board majority's disposition was based on its following conclusions.

[39] First, they found that Mr. Kalra lacked insight into his condition, as did his family. His insight was described as "very suboptimal." He denied that he had a mental illness and felt that getting a second opinion would be "a waste of time." Mr. Kalra's father also denied his diagnosis.

[40] In addition, they noted that Mr. Kalra had an ongoing plan to disengage from treatment. He had repeatedly stated that he would stop taking his medication if he were given an absolute discharge or a conditional discharge without a treatment condition. In their view, medication appeared to be essential to maintaining the status quo.

[41] Similarly, they noted that Mr. Kalra's father only appeared willing to continue to consent to the treatment conditions because he was legally required to do so. And they were concerned that Mr. Kalra's father would not notice any symptoms until it was much too late.

[42] Finally, they stressed the importance of the hospital being able to approve where Mr. Kalra would reside and to quickly readmit him. Were he to decompensate while under a drug holiday or otherwise, the hospital would want to be able to bring him in quickly, if necessary. That would be facilitated with a detention order. Otherwise, the hospital would need to resort to the Mental Health Act, R.S.O. 1990, c. M.7, which would take longer and offers a more challenging test to meet.

[43] The Board minority's decision flowed from their conclusion that they could include a treatment condition, even though Mr. Kalra was incapable of consenting to medical treatment himself. They felt that little had changed since the conditional discharge with treatment conditions dispositions had been imposed in the past. He had complied with those dispositions without incident. In their view though, the appellant's risk to the community could "only be adequately addressed if his compliance with treatment could be assured" through a treatment order. They would have imposed a conditional discharge with a treatment condition as the least onerous, least restrictive disposition available.

C. Discussion

(1) Overview

[44] These appeals concern when a Board can include conditions regarding psychiatric or other treatment as part of a disposition under s. 672.54 of the Criminal Code. Those conditions do not involve the Board prescribing or imposing specific treatments itself, but instead have been described as securing a commitment by the accused to follow a treatment plan that has otherwise been approved.

[45] Specifically, the question before us is whether a Board can include such a condition when the accused has been found incapable under the relevant provincial legislation of consenting to the treatment referenced by the condition.

[46] The question arises because s. 672.55(1) of the Criminal Code, a section concerning the inclusion of conditions regarding treatment under s. 672.54, provides that such conditions may only be included "where the accused has consented to the condition".

[47] The parties dispute whether, in order to consent to this condition, the appellants themselves must have the capacity to consent to the medical treatment contemplated by the condition. If that is the case, then such a condition was unavailable to both accused at the review hearings underlying this appeal. Neither had the capacity to consent to the relevant treatment, primarily because each lacked insight into his medical condition. Instead, both appellants have substitute decision-makers who have been consenting to the relevant medical treatments, and who are willing to continue to do so.

[48] The appellants take the position that s. 672.55(1) does not require that they be capable themselves of consenting to the treatment to which the condition relates. Rather, as Mr. Ohenhen puts it, they should be able to consent to a s. 672.55(1) condition provided they are able to understand the operation of the condition and appreciate the consequences of abiding or failing to abide by it. That includes that if they contravene the condition they could be arrested without warrant by police and delivered to jail or to a psychiatric facility named in the disposition order.

[49] They point out that under s. 672.55(1), as interpreted by the Supreme Court, the Board is not prescribing or proposing the treatment itself. Consequently, they submit, the accused is not providing consent to the treatment itself either. Instead, in their view, the provision presumes that valid consent to treatment has been, or will be, otherwise obtained.

[50] As an alternative, the appellants say that if capacity to consent to medical treatment is required for consenting to the s. 672.55(1) condition, then their substitute decision-makers should be able to consent to the condition on their behalves.

[51] The respondents, on the other hand, argue that this provision precludes a Board from including a s. 672.55(1) condition in its disposition for an accused, if that accused is incapable of consenting to the treatment referred to in the condition.

[52] They argue that any distinction between 'consent to treatment' and 'consent to a condition to take treatment' is a distinction without a difference. As the Person in Charge of Royal Ottawa Mental Health Centre explains, a condition regarding treatment effectively requires consent to the treatment imposed by the condition. Thus, the argument goes, by consenting to the condition, the incapable accused is indirectly consenting to treatment, even though a lawful process under provincial law has determined that he or she is unable to consent to treatment.

