COURT OF APPEAL FOR ONTARIO

CITATION: Murray (Re), 2020 ONCA 547

DATE: 20200901

DOCKET: C67746

Tulloch, Paciocco and Harvison Young JJ.A.

IN THE MATTER OF: Jason Murray

AN APPEAL UNDER PART XX.1 OF THE CODE

Jason Murray, acting in person

Ailsa Miller, for the respondent, Attorney General of Ontario

Lennard M. Dimitry, appearing as amicus curiae

Heard: August 19, 2020 by video conference

On appeal from the disposition of the Ontario Review Board dated, October 30, 2019.

REASONS FOR DECISION

OVERVIEW

[1] Jason Murray, with the assistance of amicus curiae, appeals from the Ontario Review Board (“the Board”) disposition of October 30, 2019, requiring his detention at a forensic psychiatric facility. This order is subject to discretionary supervised community release conditions. Further conditions require that Mr. Murray abstain from alcohol and drugs, provide urine and breath samples, and not possess weapons.

[2] Grounds of appeal advanced at the hearing include challenges to the reasonableness of the disposition, and to the fairness of the hearing. For reasons that follow, we must dismiss Mr. Murray’s appeal.

MATERIAL FACTS

[3] Mr. Murray’s mental disorder is currently diagnosed to be schizophrenia. The evidence before the Board is that Mr. Murray, an otherwise accomplished gentleman, continues to have a “very significant delusional system involving a considerable amount of paranoia”, including the belief that he is being raped and tortured by hospital staff and targeted by government.

[4] The index offences that resulted in the July 7, 2016 finding that Mr. Murray was not criminally responsible on account of his mental disorder involved findings relating to six breaches of three separate probation orders, a count of mischief for defacing property with the letter “V” (understood to be as in “‘V’ for Vendetta”), and possession of a concealed weapon. Mr. Murray, who has a prior criminal record that includes threatening and assault convictions, was arrested on these charges in a bar, while consuming alcohol and in possession of a box cutter. He had screwdrivers strapped to his wrists, concealed under his clothing. Mr. Murray explained that he felt compelled to carry these weapons for quick use should the need arise, and he related incidents in which he said others had tried to kill him.

[5] At the time, Mr. Murray was also in possession of a bag of suspected marijuana. Although Mr. Murray denies he is a drug abuser, evidence presented at his ORB hearings supports the conclusion that he has a history of substance abuse.

[6] At his initial disposition hearing on September 9, 2016, Mr. Murray was placed under an ORB detention order. That disposition has been affirmed after each Board review.

[7] Regrettably, Mr. Murray did not attend the ORB hearing that resulted in the detention order of October 30, 2019, that he is now appealing. On July 14, 2019, Mr. Murray notified the Board that he would not be doing so in protest because of interference by forensic hospital staff in the preparation of his case, and the Board’s refusal to accept the relevance of evidence he wished to present. The October 30, 2019 hearing was conducted in his absence. Amicus curiae was appointed to protect his legal interests and did so admirably.

THE ISSUES

[8] Mr. Murray, with the assistance of amicus, now raises two grounds of appeal from that October 30, 2019 detention order: (1) that the Board’s finding that he presents a significant threat to public safety is unreasonable, in part because the Board’s analysis is cursory and failed to engage positive factors that would favour a finding to the contrary, and (2) that the Board breached its obligation to make inquiries into his allegation that forensic hospital staff prevented him from preparing for the annual review by interfering with his use of a computer and internet access, thereby exhibiting bias. Based on the first ground of appeal, Mr. Murray seeks an absolute discharge. If only the second ground of appeal succeeds, the request is for a new hearing.

[9] In support of his appeal Mr. Murray offers “fresh evidence” including his claim that in 2017 his evidence was “switched out” with evidence supporting the ORB’s case, as well as video documentary films he has prepared that he says prove that he is not delusional.

ANALYSIS

A. THE FINDING OF “SERIOUS THREAT” WAS REASONABLE

[10] We do not accept Mr. Murray’s contention that the Board’s determination that he is a significant threat to public safety is unreasonable. The reasoning of the Board “can bear even a somewhat probing examination”, and we must decline to interfere: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 33. Specifically, the Board’s reasoning is both internally coherent and justified in light of the legal and factual constraints, including the evidence before the Board, the submissions made, and the impact of the decision on Mr. Murray: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, at paras. 102-106.

[11] We recognize that the “Findings of the Board” section of the Board’s Reasons for Disposition is concise, including only one paragraph addressing its significant threat finding. This, however, is not a fair measure of the reach of the Board’s reasoning on this issue. The Board was explicit that it accepted the evidence of Dr. Courtright and the Hospital Report which it summarized in commendable depth in the “Evidence at Hearing” section of its Reasons for Disposition.

[12] When the Board’s Reasons for Disposition are read in their totality it is plain that the Board found that Mr. Murray, who has a significant criminal history and a history of substance abuse, suffers from an elaborate paranoid delusional system believing that he is a target. The Board found that he has a history of improvising and carrying weapons and has admitted to being prepared to use weapons to “protect himself” from the threats he perceives. It noted that, at the time of the disposition hearing, Mr. Murray was refusing to accept treatment in the belief that he is not mentally disordered and that the prescribed medication is harmful to him. He has been deemed “treatment incapable”. The Board accepted evidence that Mr. Murray is a fit man who engaged in a planned escape from hospital staff during an escorted pass and was gone for approximately six days. It also accepted the conclusion that it is predictable based on Mr. Murray’s history and his current mental state that unless detained he will abuse substances. On this fully supported, transparent and coherent basis the Board found that, “[t]here is no doubt … that Mr. Murray would likely act out in an aggressive, assaultive manner and act out in a criminal manner involving serious injury to members of the public” if he is not subject to a detention order.

