In the Matter of: Shortt

[Indexed as: Shortt (Re)]

Ontario Reports

Court of Appeal for Ontario

Fairburn A.C.J.O., MacPherson and Coroza JJ.A.

October 16, 2020

152 O.R. (3d) 449 | 2020 ONCA 651

Case Summary

Charter of Rights and Freedoms — Fundamental justice — Ontario Review Board determining that NCR appellant eligible to live in a community residential setting in approved accommodation with appropriate supports — No approved accommodation found after six years — Appellant bringing Charter application for breach of liberty rights — Board finding no jurisdiction to deal with merits of Charter application — Appeal allowed — Board had broad inquisitorial powers and appellant's situation cried out for hearing on the merits — No rational connection between appellant's continued detention and protection of public — Government ordered to address appellant's accommodation at next scheduled annual review.

Charter of Rights and Freedoms — Remedies — Ontario Review Board determining that NCR appellant eligible to live in a community residential setting in approved accommodation with appropriate supports — No approved accommodation found after six years — Appellant bringing Charter application for breach of liberty rights — Board finding no jurisdiction to deal with merits of Charter application — Appeal allowed — Board had broad inquisitorial powers and appellant's situation cried out for hearing on the merits — No rational connection between appellant's continued detention and protection of public — Government ordered to address appellant's accommodation at next scheduled annual review.

Criminal law — Mental disorder — Review Board — Jurisdiction — Ontario Review Board determining that NCR appellant eligible to live in a community residential setting in approved accommodation with appropriate supports — No approved accommodation found after six years — Appellant bringing Charter application for breach of liberty rights — Board finding no jurisdiction to deal with merits of Charter application — Appeal allowed — Board had broad inquisitorial powers and appellant's situation cried out for hearing on the merits — No rational connection between appellant's continued detention and protection of public — Government ordered to address appellant's accommodation at next scheduled annual review.

In 2007 the appellant was found NCR with respect to one count of uttering threats and one count of failure to comply with probation. In 2014 the Ontario Review Board determined that the appellant was eligible to live in a community residential setting in approved accommodation with appropriate supports for his physical and intellectual disabilities. The hospital in which he was detained supported his integration into a community setting, but was unable to locate a suitable setting or to obtain meaningful information from the government as to when such a setting might become available. At an annual review hearing in 2019, the appellant argued that his continued detention in forensic custody violated his right to liberty under s. 7 of the Charter of Rights and Freedoms. He asked that "the State" fund appropriate housing for him. With only the hospital and the Attorney General present at the hearing, the Review Board ruled that the Ministry of the Attorney [page450] General was not the appropriate party from which to seek relief. The Board concluded that the appellant's application sought a systemic remedy to a province-wide housing shortage for disabled persons rather than a personal remedy for his extended detention in a forensic hospital. The Board declined to decide the merits of the Charter claim because it did not have the jurisdiction to grant the requested remedy, drawing an analogy between a funding order for housing and a Charter remedy of costs or damages. The appellant appealed.

Held, the appeal should be allowed.

The Board should have expected and insisted on the government to respond on the merits to the Charter claim. At a general level the Board had broad inquisitorial powers. The appellant's specific situation cried out for a hearing on the merits. The provincial government was present at the hearing, represented by the Attorney General. The Ministry of Children, Community and Social Services was likely the most obvious source of information concerning housing and financial support for disabled persons, but it was up to the government to identify the relevant ministry by which it should be represented and that would be in the best position to provide the required information and respond on the merits.

The appellant's Charter application was focused on his own situation. The relief sought was an order that he be released from the hospital and placed in appropriate community housing funded by the Attorney General forthwith, or that he be conditionally discharged. He was invoking the Charter to ensure that his right to liberty under s. 7 was respected and that his most recent dispositions be implemented fairly.

The Board erred by determining that a potential funding order was analogous to costs and damages orders. Funding orders served a different purpose from either costs or damages. They sought to remedy Charter breaches caused by inadequate resources rather than to punish, and they were more easily quantified.

The appellant's right to liberty had been violated by the fact that funding limitations kept him living in the community despite having been eligible for several years. There was no rational connection between his continued detention and the purposes of the NCR regime in protecting the public, and was therefore arbitrary and not in accordance with principles of fundamental justice. The violation was not saved by s. 1 of the Charter. The appropriate remedy was to have the Board, at the next scheduled annual review, determine whether the appellant was still eligible to live in the community in accommodation approved by the person in charge and, if so, the government had to be ready to address the precise location in the community where the appellant could be placed no later than the end of 2020.

