COURT OF APPEAL FOR ONTARIO

CITATION: Forster v. Canada (Correctional Service), 2025 ONCA 40

DATE: 20250122

DOCKET: C68326

Pepall, Harvison Young and Sossin JJ.A.

BETWEEN

Steven Forster

Applicant (Appellant)

and

The Institutional Head of Millhaven Penitentiary as directed by the Director of Commissions

Respondent (Respondent)

Paul Slansky, for the appellant

Stephen Kurelek and Sean Stynes, for the respondent

Heard: December 4, 2024

On appeal from the order of Justice Graeme Mew of the Superior Court of Justice, dated January 22, 2020, dismissing the application for a writ of habeas corpus with certiorari in aid and relief under s. 24(1) of the Charter, with reasons reported at 2020 ONSC 425.

Sossin J.A.:

OVERVIEW

[1] This appeal raises issues concerning the scope and application of the writ of habeas corpus. The appellant pled guilty to numerous sexual offences in February 1988, and as will be discussed in detail below, was subsequently designated as a dangerous offender and an indeterminate sentence was imposed. The appellant has challenged both his conviction and sentence unsuccessfully over the years since, including through applications for writs of habeas corpus, although, prior to this, none of the habeas corpus applications were conclusively determined.

[2] In the decision giving rise to this appeal, the application judge considered and dismissed the appellant’s application for habeas corpus on its merits. The appellant now appeals that decision. For the reasons set out below, I would allow the appeal and grant the appellant’s application for habeas corpus.

Procedural background

[3] The procedural history of this matter is important to set out in order to fully appreciate the substance of the issues at stake on this appeal.

[4] On February 23, 1988, the appellant pled guilty to numerous sexual offences. His convictions involved sexual assaults against 5 adolescent boys in five separate episodes over the course of a 37 day period in 1987. With the consent of the Crown and counsel for the appellant, the trial judge, Dilks D.C.J. (as he then was) ordered that the appellant undergo a psychiatric assessment.

[5] Following that assessment, on December 23, 1988, he declared the appellant to be a dangerous offender (“DO”) and imposed an indeterminate sentence. The appellant has thus been incarcerated for in excess of 36 years. He was 28 at the time of his sentencing and is now 64 years old.

[6] The appellant appealed to this court. On June 23, 1995, his appeal was dismissed: see R. v. Forster (1995), 1995 501 (ON CA), 82 O.A.C. 78.

[7] On November 15, 2001, the appellant commenced his first habeas corpus application, seeking relief under many different heads, and invoking numerous sections of the Charter (i.e., ss. 7, 9, 10, 11, 12, 15(1), 24(1), and 26). The appellant was self-represented. After nine appearances, the application was dismissed by MacLeod J. (now MacLeod-Beliveau J.).

[8] At the ninth appearance, he was represented by counsel who informed the court that the appellant may have a basis to challenge his indeterminate sentence. In dismissing the application, MacLeod J. wrote: “The application is dismissed, without prejudice to the applicant commencing a new application, citing proper grounds for habeas corpus for the court to consider.”

[9] The appellant appealed that dismissal to this court. On June 21, 2005, his appeal was dismissed “without prejudice to the appellant’s right to commence proceedings in the Superior Court or in the Federal Court, as may be appropriate, with regard to his various grievances.”

[10] The appellant commenced a second habeas corpus application on October 5, 2014. His Notice of Application requested a writ of habeas corpus with certiorari in aid, and relief under s. 24(1) of the Charter. The appellant challenged the validity of the warrant of committal, asserting a lack of jurisdiction to make the DO finding. He alleged that his psychiatric remand was unlawful; that the Crown failed to give the required notice of the DO application; that he was improperly excluded from parts of the hearing; and that the trial judge failed to recognize that he had a discretion to decline to make the DO designation.

[11] On May 28, 2015, the respondent filed a motion to have the application dismissed. The respondent purported to rely upon r. 21.01(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which permits a defendant to move before a judge to have an action dismissed or stayed because “the court has no jurisdiction over the subject matter of the action.”

[12] In written reasons, Tranmer J. dismissed the second habeas corpus application on May 11, 2017. The application judge accepted that he had the authority to “dismiss these proceedings on a motion to strike”. He determined that the appellant’s application was an attempt to circumvent the appeal rights that were available to him, which he had exercised. He concluded that it was “plain and obvious that the application cannot succeed. It has no possibility of success. Therefore, I exercise this court’s discretion to dismiss it at this stage.”

