Ontario Review Board

Re: Mark Roberts

ORB File No: 6561

Hearing held: In writing

Pursuant to: Section 672.5(4) of the Criminal Code

Before: The Honourable Michael Dambrot, K.C., Chair

Counsel for Requesting Party: Leisha Senko, CAMH

REASONS FOR RULING

(Dated September 18, 2024)

A) CAMH’s Request for “Party” Status

1The Person in Charge (“PIC”) of the Centre for Addiction and Mental Health (“CAMH”) has provided notice of its intention to request “party” status pursuant to section 672.5(4) of the Criminal Code (the “Code”) at Mark Roberts’ annual review hearing scheduled for September 19, 2024, at Waypoint Centre for Mental Health Care (“Waypoint”).

B) Ruling

2I have considered CAMH’s request in writing prior to the commencement of the hearing. I deny CAMH’s request for party status. However, CAMH shall be permitted to participate in the hearing as a non-party on the following terms:

Counsel to CAMH may lead the viva voce testimony of Dr. Chatterjee and be permitted to make submissions on the issue of whether the necessary and appropriate disposition shall order Mr. Roberts detained at CAMH. Counsel for CAMH may also cross-examine any witness who provides evidence related to Mr. Roberts’ transfer to CAMH to the extent that the Alternate Chairperson considers appropriate.

C) Procedural Background

3On July 25, 2024, the PIC of Waypoint provided notification to the Board, CAMH and the parties pursuant to Rule 13 of the Board’s Rules of Procedure (the “Rules”) that it would be recommending Mr. Roberts be transferred to and detained at CAMH at the accused’s annual review hearing scheduled for September 19, 2024.

4On August 26, 2024, counsel for CAMH sent an e-mail to the Board and parties. The e-mail stated: “I write to give notice that CAMH will apply for party status at [the accused’s] annual hearing …given the intention to seek [the accused’s] transfer to CAMH.” That same day, the Board responded to CAMH’s counsel and indicated a pre-hearing conference (“PHC”) would be held prior to the hearing to address the issue of CAMH’s intention to seek party status. The PHC was subsequently scheduled for September 17, 2024.

5On September 12, 2024, counsel for CAMH provided written submissions to the Board and parties with respect to its request for party status. In its submissions, CAMH stated it was content to “rely on these written submissions at the hearing with respect to this issue to truncate the time required to address this motion” or “to resolve this issue at the upcoming PHC.” As an alternative to granting CAMH party status, CAMH requested that the Board call Dr. Chatterjee, the PIC, as a witness in order to discharge its inquisitorial duty.

6Prior to the September 17, 2024, PHC, and pursuant to Rule 3 of the Board’s Rules, I determined that CAMH’s request for party status should be addressed by the statutory parties in writing prior to the hearing date. This was conveyed to counsel for CAMH and the parties at the PHC by the alternate chairperson who presided at the PHC. No party expressed an intention to either take a position on CAMH’s request or to make written submissions.

7Also on September 17, 2024, CAMH filed a package of materials responding to the Rule 13 notification, which I have reviewed. The materials included a letter from Dr. Chatterjee setting out CAMH’s reasons for opposing Mr. Roberts’ transfer.

D) Jurisdiction to Hear CAMH’s Request in Writing

8Requests for party status are typically addressed by a hearing panel in one of two ways: as a preliminary issue raised orally by the party seeking status¹ or pursuant to a Notice of Motion² that is heard by the panel at the start of a hearing.

9If a party files a Notice of Motion with the Board, Rule 8 sets out the procedure to be followed by the Board and moving party. Despite referring to its “motion” at the conclusion of its written submissions, CAMH did not file a Notice of Motion with the Board and I have treated the hospital’s request as it was originally framed: an intention to seek an order granting party status before the hearing panel as a preliminary issue.

10The Board’s Rules are silent with respect to the procedure to be followed in situations where a party has provided notification of an intent to request party status before a hearing panel as is the case here. However, Rule 3 permits me to “determine the procedure to be followed” where “any matter or procedure is not provided for” by the Rules. Furthermore, Rule 1 states a general principle that the Board’s Rules “shall be liberally construed to secure the just, most expeditious and least expensive determination of every matter before the [Board].”

11In this case, I decided to hear CAMH’s request in writing rather than have it proceed before the hearing panel for the following reasons:

• The legal issue of party status in this case is neither novel nor complex and can be adequately addressed in writing.
• I believe the statutory parties should have a clear understanding of CAMH’s role (if any) at the hearing so they can prepare accordingly.
• Requiring the panel to address CAMH’s request for party status may result in the substantive hearing not being completed in time. If a seized panel must reconvene to complete the matter it will increases costs for the Board and parties and delay the outcome of the matter.

E) Reasons for Declining CAMH’s Request for Party Status and Permitting it to Participate in the Hearing as a Non-Party

12Subsection 672.5(4) of the Code permits the Board to designate as a party “any person who has a substantial interest in protecting the interests of the accused.” CAMH has not demonstrated it has a substantial interest in protecting Mr. Roberts’ interests in the circumstances of this case.