Ohenhen (Re), [2017] O.J. No. 6651, 2017 ONCA 960, 143 W.C.B. (2d) 484, 358 C.C.C. (3d) 354; R. v. Conway (2010), 103 O.R. (3d) 320, [2010] 1 S.C.R. 765, [2010] S.C.J. No. 22, 2010 SCC 22, 75 C.R. (6th) 201, 320 D.L.R. (4th) 25, 255 C.C.C. (3d) 506, 88 W.C.B. (2d) 441, 402 N.R. 255, 263 O.A.C. 61, 211 C.R.R. (2d) 326, 2010EXP-1926, J.E. 2010-1051, EYB 2010-175167, 1 Admin. L.R. (5th) 163R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933, [1991] S.C.J. No. 32, 125 N.R. 1, J.E. 91-765, 47 O.A.C. 81, 63 C.C.C. (3d) 481, 5 C.R. (4th) 253, 3 C.R.R. (2d) 1, 12 W.C.B. (2d) 582, 1991 CCAN para. 10,017; Starz (Re) (2015), 125 O.R. (3d) 663, [2015] O.J. No. 2331, 2015 ONCA 318, 334 O.A.C. 218, 123 W.C.B. (2d) 127, 335 C.R.R. (2d) 91, 324 C.C.C. (3d) 228, consd

Other cases referred to

Campbell (Re) (2018), 139 O.R. (3d) 401, [2018] O.J. No. 803, 2018 ONCA 140, 404 C.R.R. (2d) 284, 146 W.C.B. (2d) 496, 359 C.C.C. (3d) 466; Canada (Attorney [page451] General) v. Bedford (2013), 128 O.R. (3d) 385, [2013] 3 S.C.R. 1101, [2013] S.C.J. No. 72, 2013 SCC 72, 366 D.L.R. (4th) 237, 452 N.R. 1, J.E. 2014-21, 312 O.A.C. 53, 303 C.C.C. (3d) 146, 7 C.R. (7th) 1, 297 C.R.R. (2d) 334, 110 W.C.B. (2d) 753, 2013 CCAN para. 10,083, 2014EXP-30; Chaudry (Re) (2015), 125 O.R. (3d) 641, [2015] O.J. No. 2332, 2015 ONCA 317, 334 O.A.C. 200, 123 W.C.B. (2d) 112, 324 C.C.C. (3d) 281, 385 D.L.R. (4th) 714; Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), [2006] 1 S.C.R. 326, [2006] S.C.J. No. 7, 2006 SCC 7, 264 D.L.R. (4th) 10, 346 N.R. 1, J.E. 2006-620, 222 B.C.A.C. 1, 46 Admin. L.R. (4th) 1, 206 C.C.C. (3d) 161, 36 C.R. (6th) 1, 68 W.C.B. (2d) 722, EYB 2006-102437, 2006 CCAN para. 10,018; New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46, [1999] S.C.J. No. 47, 177 D.L.R. (4th) 124, 244 N.R. 276, J.E. 99-1756, 216 N.B.R. (2d) 25, 26 C.R. (5th) 203, 66 C.R.R. (2d) 267, 50 R.F.L. (4th) 63, 90 A.C.W.S. (3d) 698, 1999 DFQ para. 10,005; Shortt (Re), [2014] O.R.B.D. No. 2365; Shortt (Re), [2015] O.R.B.D. No. 1965; Shortt (Re), [2016] O.R.B.D. No. 2456; Shortt (Re), [2017] O.R.B.D. No. 2071; Shortt (Re), [2018] O.R.B.D. No. 1882; Shortt (Re), [2019] O.J. No. 1488, 2019 ONCA 232; Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31, 175 D.L.R. (4th) 193, 241 N.R. 1, J.E. 99-1277, 124 B.C.A.C. 1, 135 C.C.C. (3d) 129, 25 C.R. (5th) 1, 63 C.R.R. (2d) 189, 42 W.C.B. (2d) 381, 1999 CCAN para. 10,036

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 1, 7, 8, 24(1)

Criminal Code, R.S.C. 1985, c. C-46, Part XX.1 [as am.], s. 672.54 [as am.]

APPEAL from an order of the Ontario Review Board, [2019] O.R.B.D. No. 1988 declining an application for Charter relief.

Jeff Marshman, for appellant.

Dena Bonnet, for respondent Attorney General of Ontario.

James P. Thomson and Julia Lefebvre, for respondent Person in Charge of St. Joseph's Healthcare Hamilton.

Jill R. Presser and Cassandra DeMelo, for intervenor Criminal Lawyers' Association.

The judgment of the court was delivered by

MACPHERSON J.A.: —

A. Introduction

[1] The appellant, Wesley Shortt, has been detained in forensic custody since March 7, 2007 after he was found NCR with respect to one count of uttering threats and one count of failure to comply with probation. He is currently detained at St. Joseph's Healthcare Hamilton ("Hospital"). Since at least 2014, the Ontario Review Board ("Board") has repeatedly held that, at the discretion of the Person in Charge of the Hospital, Mr. Shortt is eligible to live in the community of Southern Ontario in accommodation approved by the Person in Charge. [page452]

[2] Mr. Shortt is eligible to live in a community residential setting if appropriate supports are provided. If this happens, his detention in forensic custody would not be necessary for public safety, nor would it advance any of the factors in s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46.

[3] Unfortunately, this component of the Board's dispositions for Mr. Shortt, consistent for the last six years, has not been implemented. While the Hospital continues to support Mr. Shortt's integration into a community residential setting, he has not been integrated into a community setting because, despite its best efforts, the Hospital has been unable to locate a suitable setting or to obtain meaningful information from the Government of Ontario as to when such a setting might become available.

