Court of Appeal for Ontario

Date: October 18, 2018 Docket: C65288

Judges: Hoy A.C.J.O., Watt J.A., and Then J. (ad hoc)

In the Matter of: Gaurav Kalra

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• Jeff Marshman, for the appellant Gaurav Kalra
• Dena Bonnet, for the respondent Crown
• Barbara Walker-Renshaw, for the respondent Person in Charge of the Royal Ottawa Mental Health Centre

Heard: September 14, 2018

On appeal from the disposition of the Ontario Review Board, dated April 3, 2018, with reasons reported at Kalra (Re), [2018] O.R.B.D. No. 877.

Decision

Hoy A.C.J.O.:

Overview

[1] Gaurav Kalra appeals the Ontario Review Board's disposition dated April 3, 2018, continuing his conditional discharge. He argues that the Board's finding that he continues to pose a significant threat to the safety of the public is unreasonable. He seeks an order allowing this appeal, setting aside the decision of the Board, quashing the conditional discharge, and substituting an absolute discharge in its place.

[2] For the following reasons, I would allow the appeal and grant the relief sought.

The Index Offences

[3] On June 2, 2010, Mr. Kalra was found not criminally responsible on account of mental disorder ("NCR") with respect to one count of criminal harassment; one count of mischief under $5000; one count of transportation fraud; and one count of failing to comply with recognizance.

[4] At the time of the index offences, Mr. Kalra was 24 years old and living with his parents in Ottawa. He had withdrawn socially, had lost interest in his studies, and was unable to maintain employment. He often went missing from home.

[5] On February 27, 2009, Mr. Kalra arrived uninvited at the Guelph home of the complainant, a former high school classmate. He was described as disoriented. Police attended at the complainant's home and brought Mr. Kalra to a mental health facility for the evening.

[6] On March 13, 2009, Mr. Kalra's mother phoned police to report him missing. The police apprehended Mr. Kalra at a bus station in Guelph. Mr. Kalra told the police that he intended to visit the complainant. After speaking to the complainant's mother, the police learned of the February 27, 2009 incident and cautioned Mr. Kalra on the offences of trespassing and criminal harassment. He was told not to have any further contact with the complainant.

[7] Mr. Kalra again attempted to contact the complainant, both in person and by telephone, on three other occasions in March 2009. Police described the complainant and her family as "becoming upset" by Mr. Kalra's behavior. He was arrested and charged with criminal harassment on March 23, 2009, and released on bail with the condition that he reside with his father in Ottawa and have no contact with the complainant. Despite those terms, Mr. Kalra went missing on several occasions, sometimes taking his father's vehicle.

[8] On November 9, 2009, Mr. Kalra drove his father's vehicle to the complainant's house. When he arrived, he collided with the garage door, causing approximately $2000 worth of damage. He left a note for the complainant before fleeing on foot.

[9] On November 10, 2009, Mr. Kalra returned to the complainant's house by taxi. He did not pay the driver. Mr. Kalra was met at the door of the complainant's house by her father. He left another note for the complainant, before being arrested by police without incident.

[10] These further incidents gave rise to the charges of mischief under $5000, breach of recognizance, and transportation fraud.

[11] Mr. Kalra's communications with the complainant were largely incoherent. While the notes Mr. Kalra left for the complainant suggested a level of emotional intimacy that did not exist in reality, they did not contain any discernible threats of violence or expressions of sexual interest.

[12] Mr. Kalra later explained that, prior to the index offences, he felt as though people were following him. He wanted to contact a popular "big guy" from high school, who he believed would help him feel safe. Mr. Kalra was unable to locate this individual and thought that the complainant, who Mr. Kalra believed knew the "big guy", would be able to help him find the individual. Mr. Kalra denied any romantic interest in the complainant.

Supervision by the Board

[13] As a consequence of the NCR verdict, Mr. Kalra has been subject to the Board's jurisdiction since September 1, 2010. His current diagnosis is schizophrenia.

[14] In July 2011, Mr. Kalra was found incapable of consenting to treatment under the Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A. His father acted as his substitute decision-maker. Mr. Kalra's condition was treated and improved.

