



COURT OF APPEAL FOR ONTARIO

CITATION: Thurston (Re), 2015 ONCA 351

DATE: 20150519

DOCKET: C59296

Doherty, Cronk and LaForme JJ.A.

IN THE MATTER OF:
Stephen Thurston


AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Suzan E. Fraser and Kelley J. Bryan, for the intervener,
    Mental Health Legal Committee

Michele Warner, for the respondent, Person in Charge of
    the Centre for Addiction and Mental Health

Grace Choi, for the respondent, Attorney General for
    Ontario

Heard: February 9, 2015

On appeal against the disposition of the Ontario Review
    Board, dated August 27, 2014.

Cronk J.A.:

A.      Introduction

[1]

By disposition dated August 27, 2014, the Ontario Review Board ordered
    the appellant, Stephen Thurston, detained on the Secure Forensic Unit of the
    Centre for Addiction and Mental Health (CAMH) in Toronto.  The disposition
    proceeded on a joint submission.  Under the agreed terms of the disposition, the
    person in charge of the hospital may permit Thurston escorted, accompanied or
    indirectly supervised hospital and grounds privileges, but no access to the
    community except for necessary medical, dental, legal or compassionate purposes.

[2]

In the normal course, and subject to the early review provisions set out
    in the
Criminal Code
, R.S.C. 1985, c. C-46, Thurstons disposition
    would remain in effect for 12 months, until his next statutorily mandated annual
    review hearing.  However, before the Board, the parties also jointly sought an
    order that Thurstons next review hearing be held in six, rather than twelve,
    months.

[3]

The Board rejected the parties joint request for an early review
    hearing.  Instead, it ruled that Thurstons disposition remain operative until
    a new Disposition of the [Board] is issued.  Thurston appeals against this
    ruling.

[4]

The only issue on appeal is whether the Board erred in declining to pre-schedule
    a six-month review hearing.  Thurston argues that, in denying this part of the parties
    joint submission, the Board breached natural justice and its duty of procedural
    fairness.  He submits, further, that the Board misapprehended the nature of the
    joint submission and the evidence supporting the request for an early review
    hearing.  As a consequence, Thurston says, the Boards ruling on this issue
    occasioned a miscarriage of justice.

[5]

For the reasons that follow, I conclude that hearing fairness was not
    compromised in this case and that the Boards denial of an early, six-month review
    hearing was reasonable on the evidentiary record before it.

[6]

Accordingly, I would dismiss the appeal.

B.      Background In Brief

[7]

Thurston is 39 years of age.  He has a 20-year history of various
    psychiatric difficulties, which have led over the years to numerous hospital
    admissions and emergency visits and frequent interactions with the police.

[8]

On June 13, 2005, Thurston was found not criminally responsible (NCR) on
    account of mental disorder on one count of sexual assault, two counts of resist
    arrest and one count of escape lawful custody, all contrary to the
Criminal
    Code
.  He has remained under the jurisdiction of the Board since 2005.

[9]

Thurstons current diagnoses are schizophrenia, substance dependence
    disorders (cocaine and cannabis), and antisocial personality traits.

[10]

Thurston
    has been free from active symptoms of psychosis for many years and has complied
    with his medication regime while detained.  However, his substance abuse
    problems have precipitated repeated absences without leave (AWOLs) from CAMH by
    Thurston, as well as theft and other property offences in order to fund his use
    of cocaine.

[11]

By
    a disposition dated February 25, 2014, Thurston was ordered detained on the
    General Forensic Unit at CAMH, with privileges that included, with the
    permission of the person in charge of the hospital, indirectly supervised
    community passes for up to 10 hours a day, indirectly supervised 72-hour passes
    to visit his mother in Cobourg, Ontario, and community living in accommodations
    approved by the hospital.

[12]

In
    2014, Thurston twice went AWOL.  First, in early February 2014, shortly before
    his scheduled annual Board review, Thurston left CAMH without permission and
    engaged in the use of cocaine.  That same month, CAMH learned that he had fraudulently
    obtained $2,500 in community living benefits from the Ontario Disability
    Support Program, having claimed that he was no longer living at CAMH.