[13] Nor is there any basis for concluding that the Board failed to consider the positive factors that favour the appellant, including his intelligence, his more remote history of being gainfully employed and making a meaningful contribution to society, his lack of aggression towards staff during detention, and his compliance with unit rules. These considerations, which Mr. Murray also highlighted eloquently before us during the appeal hearing, were brought forward by Dr. Courtright after she was specifically asked to advise the Board of Mr. Murray’s “positive features”. The Board expressly accepted her testimony and related these facts in its summary of the evidence.

[14] There is therefore no basis for concluding that these considerations were disregarded notwithstanding that they were not explicitly laid out in the paragraph where the Board summarizes its serious threat finding. This is not a case such as Marchese (Re), 2018 ONCA 307, 359 CCC (3d) 408, at paras. 10-11, where material evidence was alluded to but not identified, or Hammoud (Re), 2018 ONCA 317, at para. 9, where the reasons raised a concern that the Board may have failed to apply the proper test. On the evidence before it, the Board was entitled to find Mr. Murray posed a serious threat notwithstanding these positive considerations, and the path to the Board’s decision is clear.

[15] Nor is the decision rendered unreasonable because the Board could have been more explicit about the need for the conditions that were attached to the disposition order. No issue was taken during the hearing with the suitability of those conditions which were already in place. These conditions are manifestly reasonable in the circumstances, given the Board’s finding of Mr. Murray’s planned and deliberate elopement during an escorted pass, as well as the opinion of the clinical team that Mr. Murray’s path to move into the community is his acceptance of medication.

B. THE BOARD DID NOT BREACH ITS DUTY TO INQUIRE

[16] There are cases where a Review Board has an obligation to seek out information not presented by the parties, or to conduct an inquiry that goes beyond the record presented. In Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at para. 54, the Court described the Review Board process as inquisitorial. As this court explained in R. v. LePage, 2006 CanLII 37775 (ON CA), [2006] O.J. No. 4486 (C.A.), at para. 22, the Board’s burden to search out and consider evidence may extend not only to evidence that favours restricting the NCR accused, “but also evidence in his or her favour, ‘regardless of whether the NCR accused is even present’”.

[17] This obligation to inquire will arise where there is a foundation before the Board supporting the need for further investigation to ensure an appropriate decision. For example, in LePage and Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326, the record showed a treatment impasse that called for a comprehensive review of past and current treatment approaches that might lead to a solution. In Re Magee, 2020 ONCA 418, 2020 O.J. No, 2838 an inquiry was required because the Board itself suggested that a sexual behaviours assessment would be useful. That being so, the Board had an obligation to seek such a report.

[18] The duty to inquire is a unilateral one, falling on the Board. It is not dependent on a request for inquiry being made by a party before it. For this reason, we are not concerned that no-one, including amicus, asked for an inquiry at the Board hearing now under appeal. Simply put, even without a request for an inquiry having been made, if an inquiry was required in the current circumstances, the Board’s failure to do so would require a new hearing. However, we are not of the view that an inquiry was required into Mr. Murray’s complaints made in his July 14, 2019 email. The foundation before the Board did not call for such inquiry.

[19] Before Mr. Murray’s email was received the Board was aware that Mr. Murray had a history of attempting to file extensive amounts of irrelevant material, including video material, at prior hearings. Indeed, the Board had conducted two pre-hearing conferences, one on June 13, 2019, and another on July 8, 2019, in which Mr. Murray attempted to have the hearing time extended so that he could file before the Board hundreds of pages of documentary material, and extensive video material which he believed would show, among other things, a “Mass Rape Epidemic” at the hospital. At both pre-hearing conferences the Board implored Mr. Murray to use his editing skills to confine himself to relevant material. At the second pre-hearing conference a schedule was established during which counsel for the Attorney General and the hospital would review the proposed material for relevance. Yet this relevance review did not happen. Instead, Mr. Murray elected not to attend the hearing.

[20] Mr. Murray, who has a history of delusions about persecution by the hospital and a history of using the internet to post messages that others may perceive to be threatening, did not simply complain about hospital staff limiting his computer access. He also said in his July 14, 2019 email that they had “fried [his] laptop” and broken his pens. Moreover, he made clear that his decision not to attend the hearing was in protest to the Board’s belief “that all evidence is irrelevant accept [sic] for a Psychiatrist’s finger pointing”, and he claimed that his evidence for the 2017 hearing had been “switched”.

[21] It is in this context that the failure of the Board to initiate an inquiry must be considered. Given Mr. Murray’s history of attempting to file copious amounts of irrelevant evidence; his failure to take advantage of the planned review of the relevance of his evidence; and the nature of the allegations being made in his email of July 14, 2019 in light of his history of delusional thinking about the conduct of hospital staff, the Board acted reasonably in not initiating further inquiry. Simply put, Mr. Murray’s complaint did not have the kind of air of reality needed to require the Board to do so.

CONCLUSION

[22] The appeal is dismissed.

“M. Tulloch J.A.”

“David M. Paciocco J.A.”

“A. Harvison Young J.A.”