



COURT OF APPEAL FOR ONTARIO

CITATION: Klem (Re), 2016 ONCA 119

DATE: 20160212

DOCKET: C60756

Watt, Lauwers and Hourigan JJ.A.

IN THE MATTER OF: ALEX (ALEK) KLEM

AN APPEAL UNDER PART XX.1 OF THE
CODE

Suzan E. Fraser and Sarah Harland-Logan, for the
    appellant

Dena Bonnet, for the respondent, Attorney General

Heard: January 25, 2016

On appeal against the disposition of the Ontario Review
    Board dated, May 15, 2015.

Lauwers J.A.:

[1]

This is an appeal from a disposition in which the Ontario Review Board
    did not follow the recommendations in submissions put forward by the parties
    that are said to be joint submissions.

[2]

The appeal raises three issues. The first is whether the hearing before
    the Board proceeded on the basis that there was a joint submission. The second,
    in the wake of this courts decision in
Re Osawe
, 2015 ONCA 280, is
    whether Board gave the parties adequate notice of its intention not to accept
    the joint submission.
[1]
The third is whether the Board erred in law in receiving into evidence
    unredacted victim impact statements that contained inadmissible material not
    authorized under s. 672.5(14) of the

Criminal Code
, R.S.C. 1985,
    c. C-46
?

[3]

For the reasons that follow, I conclude: the hearing did not proceed on
    the basis of a true joint submission; the Board gave adequate notice to the
    parties that it had concerns with the proposed disposition in any event; the
    Board made no reviewable error in admitting the victim impact statements; and the
    Boards disposition was reasonable and fully supported by the record. Accordingly,
    I would dismiss the appeal.

The Factual Context

[4]

The facts are not in dispute. The appellant is a 71-year-old married man
    with two children. He lived and worked in Sudbury. Before the index offences in
    early October 2010, the appellant had no history of criminal activity,
    psychiatric disorder or drug abuse.

[5]

The appellants diagnosis is Psychotic Disorder, due to general medical condition,
    with delusions currently in remission; hypertension and widespread arteriopathy
    of aorta, cerebral, vertebral and renal arteries.

[6]

As a result of this disorder, the appellant had paranoid delusions and
    experienced an episode of prolonged psychosis.

He unsuccessfully sought medical help as his disease
    progressed.

At the time
    of the index offences, he believed his former employer conspired with a number
    of people, including the man whom he shot and one of the employees at the shop
    that he sought to enter, to kill the appellant.

[7]

The appellant was charged with attempting to commit murders while using
    firearm; uttering a threat to cause death or bodily harm; engaging in threatening
    conduct to person or family members (x 4); breaking and entering with intent; resisting
    or obstructing public or peace officer; possession of a firearm in a motor vehicle
    (x 2); possession of weapon for dangerous purpose; and robbery using a firearm,
    all contrary to the
Criminal Code
.

[8]

On June 14, 2013, the appellant was found Not Criminally Responsible
    (NCR) on account of mental disorder. The court referred him to the Ontario
    Review Board for disposition.

The Ontario Review Boards Dispositions

[9]

The Boards initial disposition, on September 9, 2013, required
    the appellant to be detained in the general forensic unit of the North Bay
    Regional Health Centre with accompanied community privileges. At the first
    annual review hearing, following a joint submission, by disposition dated
    August 27, 2014, the Board ordered the appellant to be transferred from North
    Bay, to Ontario Shores Centre for Mental Health Sciences in Whitby (the Hospital),
    since a treatment impasse appeared to have been reached in North Bay.

The Disposition under Appeal

[10]

The
    Board convened an early hearing at the request of the Hospital to review the
    appellants disposition, as provided in s. 672.81(2) of the
Criminal Code
,
    because the treatment team felt that Mr. Klems disposition was too
    restrictive and he was at the ceiling of his privileges.