[13] This court allowed the appellant’s appeal from that ruling, holding that a motion to strike under the Rules of Civil Procedure was not a proper basis to determine the application, and that the habeas corpus application should be heard on its merits: Forster v. Canada (Correctional Service), 2019 ONCA 91, 373 C.C.C. (3d) 423. In his reasons, Trotter J.A. emphasized the power of a Superior Court to decline to hear an application for habeas corpus is limited and there was no basis to decline jurisdiction in this case. He concluded that it could not be said that the appellant’s claim “does not show a substantial ground” or that it is “frivolous or vexatious” (para. 18) and remitted the habeas corpus application to be heard by the Superior Court on its merits.

[14] The third habeas corpus application was heard on the merits before Mew J., who dismissed the application. His order is now appealed to this court.

Mew J.’s decision

[15] The application judge first dealt with a preliminary issue as to whether to admit the Crown’s evidence relating to the appellant’s correctional records – which would have not been before Dilks D.C.J. or the Court of Appeal in 1995. The application judge was satisfied that the documents should be admitted to provide context, relying on the principle stated in R. v. Miller, 1985 22 (SCC), [1985] 2 S.C.R. 613, that permits courts to consider affidavit or extrinsic evidence to determine whether there has been an absence or excess of jurisdiction.

[16] With respect to the substantive issues, the appellant asserted the lack of jurisdiction of the sentencing court to designate him as a DO, arising from a number of errors, including the following:

a. The unlawful manner of the psychiatric remand;

b. The lack of notice of a DO application in advance of the remand;

c. A failure to comply with statutory pre-conditions;

d. Proceeding with a portion of the DO application in the absence of the appellant;

e. Ineffective assistance of counsel; and

f. The sentencing judge’s failure to exercise discretion.

[17] He alleged that any one of the above errors should vitiate the DO order. As it was not possible in 1988 to appeal his designation as a DO – because the law at the time precluded an appeal regarding such a finding, absent issues of dangerousness – he argued his only means of redress was through a writ of habeas corpus to quash the unlawful and unconstitutional warrant of committal.

The jurisdictional issue

[18] First, the application judge addressed whether the court should exercise its discretion to decline jurisdiction. The application judge rejected the Crown’s argument that, pursuant to an exception recognized in May v. Ferndale, 2005 SCC 82, [2005] 3 S.C.R. 809,the court should have declined to hear the application because the appellant’s right of appeal had already been exhausted and the Court of Appeal could have corrected any errors but declined to do so. The application judge accepted that this application raised procedural and jurisdictional errors and did not constitute simply a relitigation of the original appeal. As he said at para. 46 of his reasons:

[46] In my view, it would be contrary to fundamental principles of justice for there to be no avenue for reviewing whether procedural and jurisdictional errors were made by the sentencing judge and, if so, whether the resulting warrant for committal of Mr. Forster for an indeterminate sentence as a dangerous offender was validly issued. Given the clear finding by the Court of Appeal in Langevin that the legislation then in force (and equally applicable to Mr. Forster’s case) did not empower a court to quash the finding of dangerous offender, J find that the first May v Ferndale exception does not apply to the present application.

[19] Lastly, I note that on appeal, the Crown does not take issue with the application judge’s conclusion that he had jurisdiction to consider the appellant’s application for habeas corpus with certiorari in aid by way of a full hearing on its merits.

The unlawful deprivation of liberty argument

[20] Next, the application judge considered whether the appellant suffered an unlawful deprivation of liberty as a result of his DO designation. The application judge identified three deprivations of liberty in which habeas corpus is available: (1) an initial deprivation; (2) a substantial change in conditions amounting to a further deprivation of liberty; and (3) a continuation of the deprivation of liberty (citing Dumas v. Leclerc Institution, 1986 38 (SCC), [1986] 2 S.C.R. 459). The appellant challenged the initial deprivation of his liberty that had continued since December 1988 based on the errors he alleged occurred.

[21] The application judge was satisfied that the appellant was entitled to ask the court to review the validity of the initial deprivation of his liberty as a result of the DO designation, given the rare circumstances that the appellant found himself in, in which there “is and never has been a statutory right of appeal of a determination that has resulted in [his] imprisonment” (at para. 63). Indeed, he noted “[t]here will, accordingly, be few, if any, other people in detention, now or in the future, in the same or a similar situation to [the appellant]” due to the subsequent amendments to the Criminal Code that expressly provide for an appeal of a DO designation: see s. 759(3).

The DO process

[22] Turning to the appellant’s challenge to the DO process, the application judge reviewed the procedural safeguards applicable to DO applications, as confirmed in R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, which include:

1. The consent of the Attorney General for the bringing of a DO application;

2. The giving of proper notice to the offender;

3. The right of the offender to nominate his or her own psychiatrist;

4. The opportunity for the offender to attend the hearing;

5. The offender’s ability to appeal his or her sentence;

6. The requirement for the Solicitor General to be provided with copies of the psychological, psychiatric and criminological evidence and observations of the sentencing court; and

7. The review of the offender’s sentence by the Parole Board three years after its imposition and every two years thereafter.