[53] The Crown and CAMH point out that the Supreme Court has held that the "ordinary meaning of the word 'consent' in the context of medical treatment is understood to be voluntary agreement to a medical course of action made with an appreciation of all material information and risks": R. v. Conception, 2014 SCC 60, [2014] 3 S.C.R. 82, at para. 22.

[54] The respondents also argue that the plain language of the provision runs counter to the appellants' alternative argument that substitute decision-makers should be able to consent on an accused's behalf. In further support of this position, they point out that the enforcement provisions in Part XX.1 of the Criminal Code only apply to accused persons themselves. Thus, they say, it could not be that Parliament intended to have others consent to, or be bound by, such conditions.

[55] The respondents stress that this court should follow its past jurisprudence on this issue. In no fewer than seven brief decisions, this court has stated that a s. 672.55(1) condition is not available to an accused who is incapable of making treatment decisions. They say that the one decision which implicitly held otherwise, an appeal involving the appellant Kalra, should not be followed. They say it was wrongly decided, and decided without reference to the provision and the existing decisions of the court.

[56] To the extent that those past decisions have provided any explanation, they have reasoned that the distinction advanced by the appellants is a distinction without a difference, as the condition to abide by treatment would effectively involve consenting to the treatment that the accused was found to be incapable of consenting to under provincial law: see e.g. R. v. Runnalls, 2009 ONCA 504, 251 O.A.C. 284, at para. 19.

[57] In my view, this is not so. After reviewing the impugned provision in its entire context, I agree with the appellants that this section does not require that an accused, him or herself, have the capacity to consent under the relevant provincial law to the treatment referred to in the condition. Rather, the section presumes that valid consent to treatment has been, or will be, otherwise obtained.

[58] Instead, to consent to the condition, the accused must understand all information relevant to the operation of the condition, and appreciate the reasonably foreseeable consequences of agreeing to the condition. Generally, this would not require the accused to have insight into his or her medical condition, although that could possibly factor into the Board's assessment of whether the condition is reasonable. In the end, the main point of the condition is that the accused commit to cooperate with otherwise approved treatment plans while appreciating the consequences this commitment, and any breach of the commitment, however that may come about, will have on his liberty.

[59] I come to this conclusion for the following reasons:

• The text does not specify a specific threshold for capacity, nor does it use the language 'consent to treatment', but rather 'consent to a condition regarding psychiatric or other treatment';

• This specific language is significant and should be reflected in the interpretation of s. 672.55(1) (or, in other words, we should not rush to incorporate the threshold of capacity for 'consent to treatment' when Parliament has specifically chosen different language);

• Generally, the threshold for capacity to make a decision (including to consent to something) takes its form from the context of the decision at issue;

• Threshold for capacity is generally narrowly tailored to the decision at issue to infringe on individuals' rights to self-determination as little as possible;

• The nature of the condition at issue in this appeal is, essentially, one where the accused commits to cooperate with an otherwise valid treatment plan in exchange for an increase in liberty;

• For the proper operation of this condition, an individual need not understand the same information or appreciate the same reasonably foreseeable consequences required for consenting to the treatment itself;

• Anything that is unnecessary should not form part of the threshold for consenting to the condition;

• Parliament has put in place appropriate safeguards that address concerns relating to this condition;

• The appellants' interpretation supports the purpose of the provision and Part XX.1 of the Criminal Code by maximizing the accused's liberty while appropriately managing risk to public safety;

• The respondents' interpretation would tend to defeat the purpose of the provision and Part XX.1 of the Criminal Code by limiting the accused from accessing a condition that has otherwise been found to be reasonable and necessary, with little or no benefit to the accused or to the public; and

• Each province has the statutory authority to adopt its own legislation regarding consent to treatment. It cannot be that the meaning of s. 672.55(1) will vary among the provinces.

[60] As I agree with the appellants' main submission – that an accused may be able to consent to the condition even if they are unable to consent to the treatment referred to within that condition – I need not consider the alternative argument that a substitute decision-maker could consent to the condition, and will not do so.

[61] Of course, it is not enough that I simply agree with the appellants. That is because, generally, this court does not depart from its past decisions, only doing so when the advantages of correcting a past holding outweigh the disadvantages of doing so: see Laskin J.A.'s discussion of this topic in David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 76 O.R. (3d) 161, at paras. 118-29.

[62] Below, I will first explain my conclusion on the consent issue. Then I will set out why I believe this court should depart from its past decisions on this issue.

(2) The Interpretation of s. 672.55(1)

[63] The modern approach to statutory interpretation is to read legislative texts "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21.

