|
Criminal - NCR - Detention Orders. Sookram (Re)
In Sookram (Re) (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from an ORB detention order decision, here relating to "a shortage of places in supervised accommodation and a significant waiting list":[1] The appellant appeals from the February 9, 2024 disposition order of the Ontario Review Board. Relying on jurisprudence from this court – most notably Kelly (Re), 2014 ONCA 269 – he argues that the Board erred by making a detention order that did not include a community living term.
....
Kelly (Re)
[13] The appellant and the respondent Crown fundamentally disagree on the correct interpretation of this court’s decision in Kelly. In Kelly, this court concluded that the Board erred by denying the hospital’s request to include a community living term, even though the offender would not be ready to make a transition into the community during the year following his annual hearing. The court held, at para. 11:The Board’s refusal was inconsistent with the overriding need to achieve a disposition that is the least onerous and least restrictive. As a practical matter, there is a shortage of places in supervised accommodation and a significant waiting list. In our view, the Board should take that practical reality into account, especially where there is evidence that the requested provision is also recommended for therapeutic reasons. The inevitable result of the Board’s refusal to consider the provision recommended by the treatment team would be to subject the appellant to a more severe restraint than is warranted by his condition. [Emphasis added.] ....
(iii) Discussion
[17] I agree with the Crown that the Board must “consider” a community living term where one is requested. However, it must do so in accordance with the four factors in s. 672.54 of the Criminal Code: the safety of the public, the mental condition of the accused, the reintegration of the accused into society, and the other needs of the accused. Under s. 672.54, the Board’s disposition must be necessary and appropriate in the circumstances, namely, the least onerous and least restrictive of the accused’s liberty consistent with public safety, his mental condition and “other needs”, and his eventual reintegration into society: Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20, [2004] 1 S.C.R. 498, at paras. 3, 24.
[18] Although public safety is the overarching consideration, in this case the Board’s reasons do not reflect any attention to the mental condition of the accused or his reintegration into society. A Board’s reasons are not owed deference where they do not take the proper factors into account.
[19] While a board’s primary objective is to ensure public safety, it also has an obligation to consider an accused’s long-term reintegration into society (by ensuring they have sufficiently supportive housing when discharged), and their mental condition. As the Supreme Court held in Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528, at para. 19:The objective is to reconcile the twin goals of public safety and treatment. In this process of reconciliation, public safety is paramount. However, within the outer boundaries defined by public safety, the liberty interest of an NCR accused should be a major preoccupation of the Review Board when, taking into consideration public safety, the mental condition and other needs of the individual concerned, and his or her potential reintegration into society, it makes its disposition order. [20] Here, while the Board clearly considered public safety in declining to order the community living term, it did not consider the appellant’s reintegration into society. Nor did it analyze the appellant’s mental condition, beyond a superficial examination of the index offence and to note that he had not been observed outside of a maximum security facility. All of the relevant factors needed to be balanced and weighed against each other. More specifically, public safety concerns needed to be weighed against the fact that the appellant had progressed through the security level system at Waypoint in the minimum required time, had been medication compliant, presented no behavioural management issues, had achieved greater degrees of off-unit access in a linear fashion, and had maintained a close relationship with his supportive family. Because the Board failed to balance all these factors transparently in its reasons, it is not possible to discern how public safety concerns overwhelmed everything else.
[21] When the Board considered the inclusion of the community living provision, it concluded:Notwithstanding delays associated with community placement it must first be demonstrated, to the satisfaction of the responsible treatment team at St. Joseph’s, that [the appellant] is ready for that transition. Dr. Mishra has only observed [the appellant] within the context of Waypoint’s high secure forensic structure. This determination is therefore appropriately left for St. Joseph’s subsequent to their assessment of [the appellant]’s progress once he is afforded and assessed in relation to indirect community access. [Emphasis added.] [22] The Board’s analytical path was flawed. This articulation of the test – that there must be evidence the appellant is ready for a transition to the community – accounts for public safety concerns, but it does not account for any of the other factors in s. 672.54. The appellant’s reintegration into society would be significantly hindered by delaying his placement on the waitlist for another year. And although counsel did not make submissions to this effect before the Board, common sense dictates that, if community access would be motivating to the appellant and would facilitate his education and future employment, then so too would the prospect of community living.