[23] The application judge dealt with each procedural and jurisdictional error raised by the appellant in turn.

[24] The appellant had submitted that there was no jurisdictional foundation for the sentencing judge to order a psychiatric remand following the appellant’s guilty pleas and he was not notified that the remand would or could be used for the purpose of a DO application. Moreover, there had been no judicial determination of the propriety of proceeding with the DO procedure prior to obtaining the report from the psychiatrist, Dr. McDonald.

[25] The record demonstrated that Dilks D.C.J. specifically asked counsel for authority in the Criminal Code that allowed him to heed the request that the appellant be remanded for observation and a mental health evaluation. Both counsel suggested provisions that were not directly on point and despite expressing discomfort, Dilks D.C.J. was ultimately persuaded that the order could be made.

[26] No reference was made by counsel or Dilks D.C.J. to the Mental Health Act, nor did Dilks D.C.J. refer to the bases for the conclusion that the appellant may have been suffering from a mental disorder of some kind. Nonetheless, the application judge reasoned that as the Crown and defence had made a joint submission for a medical assessment for the appellant, following R. v. Lenart, 1998 1774 (ON CA), 39 O.R. (3d) 55 (Ont. C.A.); and R. v. Jaser, 2015 ONSC 4729, in which psychiatric assessments were ordered pending sentencing without any of the preconditions under the Criminal Code having been met, the application judge found that the then s. 15 of the Mental Health Act, R.S.O. 1980, c. 262 (the current equivalent being s. 21) (“MHA”),[^1]provided a vehicle for obtaining a psychiatric assessment as part of the sentencing process, even if it was not cited as the source of the judge’s jurisdiction.

[27] The application judge dismissed the appellant’s argument that notice should have been given to advise that the assessment would or could be used for DO application purposes on the basis that the proposal to remand the appellant for a psychiatric examination was part of a joint submission. Although there was no reference to a potential DO application, obtaining a psychiatric assessment was part of the pre-sentence report process.

[28] With respect to the appellant’s argument that the issue of a DO application only surfaced after the delivery of Dr. McDonald’s report, the application judge found that there was no mention of a DO application when the Crown initially wrote to the psychiatric hospital requesting an assessment. Rather, it was initiated after the assessment was completed and in response to the results indicating a sexual disorder. Based on s. 688 of the Criminal Code in force in 1988, which governed how courts may make a DO finding and impose an indeterminate sentence thereafter, the application judge found that the process followed to obtain the medical assessments was not irregular and did not cause prejudice to the appellant. Furthermore, everything proceeded with the consent of counsel.

[29] As for the argument that the appellant was not present while submissions were made, the application judge found, at para. 102, that:

There is no indication from the record of proceedings on either 22 or 23 December 1988 that Mr. Forster was not present throughout. When his counsel was expressly asked whether he had any procedural complaints, he replied that he did not. I agree with the respondent’s submission that Mr. Forster’s absence would have been highly irregular and would almost certainly have been noted in the transcript of proceedings.

[30] In his affidavit sworn on December 18, 2014, the appellant alleges that during the hearing of the DO application, neither the Crown nor the defence presented any arguments in his presence, thereby depriving him on his right to make full answer and defence and to present arguments on the merit of the designation. While there is a transcript of the evidence taken at the hearing of the DO application, there is no transcript of the arguments presented by counsel. In the absence of anything in the record to indicate that the appellant was not present throughout his DO hearing, the application judge concluded that he was.

The alleged error regarding discretion in the DO process

[31] Finally, the appellant argued that Dilks D.C.J. had failed to exercise his discretion because he did not know he had any. The Crown conceded that Dilks D.C.J. erred in claiming that s. 688 of the Criminal Code, as it stood, did not permit him any discretion in making a DO order if the requirements were met. However, the Crown argued, and the application judge accepted, that the judge’s misstatement “had no practical consequences because he had, in fact, reviewed [the appellant’s] criminal record, the victim impact statements and the psychiatric evidence of both parties’ experts before he concluded that [the appellant] was a dangerous offender”: at para. 107. Therefore, according to the application judge, the misstatement as to the non-availability of a discretion did not result in an unfair or unreasonable decision. Furthermore, the Court of Appeal had subsequently concluded that it was unable to find that Dilks D.C.J. had erred in exercising his discretion.

[32] For all the above reasons, the application judge was not persuaded that the appellant raised any valid basis for questioning the legality of his initial deprivation of liberty.

