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Homelessness - Criminal. Tobin (Re)
In Tobin (Re) (Ont CA, 2025) the Ontario Court of Appeal allowed an NCR appeal, here wrt the hospital seeking community housing for the appellant:Issue 2: The Board erred in failing to impose a condition in its disposition requiring the hospital to exercise due diligence in pursuing community housing for Mr. Tobin
[14] Mr. Tobin submits that the Board erred in not including an order in the disposition requiring the hospital to exercise all due diligence in pursuing community housing for Mr. Tobin. We agree.
[15] In its reasons, the Board admonished the hospital for letting Mr. Tobin’s housing at Emmaus Place lapse without a plan for suitable permanent housing. The Board expressed its concerns as follows:Dr. Nagari testified that [Mr. Tobin’s] condition settled quickly once he was readmitted, and Mr. Tobin could have been transitioned to discharge planning to the community after 2 weeks or so, but for the fact that there is no suitable housing available for him at this time. He currently exercises indirectly supervised passes into the community without issue. The hospital now has him on 4 wait-lists for permanent housing. The panel finds it very concerning that arrangements were not made for Mr. Tobin to transition to permanent housing from Emmaus Place long before his tenancy at Emmaus Place was terminated. The hospital was aware that Emmaus Place is a transitional housing facility, intended to house individuals for approximately 2 years while they are being transitioned to permanent housing. The hospital was aware that his tenancy was extended by Emmaus Place a few years ago. The hospital was also aware that there is a waiting list of many months to years to secure the supervised permanent housing. It was incumbent on the hospital to understand Mr. Tobin’s tenancy situation with Emmaus Place, and to take the necessary steps to have Mr. Tobin placed on a waiting list in a timely manner to prevent the current situation where Mr. Tobin is hospitalized only to await the availability of suitable housing. [Emphasis added.] [16] The Board went on to state that a detention order was necessary as a result of this situation because Mr. Tobin cannot live independently in the community. The Board further urged “the hospital to exercise all due diligence in pursuing community housing for Mr. Tobin”. However, the Board’s disposition, which sets out all the terms of its order, does not include a direction to the hospital requiring that it exercise all due diligence in pursuing housing for Mr. Tobin. As it stands, this is merely a strong suggestion in the reasons.
[17] In Re Le Feuvre, 2020 ONCA 822, at para. 12, this court found that “it was an error for the Board to issue a disposition that fails to reflect its reasons.” We find that the Board made a similar error in this case. The fact that Mr. Tobin is obligated to reside at the hospital when his current condition would allow him to live in some form of supervised community housing is at least in part due to the hospital’s error. The hospital’s obligation to remedy this situation should be reflected in the Board’s disposition rather than simply a strong suggestion to act with due diligence in the reasons. Accordingly, we would amend the disposition to include the following term: “The hospital is to exercise all due diligence in pursuing community housing for Mr. Tobin”.
[18] This term is broad enough to give the hospital the necessary flexibility to manage the priority needs of other patients under its care. It is also broad enough to ensure the hospital takes necessary steps to determine Mr. Tobin’s needs and the available options to meet them. However, making this a term of the order ensures that the hospital will treat Mr. Tobin’s need for housing as an obligation rather than a suggestion.
Disposition
[19] The appeal is allowed to the limited extent that the disposition of the Board is amended to add a term that “The hospital is to exercise all due diligence in pursuing community housing for Mr. Tobin”. The appeal is otherwise dismissed. . Shortt (Re)
In Shortt (Re) (Ont CA, 2020) the Court of Appeal considered a NCR (non-criminally responsible) case that took a first step at obtaining what can be called a 'housing funding' remedy:[1] The appellant, Wesley Shortt, has been detained in forensic custody since March 7, 2007 after he was found NCR with respect to one count of uttering threats and one count of failure to comply with probation. He is currently detained at St. Joseph’s Healthcare Hamilton (“Hospital”). Since at least 2014, the Ontario Review Board (“Board”) has repeatedly held that, at the discretion of the Person in Charge of the Hospital, Mr. Shortt is eligible to live in the community of Southern Ontario in accommodation approved by the Person in Charge.
