



COURT OF APPEAL FOR ONTARIO

CITATION: Shortt (Re), 2019 ONCA 232

DATE: 20190325

DOCKET: C65948

Roberts, Trotter and Paciocco JJ.A.

IN THE MATTER OF: Wesley
    Shortt

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Jeff Marshman, for the appellant

Bradley Juriansz, for the respondent, Her Majesty the
    Queen

No one appearing for the respondent, St. Josephs
    Healthcare Hamilton

Heard: March 18, 2019

On appeal from the disposition of the Ontario Review Board,
    dated July 16, 2018.

REASONS FOR DECISION

[1]

Wesley Shortt appeals from the Ontario Review
    Boards most recent disposition that continues his detention in the general
    forensic unit of St. Josephs Healthcare in Hamilton. While he seeks a
    conditional discharge, the main focus of this appeal is whether to require the
    Board, at a new hearing, to: use their inquisitorial powers for the purpose of
    investigating alternative residential arrangements for the appellant in the
    community; and direct the hospital to begin implementing a suitable
    arrangement.

[2]

Since being found not criminally responsible on
    March 7, 2007, Mr. Shortt has resided in a forensic hospital setting. He has
    myriad physical, intellectual, and psychiatric challenges that have brought him
    in and out of hospital throughout his life and that require constant care. He
    is 38 years old. His primary psychiatric diagnosis is schizophrenia, which is
    mostly abated by medication, although he has not historically been medication
    compliant. There is no dispute that when he does not take his medication, he
    decompensates quickly and becomes a significant risk to public safety. There is
    also no dispute that Mr. Shortt cannot live independently and requires
    considerable assistance to carry out daily living tasks.

[3]

Notwithstanding his many challenges, Mr. Shortt
    has made progress over the years. Since 2014, the hospital has taken the
    position that he could live in the community so long as the appropriate assists
    are in place to support him. While the hospital has attempted to find suitable community
    living arrangements, none of their plans has come to fruition because of exigencies
    out of the hospitals control: a lack of public funding; long waiting lists; or
    inadequate attendant care to respond to Mr. Shortts admittedly complex physical
    and psychiatric requirements. As a result, Mr. Shortt is now at an impasse. Moreover,
    the long wait for transition into appropriate alternative residential
    arrangements has created understandable frustration for Mr. Shortt. This has
    led to a deterioration in his progress, including angry outbursts, damage to
    property, and elopements on his part.

[4]

In our view, a conditional discharge is not
    available on this record. It was conceded and the evidence amply supports that
    Mr. Shortt still represents a significant risk to public safety. A conditional
    discharge is not available because of the need to return Mr. Shortt to hospital
    quickly if he decompensates and to ensure that Mr. Shortt resides in an
    appropriate residence suitable to his many needs. Under a conditional
    discharge, Mr. Shortt would choose his own living space in the community, while
    under a detention order, the hospital person in charge approves where he lives:
R. v. Stanley
, 2006 CanLII 8710 (Ont. C.A.),
    at para. 6. That said, while a conditional discharge is not feasible, there is
    no issue that Mr. Shortts detention on a general forensic unit is unnecessary
    to protect public safety so long as he is placed in an appropriately supported
    community residence.

[5]

The main issue to be determined on this appeal
    is, whether in the light of the residential impasse, the Board was required to
    do more than it did in order to meet its inquisitorial duties to apply and
    interpret s. 672.54 of the
Criminal Code
,
    R.S.C. 1985, c. C-46, and determine whether the appellant poses a significant threat
    to public safety. We conclude that the Board was required to do more and that
    it erred in failing to properly exercise its inquisitorial duties in this case.

[6]

It is well-established that the proceeding
    before the Board is not adversarial:
Winko v. British Columbia
    (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625, at
    para. 62. As the Supreme Court noted in
Winko
,
    at para. 61, the inquisitorial duties of the Board are necessarily broad and,
    as noted at para. 55, require it to gather and review all available evidence pertaining
    to the four factors set out in s. 672.54 [of the
Criminal Code
]: public protection; the mental condition of the accused; the
    reintegration of the accused into society; and the other needs of the accused.
    Most important, the Boards proper discharge of its inquisitorial duties may
    oblige it to make further inquiries beyond the evidence presented by the
    parties, especially if the parties do not present sufficient information to
    allow the Board to make its decision:
Winko
,
    at para. 62.

[7]

In keeping with its broad inquisitorial duties,
    the Boards powers to gather evidence are similarly extensive. For example, it
    can cause records and witnesses to be subpoenaed, including experts to study
    the case and provide the required information. The breadth of its examination
    was described by the Court in
Winko
, at para.
    61:

[The Boards
    inquiries] will closely examine a range of evidence, including not limited to
    the circumstances of the original offence, the past and expected course of the
    NCR accuseds treatment if any, the present state of the NCR accuseds medical
    condition, the NCR accuseds own plans for the future,
the support
    services existing for the NCR accused in the community
and, perhaps
    most importantly, the recommendations provided by experts who have examined the
    NCR accused. [Emphasis added.]

[8]

In the present case, more than four years have
    passed since the hospital determined that Mr. Shortt could live in a community
    residential setting with appropriate and significant support. The hospital has
    made meaningful inquiries. They have contemplated creative solutions, such as
    long-term care. Mr. Shortt is fortunately surrounded by caregivers devoted to
    his wellbeing. The difficulty for the hospital and Mr. Shortt is that their
    efforts are impeded by factors beyond their control. Without assistance, this
    situation is not going to improve.

[9]

Given the clear impasse, it was an error on the
    Boards part to repeatedly reach its dispositions based on the material
    introduced only by the hospital. The Board has the obligation and the power to
    try to break the clear impasse concerning Mr. Shortts residential community
    placement by exercising its inquisitorial powers and gathering significant
    evidence, including expert evidence.

[10]

Accordingly, we allow the appeal. We order the Board to conduct a
    new hearing in accordance with these reasons as soon as practically possible,
    and, in any event, in place of Mr. Shortts next yearly review, which is at
    present scheduled for the end of May 2019. We will leave to the Board the question
    of how best to pursue its duty of inquiry. The terms of the July 16, 2018 detention
    order shall remain in place until the Boards next disposition following the
    new hearing.

L.B. Roberts J.A.

G.T. Trotter J.A.

David M. Paciocco J.A.