[64] With this approach in mind, I will begin my analysis by reviewing the immediate statutory context. This will involve situating the text at issue within its statutory context, considering the grammatical and ordinary sense of the text, and discussing relevant legal norms. Then, I will examine the greater context, including the legislative scheme, the purpose of the Act in general and the provision at issue in particular.

(3) The Immediate Statutory Context

(a) The Provision's Place Within Part XX.1 of the Criminal Code

[65] Section 672.55(1) is found in Part XX.1 of the Criminal Code, the part of the Criminal Code that deals with mental disorder. The "twin goals" of Part XX.1 are the protection of the public and fair treatment of the accused: Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326, at para. 28.

[66] To achieve these twin goals, Parliament has devised an individualized "assessment-treatment" model: Mazzei, at para. 28. Under that model, the Board must take into account the mental condition of the accused, the reintegration of the accused into society, other needs of the accused, and the safety of the public, which is the paramount consideration: s. 672.54. After doing so, the Board must craft a disposition that is necessary and appropriate, that being the one that is the least onerous and least restrictive disposition available to the accused, considering the entire package of conditions that could be put in place: Osawe (Re), 2015 ONCA 280, 125 O.R. (3d) 428; Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20, [2004] 1 S.C.R. 498.

[67] If the accused does not pose a significant threat to the safety of the public, the Board must discharge him absolutely: s. 672.54(a). But if he or she does pose such a threat, then the Board must either discharge the accused with appropriate conditions (a "conditional discharge") or direct that the accused be detained in custody in a hospital subject to appropriate conditions (a "detention order"): ss. 672.54(b) and (c).

[68] This is where s. 672.55(1) comes into the picture. It speaks to conditions in the treatment context, and reads as follows:

672.55(1) No disposition made under section 672.54 shall direct that any psychiatric or other treatment of the accused be carried out or that the accused submit to such treatment except that the disposition may include a condition regarding psychiatric or other treatment where the accused has consented to the condition and the court or Review Board considers the condition to be reasonable and necessary in the interests of the accused.

[69] The first part of s. 672.55(1) contains a general prohibition against prescribing treatment. While Boards have a general supervisory authority over treatment, they are not permitted to "prescribe or impose medical treatment for an NCR accused": Mazzei, at para. 31.

[70] The second part of s. 672.55(1) is not an exception to that prohibition; it merely represents an example of the Board's supervisory power over treatment: Mazzei, at para. 50. It clarifies that the Board's supervisory powers continue even where treatment plans are at issue: Mazzei, at para. 55. Yet before a Board may include a condition to exercise this supervisory power, s. 672.55(1) requires it to meet three criteria: it must be reasonable, necessary in the interests of the accused, and the accused must have consented to the condition.

(b) The Legislative Text in Dispute

[71] The key text to be interpreted here is found in the second part of s. 672.55(1) concerning the accused's consent:

[T]he disposition [under s. 672.54] may include a condition regarding psychiatric or other treatment where the accused has consented to the condition and the court or Review Board considers the condition to be reasonable and necessary in the interests of the accused. [Emphasis added.]

[72] For the majority of the Board reviewing Mr. Kalra's disposition, this text was plain: to consent to the condition, Mr. Kalra needed to have the capacity to consent to the treatment referred to in the condition.

[73] On my reading of the words of this text alone, however, I cannot agree. Without more context, the required capacity is unclear. I say so for the following reasons.

[74] First, to state the obvious, the text does not actually identify any threshold for capacity. It could have done so, for example, by clearly defining a specific standard or by incorporating provincial standards by reference explicitly. Instead the reader is left to infer the threshold Parliament intended to be applied.

[75] Second, I note that Parliament uses language that the accused must consent to the 'condition [regarding psychiatric or other treatment]', rather than 'consent to treatment'. The Supreme Court has said that this "precise wording selected by Parliament is significant and relevant, and the interpretation of s. 672.55(1) should reflect that specific legislative distinction": Mazzei, at para. 52.

[76] As the Supreme Court further explained in Conception, where Parliament intends to differentiate between consent to treatment and other forms of consent in Part XX.1, it does so explicitly. Arguably, it has done so here. Had Parliament's intention been to require that the accused him or herself consent to treatment, language similar to that in s. 672.62(2), which links consent directly to treatment, rather than indirectly, could have made that intent clearer: Conception, at para. 23.