[15] Mr. Kalra has consistently sought less restrictive dispositions during the time he has been subject to the Board's jurisdiction. Under the Board's initial dispositions, Mr. Kalra was detained in secure forensic custody. This continued until March 2014, when this court allowed his appeal of the detention order imposed by the Board and substituted a conditional discharge: Kalra (Re), 2014 ONCA 233, [2014] O.J. No. 1425. Since that time, Mr. Kalra has resided with his parents in Ottawa.

[16] In March 2018, Mr. Kalra successfully challenged the 2011 finding that he was incapable of consenting to treatment. The Consent and Capacity Board ("CCB") determined that Mr. Kalra was capable of appreciating the reasonably foreseeable consequences of his decision to accept or reject treatment. In particular, the CCB found that Mr. Kalra was capable of consenting to the anti-psychotic medication prescribed to treat his schizophrenia. The CCB reached this conclusion notwithstanding the testimony of Dr. Jonathan Gray, Mr. Kalra's attending psychiatrist, who maintained before the CCB that Mr. Kalra's stated insight into his illness and understanding that he needed to continue taking his medication was strategically motivated to obtain an absolute discharge from the Board.

The Disposition under Appeal

[17] The Board most recently convened on March 26, 2018, following the CCB's finding that Mr. Kalra was capable of consenting to treatment, to review Mr. Kalra's disposition.

The Parties' Positions before the Board

[18] At the hearing, both the Crown and the Person in Charge of the Royal Ottawa Mental Health Centre (the "Hospital") took the position that Mr. Kalra remained a significant threat to public safety and should be conditionally discharged. The Crown and the Hospital requested that the conditional discharge include a consent to treatment condition, pursuant to s. 672.55(1) of the Criminal Code, R.S.C. 1985, c. C-46, and that Mr. Kalra be required to live within 150 kilometers of the Hospital.

[19] Mr. Kalra and his counsel argued that he was not a significant threat to the public and therefore he should receive an absolute discharge. In the alternative, Mr. Kalra asked for a conditional discharge, without a consent to treatment condition. Mr. Kalra affirmed his commitment to continue seeing Dr. Gray and continue receiving medical treatment for schizophrenia, even if absolutely discharged.

The Board's Reasons for Disposition, dated April 16, 2018

[20] In its Reasons for Disposition dated April 16, 2018, the Board explained that it had concluded Mr. Kalra continued to pose a significant threat to public safety. As a consequence, it imposed a conditional discharge, which included a requirement that Mr. Kalra reside within 150 kilometers of the Hospital and report to the Person in Charge each month. However, the Board did not impose the consent to treatment condition requested by the Crown and the Hospital.

[21] In reaching this decision, the Board accepted Dr. Gray's evidence that it is essential for Mr. Kalra to remain on anti-psychotic medication to avoid the re-emergence of the psychotic symptoms present at the time of the index offences.

[22] Dr. Gray reported that, beginning in July 2017, Mr. Kalra told him that if he received an absolute discharge he would continue to take his medication and continue to see Dr. Gray. These assurances coincided with statements by Mr. Kalra suggesting improved insight into the nature of his illness and its role in the index offences. Historically, Mr. Kalra has demonstrated little insight into his illness and has been guarded in discussing the index offences.

[23] In Dr. Gray's opinion, Mr. Kalra's statements were not credible and were strategically motivated to obtain an absolute discharge. Dr. Gray opined that if Mr. Kalra were granted an absolute discharge, he would eventually discontinue treatment.

[24] The Board acknowledged that Dr. Gray might be mistaken in his belief that Mr. Kalra's statements were fabricated with the goal of obtaining an absolute discharge, but indicated that considerable deference should be given to Dr. Gray's opinion.

[25] The Board indicated that, having had an opportunity to hear Mr. Kalra testify, it was unconvinced from his answers and demeanour that he accepted that his behaviour at the time of the index offences, or more recently when his medication had been changed, was attributable to schizophrenia.

[26] The Board noted that although Mr. Kalra had been compliant in taking his medication and attending appointments while living in the community, he opposed the imposition of a treatment condition in his disposition. After acknowledging that this was a fair position for Mr. Kalra to take in light of his history of complying with his treatment plan, the Board continued:

Nonetheless, it is curious that despite his now verbal assurances that he needs medications to control his illness, this does not seem to translate to a commitment to this in his Disposition. His position not to consent to s. 672.55(1), taken alone, would not be particularly highlighted were it not also viewed in the context of other factors such as his unwillingness to have his family meet with Dr. Gray; his view that visits by his social worker are intrusive; his reluctance to meet Dr. Gray at the hospital if absolutely discharged; the contrast of his previous years (and some months in the past year) of denial that he suffered from schizophrenia or needed medication; requests for a "drug holiday"; his continuing reluctance to concede that his behaviour during the index offences, and more recently when medication was changed, was due to symptoms of his mental illness.

