Court of Appeal for Ontario

Date: 2019-03-25 Docket: C65948 Judges: Roberts, Trotter and Paciocco JJ.A.

In the Matter of: Wesley Shortt

An Appeal Under Part XX.1 of the Code

Counsel:

• Jeff Marshman, for the appellant
• Bradley Juriansz, for the respondent, Her Majesty the Queen
• No one appearing for the respondent, St. Joseph's Healthcare Hamilton

Heard: March 18, 2019

On appeal from: The disposition of the Ontario Review Board, dated July 16, 2018.

Reasons for Decision

[1] Wesley Shortt appeals from the Ontario Review Board's most recent disposition that continues his detention in the general forensic unit of St. Joseph's Healthcare in Hamilton. While he seeks a conditional discharge, the main focus of this appeal is whether to require the Board, at a new hearing, to: use their inquisitorial powers for the purpose of investigating alternative residential arrangements for the appellant in the community; and direct the hospital to begin implementing a suitable arrangement.

[2] Since being found not criminally responsible on March 7, 2007, Mr. Shortt has resided in a forensic hospital setting. He has myriad physical, intellectual, and psychiatric challenges that have brought him in and out of hospital throughout his life and that require constant care. He is 38 years old. His primary psychiatric diagnosis is schizophrenia, which is mostly abated by medication, although he has not historically been medication compliant. There is no dispute that when he does not take his medication, he decompensates quickly and becomes a significant risk to public safety. There is also no dispute that Mr. Shortt cannot live independently and requires considerable assistance to carry out daily living tasks.

[3] Notwithstanding his many challenges, Mr. Shortt has made progress over the years. Since 2014, the hospital has taken the position that he could live in the community so long as the appropriate assists are in place to support him. While the hospital has attempted to find suitable community living arrangements, none of their plans has come to fruition because of exigencies out of the hospital's control: a lack of public funding; long waiting lists; or inadequate attendant care to respond to Mr. Shortt's admittedly complex physical and psychiatric requirements. As a result, Mr. Shortt is now at an impasse. Moreover, the long wait for transition into appropriate alternative residential arrangements has created understandable frustration for Mr. Shortt. This has led to a deterioration in his progress, including angry outbursts, damage to property, and elopements on his part.

[4] In our view, a conditional discharge is not available on this record. It was conceded and the evidence amply supports that Mr. Shortt still represents a significant risk to public safety. A conditional discharge is not available because of the need to return Mr. Shortt to hospital quickly if he decompensates and to ensure that Mr. Shortt resides in an appropriate residence suitable to his many needs. Under a conditional discharge, Mr. Shortt would choose his own living space in the community, while under a detention order, the hospital person in charge approves where he lives: R. v. Stanley, at para. 6. That said, while a conditional discharge is not feasible, there is no issue that Mr. Shortt's detention on a general forensic unit is unnecessary to protect public safety so long as he is placed in an appropriately supported community residence.

[5] The main issue to be determined on this appeal is, whether in the light of the residential impasse, the Board was required to do more than it did in order to meet its inquisitorial duties to apply and interpret s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46, and determine whether the appellant poses a significant threat to public safety. We conclude that the Board was required to do more and that it erred in failing to properly exercise its inquisitorial duties in this case.

[6] It is well-established that the proceeding before the Board is not adversarial: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 62. As the Supreme Court noted in Winko, at para. 61, the inquisitorial duties of the Board "are necessarily broad" and, as noted at para. 55, require it to "gather and review all available evidence pertaining to the four factors set out in s. 672.54 [of the Criminal Code]: public protection; the mental condition of the accused; the reintegration of the accused into society; and the other needs of the accused". Most important, the Board's proper discharge of its inquisitorial duties may oblige it to make further inquiries beyond the evidence presented by the parties, especially if the parties do not present sufficient information to allow the Board to make its decision: Winko, at para. 62.

[7] In keeping with its broad inquisitorial duties, the Board's powers to gather evidence are similarly extensive. For example, it can cause records and witnesses to be subpoenaed, including experts to study the case and provide the required information. The breadth of its examination was described by the Court in Winko, at para. 61:

[The Board's inquiries] will closely examine a range of evidence, including not limited to the circumstances of the original offence, the past and expected course of the NCR accused's treatment if any, the present state of the NCR accused's medical condition, the NCR accused's own plans for the future, the support services existing for the NCR accused in the community and, perhaps most importantly, the recommendations provided by experts who have examined the NCR accused. [Emphasis added.]

[8] In the present case, more than four years have passed since the hospital determined that Mr. Shortt could live in a community residential setting with appropriate and significant support. The hospital has made meaningful inquiries. They have contemplated creative solutions, such as long-term care. Mr. Shortt is fortunately surrounded by caregivers devoted to his wellbeing. The difficulty for the hospital and Mr. Shortt is that their efforts are impeded by factors beyond their control. Without assistance, this situation is not going to improve.

[9] Given the clear impasse, it was an error on the Board's part to repeatedly reach its dispositions based on the material introduced only by the hospital. The Board has the obligation and the power to try to break the clear impasse concerning Mr. Shortt's residential community placement by exercising its inquisitorial powers and gathering significant evidence, including expert evidence.

[10] Accordingly, we allow the appeal. We order the Board to conduct a new hearing in accordance with these reasons as soon as practically possible, and, in any event, in place of Mr. Shortt's next yearly review, which is at present scheduled for the end of May 2019. We will leave to the Board the question of how best to pursue its duty of inquiry. The terms of the July 16, 2018 detention order shall remain in place until the Board's next disposition following the new hearing.

L.B. Roberts J.A. G.T. Trotter J.A. David M. Paciocco J.A.