[13]

Some
    months later, on June 2, 2014, Thurston again went AWOL.  On this occasion, he
    had been entrusted with another patients bank card for the purpose of withdrawing
    a small amount of money.  Instead, Thurston withdrew all the funds (about $400)
    from the account and remained absent from CAMH for nearly 48 hours.  During his
    absence, he repeatedly used cocaine and did not take his medication.  He was
    apprehended and returned to CAMH.  On his return, he refused to provide a urine
    sample, discuss his absence, or engage with his attending psychiatrist.

[14]

On
    June 12, 2014, as a result of the incidents described above and other concerns,
    CAMH requested an early Board review of Thurstons February 2014 disposition. 
    The accelerated review hearing was held on August 20, 2014.

C.      Board Hearing

[15]

It
    was undisputed at the August 2014 hearing that Thurston continued to pose a
    significant threat to the safety of the public and, consequently, that his
    continued detention at CAMH was required.  The only issues for determination
    were the appropriate place and duration of, and the fit conditions to attach to,
    his detention.

[16]

CAMH,
    supported by the Crown and Thurston himself, recommended that Thurstons place
    of detention be changed from the General Forensic Unit (minimum security) to
    the Secure Forensic Unit (medium security) at the hospital, with unsupervised hospital
    and grounds privileges, but with no access to the community.  The parties also jointly
    urged the Board to pre-schedule a review of the proposed disposition after
    six-months, ahead of the 12-month review required under s. 672.81(1) of the
Criminal
    Code
.

[17]

CAMH
    argued that Thurstons transfer to the Secure Forensic Unit was necessary to
    prevent further AWOLs, to facilitate his compliance with various hospital rules
    and to afford Thurston the opportunity to participate in the programming
    available on the secure unit.  Thurston did not challenge these assertions.

[18]

The
    parties sought to justify the request for a six-month review on several bases.  CAMH,
    supported by Thurston, argued that a six-month review would motivate Thurston
    to make effective use of his time on the Secure Forensic Unit and to address
    his substance abuse issues; that, without this motivation, Thurston could lose
    hope and his condition could deteriorate; and that there was a realistic
    possibility that Thurston could be ready for a transfer back to the General
    Forensic Unit within six months if he accomplished the goals set for him by his
    treatment team.

[19]

As
    a result of the joint submission, the hearing before the Board was brief.  Thurstons
    treating psychiatrist, Dr. Mark Pearce, testified and CAMH filed two hospital
    reports regarding Thurstons conduct and progress while detained at CAMH.

[20]

The
    evidence established that Thurston had engaged in a litany of problematic
    behaviours in the months preceding the August hearing.  He had left the
    hospital on two occasions without permission, during which he used cocaine
    repeatedly and did not take his medication.  On one of these AWOLs, he had stolen
    all the money in a co-patients back account.  In respect of another incident,
    he had been convicted and sentenced on a charge of fraud under $5,000.  He had
    reportedly bullied a co-patient for money and, on different occasions, had tested
    positive for marijuana use, threatened a nurse, and refused to provide urine
    samples for testing.

[21]

Based
    on this evidence and the parties agreed position, the Board accepted that Thurstons
    transfer to the Secure Forensic Unit, with privileges up to and including
    indirectly supervised hospital and grounds privileges, was necessary and appropriate. 
    The Board held, at p. 5 of its reasons:

Mr. Thurston should be transferred to the Secure Forensic Unit
    because he has lost the trust of his doctor and treatment team, is at high and
    constant risk of AWOL, and has been difficult to manage on the general unit
    (smoking against the rules; testing positive for marijuana; provoking
    altercations with staff).

Mr. Thurston has not been placed on a secure unit in some
    years, and the transfer is a step backward for him.  Detention on a secure unit
    has become necessary, first and foremost, to prevent Mr. Thurston from going
    AWOL yet again and committing property offences (
i.e
., theft; fraud)
    to fund his use of cocaine.  Though addiction and cocaine use may be Mr. Thurstons
    most critical issues at this time, Dr. Pearces evidence was clear that his
    antisocial behavior is an additional problem.  In the circumstances, Mr. Thurston
    must be placed on the secure unit, with no access to the community, until he
    regains the trust of his doctor and treatment team, and shows he can follow
    hospital rules.