Ineffective assistance of counsel

[33] The application judge also considered the appellant’s ineffective assistance of counsel ground, though left open the question of whether such a ground could appropriately be raised on a habeas corpus application. He found that, in any event, he would not give effect to the appellant’s arguments, as he was unable to establish on the evidence that there was a misuse of the pre-sentence process, that his counsel at the time would have known or anticipated that the psychiatric remand might form the basis for a DO application, and that the sentencing judge would have ruled differently had defense counsel raised the discretion argument. Accordingly, he dismissed this basis for the application.

[34] In light of the findings and conclusions set out above, the application judge dismissed the application for habeas corpus as a whole.

ANALYSIS

Issues on Appeal

[35] The appellant raises the following grounds of appeal:

1. The application judge erred in finding that the Crown’s evidence of the appellant’s corrections records was admissible as the request for and copying and tendering of these correctional documents constituted an unreasonable search and/or seizure contrary to ss. 7 and 8 of the Charter.

2. The application judge erred in law in concluding that the remand for psychiatric assessment was lawful under the Mental Health Act, without this basis of jurisdiction being considered by the sentencing judge at the time.

3. The application judge failed to provide notice of use of the assessment for DO purposes undermined the validity of the waiver of the appellant’s right to not comply with the assessment.

4. The application judge failed to find a loss of jurisdiction due to submissions made in the DO process in the absence of the appellant.

5. The application judge failed to find that the statutory preconditions for the appointment of psychiatrists were not met in this case.

6. The application judge failed to find the warrant of committal in this case was vitiated by the failure to exercise discretion in making the finding and designation that the appellant was a DO.

7. The application judge erred in finding that the appellant’s ineffective assistance of counsel argument had no merit.

[36] Below, I address these various grounds of appeal, albeit in a slightly different order.

[37] Before doing so, it is important to be mindful of the broader context of a habeas corpus application, and its differences from other kinds of challenges to the exercise of state authority curtailing a person’s liberty. In May v. Ferndale Institution, referenced above, Lebel and Fish JJ. explained, at para. 21:

According to Black J. of the United States Supreme Court, habeas corpus is “not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose — the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty”: Jones v. Cunningham, 371 U.S. 236 (1962), at p. 243. In his book, [R. J. Sharpe, The Law of Habeas Corpus (2nd ed. 1989)], Sharpe, at p. 23, describes the traditional form of review available on habeas corpus as follows:

The writ is directed to the gaoler or person having custody or control of the applicant. It requires that person to return to the court, on the day specified, the body of the applicant and the cause of his detention. The process focuses upon the cause returned. If the return discloses a lawful cause, the prisoner is remanded; if the cause returned is insufficient or unlawful, the prisoner is released. The matter directly at issue is simply the excuse or reason given by the party who is exercising restraint over the applicant. [Emphasis added.]

[38] In R. v. Gamble, 1988 15 (SCC), [1988] 2 S.C.R. 595, at para. 74, Wilson J., writing for the majority, emphasized that a “purposive and expansive approach” to the remedy of habeas corpus should be applied.

[39] Finally, the Supreme Court has emphasized that the purposes and principles of the writ of habeas corpus continue to evolve, and it has become an “essential remedy in Canadian law”: Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at paras. 29-30.

[40] Therefore, in approaching this appeal, the breadth, purpose, evolving principles and flexibility of habeas corpus must be front of mind.

Standard of review

[41] The alleged errors of the application judge framed in procedural fairness or legal determinations are subject to a standard of correctness, while other errors that take issue with factual findings made by the application judge are subject to a standard of palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. at paras. 8, 10 and 36; Khela, at para. 79.

(1) The application judge erred in finding legal authority for the appellant’s psychiatric remand

[42] In deciding that the psychiatric remand of the appellant ordered by Dilks D.C.J. was authorized in law, the application judge provided the following rationale:

Psychiatric Remand

[69] The record of proceedings before Dilks D.C.J. on 23 February 1988 discloses that, following the court’s acceptance of Mr. Forster’s guilty pleas and the proposal by the Crown that Mr. Forster should be remanded “for sentencing” with an order for observation and pre-sentence evaluation at the Oakridge division of the mental health centre at Penetanguishene, the judge specifically asked counsel where in the Criminal Code he was provided with the authority to do what was being requested.

[70] Thereafter, various provisions were suggested to the judge by both the Crown and defence counsel, none of which seemed to be directly on point. The judge’s discomfort is evident from the transcript. Ultimately, however, he was persuaded that the order could be made.

[71] The respondent now says that, although not cited to the judge, what was then s. 15 of the Mental Health Act, R.S.O. 1980, c. 262 provided the court with the requisite authority to remand the applicant in the manner that he did. Section 15 (the current equivalent provision being s. 21) provided as follows:

(1) Where a judge has reason to believe that a person who appears before him charged with or convicted of an offence suffers from mental disorder, the judge may order the person to attend a psychiatric facility for examination.

