Court of Appeal for Ontario

Date: 2024-01-23 Docket: COA-22-CR-0031

Before: Pepall, Copeland and Monahan JJ.A.

Between:

Her Majesty the Queen Respondent

and

Jason Hadfield Appellant

Counsel: Andrew Stastny, for the appellant Dena Bonnet, for the respondent

Heard: September 14, 2023

On appeal from the disposition of Justice Alfred J. O’Marra of the Superior Court of Justice, dated March 31, 2022.

Pepall J.A.:

[1] The appellant was found guilty of manslaughter and robbery, and subsequently found to be not criminally responsible on account of mental disorder (“NCR”). The trial judge designated him a high risk accused (“HRA”) pursuant to s. 672.64(1)(a) of the Criminal Code. He appeals from that designation.

Facts

[2] On October 12, 2018 at approximately 5:55 p.m., the 58 year old victim entered the gas station at Dundas and Church Streets in Toronto to withdraw funds from an ATM. The appellant observed and then followed the victim once he left the station. The victim eventually bent over to put his bag down and the appellant, age 33, delivered a forceful kick to his upper shoulder and head area which caused the victim to fall onto the pavement and strike his head. This rendered the victim unconscious. The appellant then proceeded to rifle through the victim’s pockets. He stole the victim’s cigarettes and money before fleeing. The victim later died.

[3] The appellant was arrested on October 15, 2018. On October 2, 2020, he was found not guilty of second-degree murder but, as mentioned, guilty of manslaughter and robbery.

[4] At the time of his arrest, the appellant was homeless and had been living on the street for about a year. He has a long history of severe mental disorder dating back to 2003. He suffers from treatment resistant schizophrenia and at the time of the offences, he was not receiving any treatment.

[5] Following his conviction, the Crown brought an application to have the appellant found to be NCR and, if so, designated as an HRA. Both the Crown and defence counsel agreed that the appellant should be found to be NCR but disagreed on the HRA designation.

[6] The trial judge concluded that the appellant was NCR and was also persuaded that an HRA designation was warranted.

Analysis

A. HRA Regime

[7] The HRA regime was enacted by Parliament on July 11, 2014. The purpose of the regime was to protect the public from NCR accused who are considered dangerous and who present an unacceptably high risk to the public, requiring a further reduction in their liberty above the traditional oversight mandated by the Review Board.

[8] Section 672.64(1) provides:

On application made by the prosecutor before any disposition to discharge an accused absolutely, the court may, at the conclusion of a hearing, find the accused to be a high-risk accused if the accused has been found not criminally responsible on account of mental disorder for a serious personal injury offence, as defined in subsection 672.81(1.3), the accused was 18 years of age or more at the time of the commission of the offence and

(a) the court is satisfied that there is a substantial likelihood that the accused will use violence that could endanger the life or safety of another person; or

(b) the court is of the opinion that the acts that constitute the offence were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person.

[9] Therefore, to attract an HRA designation, an accused must first have been found to be NCR for a serious personal injury offence as defined in s. 672.81(1.3) of the Code and be 18 years or older when the offence was committed. The Crown must then satisfy either of two prongs: (i) there is a substantial likelihood that the accused will use violence that could endanger the life or safety of another; or (ii) the acts that constitute the offence were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another. In this case, the Crown relied only on the first prong and did not suggest that the appellant’s conduct consisted of any acts of a sufficiently brutal nature.

[10] As is clear from the language of subsection (1), the disposition is discretionary in nature.

[11] Paciocco J.A. explained the HRA scheme in Cousineau (Re), 2021 ONCA 760, at para. 49:

[A] high-risk accused designation under s. 672.64 is part of the scheme for identifying the available dispositions. Its role is to determine where on the ladder of available dispositions the accused’s case should stand. Specifically, if the accused is found not to present a “significant threat to the safety of the public” the accused is to be absolutely discharged pursuant to s. 672.54(a). If the accused poses a “significant threat to the safety of the public”, the accused is to be subject to any disposition available pursuant to s. 672.54(b) and (c), including a conditional discharge or a detention order with conditions. If the accused is not simply a “significant threat to the safety of the public” but also qualifies as a high-risk accused and is designated a high-risk accused by a court pursuant to s. 672.64(1), the accused will be restricted to the disposition restrictions identified in s. 672.64(3). It is sensible and important that each of these inquiries take place employing the same focus, and it is not controversial that the other steps in the disposition eligibility ladder involve an examination of the inherent or endemic risk of violence the accused presents.