[77] Third, it follows that I do not necessarily consider the Supreme Court's statement in Conception on the ordinary meaning of 'consent' in the context of medical treatment to be determinative of this issue. The real issue, as I will explain, is not the general requirements for capacity to make a decision; it is the nature of the decision itself.

(c) The Nature of the s. 672.55(1) Condition

[78] To me, the nature of the s. 672.55(1) condition suggests that an accused would not require the same level of capacity to consent to the condition as they would to consent to the treatment plan referred to by the condition. I base this on my reading of Mazzei, which also suggests that consenting to the condition is not effectively the same as consenting to the treatment. I would therefore reject the proposition that the appellants' suggested interpretation relies on a 'distinction without a difference.' Before returning to Mazzei, I would first like to elaborate on the context-driven nature of capacity and consent.

(i) Capacity and Consent

[79] The law has long recognized that a person's capacity to make important life decisions is not an all-or-nothing proposition; rather, there are varying degrees of capacity required that derive from the nature of the decision being made.

[80] As my colleague has explained, simpler acts require lower levels of understanding, while more complicated ones require greater understanding: Calvert (Litigation Guardian of) v. Calvert (1997), 32 O.R. (3d) 281 (Gen. Div.) (per Benotto J., as she then was) aff'd by, 37 O.R. (3d) 221 (C.A.). This is true both across and within categories of decision making. For example, a person may be capable of managing personal care, but not his or her finances. Or, a person may have the capacity to make a will for a simple estate, but not for a more complicated one.

[81] Generally, Ontario law provides that a person has the capacity to make a decision if they are able to understand the information that is relevant to making that decision and able to appreciate the reasonably foreseeable consequences of that decision or lack of decision: see e.g. Substitute Decisions Act, 1992, S.O. 1992, c. 30, ss. 6 (property decisions) and 45 (personal care decisions); Health Care Consent Act, s. 4(1) (medical treatment); Conception, at para. 22 (medical treatment).

[82] This capacity is presumed. Generally, that presumed capacity is only removed with precision; no more is taken away for any longer period than what is called for by the context: see e.g. Health Care Consent Act, ss. 4(2), 15.

[83] This reflects that "[a] person's right of self-determination is an important philosophical and legal principle": Calvert, at para. 52. Because of the importance of personal autonomy in our society, courts are slow to take away a person's right to decide: Calvert, at para. 57.

[84] Calvert illustrates another relevant aspect of capacity and consent: a person may have the capacity to make decisions regarding certain aspects of a plan, but not all. In Calvert, the petitioner had the capacity to separate and the capacity to divorce, but not the capacity to instruct counsel in connection with the divorce. With the accommodation of a litigation guardian though, she was ultimately able to accomplish her goal.

[85] In my view, by leaving the standard for capacity to consent to the condition unstated in s. 672.55(1), Parliament intended for this general standard to apply, meaning that capacity would be assessed according to the nature of the specific condition regarding treatment.

(ii) Mazzei on the Condition Regarding Treatment

[86] In these appeals, the type of condition regarding treatment under consideration is one that is typically included in dispositions as "take treatment as prescribed."

[87] This specific condition was considered in Mazzei, although the requisite capacity to consent was not addressed. In answering a hypothetical question about s. 672.55(1), the Supreme Court explained that this condition "arguably refers to a 'commitment' by the accused himself to continue a certain course of treatment, while in the community, which was undertaken or recommended while still under hospital detention" (emphasis in original): Mazzei, at para. 53.

[88] The Supreme Court described the condition as one "to be fulfilled in order to achieve an increase in liberty (by moving from hospital detention to conditional discharge in the community, for example)": Mazzei, at para. 53. It cautioned, however, that this condition "is not equivalent in nature or in scope to prescribing or ordering that medical treatment be provided by health professionals": Mazzei, at para. 53.

[89] The Supreme Court stated that a Board could validly order an accused to continue taking his medication (if the accused consented to the condition, and if the condition is reasonable and necessary), but "it is implicit that such medication would already have been recommended, approved and/or implemented by the Director during the accused's hospital detention": Mazzei, at para. 55.

[90] In my view, this description of the condition regarding treatment is at odds with the proposition that consenting to it effectively requires the accused to consent to the treatment referred to in the condition.

[91] First, Mazzei generally presumes that consent to the treatment would have already been provided.

