Court File and Parties

COURT FILE NO.: 06-CV-319871 PD3 DATE: 2007-03-22

DIVISIONAL COURT ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF a hearing of the Ontario Review Board to review A Disposition Order relating to ROBERT JOHN HARRIS

AND IN THE MATTER OF Part XX.1 of the Criminal Code, R.S.C. 1985, c. C-46

AND IN THE MATTER OF an Order of the Board dated July 12, 2006

RE: ROBERT JOHN HARRIS v. THE ONTARIO REVIEW BOARD, THE ATTORNEY GENERAL OF ONTARIO and the CENTRE FOR ADDICTION and MENTAL HEALTH

BEFORE: MADAM JUSTICE HARVISON YOUNG

COUNSEL: ANITA SZIGETI, MERCEDES PEREZ, for the Applicant JANICE E. BLACKBURN, for the Respondent, Centre for Addiction and Mental Health SARA BLAKE / SEAN HANLEY, for the Respondent, The Attorney General of Ontario STEPHEN J. MOREAU, for the Respondent, The Ontario Review Board

DATE HEARD: March 21, 2007

ENDORSEMENT

[1] For the reasons that follow, the application is dismissed for mootness. The Applicant, John Robert Harris, was found Not Guilty by Reason of Insanity on March 22, 1983 for the second-degree murder of a family friend. Mr. Harris was detained under the jurisdiction of the Ontario Review Board until receiving a conditional discharge in August 2004. On July 5, 2006, the Board received an Administrator’s Report from the hospital recommending an absolute discharge for Mr. Harris. The Board adjourned two hearings that had been set to review the Applicant’s Disposition Order on July 12, 2006 and August 2, 2006, ruling that adjournments were necessary to notify any potentially surviving family of the deceased victim of their right to participate. The Board made these decisions as a result of legislative changes that came into effect on January 2, 2006. At that time, section 672.5(13.2) was added to the Criminal Code, which requires that the Board notify victims of their right to participate whenever, upon receiving an “assessment report”, the Board considers that there may be grounds for the accused to receive an absolute or conditional discharge. The Board eventually granted Mr. Harris an absolute discharge on September 6, 2006 after the Board received confirmation from the Attorney General and the Centre for Addiction and Mental Health that there were no victims who could be contacted with respect to Mr. Harris’ case. Mr. Harris applies for a declaration restricting the interpretation of the term “assessment report” in s. 672.5(13.2) of the Criminal Code and for a constitutional declaration of invalidity of the new victim notification requirement. The respondents, Attorney General for Ontario and the Review Board, ask that the application be dismissed for mootness.

[2] It is not disputed that Mr. Harris’ appeal is moot insofar as he is concerned, as the Review Board granted him an absolute discharge on September 6, 2006. The question is whether this is an appropriate case for the court to exercise its discretion to hear the matter in any event (Borowski v. Attorney General for Canada, [1989] 1 S.C.R. 342 at 353). The issues concerning the statutory interpretation and the constitutional validity of the impugned provisions arise from the obligations placed on the Ontario Review Board to notify victims, and the circumstances that trigger these obligations. There is no dispute that the legislation is capable of more than one interpretation, and there is no dispute that there have been inconsistent interpretations of s. 672.5(13.2) of the Code by the Board since it came into force. There is also no dispute that in Mr. Harris’ case, there were no victims within the meaning of these provisions. Furthermore, it was common ground that there are hundreds of accused found Not Criminally Responsible who are detained in Ontario, each of whom has an annual review. It was also common ground that some of these cases will have victims who have been notified and who may be before the Board when it determines whether or not the accused should be discharged.

[3] With respect to the constitutional issues, the absence of any evidence before the court in this application from victims as part of the evidentiary record in this case means that the court would be determining the validity of provisions apparently concerned with the interests of victims without any factual record from victims before it. The importance of a proper factual record in a constitutional challenge has been repeatedly emphasized by the Supreme Court in MacKay v. Manitoba, [1989] 2 S.C.R. 357 at 361-62; Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086 at 1101; Canadian Council of Churches v. Canada (Minister of Employment and Immigration, [1992] 1 S.C.R. 236 at 254-255.

[4] Ms. Blackburn for the Centre for Addiction and Mental Health argued persuasively that the court should, in any event, decide the statutory interpretation issues because of the inconsistency that has characterized the Board’s decisions on s. 672.5(13.2). Mr. Moreau for the Board argued that this inconsistency is part of a somewhat inevitable adjustment to new, unfamiliar legislation that places new obligations on the Board, and submitted that this will resolve over time. Be that as it may, the absence of victims in this case is also problematic for the statutory interpretation question.

[5] There is no doubt that s. 672.5(13.2) is capable of more than one meaning; the split in the majority and minority reasons of the Board with respect to the adjournment in Mr. Harris’ case make that clear. That means, as a matter of statutory interpretation, that the policy and intent of the legislation will be relevant to the construction and interpretation of the provisions. As the very purpose of the section concerns issues relating to victims and their notification, the absence of victims from the factual record, combined with the mootness of the application vis à vis Mr. Harris, lead me to conclude that here too, the court should have before it all the persons who may be interested in the issue.

[6] Ms. Szigeti for the Applicant submitted that the test in Bonnah (Litigation guardian of) v. Ottawa-Carleton (2003), [64 O.R. (3d) 454] at para. 16 (C.A.) for a court to exercise its discretion to hear a moot appeal had been met on these facts as: (a) the issue had been fully litigated below (as illustrated by the Board’s reasons); (b) the issue is of general importance; and (c) the issue is likely to arise in the future. I agree with the reply submissions of the Attorney General on this point: the issues regarding the statutory interpretation of s. 672.5(13.2), as well as its constitutional validity, cannot be said to have been fully litigated below given that there were no victims in the present case.

[7] I am also satisfied that this is a situation where there are numerous other potential applicants who would allow the issues to be fully explored on the basis of a full factual record. A discharge is an option that the Board must consider in many cases, and the Board is required to make a disposition that is the least onerous and least restrictive, consistent with the level of risk that the accused poses to public safety (Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R 625). Victim notification provisions could apply in these cases, which would provide a much fuller record for a court on appeal.

[8] While this is not a case that is devoid of a factual underpinning, the fact that it is devoid of a factual record concerning victims given the apparent purpose of the legislation, in addition to the factors just mentioned, satisfy me that the court should not exercise its discretion to hear this application. An order will issue accordingly.

Harvison Young J.

DATE: March , 2007