[4] To break this impasse, Mr. Shortt applied for relief under the Canadian Charter of Rights and Freedoms at his annual review hearing. He argued that his continued detention in forensic custody violated s. 7 of the Charter. If successful on this argument, he sought a prospective remedy under s. 24(1) of the Charter, namely, state funding for suitable supportive housing as described by his treatment team at the Hospital.

[5] In a disposition dated July 23, 2019, the Board ordered, once again, that Mr. Shortt continue to be detained at the Hospital with permission to live in the Southern Ontario community at the discretion of the Person in Charge at the Hospital. In reasons dated August 20, 2019, the Board dismissed Mr. Shortt's Charter application, allowing the impasse in implementing the community living provision to prevail.

[6] Mr. Shortt appeals the Board's dismissal of his Charter application.

B. Facts

(1) The parties and events

[7] On November 10, 2006, Mr. Shortt, who was 26 years old, was living with his parents in Guelph. During an argument, he threatened to kill his father. The police were called and Mr. Shortt was arrested. At the conclusion of his trial, Mr. Shortt was declared NCR; he has been detained in the forensic hospital system since then, a period of more than 13 years.

[8] Mr. Shortt has severe physical and intellectual disabilities. His weight and diminished mobility pose difficulties related to personal hygiene. His disabilities require specialized care and support. The Hospital has provided these throughout his detention. The members of his family who could offer support -- his [page453] father, mother, sister and uncle -- have all passed away while he has been in forensic detention.

[9] According to Mr. Shortt's treatment team, despite being stable from a psychiatric perspective, the distress caused by his ongoing detention in a forensic hospital, in the face of six consecutive annual Board orders that he is eligible to reside in the community at the discretion of the Person in Charge of the Hospital, has caused Mr. Shortt to regress and engage in "primitive coping mechanisms". In 2019, this court found that "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": Shortt (Re), [2019] O.J. No. 1488, 2019 ONCA 232, at para. 3.

(2) The Board's 2019 decision

[10]The Board's 2019 decision concerned the annual review of Mr. Shortt's case as well as his application for relief pursuant to ss. 7 and 24(1) of the Charter.

[11] The Boardaccepted the parties' joint submission that Mr. Shortt continued to be a significant threat to public safety and, accordingly, continued his previous disposition. This disposition required Mr. Shortt to be detained at the Hospital, with a range of privileges to be extended at the discretion of Person in Charge, including community living:

1. IT IS ORDERED that the accused be detained at Forensic Psychiatry Program of St. Joseph's Healthcare Hamilton, West 5th Campus, Hamilton.

2. IT IS FURTHER ORDERED that the person in charge of the St. Joseph's Healthcare Hamilton, West 5th Campus create a program for the detention in custody and rehabilitation of the accused within the Forensic Psychiatry Program of St. Joseph's Healthcare Hamilton, West 5th Campus, in which the person in charge, in his or her discretion, may permit the accused:

(h) to live in the community of Southern Ontario in accommodation approved by the person in charge.

[12] With respect to the Charter application, Mr. Shortt claimed that his s. 7 right to liberty was breached as he has been eligible, and ready, to be placed in the community since 2014. The Hospital agrees that Mr. Shortt has been eligible and ready to live in the community with appropriate supports since 2014 and says that the only reason he has not been placed in a community residential setting is that its efforts to place him there have been met with roadblocks. Against this backdrop, Mr. Shortt advanced the argument that the appropriate remedy for the 'government's [page454] violation of his s. 7 right would be an order that the government pay for his community housing and potential support personnel.

[13] The Board rejected Mr. Shortt's Charter application, essentially for four reasons that it summarized in four headings:

(a) The law is clear that procedural fairness requires that all affected or interested parties to an order need to be heard.

(b) The law is also clear on the limits of the Board's inquisit[orial] duties and our obligation to deal with systemic issues.

(c) The Board finds that it does not have the statutory authority to grant the remedy sought.

(d) The Board finds that the remedy of funding housing is analogous to an order requesting us to order costs or damages and is beyond our powers or authority.

[14] Mr. Shortt appeals from this ruling.

C. Issues

[15] I would frame the issues as follows:

(1) Did the Board err by determining that the proper responding parties were not before it for purposes of Mr. Shortt's Charter application?

(2) Did the Board err by regarding the remedy sought as essentially a systemic, not a personal, remedy?

(3) Did the Board err by finding that it did not have the statutory authority to grant the remedy sought by Mr. Shortt?

(4) Did the Board err by finding that the remedy of funding housing is analogous to an order for costs or damages and, therefore, beyond its authority to grant?

(5) If the answers to Issues 1-4 are yes, should the court

(a) return the Charter application to the Board for consideration and disposition; or

(b) decide the issue?

(6) If the answer to Issue 5 is (b), did the respondents' conduct violate s. 7 of the Charter?

(7) If the answer to Issue 6 is yes, what is the appropriate remedy? [page455]

D. Analysis

(1) The proper parties

[16] The Board's first reason for dismissing Mr. Shortt's Charter application was perceived procedural unfairness to the government respondent (but not to the Hospital). As expressed by the Board [at paras. 57-59]:

The Board accepts the submission of counsel on behalf of the Ministry of the Attorney General that the proposed remedy is not just and is inappropriate in the circumstances, because the Ministry of the Attorney General is not the appropriate party from which to seek relief.