(2) Where an examination is made under this section, the senior physician shall report in writing to the judge as to the mental condition of the person.

[72] In R. v. Lenart, 1998 1774 (ON CA) at para. 51, Finlayson J.A., for the Court of Appeal, observed that s. 15 of the Mental Health Act:

… provides a mechanism to furnish the court with information that may assist with sentencing, and is consistent with co-operation with respect to mental health and criminal matters…

See also R. v. Jaser, 2015 ONSC 4729 at para. 24 where Code J. noted that the legal test in what is now s. 21(1) of the Mental Health Act has nothing to do with fitness to stand trial or with criminal responsibility.

[73] The record of proceedings discloses that the proposal to remand Mr. Forster for a psychiatric examination was a joint submission by both the prosecution and the defence. There was no reference to a potential dangerous offender application. Rather, the objective was to obtain a psychiatric assessment as part of the pre-sentence report process.

[74] Mr. Forster’s submissions relating to the psychiatric remand focus on the lack of authority to order a psychiatric remand under the pre-sentence report provisions of the Criminal Code, or to remand a guilty person for a psychiatric assessment for dangerous offender purposes (as opposed to a determination of an individual’s fitness to stand trial or to be sentenced). Mr. Forster also points out that even if those provisions of the Criminal Code did authorise a psychiatric remand, statutory preconditions would have to have been met including, in the case of a remand for psychiatric assessment, evidence that the person was mentally ill, based on the report of at least one medically qualified practitioner.

[75] I do not agree. As the decisions in Lenart and Jaser make clear, the Mental Health Act does provide a vehicle for obtaining a psychiatric assessment as part of the sentencing process....

[43] The application judge thus was satisfied that the psychiatric remand ordered by Dilks D.C.J. was authorized in law, albeit under the MHA, which was not cited as the source of the judge’s jurisdiction, rather than the Criminal Code, which Dilks D.C.J. saw as the basis for his authority.

[44] The appellant frames the concern with this ex post facto justification of the psychiatric remand as one grounded in the rule of law. The appellant concedes that the MHA could be a legitimate means to conduct a psychiatric remand that could be used for the DO process. According to the appellant, however, the relevant question is what authority Dilks D.C.J. relied on at the time of the hearing.

[45] The Crown asserts that the application judge properly held that the MHA provided the lawful authority necessary for the psychiatric remand of the appellant, relying on Lenart, at para. 51.

[46] I agree with the appellant. The issue is not whether Dilks D.C.J. hypothetically could have invoked a section of the MHA for authority for the psychiatric remand, had he found the circumstances met the threshold as the court did in Lenart (or, subsequently, in Jaser). Rather, the relevant question for the application judge must be what Dilks D.C.J. actually did, and the reasons given for what he did. On this point, there is no dispute that Dilks D.C.J. turned his mind to this question, and concluded the Criminal Code provided the necessary basis for a psychiatric remand (albeit with some discomfort). There is also no dispute that this finding was in error. No section of the Criminal Code justified the psychiatric remand as it was executed.

[47] The appellant likens the reasoning of the application judge to what the Supreme Court held was impermissible in R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51, which dealt with whether a search incident to arrest was contrary to s. 8 of the Charter. The Supreme Court held that the police conducting the search must have objectively acted according to lawful authority, and must subjectively have had that valid purpose for the search in mind when the search was conducted. In that case, the court concluded that even though an objectively valid basis existed for the search, the police did not conduct the search subjectively on that basis, and therefore the Charter had been breached. The appellant argues a similar analysis applies here where Dilks D.C.J. objectively may have had a lawful basis for the psychiatric remand but did not subjectively have that basis in mind when he made the order.

[48] The Crown argues the analogy to Caslake is misplaced, as a court-ordered search and seizure process cannot be compared with a remand for a psychological report, on consent.

[49] I agree with the Crown that the Caslake context can be distinguished and the Supreme Court’s approach to s. 8 of the Charter in that case is not applicable here. The broader principle advanced by the appellant, however, is compelling. Dilks D.C.J. was not alive to the potential authority of the MHA to justify a psychiatric remand. For that reason, he could not consider whether the criteria set out in the MHA were met, could not form a view on whether the discretion afforded him under the MHA should be exercised, and therefore did not take the steps necessary to engage the authority of the MHA. Put differently, while the MHA could have provided legal authority for Dilks D.C.J. to order the psychiatric remand of the appellant, in these circumstances, Dilks D.C.J. made his order without invoking that (or any other applicable) legal authority.