All of these factors, even without taking Dr. Gray's opinion about Mr. Kalra's motives, support that Mr. Kalra's insight is not consistent with recognizing the need for treatment and support while suffering from a life-long illness of Schizophrenia.

[27] The Board found that these factors supported the conclusion that Mr. Kalra lacked insight into the nature of his illness and the need for him to continue treatment.

[28] The Board further accepted the evidence of Dr. Gray that if Mr. Kalra stopped taking his medication he would experience similar symptoms to those present during the time of the index offences, and concluded that Mr. Kalra remained a significant threat to the safety of the public. The Board found the main risk factors were Mr. Kalra's lack of insight into his illness, his need for medication, and the role that his illness played in his behaviour during the index offences.

[29] In the Board's view, Mr. Kalra would not likely recognize his symptoms of relapse. The Board did not accept that the insight that Mr. Kalra purported to now have was "firmly or at all entrenched in his consciousness" and that his stated intention to continue with medication and follow-up treatment on an absolute discharge could be relied upon.

[30] The Board concluded:

Given Mr. Kalra's years of history of poor or no insight into his illness or need for medication or effects of his behaviour when ill, and without his treating doctor's support that this insight has truly and actually improved, the Board finds that it cannot consider an absolute discharge from Mr. Kalra at this time. The Board finds he remains a significant threat to the safety of the public.

[31] The Board declined to impose the condition the Crown and the Hospital had sought requiring Mr. Kalra to consent to treatment because Mr. Kalra has been agreeable to accepting medication and regularly met his reporting requirements.

The Legal Framework

[32] Section 672.54(a) of the Criminal Code directs that where an NCR accused is "not a significant threat to the safety of the public" he or she must be discharged absolutely.

[33] In Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, the Supreme Court of Canada affirmed that the jurisdiction of the criminal law over NCR accuseds extends only to those who present a significant threat to public safety: para. 33. An NCR accused is not presumed to be dangerous and bears no burden of proof in proceedings before the Board: paras. 46, 62. If the Board cannot positively conclude, based on all the evidence, that the NCR accused poses a significant threat to the safety of the public, it must grant an absolute discharge: paras. 47-49, 54, 57.

[34] Section 672.5401 of the Criminal Code defines a "significant threat to the safety of the public" to mean "a risk of serious physical or psychological harm to members of the public – including any victim of or witness to the offence, or any person under the age of 18 years – resulting from conduct that is criminal in nature but not necessarily violent."

[35] Further guidance is provided by Winko, where the Supreme Court described, at para. 57, what amounts to a "significant threat to the safety of the public" in the following terms:

[T]he threat must be more than speculative in nature; it must be supported by evidence. The threat must also be "significant", both in the sense that there must be a real risk of physical or psychological harm occurring to individuals in the community and in the sense that the potential harm must be serious. A miniscule risk of a grave harm will not suffice. Similarly, a high risk of trivial harm will not meet the threshold. Finally, the conduct or activity creating the harm must be criminal in nature. In short, Part XX.1 can only maintain its authority over an NCR accused where… the individual poses a significant risk of committing a serious criminal offence. [Citations omitted.]

[36] While the contemplated conduct must be criminal, not all criminal conduct will meet this standard; there must be a risk that the NCR accused will commit a serious criminal offence: Winko, at paras. 57, 69.

[37] In summary, and as stated by this court in Carrick (Re), 2015 ONCA 866, [2015] O.J. No. 6524, at para. 17:

[T]he "significant threat" standard is an onerous one. An NCR accused is not to be detained on the basis of mere speculation. The Board must be satisfied as to both the existence and gravity of the risk of physical or psychological harm posed by the appellant in order to deny him an absolute discharge.

See also Wall (Re), 2017 ONCA 713, 417 D.L.R. (4th) 124, at para. 26.