As counsel for the Ministry of the Attorney General points out in paragraph 13 of his written submissions, the Applicant himself identifies the health and developmental services in Ontario, specifically Developmental Services Ontario (DSO), as the source of the residential impasse, none of which is under the jurisdiction, or direction, of the Ministry of the Attorney General.

The only parties before us were the Attorney General and the Hospital. Counsel for Mr. Shortt was asking us to order "the State" to fund appropriate housing. Even if one could identify which is the appropriate funding Ministry they are not before us today.

[17] With respect, I do not agree with this analysis, either at a general level or, especially, in relation to the circumstances of Mr. Shortt's history before the Board.

[18] At a general level, the Board has broad inquisitorial powers, including the power to gather evidence. It can cause records and witnesses to be subpoenaed, including experts to study the case and provide the required information. The breadth of the Board's potential examination was described by the Supreme Court of Canada in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31, at para. 61:

[The Board's inquiries] will closely examine a range of evidence, including but 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)

[19] More importantly, Mr. Shortt's situation cried out for a hearing on the merits by the Board at the annual review in July 2019. In its decision in March 2019, relating to the Board's 2018 decision dealing with Mr. Shortt, this court said, at paras. 8-9:

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 [page456] 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.

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.

(Emphasis added)

[20] A year after its 2018 decision, and with knowledge of this court's 2019 decision allowing the appeal from that decision, the Board once again complimented the Hospital on its efforts, internally and externally, on behalf of Mr. Shortt. Specifically, the Hospital's point person on Mr. Shortt's file, social worker Karen Durocher, was praised for her efforts on his behalf, including her efforts to find a place for Mr. Shortt in the community through the Developmental Services of Ontario Residential Placement("DSO") program under the auspices of the Ministry of Children, Community and Social Services ("MCCSS").

[21] Some of the Board's comments about Ms. Durocher's evidence bear highlighting [at paras. 28 and 29]:

As the Hospital Report indicates, under the heading "Developmental Services of Ontario Residential Placement", Ms. Durocher still believes that resources from DSO, which is under the jurisdiction of the MCCSS, could create a community living placement that would meet Mr. Shortt's complex needs.

Ms. Durocher does not know where Mr. Shortt is on the waitlist. This information is not given to the hospital or the public.

Ms. Durocher is very involved in advocating for Mr. Shortt.

Ms. Durocher has no information on how the MCCSS makes its decisions.

[22] Against the backdrop of this court's decision on Mr. Shortt's appeal last year, and Ms. Durocher's efforts this year culminating in her indication that she has "no information on how the MCCSS makes its decisions", the Board erred by concluding that it could not hear Mr. Shortt's Charter application because it did not have "all affected or interested parties" before it.

[23] The provincial government was present, represented by the Attorney General. The MCCSS would appear to be the most obvious source of information concerning housing and financial support for disabled persons. However, it is up to the government [page457] to identify the relevant ministry by which it should be represented and that would be in the best position to provide the required information. Critically, everyone, including the MCCSS, especially after this court's decision in 2019, knew that the input of the MCCSS in sorting out the problem would be required. There is no onus on a Charter claimant to identify from what budget their requested remedy should come.

[24] Against the backdrop of six years of unwillingness or inability to provide suitable accommodation for Mr. Shortt in the Southern Ontario community, it was incumbent on the government, through either the MCCSS as a party, or working with the Attorney General, to respond on the merits to Mr. Shortt's Charter claim. At a minimum, the Board should have expected, and insisted on, this.

(2) Personal v. systemic remedy

[25] The Board concluded that Mr. Shortt's Charter application sought, essentially, a systemic remedy to a province-wide housing shortage for disabled persons rather than a personal remedy for Mr. Shortt's five-year detention in a forensic hospital after he was eligible for living in the community. The Board said [at para. 71]:

As the courts have indicated many times, the Board is an expert panel. However, it deals with the treatment and liberty rights of the NCR patient and not with systemic issues. We agree with counsel that it is a sad situation for Mr. Shortt and many, many others in his situation that the lack of proper funding forces NCR patients to stay in hospital longer and at a greater cost to the government than building group homes would. That being said, we do not have the authority to force Her Majesty the Queen to rearrange its budgets to satisfy the needs of Mr. Shortt, or others in a similar position.

[26] I am not persuaded by this analysis or this characterization of the request for relief. Mr. Shortt's Charter application was focused on his situation. The relief sought was for him alone: "an order . . . that the Applicant be released from the Hospital and placed in appropriate community housing funded by the Attorney General forthwith or, in the alternative, that the Applicant be conditionally discharged".

[27] It is obvious that, in drafting his Charter application, Mr. Shortt was aware of this court's decisions in Starz (Re) (2015), 125 O.R. (3d) 663, [2015] O.J. No. 2331, 2015 ONCA 318 and Ohenhen (Re), [2017] O.J. No. 6651, 2017 ONCA 960.