[22]

However,
    as I have said, the Board declined to order a six-month review of Thurstons
    disposition.  It reasoned as follows, at p. 5:

The parties jointly recommended that the Board order a
    six-month review. Dr. Pearce supported the recommendation in the hope that this
    timeline might motivate Mr. Thurston to address the problems that have made
    transfer to the secure unit necessary.  It is clear from Ms. Szigetis
    submissions that she regards six months as the time frame in which Mr. Thurstons
    return to the general unit can be considered.

Both are laudable objectives, and a joint submission from all
    parties does carry weight with the Board.  In this instance, the joint
    recommendation is subject to the Board policy, which sets a strict threshold
    for six-month review.  The Board must be convinced, in making such an order,
    that the circumstances are compelling.

Mr. Thurstons most recent AWOL was a little more than two
    months ago, and it involved a theft against a co-patient, cocaine use, and
    breach of his Disposition.  He did not return to the hospital on his own, but
    was intercepted at an appointment he kept, on Dr. Pearces evidence, in the
    expectation of being paid.  Dr. Pearces updates since the AWOL pointed to ongoing
    problems: a positive cannabis screen; smoking on the unit in violation of the
    rules; and an altercation with a nurse.  Although Dr. Pearce did tell the Board
    that Mr. Thurston has been a bit better with staff in August, nothing in the
    evidence offers a reasoned basis to believe that Mr. Thurston is ready to
    comply with hospital regulations and regain the trust of his treatment team. 
    An order for six-month review is not warranted in these circumstances.

D.      Issues

[23]

There
    is one narrow issue on appeal.  Thurston, supported by the intervener the
    Mental Health Legal Committee, argues the Boards refusal to pre-schedule a
    six-month review of his disposition was unreasonable.  He submits that, in
    declining to order a six-month review, the Board i) breached natural justice
    and its duty of procedural fairness; and ii) misapprehended the nature of the
    parties joint submission and the evidence adduced in support of the six-month
    review request.  In these circumstances, Thurston says, the Boards decision
    led to a miscarriage of justice.

E.      Discussion

(1)

Hearing Fairness Issue

[24]

Thurston
    makes several arguments in support of his claim that, in refusing to order a
    six-month review of his agreed disposition, the Board breached natural justice
    and its duty of procedural fairness.

[25]

Thurston
    argues that the Board erred by rejecting this part of the joint submission on
    the basis of a previously undisclosed Board policy establishing a strict
    threshold for six-month review  namely, a requirement that compelling
    circumstances be demonstrated to justify an accelerated review.

[26]

Thurston
    maintains that neither he nor the other parties to the hearing were aware of
    the existence of such a policy and that the suggested policy was neither
    publicly known nor available.  Thurston submits that the Board was obliged to
    tell the parties about the existence of the policy, the particulars of the strict
    threshold to be met on seeking a six-month review, and what is meant by
    compelling circumstances.  The Boards failure to disclose this information,
    Thurston says, was a breach of natural justice and of the Boards duty of
    procedural fairness.

[27]

In
    a related argument, Thurston contends that the Boards failure to disclose the
    existence of the policy  and its associated failure to invite submissions from
    the parties on the application of the policy to the request for a six-month
    review  prejudiced him at the hearing.  Thurston says that, had he known of
    the existence of the policy, he might not have supported CAMHs proposed disposition. 
    At the least, he might have led evidence at the hearing and made further
    submissions regarding the merits of a six-month review.

[28]

Thurston
    also argues that the Boards error was exacerbated by two factors, namely i) the
    Boards failure to ask questions of any party regarding the six-month review
    request; and ii) comments by the Chair of the panel to Thurston at the
    conclusion of the hearing to the effect that Thurston would be returning before
    the Board in six-months time.  Thurston says that these factors, in effect,
    misled the parties into believing that the Board was unconcerned by the joint request
    for a six-month review.

[29]

On
    the particular facts of this case, I would reject these arguments.

[30]

Recently,
    in
Osawe (Re)
, 2015 ONCA 280, this court held that the Board owes a
    duty of procedural fairness to accused persons under its jurisdiction: at paras.
    1 and 36  37.  In the context of Board hearings, the overriding objectives of
    procedural fairness are to ensure that the Boards decisions are made using a
    fair and open procedure and that affected individuals can put forward their
    views and evidence fully and have them considered by the [Board]: at para. 72.