[38] This court may set aside an order of the Board only where it is of the opinion that: (a) the decision is unreasonable or cannot be supported by the evidence; (b) the decision is based on a wrong decision on a question of law (unless no substantial wrong or miscarriage of justice has occurred); or (c) there was a miscarriage of justice: Criminal Code, s. 672.78(1); R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 31.

[39] The issue on this appeal is the reasonableness of the Board's conclusion that Mr. Kalra continued to represent a significant threat to public safety and, by extension, the reasonableness of the Board's Disposition. In resolving this issue, this court "should ask itself whether the Board's risk assessment and disposition order was unreasonable in the sense of not being supported by reasons that can bear even a somewhat probing examination. If the Board's decision is such that it could reasonably be the subject of disagreement among Board members properly informed of the facts and instructed on the applicable law, the court should decline to intervene" (citations omitted): Owen, at para. 33. It is necessary to examine the Disposition, and the Board's articulated reasons for the Disposition, to determine whether the Board's decision is acceptable and defensible, having regard to the need to protect the liberty of the NCR accused as much as possible, while protecting society: Wall, at para. 22.

Analysis

[40] I agree with Mr. Kalra that the Board's finding that he represents a significant threat to public safety is unreasonable.

[41] The Board's Disposition turned on its concern that Mr. Kalra lacked insight into his illness, the role that his illness played in his behaviour during the index offences, and his need for medication. The Board relied on the evidence of Dr. Gray – namely, that Mr. Kalra would stop taking his medication if absolutely discharged, decompensate and engage in behaviour similar to that giving rise to the index offences – in finding that Mr. Kalra remained a significant threat to the safety of the public.

[42] As I will explain, however, Dr. Gray's evidence that Mr. Kalra would engage in behaviour akin to the index offence was speculative. Further, the Board failed to balance the seriousness of the potential harm and the risk of that harm materializing. This resulted in a decision that is unreasonable.

The Likelihood of Mr. Kalra Reoffending

[43] The evidence before the Board was that the symptoms of Mr. Kalra's illness are well-controlled by medication. When properly medicated, Mr. Kalra does not pose any threat – let alone a significant threat – to public safety. At the hearing of this appeal, counsel for the Crown agreed that Mr. Kalra poses no threat to public safety when taking his medication. It is also not in dispute that Mr. Kalra must stay on his medication in order to control his illness.

[44] As a result, the likelihood of Mr. Kalra posing a threat to public safety or reoffending was a function of the risk that he would stop taking his medication, decompensate, experience similar symptoms to those present at the time of the index offences, and engage in criminal conduct similar to the index offences. The Board indicated that Dr. Gray's evidence was that if Mr. Kalra stopped taking his medication, the same consequences could be expected as at the index offence. Dr. Gray's testimony on this issue was the following:

[Counsel for the Crown]: And when you mean something bad would happen, do you feel that he would revert back to behaviour like when he initially became unwell and he had the index offence here?

Dr. Gray: Yes. So when he becomes ill he has persecutory beliefs and he tries to find some kind of relief; the last one was a very idiosyncratic way of contacting someone from his high school. And according to what he says, is that when he contacted [the complainant] who knew the person that he wanted to contact, but in any case, the person he contacts – or the way that he'll try to get help to see relief of these paranoid thoughts; whoever he contacts will see this as being bizarre; because it will be someone that they barely know contacting them very impulsively and very fourthly and in an aggressive way; and they'll have some psychological sequelae from that because it is frightening to have that happen to them. I think that's how it will eventually transpire.

[45] This was the strongest evidence before the Board regarding Mr. Kalra's likelihood of reoffending.

[46] While the Board was entitled to weigh Dr. Gray's opinion in determining whether Mr. Kalra continued to pose a significant risk to public safety, the Board was obligated to consider Dr. Gray's opinion in light of the totality of evidence before it.

[47] Other than the index offences, Mr. Kalra has had no contact with the criminal justice system. The fact that Mr. Kalra committed the index offences while suffering from mental illness is not by itself evidence that he continues to pose a significant risk to the safety of the public, particularly given that Mr. Kalra has successfully followed his treatment plan to date: Winko, at paras. 60, 62. Both prior to and in the eight years since the index offences, when he has been subject to the supervision of the Board, Mr. Kalra has not engaged in any violent, verbal, physically aggressive, or otherwise criminal behaviour. This includes the time Mr. Kalra spent in secure forensic custody and the four years he has lived in the community. In short, there is no evidence of a pattern of behaviour that indicates Mr. Kalra is likely to reoffend.