[2] Mr. Shortt is eligible to live in a community residential setting if appropriate supports are provided. If this happens, his detention in forensic custody would not be necessary for public safety, nor would it advance any of the factors in s. 672.54 of the Criminal Code.
[3] Unfortunately, this component of the Board’s dispositions for Mr. Shortt, consistent for the last six years, has not been implemented. While the Hospital continues to support Mr. Shortt’s integration into a community residential setting, he has not been integrated into a community setting because, despite its best efforts, the Hospital has been unable to locate a suitable setting or to obtain meaningful information from the Government of Ontario as to when such a setting might become available.
[4] To break this impasse, Mr. Shortt applied for relief under the Canadian Charter of Rights and Freedoms at his annual review hearing. He argued that his continued detention in forensic custody violated s. 7 of the Charter. If successful on this argument, he sought a prospective remedy under s. 24(1) of the Charter, namely, state funding for suitable supportive housing as described by his treatment team at the Hospital.
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[76] The remedy sought by Mr. Shortt in his Charter application is: “An order allowing the application, releasing the Applicant from the Hospital, and directing the Attorney General to fund appropriate community housing for the Applicant forthwith.”
[77] At the appeal hearing, in response to a question, the appellant acknowledged that an order that the Government (not necessarily the Attorney General) provide community housing with appropriate supports to Mr. Shortt (without mentioning “funding”) in a timely fashion (not “forthwith”) would be appropriate.
[78] I regard this as a fair response. Accordingly, in the highly unusual circumstances of this case, where for six years the Hospital has deemed Mr. Shortt capable of living in the community yet been unable to obtain any meaningful information about why no community setting has been made available to him, it is time for an order. I am inclined to make an order with two components.
[79] First, it is almost 14 months since the Board’s last evaluation of Mr. Shortt. At the appeal hearing, the court was informed that his next annual review is scheduled for November 24, 2020. In my view, the review should take place. In the Board’s last review, based on “the joint submission of the parties”, the Board “found that Mr. Shortt continues to represent a significant threat to the safety of the public” but also that he was eligible “to live in the community of Southern Ontario in accommodation approved by the person in charge.” This has been the Board’s consistent assessment for several years.
[80] Accordingly, in the interests of public safety and fairness to Mr. Shortt, at this stage it is appropriate for the Board to conduct its next annual review and determine whether this longstanding privilege, to be extended at the direction of the Person in Charge, remains an appropriate aspect of the disposition.
[81] Second, the Government must be ready at the next annual review to address the precise location in the community where Mr. Shortt can be placed no later than the end of 2020, provided of course that the Person in Charge of the Hospital deems that setting appropriate. This will require the Attorney General and the MCCSS to work closely together. At this juncture, that is entirely appropriate.
[82] This is an exceptional case. For six years running, the Board has deemed Mr. Shortt capable of living in the community at the discretion of the Person in Charge of the Hospital. For six years running, the Hospital has deemed Mr. Shortt capable of living in the community. The difficulty is that, despite its best efforts, the Hospital has not been able to determine why an appropriate residential setting has not been made available for Mr. Shortt or even when one may be made available. As a result, Mr. Shortt has been languishing in the Hospital and his condition is starting to deteriorate, a development that stands as the antithesis to one of the ultimate purposes of the NCR scheme, to work safely toward the reintegration of NCR accused back into society.
[83] It is against this very unusual backdrop that Mr. Shortt’s liberty has been violated, and not in accordance with the principles of fundamental justice. Provided the Board determines that his condition continues to warrant the possibility of community living with support, the Government must respond immediately and meaningfully to this pressing need for implementation. The Government’s role at the next annual review hearing must be to identify precise implementation, not to contest it.
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