13CAMH relies on several decisions of the Board to support its request for party status. None of these decisions are binding on me and except for Roberts (Re) I do not find them of assistance in the circumstances of this case.

14In JMJ (Re)³ and LG (Re)⁴, CAMH and Regional Mental Health Care St. Thomas, respectively, were granted party status without objection from the statutory parties. However, there was no analysis in either decision whether the hospitals met the criteria for an order under subsection 672.5(4). In Amorim (Re), the Board granted party status to the Royal Ottawa Hospital for the “specific issue of transfer”⁵ but like JMJ and LG there is no analysis of whether the hospital met the criteria under subsection 672.5(4).

15In Cutsey (Re), the Board found that while North Bay Regional Health Centre did not meet the criteria under subsection 672.5(4) as it “could not reasonably be said that [the hospital] fell within that provision” it nonetheless decided to “exercise its discretion” and allow the hospital to be “included as a party in the proceedings for the purpose of fulfilling our inquisitorial role and hearing all evidence that might be of probative value.”⁶

16In my opinion, the most helpful Board decision on this issue is the panel’s decision from Mr. Roberts’ January 2023 annual review hearing. In that case, CAMH recommended Mr. Roberts’ transfer to Waypoint or a lateral move to another medium secure forensic hospital. Waypoint opposed Mr. Roberts’ transfer and filed a Notice of Motion seeking party status at the hearing. However, the Board declined⁷ Waypoint’s request. It stated:

The panel denied Waypoint’s motion for party status. While the panel agreed that there are circumstances when to have a proposed receiving hospital participate as a party would likely promote better decision making (and would be coherent with the overall scheme), we believed we were constrained by the legislation.

Turning to ss.672.5(4), the panel concluded that Waypoint was not a party that had a “substantial interest in protecting the interests of the accused.” We did not doubt Waypoint's good faith in wanting to provide information that would assist the panel in making the right disposition for Mr. Roberts, but Waypoint had no therapeutic relationship with Mr. Roberts. They had no obligation, as CAMH did, to protect Mr. Roberts' interests. Nor did Waypoint have direct knowledge of Mr. Roberts, as CAMH did, to advocate for his best interests.⁸

17I appreciate that CAMH has greater direct knowledge of Mr. Roberts than Waypoint did at the time of the January 2023 hearing, and I believe CAMH would act in good faith in opposing Mr. Roberts’ transfer as it clearly does not believe a return to CAMH is in his interests for the reasons set out in Dr. Chatterjee’s Rule 13 response letter. However, this situation is complicated by the history between Mr. Roberts and CAMH. In particular, the Board found at an August 18, 2023, hearing that CAMH’s resources were “totally exhausted”⁹ attempting to manage Mr. Roberts’ behavioural issues and the hospital was “out of options.”¹⁰ This hearing resulted in Mr. Roberts’ transfer from CAMH to his current placement at Waypoint.

18Although I am not prepared to find that CAMH has demonstrated it has a substantial interest in protecting Mr. Roberts’ interests given the acrimonious history between the two, I am satisfied CAMH has relevant evidence to provide on the issue of whether the necessary and appropriate disposition should include an order transferring Mr. Roberts to CAMH.

19The anticipated evidence of Dr. Chatterjee set out in her letter appears relevant to the factors set out in section 672.54 of the Code, including the risk to public safety the accused would pose if transferred to CAMH as well as Mr. Roberts’ reintegration prospects and other needs given his recent history with the hospital.

20For these reasons, CAMH shall be permitted to participate in the hearing, but not as a party. Its involvement in the hearing will be limited to issues related to the accused’s transfer to CAMH. Counsel for CAMH may lead the viva voce testimony of Dr. Chatterjee and will be permitted to make submissions on the issue of whether the necessary and appropriate disposition shall order Mr. Roberts detained at CAMH. CAMH will also be permitted to cross-examine any witness who provides evidence related to Mr. Roberts’ transfer to CAMH to the extent that the Alternate Chairperson considers appropriate.

Footnotes

1. 1See: Cutsey (Re), [2019] O.R.B.D No. 1099 at paras. 4-7.
2. 2See: Roberts (Re), [2023] O.R.B.D. No. 296 at paras. 13-14.
3. 3J.M.J. (Re), [2009] O.R.B.D. No. 586 at para. 2.
4. 4L.G. (Re), [2005] O.R.B.D. No. 1393 at para. 9.
5. 5Amorim (Re), [2013] O.R.B.D No. 267 at para. 5.
6. 6Cutsey (Re), [2019] O.R.B.D. No. 1099 at paras. 4-7.
7. 7Although the Board declined to grant Waypoint party status, it called the hospital’s proposed witness and allowed counsel for Waypoint to make submissions on the issue of transfer (see para. 21).
8. 8Roberts (Re), supra, at paras. 18 and 20.
9. 9Roberts (Re), [2023] O.R.B.D No. 2153 at para. 39.
10. 10Roberts (Re), ibid, at para. 41.