[31]

In
    light of the Boards duty of procedural fairness, I have no hesitation in
    accepting that, if the Board develops an internal policy that might affect the
    Boards evaluation of an appropriate disposition for an NCR accused, the policy
    should be disclosed to the parties where its existence and content are not otherwise
    in the public domain.  Where the liberty interests of an NCR accused are
    engaged, fundamental fairness requires no less.  In such circumstances, in my
    view, the Board is obliged, as an institution, to take appropriate steps to
    publicize the policy or otherwise make it known to the public in a suitable
    fashion.

[32]

Further,
    if such disclosure has not been made in advance of a Board hearing and the
    application of the policy is engaged, it is incumbent on the relevant panel of
    the Board to disclose the policy and to provide the affected parties with an
    opportunity to lead evidence and make submissions, if so advised, on the import
    and application of the policy to the case at hand.  In some cases, in order to
    meet this obligation, it may be necessary for the panel to recall the parties and
    to receive further evidence and submissions.

[33]

The
    objective of such measures, in all cases, is to ensure that the parties to a
    Board hearing, especially the NCR accused, have an opportunity to fully address
    the application of any Board policy that may affect the disposition to be
    imposed and to have their views and evidence, if any, on the matter considered
    by the Board.

[34]

Osawe
    (Re)
also holds, at para. 71, that, when the Board contemplates rejecting
    a joint submission and imposing a more restrictive disposition, it must give
    the accused notice that it may do so and the opportunity to make further
    submissions and, if necessary, lead additional evidence.  See also
Osawe
    (Re)
,

at para. 37.

[35]

In
    this case, I am not persuaded that Thurston was denied natural justice or procedural
    fairness at his August 2014 hearing.  I agree with the Crowns submission that
    the Board adequately fulfilled its duty of procedural fairness and that no
    miscarriage of justice occurred.  I say this for several reasons.

[36]

First,
    the Boards denial of an accelerated review did not result in the imposition of
    a more restrictive disposition than that envisaged under the joint submission. 
    This important factor distinguishes this case from
Osawe (Re)
and
    related authorities.  Here, the Board did not refuse any possibility of an
    early review.  Rather, it held, at p. 6, that if and when Thurston takes steps
    to change his behaviour an early review can be requested by any of the
    parties, and it is Board practice to process such requests expeditiously.

[37]

In
    any event, the scheduling of a review hearing does not depend upon a panel of
    the Boards agreeing to order an early hearing at the time of a disposition
    hearing.  Under the
Criminal Code
, the Board, in the exercise of its
    discretion, may order an early review hearing at any time, of its own motion or
    at the request of the accused or any other party: s. 672.82(1).  Moreover,
    the Board is obliged to hold an early review hearing if the person in charge of
    a hospital where an NCR accused is detained requests an early hearing: s.
    672.81(2).  That is what transpired in this case in connection with Thurstons
    August 2014 review hearing.

[38]

Thus,
    the Boards refusal to order an early review, at the time of the August 2014
    hearing, did not and does not preclude any party, including Thurston, from
    requesting an expedited review under the relevant provisions of the
Criminal
    Code
.  That no party had elected to do so by the time of this appeal is no
    bar to such a request.  The point remains that, unlike in
Osawe (Re)
,
    the Board in this case cannot be said to have reject[ed] the joint submission
and
impos[ed] a more restrictive disposition (emphasis added).

[39]

As
    for the suggested Board policy, the record before this court does not confirm
    its existence or its reach.  It is thus unclear to what policy the Board was
    referring in its reasons.

[40]

Second,
    and importantly, I do not read the Boards reasons as indicating that its
    rejection of the proposed six-month review was in fact based on a Board policy
    regarding accelerated review hearings.  Immediately after its reference to a Board
    policy regarding six-month reviews, quoted above, the Board addressed the
    merits of a six-month review on the facts of this case.  Having done so, for
    clear and cogent reasons, the Board concluded that the pre-scheduling of an
    accelerated review was not warranted given Thurstons circumstances at the time
    of the August hearing.  There was ample support for this conclusion on the
    evidentiary record before the Board, including the evidence of the appellants
    recent behaviours, his ongoing problems while in detention and the opinion of
    his treating psychiatrist concerning his treatment compliance and progress.  No
    recourse to any internal Board policy was required to reach the conclusion that
    the pre-scheduling of a six-month review was inappropriate in all the
    circumstances.