[23] Further, the Board’s formulation of the test suggests that the treatment team at St. Joseph’s would have no input into the determination to implement the community living term. But this is not the case. A community living term would only permit the appellant to live in the community should the person in charge at St. Joseph’s, in their discretion, authorize it. The appellant’s residence would also have to be approved by the person in charge. And, while no one expressed any concerns that St. Joseph’s would exercise its discretion improperly, even if someone had, as this court held in Kelly, at para. 11, “[i]f the Board was concerned that the treatment team might use the provision prematurely, it could have made provision for reporting or returning to the Board for approval before it was implemented”. This condition offers a sensible compromise when the lingering concerns are rooted in the accused not having been observed in a less secure setting. Particularly given that the appellant’s counsel drew the Board’s attention to Kelly, the Board ought to have considered these possible safeguards and justified any finding that they were inadequate in its reasons.
[24] As in Kelly, there was no downside to including a community living term, even if for the sole purpose of placing the appellant on a housing waitlist. Not only was there was no evidence that including such a term would endanger the public, there was no evidence before the Board that including the term would have any negative consequences at all. The term was sought only because it would enable St. Joseph’s to place the appellant on a waitlist for housing, which made good sense given the systemic issues that everyone acknowledged give rise to lengthy delays.
[25] Further, the term was important to the Board’s mandate of imposing the “least onerous and least restrictive” disposition possible: Kelly, at para. 11. As this court noted in Simonic (Re), 2024 ONCA 573, at para. 15: “Given that at least some providers of community living will not place a patient on a waitlist until they are granted community living privileges, the denial of a community living clause could mean that a patient would face the prospect of remaining in an inappropriately restrictive environment for an excessive length of time while waiting for the disposition to be revisited at the next annual review.” I acknowledge that in both Simonic and Kelly there was evidence that including the community living term would be therapeutically beneficial, and that there was no such evidence here. But in the appellant’s case, as in Kelly and Simonic, not including the term would mean subjecting the appellant to more onerous and restrictive conditions than necessary, for longer than necessary, given that he would face a significant wait time even after there was evidence that he was ready for the transition.
[26] And, contrary to the Crown’s argument, this court’s decision in Armstrong (Re), 2019 ONCA 907, did not compel the Board to decline to include the community living term. In Armstrong, while the Board did decide not to include the term, there was strong evidence that to do so would have negative consequences: the doctor testified that the accused had a personality disorder, that he had assaulted a co-patient because of his frustration with being “held back” from privileges he felt entitled to, and that to include such a term would lead to a therapeutic impasse. The Board in Armstrong accepted the doctor’s evidence, which is why the term was not included.
[27] There was no evidence to support such a finding in the appellant’s instance. Dr. Mishra’s evidence was that the appellant had never displayed any sense of entitlement, and had not pushed rules or boundaries. While Dr. Mishra was hesitant to recommend the community living term, this was because he had only observed the appellant in the high security environment at Waypoint. Put another way, although Dr. Mishra stressed that he could not make a recommendation himself at this point, he did not say that the recommendation would not be open to anyone, and he did not mention any specific reason to think that the appellant would behave differently in a less secure setting.
[28] In my view, the Board did not adequately justify in its reasons its refusal to include a community living provision in the appellant’s disposition, despite the evidence that there were significant safeguards available and no downside to doing so. This lack of justification, together with the Board’s failure to consider the provision in light of the appellant’s long-term reintegration into society and his mental condition, rendered the disposition unreasonable. The appropriate question was not whether the Board had sufficient evidence to satisfy it that the appellant was ready to transition to community living, but whether, in crafting the “least onerous and least restrictive” disposition available given the evidence and the balance of the four factors in s. 672.54 of the Criminal Code, the Board could include a community living provision with conditions.