[50] The significance of the fact that s. 21 of the MHA was not raised before Dilks D.C.J. at the time of sentencing may be shown by looking at how Code J. considered that authority when it was raised before him prior to the sentencing of the co-accused in Jaser. The issue of the fitness for sentencing of the co-accused, Mr. Esseghaier, and whether there should be a psychiatric assessment for that purpose pursuant to s. 21 of the MHA, was raised by amicus counsel and eventually joined by the Crown. Code J. addressed this authority and the basis in the record to invoke it as follows, at paras. 24-25:

[24] There is no provision in the Criminal Code providing for a psychiatric assessment pending sentence and so the Motion was brought pursuant to s. 21 of the Ontario Mental Health Act. See: R. v. Lenart (1998,) 1998 1774 (ON CA), 123 C.C.C. (3d) 353 (Ont. C.A.). Section 21(1) provides for a psychiatric assessment of a person awaiting sentence where there is “reason to believe” that the person “suffers from mental disorder”. This legal test has nothing to do with fitness or with criminal responsibility and amicus, Mr. Silverstein, conceded during his argument of the Motion that Esseghaier was both fit to stand trial and that he did not meet the s. 16 test for lack of criminal responsibility. Mr. Silverstein is an experienced defence counsel and he had met with and watched Esseghaier throughout the trial. The basis that he advanced for the Mental Health Act assessment was that it would assist on sentencing, to determine whether Esseghaier does or does not suffer from a mental disorder, since this would relate to his degree of moral culpability. Mr. Silverstein relied on evidence of certain changes in Esseghaier’s behaviour, at the time when his religious extremism developed soon after he came to Canada to study towards his PhD (as set out in various RCMP interviews), as well as relying on a small number of incidents that had occurred in court. Mr. Silverstein submitted that this body of evidence was suggestive of mental illness and not that it was suggestive of Esseghaier being unfit to stand trial. Mr. Silverstein, of course, conceded that religious fervour provided no evidence of mental disorder.

[25] I concluded that it was a close case, as to whether there was sufficient evidence of a mental disorder to justify a psychiatric assessment under the Mental Health Act. However, Esseghaier had given his consent to the assessment and I held that it would be helpful on sentencing to know, “whether there is something about Mr. Esseghaier’s personality structure that makes him susceptible to religious extremism and that led to his radicalization after his arrival in Canada … and that some kind of mental disorder may be relevant … in relation to that issue”.

[51] Code J. was then asked by the Crown to order an additional psychiatric remand for a further assessment in light of alleged flaws with the first assessment. At that juncture, Code J. discussed the threshold for invoking this authority under the MHA, at paras. 57-59:

[57] The statutory test in s. 21(1) of the Ontario Mental Health Act is as follows:

Where a judge has reason to believe that a person who appears before him or her charged with or convicted of an offence suffers from mental disorder, the judge may order the person to attend a psychiatric facility for examination.

[58] As stated previously, the Court of Appeal has held that this provincial legislation is available to assist the Court at a sentencing hearing when there are gaps in the Criminal Code. See: R. v. Lenart, supra.

[59] The well-known statutory test in s. 21(1) – “reason to believe” – has been held to mean something “less than the standard applicable in civil matters of proof on the balance of probabilities” but “something more than mere suspicion”. It also requires “an objective basis” for the “reasonable grounds for belief”. See: Mugesera v. Canada (2005), 2005 SCC 40, 197 C.C.C. (3d) 233 at para. 114 (S.C.C.); Ontario v. 751809 Ontario Inc. (2013), 2013 ONCA 157, 115 O.R. (3d) 24 at paras. 18-19 (C.A.). Given that this statutory power is discretionary, I must also be persuaded that a further psychiatric assessment at this very late stage of the proceedings could assist the Court, either in relation to sentencing or in relation to the fitness issue that has been raised, or both. [Emphasis added.]

[52] As this case demonstrates, the discretion under s. 21 of the MHA for a psychiatric remand requires the judge to consider the bases for the request, even if consented to by counsel for the subject individual, and to make an independent determination that there is “reason to believe” that the person subject to the remand order suffers from a mental disorder. There is no indication that such an analysis was undertaken by Dilks D.C.J. prior to ordering the psychiatric remand of the appellant. Rather, the exchange between counsel and Dilks D.C.J. about the joint recommendation for a psychiatric remand concerned the length of the requested remand and the question of authority for it in the Criminal Code.

[53] The fact that such a psychiatric remand could – and in this case, did – lead to the basis of a DO application only heightens the importance of a sentencing judge conducting this independent analysis of the grounds and whether the “reason to believe” threshold was met in the circumstances.

[54] Apart from the rule of law concerns with an ex post facto legal justification for the psychiatric remand, there is also a fairness concern, as the appellant never had a chance, at the time, to address the “reason to believe” threshold as set out under the MHA. In this sense, cases such as Lenart and Jaser may be distinguished. In those cases, the reliance on the MHA was specifically considered by the trial judge, and the individual subject to remand on that basis was afforded an opportunity to make submissions on that authority.