[41]

Third,
    I would reject the contention that Thurston was prejudiced by the Boards
    failure explicitly to inform the parties that it might reject the six-month
    review component of the joint submission.

[42]

This
    was a straightforward hearing, held on CAMHs request for an early
    reconsideration of the terms of Thurstons February 2014 disposition.  The live
    issues at the hearing were few in number and narrow in scope, involving Thurstons
    appropriate placement, the variation of his privileges to exclude access to the
    community and the timing of his next review hearing.  All parties clearly
    understood that these were the only germane issues as they formed the specific
    subject matter of the joint submission.  The issue whether the Board should
    advance the timing of Thurstons next review was therefore clearly in play at
    this hearing.

[43]

There
    is no question that the Board is not obliged to accept a joint submission:
Osawe
    (Re)
, at paras. 33 and 57;
Hassan (Re)
, 2011 ONCA 561, 283 O.A.C.
    154, at paras. 24  26;
R. v. Lepage
(1997), 36 O.R. (3d) 3 (C.A.), at
    p. 28, affd [1999] 2 S.C.R. 744.  Indeed, this court has held that automatic
    acceptance of a joint submission is inconsistent with the Boards statutory
    mandate:
Osawe (Re)
, at paras. 33 and 57;
Hassan (Re)
, at
    para. 25.

[44]

The
    parties were not entitled, therefore, to assume that the Board would accept
    their joint submission, in whole or in part.  Given the limited nature of the
    matters at issue, it was incumbent on the parties to address the merits of the components
    of the disposition they urged, including the timing of Thurstons next review
    hearing, in their submissions.

[45]

That
    is precisely what occurred in this case.  During the hearing, Thurstons
    counsel cross-examined Dr. Pearce, Thurstons treating psychiatrist, on the
    issue of a six-month review.  She also made submissions to the Board on why the
    joint submission should be accepted, including specifically on why, in her
    view, a six-month review hearing should be ordered.  In these circumstances,
    the merits of the pre-scheduling of a six-month review having been squarely in
    issue, no notice from the Board that it might reject the request for an
    accelerated review hearing was required to ensure hearing fairness.  Thurston
    had full and fair opportunity to be heard on the exact point now in dispute on
    appeal.

[46]

Notably,
    there was no suggestion before the Board that Thurston had agreed to a transfer
    to the Secure Forensic Unit at CAMH in exchange for a six-month review.  In her
    submissions to the Board, Thurstons counsel made clear that Thurston was
    seeking the requested transfer because he would benefit from the additional
    programming available on the Secure Forensic Unit and from the opportunity to
    reside on a unit that is designed to afford him as much liberty in terms of
    passes with staff as possible.  Thus, the parties, including Thurston, viewed Thurstons
    transfer and restriction of privileges as advantageous to his treatment and
    liberty interests regardless of the timing of his next review hearing.

[47]

Finally,
    the Board held, at p. 5 of its reasons, that nothing in the evidence offers a reasoned
    basis to believe that Mr. Thurston is ready to comply with hospital regulations
    and regain the trust of his treatment team.  This conclusion was firmly
    grounded in Dr. Pearces testimony and the contents of the hospital reports,
    which detailed Thurstons history (including his recent history) of AWOLs from
    the hospital, his behavioural problems while in detention, his illicit drug use,
    his property crimes involving other patients, and his difficulties with his
    treatment team and hospital staff.

[48]

In
    light of this evidence, it is difficult to conceive that either the evidence
    bearing on the issue of a six-month review or the submissions of counsel would
    have been any different had the parties been informed by the Board that an
    accelerated review hearing might be refused.  On the uncontested evidence of Thurstons
    conduct and course at CAMH, it was open to the Board to conclude, as it
    essentially did, that it was unrealistic to think that Thurston would improve
    sufficiently within six months so as to warrant early reconsideration of his
    disposition.

[49]

For
    all these reasons, I see no breach of procedural fairness or natural justice,
    nor any miscarriage of justice, in the Boards decision to deny an accelerated
    review of Thurstons disposition.