[12] As such, the “substantial likelihood” language of s.672.64(1)(a) requires a risk level higher than the “significant threat” characterization found in s. 672.54 for Review Board jurisdiction. In Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, McLachlin J. (as she then was) described the latter at para. 62 as a “real risk of physical or psychological harm … that is serious in the sense of going beyond the merely trivial or annoying.” In describing the distinction, Devlin J. stated in R. v. Schoenborn, 2017 BCSC 1556, 354 C.C.C. (3d) 393, at para. 42:

[T]he statutory context and legislative history support the conclusion that Parliament intended to require a finding of a greater level of risk for a[n] HRA designation under s. 672.64(1)(a) than is necessary to keep a[n] NCR accused under Review Board jurisdiction under s. 672.54. The purpose of the HRA regime is to protect the public from NCR accused who are considered to present an unacceptably high risk, requiring a further reduction in their liberty in the form of mandatory custodial detention and other restrictions. It would be illogical to ground these liberty deprivations in the same level of risk that is already required to maintain Review Board jurisdiction over a[n] NCR accused in the pre-existing NCRMD regime, which already provides for custodial detention where necessary. To do so would unduly broaden the scope of the HRA criteria and result in an interpretation that would not properly reflect the scheme or object of the legislation. It would not reflect the object of the legislation because it would potentially capture those who do not pose an unacceptably high risk to members of the public.

[13] The use of the words “substantial likelihood” denotes a high degree of probability that the accused will endanger either the life or safety of another.

[14] Section 672.64(2) provides that all relevant evidence is to be considered by a court in deciding whether to make the designation. This includes:

(a) the nature and circumstances of the offence;

(b) any pattern of repetitive behaviour of which the offence forms a part;

(c) the accused’s current mental condition;

(d) the past and expected course of the accused’s treatment, including the accused’s willingness to follow treatment; and

(e) the opinions of experts who have examined the accused.

[15] These factors are not prerequisites to a designation nor are they exhaustive. However, each is to be considered by the court.

[16] If the court finds the accused to be an HRA, a disposition shall be made directing the accused to be detained in the custody of a hospital subject to significant restrictions. Specifically, s. 672.64(3) states:

If the court finds the accused to be a high-risk accused, the court shall make a disposition under paragraph 672.54(c), but the accused’s detention must not be subject to any condition that would permit the accused to be absent from the hospital unless

(a) it is appropriate, in the opinion of the person in charge of the hospital, for the accused to be absent from the hospital for medical reasons or for any purpose that is necessary for the accused’s treatment, if the accused is escorted by a person who is authorized by the person in charge of the hospital; and

(b) a structured plan has been prepared to address any risk related to the accused’s absence and, as a result, that absence will not present an undue risk to the public.

[17] The designation is to be reviewed by the Review Board every 12 months but that timeframe may be extended on consent. [1] The Board does not have discretion to grant an absolute or conditional discharge while the designation is in place, or to impose any condition permitting the HRA accused to be absent from the hospital, except under the restrictive terms of s. 672.64(3). Once a designation has been made, it may only be removed by a Superior Court judge on a request for review by the Review Board pursuant to s. 672.84(1).

[18] Given the restrictive nature of the disposition as described in s. 672.64(3), it follows that s. 672.64(1) should be interpreted in that light. Put differently, an HRA designation is exceptional in nature and should be imposed sparingly.

[19] The judicial decisions in which the HRA designation has been applied are limited in number and distributed unevenly across the country. The designation appears never to have been applied in any publicly reported decisions from Alberta, Manitoba, Nova Scotia, Prince Edward Island, Saskatchewan, or the Territories. The Crown sought to apply the designation at least once in British Columbia but was unsuccessful: Schoenborn. Conversely, the Crown successfully sought the designation in at least one New Brunswick case: R. v. Raymond, 2020 NBQB 251.

[20] An HRA designation was made in at least six Quebec decisions: Lafrenière c. R., 2022 QCCA 96; Gaudette c. R., 2021 QCCA 1071; R. c. Ferland, 2022 QCCS 2166; R c. F.J., 2020 QCCS 3124; R. c. Langlois, 2023 QCCS 3352; and R. c. S.F., 2019 QCCS 5339. The designation was refused in R. v. Blais, 2022 QCCS 1625. In Lafrenière, at para. 16, the Quebec Court of Appeal reiterated the exceptional nature of an HRA designation.