[55] In light of these rule of law and fairness concerns, I am satisfied the application judge erred in finding Dilks D.C.J. had legal authority for the psychiatric remand leading to the DO designation and indeterminate sentence. Dilks D.C.J.’s error deprived him of jurisdiction to order the psychiatric remand of the appellant. On this basis, I conclude that the appellant’s habeas corpus application must be granted.

[56] I would not deal with the appellant’s attempt to challenge his DO designation as a violation of his ss. 7 and 8 Charter rights. The appellant could have raised a Charter challenge to his psychiatric remand before Dilks D.C.J. in the DO hearing itself in 1988, or during his 1995 appeal of his sentence. Having not done so, it would not be appropriate to consider such a challenge now apart separate and apart from the habeas corpus application.

(2) The application judge erred in concluding that Dilks D.C.J.’s fettering of his discretion did not warrant habeas corpus

[57] In his reasons accompanying his decision to designate the appellant a dangerous offender, Dilks D.C.J. held that if the requirements set out in the Criminal Code were met, he had no discretion but to impose the DO designation. There is no dispute between the parties that Dilks D.C.J. erred in this statement as he failed to take into consideration the Supreme Court’s then recent decision in R. v. Lyons. As set out above, in Lyons, the Supreme Court set out the proper process to follow in the determination of a DO designation. The Court concluded that a judge retained a discretion whether to find or designate a person to be a DO, and a further discretion whether, in light of that finding or designation, to impose an indeterminate sentence: Lyons. After setting out the criteria which must be established for a DO finding or designation to be met, the Supreme Court emphasized, at para. 43, that “the court has the discretion not to designate the offender as dangerous or to impose an indeterminate sentence, even in circumstances where all of these criteria are met.”

[58] The Supreme Court’s decision in Lyons differed from the approach taken to the DO process in R. v. Moore (1985), 1985 1971 (ON CA), 49 O.R. (2d) 1 (Ont. C.A.), the case relied upon by Dilks D.J.C. for the proposition that he lacked discretion.

[59] The application judge acknowledged the error committed by Dilks D.C.J. on this point, but went on to consider the impact of that error:

Judge Failed to Exercise Discretion Because He Did Not Know That He Had Discretion

[106] The final concern raised by Mr. Forster is that Dilks D.C.J. did not appear to know that he had discretion whether to find or designate Mr. Forster as a dangerous offender, and a discretion whether to impose an indeterminate sentence, even when the test was met.

[107] The respondent concedes that Judge Dilks erred when he said that he had no discretion regarding ordering a dangerous offender designation if the requirements of what was then s. 688 of the Criminal Code were met. However, the respondent argues that the judge’s misstatement had no practical consequences because he had, in fact, reviewed Mr. Forster’s criminal record, the victim impact statements and the psychiatric evidence of both parties’ experts before he concluded that Mr. Forster was a dangerous offender.

[108] I agree with this submission by the respondent. A review of the oral reasons given by Judge Dilks amply supports the decision that he was a dangerous offender. Judge Dilks’ misstatement as to the non-availability of a discretion did not, on my review of the record, result in an unfair or unreasonable decision. To the contrary, I have no doubt that even if Judge Dilks had appreciated that he retained a discretion, he would still have designated Mr. Forster as a dangerous offender. His error therefore had no practical affect. I take further comfort from the fact that the Court of Appeal subsequently concluded that it was unable to find that Dilks D.C.J. had erred in exercising his discretion. [Emphasis added.]

[60] With respect, it is speculative to say how the trial judge would have exercised the discretion if he were aware of it. For example, the appellant observes that there was evidence before Dilks D.C.J. that the availability of treatment was less likely for an indeterminate sentence and that the appellant was motivated and a suitable candidate for treatment. According to the appellant, this could have been a reason to exercise discretion not to designate the appellant as a DO even if the statutory criteria were met.

[61] In the 1995 appeal of the sentence, the Court of Appeal characterized Dilks D.C.J.’s finding on the DO designation as compelled by the evidence, stating, “[o]n the hearing before Dilks C.C.J., [sic] the evidence was such that he had no alternative but to declare the appellant a dangerous offender.” While that may have been Dilks D.C.J.’s view, it was not the justification Dilks D.C.J. gave in his reasons. Dilks D.C.J. was clear that if he found the statutory criteria were met, he had no residual discretion to deny the DO designation. Of course, it is important to reiterate that it was the indeterminate sentence that was under appeal at the time before this court, not the DO designation per se.

[62] In my view, Dilks D.C.J.’s fettering of his discretion renders the outcome of that initial DO proceeding unreasonable, whether or not there was more than sufficient evidence for him to have exercised his discretion in favour of granting the DO designation.