[28] In Starz, Gillese J.A. said, at para. 111:

[T]he Board's focus is necessarily on the NCR accused person before it. Its role is not to make broad or general pronouncements but, rather, to ensure that the particular NCR accused person is subject to the least onerous and least restrictive conditions consistent with public safety. To that end, the Board has the power to make remedial orders directed at the particular NCR accused person. [page458]

[29] In Ohenhen, the NCR accused applicant sought both an individual remedy and several overtly systemic remedies against the respondent CAMH -- including mandatory protocols and education procedures relating to staff -- for the alleged violation of the applicant's Charter rights. The Board found a violation of the applicant's Charter s. 8 right and granted an individual remedy; however, it did not grant the systemic remedies. As explained by Roberts J.A., at para. 16:

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

[30] In my view, Mr. Shortt's Charter application is entirely consistent with Starz and Ohenhen. He is invoking the Charter to ensure that his right to liberty under s. 7 is respected and that the Board's most recent disposition relating to him, and indeed six consecutive dispositions since 2014, are implemented in a fair fashion by the respondents.

(3) The Board's statutory jurisdiction

[31] Although the Board uses a separate heading in this part of its decision, its reasons are very terse and tend to collapse into the procedural unfairness (proper parties) and personal/systemic dichotomy issues discussed above. After restating its earlier conclusions on these issues, the Board concludes [at para. 70]:

We do not believe that the powers given by statute, being part XX.1 of the Criminal Code, grant us the authority, nor the jurisdiction, to grant the order or remedy being sought by the applicant.

Accordingly, in my view, in spite of a separate heading, the Board does not articulate an additional reason for its result in this section of its decision.

(4) Analogy to costs and damages orders

[32] The Board is a court of competent jurisdiction. It is entitled [at para. 84] "to decide constitutional questions, including Charter questions, that arise in the course of its proceedings": R. v. Conway (2010), 103 O.R. (3d) 320, [2010] 1 S.C.R. 765, [2010] S.C.J. No. 22, 2010 SCC 22. [page459]

[33] This court has determined that the Board does not have jurisdiction to award costs or damages as Charter remedies.

[34] In Chaudry (Re) (2015), 125 O.R. (3d) 641, [2015] O.J. No. 2332, 2015 ONCA 317, Gillese J.A. said this about costs, at para. 96:

In my view, introducing the potential for costs orders would detract from the Board's ability to meet its statutory mandate and functions. The potential of a costs order would inevitably raise the stakes for the party facing the allegations, heighten the adversarial tenor of the proceedings, and prolong Board hearings. Consequently, if costs orders are available, hearings are likely to become more adversarial and less inquisitorial, with a shift in focus away from the twin goals of public safety and the fair treatment of NCR accused persons. The Board's expertise is in "how best to manage a patient's risk to the public": Conway, at para. 95. Its expertise is not in assessing and fixing costs.

[35] In the companion appeal Starz, Gillese J.A. said this about damages, at para. 95:

In my view, this same reasoning applies to the question of damages. I see nothing in Part XX.1 that indicates that Parliament intended to empower the Board to make orders for damages. Just as in the case of claims for costs, the potential for making an order for damages would bring an adversarial tenor to Board hearings, which would detract from the inquisitorial approach the Board is to take and which would divert the Board's attention from the twin goals of public safety and the fair treatment of NCR accused persons.

[36] Relying on these decisions, the Board concluded that a potential funding order for housing for Mr. Shortt would pose similar problems [at paras. 70 and 71]:

We also agree, with respect to the opinion expressed in Re Starz, that there is no difference between the Board's inability to quantify damages and its inability to quantify the amount of funds needed to provide the remedy that the applicant is seeking. It would turn the Board hearing into essentially a Royal Commission, which is outside of our authority.

[W]e do not have the authority to force Her Majesty The Queen to rearrange its budgets to satisfy the needs of Mr. Shortt, or others in a similar situation.

[37] I do not agree with this analysis. In my view, funding orders are not the same as, or even analogous to, costs and damages awards. On this point, I adopt the succinct description of the difference set out in the factum of the intervenor Criminal Lawyers' Association:

Funding orders serve a different purpose from either costs or damages. They are not punitive. Rather, they seek to remedy Charter breaches caused by inadequate resources, not punish for Charter breaches. They do not require some marked or unacceptable conduct by state actors. There need not be any malice or bad faith by the state to recognize that a funding order is appropriate. [page460]

Unlike financial damages that are difficult to quantify when a Charter right has been violated, funding orders are more easily quantified. Where a breach stems from inadequate resources, the funding remedy is expressed as the sum that is reasonably required to make the necessary resources available to remedy the breach.

[38] Accordingly, I conclude that the Board erred by determining that a potential funding order was analogous to costs and damages orders.

(5) The path forward

[39] In light of my conclusion in the previous section, it is necessary to consider how to resolve Mr. Shortt's Charter claim. There are two options -- return the case to the Board or determine the claim on this appeal.

[40] Both the Board and this court are courts of competent jurisdiction to hear and decide cases involving Charter claims. This court has the record that was before the Board and has heard full argument from the appellant, two respondents and an intervener. It is well-positioned to provide an answer to the Charter claim.

(6) Charter section 7

[41] The Board declined to decide on the merits of the appellant's Charter claim because it held that it did not have the jurisdiction to grant the requested remedy. As I have stated, the Board does have the jurisdiction to grant a remedy. It was incumbent on the Board to consider the merits of the appellant's Charter application given the backdrop against which the application was made, including this court's decision on Mr. Shortt's appeal in 2019.