[21] The Crown successfully sought a contested HRA designation in at least four Ontario decisions: Cousineau; R. v. Grant, 2018 ONSC 3581; R. v. Carter, 2015 CarswellOnt 15574; and Gautreau, Re, 2023 CarswellOnt 9351 (Ont. Rev. Bd.). In one case, the accused and the Crown jointly submitted that an HRA designation was appropriate: R. v. Watts, 2020 ONSC 4671, at para. 14. The designation was refused in R. v. Caines, 2023 ONSC 5482.

[22] An HRA designation therefore appears to be a rare occurrence in Canada. Given the paucity of designations, judicial consideration of the applicable statutory provisions has been limited. The courts that have applied the HRA designation have infrequently commented on its nature, instead focusing narrowly on whether the criteria requisite for its application have been met. Some courts have observed that the regime has constitutional implications (see e.g., Schoenborn), though none appear to have analyzed whether the regime actually contravenes the Canadian Charter of Rights and Freedoms.

[23] Some commentary has been critical of the HRA regime, particularly as it relates to its constitutionality. See by way of example: Rebecca Sutton, “Canada’s Not Criminally Responsible Reform Act: Mental Disorder and the Danger of Public Safety” (2013) 60:1 Crim. L.Q. 41; Canadian Bar Association, Bill C-54 – Not Criminally Responsible Reform Act (Ottawa: National Criminal Justice Section of the Canadian Bar Association, 2013); Michelle O’Bonsawin, “Bill C-14 – Amendments to Part XX.1 of the Criminal Code: A Knee Jerk Reaction” (2016) 21 Can. Crim. L. Rev. 53.

[24] However, it must be emphasized that the constitutionality of the HRA regime is not in issue on this appeal and therefore is not addressed.

B. Position of the Parties

The Appellant

[25] The appellant submits that the uncontested evidence at his hearing did not support the HRA designation. In particular, he argues that the nature and circumstances of the index offences, the pattern of repetitive behaviour, and the opinion of the Crown’s own expert, Dr. Klassen, did not favour the HRA designation. Although he concedes that the Crown established a pattern of violence, he maintains that the applicable jurisprudence supports more pronounced patterns and aggravation than existed in this case. Furthermore, Dr. Klassen was unable to predict the severity of any reoffence scenario with any precision.

The Respondent

[26] The respondent submits that the appellant met the requirements for an HRA designation. He has an extensive criminal record for repetitive violence; this is the third time he has rendered someone unconscious through his violent actions; and treatment efforts have been unsuccessful.

[27] The trial judge determined that the HRA scheme identifies that a court should consider as a factor “any pattern of repetitive behavior of which the offence forms a part” but this is not a prerequisite. Absent an error of law, the trial judge’s decision is owed deference.

C. Standard of Review

[28] The starting point in this analysis is the applicable standard of review. Section 672.64(5) provides that an HRA designation is a disposition. As such, the appeal provisions in Part XX.1 of the Code apply and the standard of review is set out in s. 672.78(1) of the Code. An appeal may be allowed if the court is of the opinion that: (a) the decision is unreasonable and cannot be supported by the evidence; (b) the decision is based on a wrong decision on a question of law; or (c) there was a miscarriage of justice. As indicated, the appellant relies on the first prong in support of his argument that the standard of review has been met.

D. Discussion

[29] The appellant concedes that the trial judge properly instructed himself on the applicable law and does not take issue with his recital of the facts. In addition, the appellant did not advance any arguments based on the Charter. At the HRA hearing, the appellant conceded that his current mental condition and past treatment and willingness to follow treatment favoured the Crown’s position. Before this court, his prognosis was acknowledged to be extremely challenging.

[30] The trial judge noted that the HRA provisions are intended to address a risk level higher than the “significant threat” standard and are only to capture the most dangerous of individuals. He also observed that the court must be satisfied to a high degree of probability of the appellant’s risk of endangering others on all the relevant evidence and factors noted in s. 672.64(2).

[31] The trial judge addressed each of those factors. He described the appellant’s very lengthy history of mental health issues, his numerous psychiatric hospital admissions, and how his attack on the victim was driven by his delusional beliefs. He reviewed the appellant’s extensive criminal record for non-compliance with court orders and convictions for violent offences. The trial judge detailed the appellant’s pattern of repetitive, impulsive, and unprovoked use of violence against strangers. He rendered three people unconscious during assaults and in this case, the victim subsequently died. Since 2014, the appellant has been convicted of 17 offences including 11 that involved varying degrees of violence against strangers. At the time of the index offences, the appellant was on a recognizance and 6 probation orders, 5 of which were imposed for assaultive behaviour. He has had repeated opportunities to benefit from risk management and treatment tools but these have been unsuccessful in addressing his violent behaviour.