(2)

Misapprehension of Evidence Issue

[50]

Thurstons
    claim that the Board misapprehended the nature of the joint submission and the
    evidence relied on by the parties in support of a six-month review may be dealt
    with summarily.

[51]

As
    I have said, the joint submission put before the Board pertained to only three
    issues i) whether the appellant should be transferred from the General Forensic
    Unit (minimum security) to the Secure Forensic Unit (medium security) at CAMH; ii)
    whether his privileges should be limited to indirectly supervised hospital and
    grounds privileges; iii) and whether a mandatory six-month review should be
    ordered.  The Boards reasons indicate that it fully appreciated all these
    aspects of the joint submission.

[52]

The
    Boards reasons also confirm that it understood the core evidence bearing on
    the issue of a six-month review.  The Board was not required to detail in its
    reasons all the evidence adduced at the hearing, especially where the evidence
    was brief, uncontradicted and relied on by all the parties to support the joint
    submission.  I see no basis on which to conclude that the Board ignored or misunderstood
    any of the pertinent evidence before it.

(3)

Jurisdictional Issue

[53]

It
    is appropriate to address one further issue.

[54]

The
    Boards ruling regarding the duration of Thurstons August 2014 disposition is
    set out in the Boards formal disposition order, dated August 27, 2014.  As I have
    said, the order provides that the August 2014 disposition will remain
    operative until a new Board disposition is issued.

[55]

I
    make two observations regarding this provision.  First, the language regarding
    the duration of the disposition is unnecessary  the result intended would
    follow in any event under the relevant statutory scheme for NCR accuseds set
    out in the
Criminal Code
.

[56]

Second,
    even though this language is contained in the Boards formal disposition order,
    there is a strong argument that a Board decision regarding the timing of a
    review hearing is not part of a disposition within the meaning of that term
    under s. 672.1(1) of the
Criminal Code
.
[1]
The question is important for two reasons.  If, as a matter of law, the timing
    of a review hearing is not properly to be regarded as part of a Board
    disposition, then this court has no jurisdiction under s. 672.72(1) of the
Criminal
    Code
to hear an appeal against a Board ruling on that issue.  Further, and
    on the same basis, the Boards statutory obligation under s. 672.54 of the
Criminal
    Code
to impose a disposition that is necessary and appropriate in the
    circumstances (formerly, the least onerous and least restrictive disposition)
    on an NCR accused would not be engaged in respect of the timing of a review
    hearing.

[57]

The
    court raised this jurisdictional issue with the parties at the outset of this
    appeal hearing.  In response, Crown counsel pointed out that, at the
    appellants August 2014 hearing, all parties asked the Board to address the
    timing of Thurstons next review as part of the Boards disposition, in
    accordance with what appears to be the Boards normal practice.  The hearing
    proceeded on this basis.  In these circumstances, the Crown takes the position
    that Thurston is entitled to appeal this aspect of the Boards decision to this
    court.  All parties to the appeal support the Crowns position.

[58]

In
    these somewhat unusual circumstances, I should not be understood as accepting
    that a Board ruling on the timing of an NCR accuseds next review hearing forms
    part of a Board disposition under Part XX.1 of the
Criminal Code
so
    as to trigger a right of appeal to this court from that ruling.  Nothing in
    these reasons should be taken as endorsing that proposition.

Disposition

[59]

For
    the reasons given, I would dismiss the appeal.

Released:

MAY 19 2015                                   E.A.
    Cronk J.A.

DD                                                  I agree
    Doherty J.A.

I
    agree H.S. LaForme J.A.





[1]
For example, ss. 672.81(1.2) and (1.32) of the
Criminal Code
permit
    the Board, after making a disposition, to extend the time for holding a
    subsequent review hearing in certain circumstances.  Section 672.81(1.5)
    provides that a Board extension decision is deemed to be a disposition for
    the purpose of the appeal provisions under the
Criminal Code
.  Thus,
    s. 672.81(1.5) affords some support for the view that a Board decision
    concerning the timing of a review hearing is not otherwise part of a Board
    disposition; the s. 672.81 (1.5) deeming provision would be unnecessary if a
    Board ruling to extend the time for a review hearing were already part of a
    Board disposition.