[42] Mr. Shortt contends that the 'government's failure to provide funding, such that the Board's disposition cannot be implemented in the "least onerous and least restrictive" manner, infringes his liberty interest protected by s. 7 of the Charter: Winko, at para. 47. He further submits that this infringement is arbitrary and, therefore, not in accordance with the principles of fundamental justice.

(a) Right to liberty

[43] The Board and Mr. Shortt have acknowledged that the Hospital has done all it can to locate and secure housing for the appellant.

[44] At issue in Mr. Shortt's Charter s. 7 claim is the government's apparent failure to assist in implementing the community living provision of several Board dispositions. [page461]

[45] Since 2014, the Board has held that the appellant may be permitted to live in the community with accommodation approved by the Hospital. However, because of "bureaucratic and fiscal" roadblocks outside of the Hospital's control, the community living provisions of the disposition have not been implemented.

[46] The Part XX.1 regime includes "an assurance of procedural fairness and dignity for the NCR accused, and a commitment to ensure that the NCR accused's liberty interests are to be infringed as minimally as possible": Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), [2006] 1 S.C.R. 326, [2006] S.C.J. No. 7,2006 SCC 7, at para. 27. It is this emphasis on maximizing liberty that differentiates the Part XX.1 regime from its predecessor, which was held to be unconstitutional in R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933, [1991] S.C.J. No. 32: Mazzei, at para. 26.

[47] In Winko, the Supreme Court held that "[t]he dual objectives of Part XX.1, and s. 672.54 in particular, are to protect the public from the NCR accused who poses a significant threat to public safety while safeguarding the NCR accused's liberty to the maximum extent possible": Winko, at para. 71 (emphasis added). This requires the Board to fashion "the least onerous and least restrictive disposition": Winko, at para. 71.

[48] The Hospital has a similar obligation. As explained by this court in Campbell (Re) (2018), 139 O.R. (3d) 401, [2018] O.J. No. 803, 2018 ONCA 140, at para. 59:

The hospital's decision-making power is further constrained by the legal considerations that bind the Board in arriving at an appropriate disposition. Like the Board, keeping in mind the paramount concern for public safety, the hospital must make decisions that provide an NCR accused with the utmost liberty compatible with his or her situation. The hospital must remain vigilant about interfering with liberty interests as little as possible, making decisions that are the least onerous and least restrictive to the NCR accused's liberty . . . This requirement acts as yet another important liberty safeguard for the NCR accused.

[49] The respondent Attorney General of Ontario ("AGO") submits that the difference between living in the Hospital and living in the community would be so small that the relevant deprivation of liberty cannot rise to the level required by s. 7; the AGO's position is that community living would essentially replicate life in the Hospital but in a different location. The AGO also argues that because Mr. Shortt has received more liberties within the hospital since 2014, there is no deprivation of his right to liberty.

[50] In my view, more liberty does not accord with the requirement for maximum liberty. Community living clearly provides for more freedom and fewer restrictions than living in forensic custody. The supports identified by the Hospital as being required for community living do not amount to replicating the hospital [page462] environment. The Board's dispositions have included provisions for community living since at least 2014 as an indicator that Mr. Shortt had made progress with respect to managing his illness and was therefore eligible for fewer restraints on his freedom.

[51] Unlike the analysis for a violation of security of the person, where the violation must meet a threshold of "serious and profound effect on a person's psychological integrity" (New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46, [1999] S.C.J. No. 47, at para. 60), there is no such threshold when considering a physical restraint on a claimant's liberty.

[52] Since 2014 Mr. Shortt has been eligible to live in the community with accommodation as determined by the Hospital. Absent funding limitations, Mr. Shortt would be permitted to live in the community. For five years Mr. Shortt's liberty has been restricted to a greater degree than required by s. 672.54, in violation of his s. 7 right to liberty.

(b) Principles of fundamental justice

[53] Section 7 allows for restrictions on liberty that are in accordance with the principles of fundamental justice. Mr. Shortt submits that the restriction on his liberty is arbitrary.

[54] Arbitrariness is "the absence of any link between the objective of the law and its negative impact on security of the person": Canada (Attorney General) v. Bedford, [2013] 3 S.C.R. 1101, [2013] S.C.J. No. 72, 2013 SCC 72, at para. 35. A deprivation of a s. 7 right will be arbitrary where the law or government action contravenes or undermines the objective of the law: Bedford, at paras. 98, 100.

[55] The only reason advanced for Mr. Shortt's continued detention in forensic custody is a lack of funding. In 2019, this court held that the barrier to community living was "a lack of public funding; long waiting lists; or inadequate attendant care to respond to Mr. Shortt's admittedly complex physical and psychiatric requirements": Shortt, at para. 3. Lack of funding, as a potential justification for the deprivation of Mr. Shortt's liberty, does not properly fall within the scope of the s. 7 analysis. Rather, any costs or benefits to the public in relation to funding fall within the scope of the s. 1 analysis: Bedford, at para. 121.

[56] All parties agree that while Mr. Shortt continues to pose a significant threat to public safety, such that he cannot be discharged, this risk can be managed by the means identified in the Board's disposition, which includes the availability of community living. [page463]

[57] Section 672.54 sets out the factors that the Board must consider when making a disposition. The factors include public safety, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused.