[92] Second, Mazzei stresses that such conditions do not equate to prescribing or imposing treatment. As Mazzei makes clear, consent to treatment would still be obtained through the respective provincial scheme involving the accused and the relevant hospital authorities. The s. 672.55(1) condition does not serve as a valid alternative to that voluntary, informed, ongoing consent. Combined with the point above, it seems apparent that consenting to commit to a course of treatment is not effectively the same as consenting to that actual treatment.

[93] Third, the condition is instead described as a tool to manage the accused's risk to public safety in exchange for an increase in liberty. Essentially, as set out in Mazzei, the accused commits to cooperate with an otherwise valid treatment plan to gain greater freedom. Through the resulting condition (provided it is found to be reasonable and necessary), the Board then has access to the enforcement provisions in the Criminal Code, allowing for the arrest and return of the accused to hospital custody, should that commitment be breached.

[94] In this scenario, the medical implications are relatively minimal compared to the liberty implications. The condition aims to maintain the medical status quo while increasing the accused's liberty, so long as it is reasonable to do so. Consent to the underlying treatment still flows through the provincial scheme; the Board's condition cannot serve as substitute consent to treatment, such that consent to treatment is directly affected by it. And risk to public safety is managed not through the accused's concern for his medical condition, but rather primarily through the accused's interest in greater liberty, and, if necessary, through arrest powers and detention.

(d) Evaluation of Immediate Statutory Context

[95] The capacity required to consent to a s. 672.55(1) condition differs from that required to consent to the treatment referred to by that condition.

[96] It follows that a person who lacks capacity to consent to that treatment does not necessarily lack the capacity to consent to the s. 672.55(1) condition.

[97] To consent to a s. 672.55(1) condition, an accused need only understand information and appreciate consequences that are necessary.

[98] That would seem to include all information relevant to understanding the operation of the condition and the reasonably foreseeable consequences.

[99] In my view, that would generally not require a person to appreciate all of their medical circumstances, though such a lack of understanding or appreciation, as I will explain next, could factor into whether a s. 672.55(1) condition is reasonable.

(4) The Greater Context

(a) The Legislative Scheme

[100] The respondents argue that this interpretation is undermined by the legislative scheme, and the resulting enforcement problems that Parliament could not have intended. I disagree. To the contrary, I am satisfied that Parliament has crafted a careful scheme that is responsive to the circumstances at issue.

[101] In this regard, I would highlight that Parliament has put the following mechanisms in place: a requirement that any s. 672.55(1) condition be reasonable; broad supervisory powers to include appropriate conditions; and enforcement mechanisms for when the s. 672.55(1) condition, or any other condition, is contravened.

[102] Through the 'reasonableness' requirement, the Board has great flexibility to consider factors that are relevant to the potential effectiveness of the condition, or that may otherwise render such a condition unreasonable. In appropriate circumstances, this might also include consideration of the accused's capacity to consent to treatment. It might also include exploring the willingness and reliability of the accused's substitute decision-maker. In the end, the 'reasonableness' requirement provides the Board with the basis to reject any condition that in all the circumstances would be unreasonable.

[103] In addition, with its broad supervisory powers, the Board may draw from a package of conditions to craft a disposition that appropriately manages concerns posed by a s. 672.55(1) condition. In some circumstances, this may render otherwise unreasonable risks reasonable. For example, a Board might include reporting conditions related to the treatment plan at issue to highlight threats to the Board's risk management strategy, such as the withdrawal of consent. If such a condition were breached, it could then allow the Board to engage the enforcement provisions of Part XX.1 earlier, and before any dangerous decompensation has occurred.

[104] Finally, the enforcement mechanisms found in ss. 672.9 to 672.94 of Part XX.1 provide recourse should the accused contravene the s. 672.55(1) condition, any conditions related to that condition, or any other condition included in the disposition.

[105] Section 672.91 provides that a peace officer may arrest an accused if the peace officer has reasonable grounds to believe that the accused has contravened a condition of a disposition, or is about to do so. For accused persons under a conditional discharge, the peace officer may then deliver them to a place specified by the Board in its disposition. Ultimately, the Board is able to review the disposition containing the s. 672.55(1) condition: s. 672.94.

[106] Thus, the scheme is cogent and clear. The Board, through the enforcement mechanisms and its broad supervisory power to impose conditions, is provided with the necessary tools to manage risks associated with the condition. When those tools are inadequate to manage that risk, the condition is unreasonable, and thus cannot be included.

(b) The Object of Part XX.1 and the Purpose of the Provision

[107] The object of Part XX.1 and the purpose of the provision further support the interpretation that the accused him or herself need not have capacity to consent to the treatment referred to in the condition.