[63] The application judge concluded that this error did not entitle the appellant to habeas corpus because the error had no practical effect. However, in a habeas corpus application, unlike an appeal, there is no applicable curative provision to affirm incarceration notwithstanding an error.[^2]

[64] I would accept that the application judge erred in finding that the failure of Dilks D.C.J. to acknowledge his discretion did not invalidate the DO designation.

[65] In light of these findings, it is not necessary to consider the other grounds raised by the appellant, but for completeness, I would summarize briefly below why, in my view, ineffective assistance of counsel is not an appropriate consideration in this application for habeas corpus.

(3) Ineffective assistance of counsel

[66] The application judge raised the question of whether ineffective assistance of counsel is available as a ground to obtain habeas corpus. Nonetheless, without resolving that question, the application judge considered and rejected the arguments put forward by the appellant to establish ineffective assistance of counsel.

[67] The issue in the habeas corpus application is whether or not the state had the lawful authority to detain the appellant. Whatever role counsel may or may not have played in that regard would not bear on the appellant’s entitlement to release or any other remedy on the basis of habeas corpus.

[68] I would accept the Crown’s argument that, at least on these facts and circumstances, ineffective assistance of counsel is not a ground capable of giving rise to habeas corpus.

[69] In any event, to the extent ineffective assistance of counsel could form the basis of a habeas corpus application before this court, the protocol set out in s. 17 of the Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario arguably would need to be followed.

[70] This protocol includes mandatory notice provisions to the counsel whose conduct is impugned. Counsel for the appellant conceded this protocol was not followed in this case. Given the passage of time since the 1988 proceedings giving rise to this application, counsel for the appellant indicated he was unaware of whether trial counsel was still alive and made no attempt to contact the office or successors to the practice of trial counsel to see if any materials relating to trial counsel’s conduct could be obtained. (The appellant himself, in court during the hearing, stated he believed trial counsel had passed away.)

[71] In these circumstances, I would decline to consider the ground of appeal relating to ineffective assistance of counsel.

DISPOSITION

[72] For the reasons set out above, I would grant the appellant’s application for habeas corpus.

[73] In effect, with the removal of the original DO designation, the indeterminate sentence which depended on that designation is also no longer is a valid sentence. These effects of granting the habeas corpus application are clear. What is less clear is what happens next.

[74] The appellant states in his factum, “[i]f the DO warrant was unlawful, it can and should be quashed on appeal and the Appellant ought to be released. It is clear that he has served more than sufficient time in jail had the sentences been determinate.”

[75] With respect to the question of remedy, the Crown submits that there remain serious public safety concerns with any possibility of the appellant’s release. The Crown reiterates that, in 1988, the appellant’s own psychiatrist provided evidence pointing to the appellant’s likely recidivism. In 2000, the appellant attempted to escape from custody. The Crown argues that the more recent evidence in the record indicates that he is still not an appropriate candidate for release. For example, in 2018, a correctional plan report concluded the appellant’s commitment to his correctional plan and programming has been “digressing” and reflects “disengagement.”

[76] The appellant contests that the record suggests that he needs to remain in custody, but in the alternative, suggests that if the court accepts public safety concerns remain with respect to the appellant’s release, a probationary sentence could accompany his release and address those concerns.

[77] We are not in a position to make a determination of the appropriate sentence for the appellant in the absence of a full and updated record. There does not appear to be any updated assessment of the appellant or the danger he might still pose to the public.

[78] What is needed is a fresh proceeding to determine the appropriate sentence based on any evidence the parties wish at this point to put forward. That question should be remitted back to a different judge of the Superior Court to determine, with the appellant remaining in custody pending the outcome of that proceeding, and I would so order.

Released: January 22, 2025 “S.E.P.”

“L. Sossin J.A.”

“I agree. S.E. Pepall J.A.”

“I agree. A. Harvison Young J.A.”

[^1]: The application judge was in error as to the section number of the provision at issue, citing the provision as it appeared in the 1980 Revised Statutes of Ontario, c. 262. However, the Mental Health Act was subject to legislative amendments that came into force on June 19, 1987, one year before the appellant’s DO designation. These amendments introduced new provisions to the Act, therefore shifting the text of the previous s. 15 to become s. 21. In other words, by 1988, s. 21 was already the operative provision that would have been invoked for the judge’s order for assessment.

[^2]: It should be noted that the proviso in s. 686(1) of the Criminal Code is limited to cases where there are errors of law committed in the course of a valid proceeding and does not have application in the context of habeas corpus which deals with an invalid proceeding. See Wilson v. The Queen, 1987 6774; 35 CCC (3d) 316 (MB CA), at p.325 (per O’Sullivan J.A., concurring).