[58] There is no rational connection between the Mr. Shortt's continued detention and the purposes of Part XX.1. There would be no threat to public safety if the disposition order were implemented under the direction of the Hospital, and the goal of reintegration identified in s. 672.54 is being undermined by Mr. Shortt's continued detention in forensic custody. Mr. Shortt's frustration at waiting five years for appropriate residential arrangements, with no end in sight, has "led to a deterioration in his progress, including angry outbursts, damage to property, and elopements on his part": Shortt, at para. 3.

[59] Mr. Shortt's continued detention in forensic custody undermines the purposes of the Part XX.1 regime set out in s. 672.54 and is therefore arbitrary. Mr. Shortt has been deprived of his liberty in a way that is not in accordance with the principles of fundamental justice.

(c) Charter section 1

[60] The AGO advanced no argument that any s. 7 violation could be saved by s. 1. The s. 7 violation is not saved by s. 1.

(7) Remedy

[61] In my view, in order to properly assess Mr. Shortt's Charter claim in 2020, it is necessary and important to understand what has happened or, more accurately, not happened to him in the forensic custody system in the last five years. Accordingly, I begin by documenting what the treating doctors, social workers, Hospital and the Board have said about him throughout this period.

(a) Doctors, social workers and the Hospital

[62] In 2014, Dr. Alatishe, Mr. Shortt's treating psychiatrist, said that "he could move into the community in a group home the coming year but would require a great deal of support and supervision to live in the community": Shortt (Re), [2014] O.R.B.D. No. 2365, at para. 15.

[63] In 2015, Dr. Alatishe said [Shortt (Re), [2015] O.R.B.D. No. 1965, at para. 22]:

From a psychiatric perspective Mr. Shortt would be appropriate to reside in the community of Hamilton with the proper supports in place. . . The treatment team continues to be optimistic and hopeful that it is foreseeable that Mr. Shortt is able to be transitioned into the community in the coming review period. [page464]

[64] In 2016, the Board recorded [Shortt (Re), [2016] O.R.B.D. No. 2456, at paras. 14, 17-18]:

The Hospital now believes that the only placement that would be possible to both look after Mr. Shortt's needs and secure ongoing safety of the public is a placement through the Developmental Services of Ontario. At the present time the Hospital has been making efforts to place Mr. Shortt in a facility under the jurisdiction of DSO. There need to be assessments done by DSO and to date the Hospital has not been able to convince the DSO to proceed with those assessments.

The Board also heard from Ms. Karen Daroche.[^1] She is a social worker at the hospital.

Ms. Daroche agreed that currently the most appropriate placement would be one through Development Services of Ontario. Ms. Daroche outlined the difficulty both in obtaining funding and encouraging DSO to proceed with an application that could assist Mr. Shortt.

(Emphasis added)

[65] In 2018, the Board recorded [Shortt (Re), [2018] O.R.B.D. No. 1882, at para. 18]:

. . . Dr. Alatishe indicated that the Hospital was open to trying to find creative solutions to the difficulty of arranging for a residence with the necessary supports for Mr. Shortt. In particular, he stated that the team was open to trying to find a supervised residence for Mr. Shortt and potentially using PASSPORT funding to pay for the additional physical care needed.

[66] In 2019, the Board noted that Dr. Alatishe testified [at paras. 26-27]:

Of all the options available to Mr. Shortt, accommodations provided by Developmental Services Ontario (DSO) best meet his needs and mirror what he is receiving in the hospital.

DSO is not the only option available to Mr. Shortt for community living, but it is the most appropriate pathway.

[67] The Board also considered the testimony of Karen Durocher, a social worker at the Hospital who "has been working on Mr. Shortt's discharge planning since 2014". The Board commended Ms. Durocher and the Hospital "for all their diligent efforts on Mr. Shortt's behalf". However, in spite of those efforts, the Board noted that Ms. Durocher "has no information on how [page465] the MCCSS makes its decisions" or "how the priorities are assigned by DSO".

(b) The Board decisions: 2014-2019

[68] In its 2016 decision, the Board said this, at para. 35:

We note that the social work team has been working for at least four years to find an appropriate community placement. We are inclined to accept the observations that Development Services Ontario is the only opportunity for this gentleman to be placed in the community. It is concerning to this Board, the evidence that frequently patients in forensic hospital are given rather low priority at Development Services of Ontario. The Board would hope and expect that DSO would make every effort to assist in finding funding and the appropriate placement for Mr. Shortt. We would urge the Hospital to continue their efforts with DSO, to have DSO do the necessary assessments so that Mr. Shortt can be given every consideration for a placement through that agency.

(Emphasis added)

[69] In 2017 [Shortt (Re), [2017] O.R.B.D. No. 2071], the Board said, at para. 23:

In looking forward, it is likely that within the next year Mr. Shortt will be assessed by DSO and be a candidate for funding which could lead to a transfer into a community setting . . . [W]ith the support of DSO funding, he could make a step into the community within the next year.

[70] In 2018, the Board said, at paras. 18 and 24:

In response to questions from Board members, Dr. Alatishe indicated that the Hospital was open to trying to find creative solutions to the difficulty of arranging for a residence with the necessary supports for Mr. Shortt.