[108] Part XX.1 aims to maximize the liberty of the accused while protecting public safety. The review board regime set out in Part XX.1 "is intended to reconcile the 'twin goals' of protecting the public from dangerous offenders, and treating NCR patients fairly and appropriately": R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, at para. 88. Public safety is the paramount concern, but "an NCR patient's liberty interest has been held to be the Board's 'major preoccupation' within the fence posts staked by public safety": Conway, at para. 88. In other words, "the Board fulfills its 'primary purpose' … by protecting the public while minimizing incursions on patients' liberty and treating patients fairly": Conway, at para. 88.

[109] Section 672.55(1) is harmonious with these goals. As explained in Mazzei, Boards may resort to "conditions 'regarding' treatment only rarely and in specific situations, where for example the Board is contemplating a significant decrease in the restraints on an accused's liberty which is effectively conditional upon him or her committing to continue a particular course of treatment": Mazzei, at para. 55. "The purpose of requiring such a commitment", the Supreme Court stated, "is to ensure that the accused's threat to public safety is appropriately managed while in the community, given that he is no longer under the hospital's supervision": Mazzei, at para. 55.

[110] In my view, these purposes are promoted by an interpretation that allows accused persons incapable of consenting to treatment to access this condition under s. 672.55(1). That is because it allows for the accused's liberty to be maximized within the fence posts staked by public security. On the other hand, the opposing interpretation would diminish liberty unnecessarily. It would deny the incapable accused access to a condition which could increase his liberty, even when that condition was reasonable and necessary, when risk to public safety was appropriately managed, and when consent to the treatment at issue was already in place. Such a consequence is unjustifiable, and clearly conflicts with the object of the Act. I would reject the interpretation that leads to that consequence.

(5) Conclusion

[111] To consent to a s. 672.55(1) condition, an accused person need not have the capacity to consent to the medical treatment referred to in the condition. Rather, the capacity required to consent to a s. 672.55(1) condition is the ability to understand all information relevant to the operation of the condition and to appreciate all reasonably foreseeable consequences of agreeing to the condition.

(6) Whether This Court Should Overrule Its Past Decisions

[112] Having come to this conclusion on the consent required by s. 672.55(1), I must now weigh the advantages and disadvantages of correcting the law and departing from this court's past decisions on the issue: Polowin, at para. 127. Those past decisions include Coles; Runnalls; Duquette (Re), 2013 ONCA 489; Lamb; Coburn (Re), 2016 ONCA 536; Kalra (Re), 2016 ONCA 390 ("Kalra 2016"); and Vethanantham (Re), 2017 ONCA 951.

[113] The advantages generally associated with maintaining such past rulings include consistency, certainty, predictability, sound judicial administration, and enhancing the appearance of justice: Polowin, at paras. 119-20.

[114] Here, however, this court's decision in Kalra 2014 has led to uncertainty. That decision implicitly (and correctly) held that a s. 672.55(1) condition was available to an accused who was incapable of consenting to the treatment that was referred to by the condition. This uncertainty was reflected in this court's decision in Kalra 2016, when it held that it could not decide the issue (while strongly hinting that it agreed with this court's other decisions). And it was again reflected in the split decision of the Board in Mr. Kalra's underlying Board disposition.

[115] This uncertainty, inconsistency, and resulting lack of predictably diminish the advantages associated with following precedent.

[116] In my view, overruling those past decisions would promote the interests of justice by removing conflicts and uncertainties in the law.

[117] Accordingly, I would do so.

D. Disposition

[118] I would allow the appeals and refer these matters back to the Board for re-hearing in accordance with the directions of this court.

Released: January 26, 2018

"M. Tulloch J.A."

"I agree. David Watt J.A."

"I agree. G. Pardu J.A."

"I agree. M.L. Benotto J.A."

"I agree. L.B. Roberts J.A."

Footnotes

[1] The provision at issue applies to the dispositions made by both courts and Review Boards under s. 672.54. For convenience, the judgment refers to just the Board throughout, though this is meant to refer to both.

[2] The French version of s. 672.55(1) is as follows:

672.55 (1) La décision visée à l'article 672.54 ne peut prescrire de traitement, notamment un traitement psychiatrique, pour l'accusé ou ordonner que celui-ci s'y soumette; elle peut toutefois comporter une condition relative à un traitement que le tribunal ou la commission d'examen estime raisonnable et nécessaire aux intérêts de l'accusé et à laquelle celui-ci consent.