[32] The trial judge addressed the appellant’s current mental condition and his past treatment, and relied on the evidence of the forensic psychiatrist, Dr. Philip Klassen. Dr. Klassen had conducted a court ordered assessment and identified the possibility of an NCR defence. He provided reports dated July 30, 2021 and September 29, 2021. He observed that the appellant suffers from treatment resistant schizophrenia and has never been free of psychosis which has included paranoid delusions and auditory hallucinations. His illness has worsened over time. When untreated, the appellant would become profoundly psychotic and agitated which in turn gave rise to aggressive behaviour. He was so profoundly thought disordered and so fragmented in his reasoning with Dr. Klassen that due to his psychotic illness, he was deprived of the ability to know that his actions were wrong.

[33] Although the appellant had plateaued in terms of the severity of his illness, Dr. Klassen testified that this was at “a relatively more treatment resistant point.” Left untreated, he posed a significant risk of aggressive behaviour. In a “more well or treated state”, his risk was moderately high. Over the last 5 to 7 years, it appeared that his illness had worsened over time.

[34] Dr. Klassen described the appellant’s illness as one of the most severe treatment resistant cases of schizophrenia that one was likely to see. The appellant has been hospitalized for mental health issues a minimum of 24 times since 2003.

[35] According to Dr. Klassen, the appellant has no insight into his condition and believes that he does not need mental health care. Dr. Klassen also observed:

[The appellant] has a substantial history of delusional concerns about children being abducted, and his role in preventing this; this seemingly led to assaultive behaviour in 2017, and a hospitalization in 2018. With the undersigned, Mr. Hadfield reported that the victim, Mr. Sharron, was “very evil”, and was potentially involved in child trafficking. Mr. Hadfield likened Mr. Sharron to Osama bin Laden. Mr. Hadfield offered a delusional rationale for why he was entitled to take Mr. Sharron’s money.

[36] Dr. Klassen described the appellant’s risk of violence as high and opined that he was likely to recidivate violently in an untreated or under treated state absent external controls. Moreover, in Dr. Klassen’s opinion, there was a discernable pathway to reoffence. He stated that the appellant “clearly must at all times be under supervision and in a structured environment”.

[37] The trial judge did not simply depend on Dr. Klassen’s evidence to address the appellant’s pattern of behaviour. The evidence also informed his conclusion that the elements of s. 672.64(1) had been met. The trial judge determined that:

Absent a structured setting and direct supervision, [the appellant] would discontinue treatment and become psychotic and delusional and become volatile and aggressive, the consequences of which can be severe. His past has shown that when untreated and psychotic he has displayed a dangerous pattern of the use of violence that could endanger the life of or safety of another person.

[38] Based on the record before him, the trial judge was “satisfied to a high degree of probability on all of the evidence that unrestrained and untreated, Mr. Hadfield will use violence that could endanger the life of or safety of another person.” He considered the variability of the appellant’s pattern of violence and was satisfied that a “serious pattern of repetitive assaultive behaviour” had been established.

[39] On the record before him, that was a reasonable conclusion. Although the facts of the index offences and the pattern of conduct do not mirror the brutality or precise pattern in Cousineau or Grant, those cases involved both the first and second prongs for an HRA designation, unlike this case which only involved the first. In any event, each case depends on its own particular facts. The trial judge acknowledged at para. 59 that the appellant’s victims and use of weapons were different than those in Cousineau and Grant. He nonetheless found that there was a repetitive pattern to the appellant’s impulsive and unprovoked use of violence against strangers. It was open to him to conclude that there was a substantial risk that the appellant would again use violence against others.

[40] To reiterate, as evident from the language of s. 672.64(1), an HRA designation is a discretionary decision. In this case, the trial judge did not err in fact or in law. His decision was reasonable, was supported by the evidence, and is entitled to deference.

Disposition

[41] For these reasons, I would dismiss the appeal.

Released: January 23, 2024 “S.E.P.” “S.E. Pepall J.A.” “I agree. J. Copeland J.A.” “I agree. P.J. Monahan J.A.”

Footnotes

[1] In addition, under s. 672.81(1.32), the Board at the end of an annual review, may extend the time for holding a subsequent hearing to up to 36 months if it is satisfied that “the accused’s condition is not likely to improve and that detention remains necessary for the period of the extension”. Subsection (1.4) requires the Board to give notice to the accused if it makes such an extension and subsection (1.5) deems the decision to extend the time to be a “disposition”, hence rendering the decision appealable to the Court of Appeal.