The Board encourages the Hospital to continue to seek out creative solutions to the difficulty of finding a residence with the necessary psychiatric and physical supports for Mr. Shortt.

[71] In 2019, the Board observed, at paras. 28-29:

As the Hospital Report indicates, under the heading "Developmental Services of Ontario Residential Placement", Ms. Durocher still believes that resources from DSO, which is under the jurisdiction of the MCCSS, could create a community living placement that would meet Mr. Shortt's complex needs.

Ms. Durocher does not know where Mr. Shortt is on the waitlist. This information is not given to the hospital or the public.

Ms. Durocher has no information on how the MCCSS makes its decisions. [page466]

(c) Court of Appeal decision: 2019

[72] Against this backdrop about what treating doctors, social workers, the Hospital, and the Board have said about Mr. Shortt's placement and treatment over the last five years, it bears repeating what this court said in its 2019 decision [2019 ONCA 232, [2019] O.J. No. 1488] allowing the appeal from the Board's 2018 annual review decision, at paras. 8-9:

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.

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.

(Emphasis added)

[73] The Board did not do this. Once again, it heard from Dr. Alatishe, the treating psychiatrist, and Ms. Durocher, the social worker. As set out above, they pointed to the MCCSS, and especially its DSO program, as the likely best option for community living with appropriate supports for Mr. Shortt. Yet, at the end of the day, Ms. Durocher, a dedicated social worker on Mr. Shortt's behalf, says that she "has no information on how the MCCSS makes its decisions". The Board's formal response to this was to conclude, on Mr. Shortt's Charter application [at para. 59]:

The only parties before us were the Attorney General and the Hospital. Counsel for Mr. Shortt was asking us to order "the State" to fund appropriate housing. Even if one could identify which is the appropriate funding Ministry they are not before us today.

(Emphasis added)

[74] After its dispositions in 2014, 2015, 2016, 2017 and 2018, this was not enough. The Board needed to take more seriously its inquisitorial role and get to the bottom of why the "live in the community of Southern Ontario in accommodation approved by the person in charge" component of its dispositions from those years had not been implemented.

[75] I have concluded that Mr. Shortt's s. 7 Charter right to liberty has been violated in a way that is not in accordance with the principles of fundamental justice. [page467]

[76] The remedy sought by Mr. Shortt in his Charter application is: "An order allowing the application, releasing the Applicant from the Hospital, and directing the Attorney General to fund appropriate community housing for the Applicant forthwith."

[77] At the appeal hearing, in response to a question, the appellant acknowledged that an order that the government (not necessarily the Attorney General) provide community housing with appropriate supports to Mr. Shortt (without mentioning "funding") in a timely fashion (not "forthwith") would be appropriate.

[78] I regard this as a fair response. Accordingly, in the highly unusual circumstances of this case, where for six years the Hospital has deemed Mr. Shortt capable of living in the community yet been unable to obtain any meaningful information about why no community setting has been made available to him, it is time for an order. I am inclined to make an order with two components.

[79] First, it is almost 14 months since the Board's last evaluation of Mr. Shortt. At the appeal hearing, the court was informed that his next annual review is scheduled for November 24, 2020. In my view, the review should take place. In the Board's last review, based on "the joint submission of the parties", the Board "found that Mr. Shortt continues to represent a significant threat to the safety of the public" but also that he was eligible "to live in the community of Southern Ontario in accommodation approved by the person in charge". This has been the Board's consistent assessment for several years.

[80] Accordingly, in the interests of public safety and fairness to Mr. Shortt, at this stage it is appropriate for the Board to conduct its next annual review and determine whether this longstanding privilege, to be extended at the direction of the Person in Charge, remains an appropriate aspect of the disposition.

[81] Second, the government must be ready at the next annual review to address the precise location in the community where Mr. Shortt can be placed no later than the end of 2020, provided of course that the Person in Charge of the Hospital deems that setting appropriate. This will require the Attorney General and the MCCSS to work closely together. At this juncture, that is entirely appropriate.

[82] This is an exceptional case. For six years running, the Board has deemed Mr. Shortt capable of living in the community at the discretion of the Person in Charge of the Hospital. For six years running, the Hospital has deemed Mr. Shortt capable of living in the community. The difficulty is that, despite its best efforts, the Hospital has not been able to determine why an appropriate residential setting has not been made available for Mr. Shortt or even when one may be made available. As a result, [page468] Mr. Shortt has been languishing in the Hospital and his condition is starting to deteriorate, a development that stands as the antithesis to one of the ultimate purposes of the NCR scheme, to work safely toward the reintegration of NCR accused back into society.

[83] It is against this very unusual backdrop that Mr. Shortt's liberty has been violated, and not in accordance with the principles of fundamental justice. Provided the Board determines that his condition continues to warrant the possibility of community living with support, the government must respond immediately and meaningfully to this pressing need for implementation. The government's role at the next annual review hearing must be to identify precise implementation, not to contest it.

[84] I would allow the appeal and make an order consistent with the above.

Appeal allowed.

Notes

[^1] It appears from the record in other years that her last name is Durocher.

End of Document