Conclusion
[29] For these reasons, I would allow the appeal. I would amend the disposition order to provide that the appellant is permitted to live in the community in accommodation to be approved by the person in charge at St. Joseph’s Healthcare Hamilton, and that St. Joseph’s must give notice to the Board in the event that it is considering discharge to the community, so that the Board may approve any implementation of this term. . Kipusi (Re)
In Kipusi (Re) (Ont CA, 2024) the Ontario Court of Appeal considered a criminal NCR appeal from a decision of the ORB, here where the parties agreed that the appellant was a "significant threat to the safety of the public" - but the issue was the detention terms imposed:[1] On December 18, 2023, the appellant, Mr. Kipusi, was found not criminally responsible on account of mental disorder on charges of criminal harassment, uttering threats to cause death or bodily harm, mischief, and failing to comply with a recognizance. As a result, he is under the jurisdiction of the Ontario Review Board (“the Board”) and is detained at the Royal Ottawa Mental Health Centre (“the Hospital”).
....
[4] Decisions of the Board on these types of issues are reviewed on a standard of reasonableness. The reasonableness of a decision is generally assessed by considering whether the decision is based on internally coherent reasoning – whether a rational chain of analysis that led to the decision can be discerned – and whether the decision is justified in light of the legal and factual constraints bearing on the decision: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 99-103.
....
[8] There was no factual or legal constraint to the granting of a detention order. It is one of the two dispositions that must be made consequent on a finding of significant threat. A detention order, rather than a conditional discharge, is appropriate when there is a need for a hospital to supervise (in the sense of approve) accommodation – a conditional discharge may only specify that an NCR accused reside in a specific place: Davies (Re), 2019 ONCA 738, 380 C.C.C. (3d) 552, at paras. 19-20. There is clearly a need in this case for the Hospital to approve what accommodation is appropriate for Mr. Kipusi, especially as his needs, treatment and outlook progress.
....
Overly Restrictive Conditions
[12] Paragraph 2(g) of the Board’s disposition stipulates that the person in charge of the Hospital may, in his or her discretion, permit Mr. Kipusi “to live in the community in supervised accommodation approved by the person in charge.”
[13] We agree with Mr. Kipusi that the inclusion of the word “supervised” in the condition about where he may be permitted by the Hospital to live makes the condition unreasonably restrictive. It limits the range of accommodation which the Hospital may approve to “supervised accommodation”, rather than leaving it to the discretion of the Hospital to determine whether to approve accommodation that is, or is not, supervised.
[14] The “supervised” limitation on accommodation that could be approved was not requested by the Hospital. When a Board member raised the matter, Dr. Strike, the treating psychiatrist at the Hospital who testified at the hearing, was firmly opposed to it. She explained that while currently the Hospital would not approve accommodation for Mr. Kipusi that was unsupervised – his current accommodation is supervised – circumstances could change. Depending on his progress, unsupervised accommodation may become appropriate to approve. According to Dr. Strike, limiting what the Hospital could approve to “supervised” accommodation was not necessary to manage the risk – it was “too onerous, too restrictive.”[1]
[15] The Board’s reasons shed no light on why the “supervised” limitation was included. The Board did not reject Dr. Strike’s evidence. The Board explained, in the conclusion of the reasons, that “[t]he Board further agrees with the disposition recommended in the [H]ospital report.” That report did not recommend that approvable accommodation be limited to only supervised accommodation.
[16] There is accordingly no rational chain of analysis that led to this aspect of the disposition that can be discerned, and it is without a factual underpinning.
[17] The word “supervised” should accordingly be struck from para. 2(g) of the disposition. . Casey (Re)
In Casey (Re) (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal from a decision of the ORB, here commented on the need for a detention order:[17] The Board carefully considered the evidence, including the evidence of Dr. Naidoo, the results of the risk assessments, and the hospital report. The Board accepted the evidence of Dr. Naidoo that the hospital requires the ongoing authority of the detention order to intervene at an early juncture by readmitting the appellant quickly if the need arises. Dr. Naidoo’s view that a detention order is the only mechanism that would permit the hospital to intervene promptly in the event of prohibited substance use is supported by decisions of this court: see e.g. Shahinjou (Re), 2024 ONCA 667, at para. 19; Young (Re), 2011 ONCA 432, 273 C.C.C. (3d) 512, at para. 32; and Davies (Re), 2019 ONCA 738, 380 C.C.C. (3d) 552, at paras. 34 and 38.
|