[48] Even if one accepts that Mr. Kalra would discontinue his medication if absolutely discharged, Dr. Gray's remaining evidence as to the likelihood of Mr. Kalra reoffending amounted to nothing more than speculation that Mr. Kalra might engage in criminal conduct akin to the index offence: see Pellett (Re), 2017 ONCA 753, 418 D.L.R. (4th) 433.

The Gravity of the Potential Harm

[49] The appellant concedes, and I accept, that the index offences were serious criminal offences. However, the potential harm contemplated by the Board in determining that Mr. Kalra continued to pose a significant threat to public safety falls towards the least serious end of the spectrum of serious criminal offences.

[50] Dr. Gray identified – and the Board appears to have accepted – the potential risk to public safety as being that Mr. Kalra would engage in criminal conduct akin to the index offences, which would cause others psychological distress. While I do not diminish Mr. Kalra's behaviour and its effect on the complainant, the index offences did not involve any real or threatened violence, or expressions of sexual interest, towards other persons. In my view, Dr. Gray's evidence that others would find Mr. Kalra's behaviour "frightening", resulting in "psychological sequelae", places the contemplated psychological harm towards the lower end of the spectrum.

[51] In its Reasons for Disposition, the Board did not explicitly weigh the seriousness of the potential harm against the risk of that harm materializing. This balancing exercise is the core analysis required by Winko and its progeny. Even if Dr. Gray's evidence of the likelihood of Mr. Kalra reoffending were accepted as more than a speculative possibility of risk, when balanced against contemplated harm falling towards the least serious end of the spectrum, this is not sufficient to conclude that Mr. Kalra presents a significant threat to the safety of the public.

The Role of Insight

[52] As I have said, the Board's Disposition was rooted in its concern that Mr. Kalra lacked insight into his illness and therefore would not continue to take his medication if he received an absolute discharge. It bears stating that lack of insight is not of itself a basis to deny an absolute discharge. As the Supreme Court instructs, the mentally ill are not inherently dangerous: Winko, at para. 35. Whether an NCR accused has insight into his or her mental illness, and the extent of that insight, is only part of the analysis in determining if there is a significant threat to the safety of the public. While insight is a treatment goal, it is one some persons living with mental illness may be unable to fully achieve. In some instances, particularly where the contemplated harm falls at the lower end of the spectrum, it may be unreasonable to require, as the Board did here, that an NCR accused's insight into his or her illness be "entrenched on his consciousness" in order to obtain an absolute discharge.

[53] It is undisputed that Mr. Kalra has recently demonstrated greater insight into his illness than in prior years. I leave open whether the level of insight that the Board required was reasonable in these circumstances. However, the only reasonable conclusion on the evidence before the Board is that Mr. Kalra does not pose a significant threat to public safety. For that reason, the Board was obliged to grant Mr. Kalra an absolute discharge.

Disposition

[54] I would allow the appeal, set aside the decision of the Board, quash the conditional discharge, and substitute an absolute discharge in its place.

Released: October 18, 2018

"Alexandra Hoy A.C.J.O."

"I agree. David Watt J.A."

"I agree. Edward Then J. (ad hoc)"

Footnotes

[1] In October 2016, Dr. Gray changed Mr. Kalra's anti-psychotic medication. This resulted in Mr. Kalra experiencing breakthrough symptoms of schizophrenia. Mr. Kalra resisted Dr. Gray's attempts to get him to switch back to his original medication (an injectable anti-psychotic). Mr. Kalra stated his preference was to take an oral anti-psychotic that he had previously been prescribed. Dr. Gray rejected that suggestion, on the basis that it would be difficult to monitor Mr. Kalra's compliance with an oral anti-psychotic. Mr. Kalra's father provided substitute consent to switching back to the former medication and, following the return to his former medication, Mr. Kalra's presentation improved noticeably. When asked about this decompensation at the Board hearing, Mr. Kalra acknowledged that his symptoms at the time could be attributable to schizophrenia, but that he believed his symptoms were the result of the medication change.

[2] As noted above, in October 2016 Mr. Kalra began to experience break-through symptoms of schizophrenia as the result of a medication change. Despite his decompensation, Mr. Kalra did not engage in any aggressive or criminal conduct.