[11]

The
    Hospital and the appellant presented a joint submission as to the appropriate
    disposition. The appellant did not testify. The parties agreed that there
    should be a continuation of the detention order,

and that the following changes should be made to its
    terms:

(a) The Appellants hospital and grounds privileges be extended
    to permit him to access these locations with indirect supervision (as opposed
    to in the presence of a staff member or approved person only);

(b) The Appellant be granted the additional privilege of
    attending within 150 kilometres of Ontario Shores, with a staff member, an
    approved person, or indirectly supervised;

(c) The Appellant be permitted to reside in approved
    accommodation in the community of Whitby; and

(d) The term preventing the Appellant from attending within the
    District of Sudbury be varied to permit him to do so with the consent and prior
    itinerary approval of the person in charge of Ontario Shores (so as to permit
    him to attend the funeral of any member of his wifes family who lives in
    Sudbury, should the need arise).

[12]

Crown
    counsel initially refrained from taking a position on proposed changes (a)
    through (c). On hearing the evidence, Crown counsel adopted the joint position
    of the Hospital and the appellant.

[13]

The
    Board rejected the proposed disposition that the appellant be permitted to live
    in the community in approved accommodation, and that he be permitted to attend
    within 150 kilometres of Ontario Shores. It ordered that the appellants
    hospital, grounds, and community privileges be extended to permit indirect
    supervision, and that he be permitted, with the consent of the person in charge
    of the Hospital, to attend within the District of Sudbury.

[14]

The
    record shows the appellant had been uncooperative and dismissive with little
    insight during his time in North Bay, where the Boards earlier disposition
    noted a treatment impasse, but that he has made progress since coming to the
    Hospital. His wife, who only recently became an approved person, is now
    engaged in the appellants treatment and is better able to monitor him.

[15]

The
    Board fairly and accurately set out the evidence that it heard from the sole
    witness, Dr. Pytyck, who has been the appellants attending in-patient
    psychiatrist at the Hospital since his transfer in August 2014.

[16]

The
    Board did not accept Dr. Pytycks recommended disposition. The Board stated
    that it believes that public safety would be compromised with a term
    permitting community living at any time over the next 12 months. This view was
    based on the appellants relatively short stay at the Hospital.

[17]

In
    my view, the nub of the Boards concern is reflected in its acknowledgement
    that even Dr. Pytyck thought some delay was warranted:

Dr.

Pytyck

in

her

evidence

fairly

put

it

that

even

with

a community living clause the hospital

wouldnt place Mr.

Klem

in

the

community

until

approximately

nine

months

from

the

issuance of

the

Disposition. This

panel

is

not

prepared

to

give

the

Hospital

the

discretion

to

do

so

at

any point

over

the

next

12

months.
In

this

panel's

opinion

the

issue

of

community

living

should

be
canvassed

at

the

next

annual

review.

[18]

Earlier
    in its reasons, the Board noted the evidence of the unpredictability of future
    episodes:

In  response  to 
    questions  from  a  member  of  the  panel,  Dr.  Pytyck agreed that the underlying
    problem is vascular. The rate of any future vascular difficulties is unknown. 
    Dr. Pytyck put it that the team is "cautiously optimistic" that the
    team would be able to pick up on any signs of vascular difficulty.

·

Dr. Pytyck also agreed that it is "likely" that the
    vascular difficulties are irreversible.

[19]

The
    Board concluded more time was needed to assess the appellants capacity for
    reintegration into society:

In the Boards opinion public safety requires a significant
    period of time in which Mr. Klem demonstrates his ability to safely use
    indirectly supervised passes. We do not think it appropriate that indirectly
    supervised community passes be extended to 150 kilometres from Ontario Shores.
    In the Boards opinion those passes should be limited to Whitby and Oshawa, and
    up to 12 hours. []

We have concluded that the potential risk of very significant
    harm is such that public safety would be compromised with a community living
    clause at this time.

[20]

The
    Board pointed out, however:

Our

Disposition

shall

continue

the

privilege

of

entering

the

community

of

Whitby accompanied

by

staff

or

person

approved

by

the

person

in

charge

for

up

to

48

hours.

This

will permit

the

hospital

to

continue

to

grant

those passes as

they

have been

doing

recently.

[21]

The
    appellants ability to stay overnight on occasion with his wife in her Whitby
    apartment was maintained.

The Positions
    of the Parties

[22]

The
    appellant submits the Board erred in law in departing from the joint submission
    and setting a more restrictive disposition; in particular, the Board had a
    duty to give notice that it did not accept the joint submission, and to provide
    an opportunity for the appellant to lead further evidence and make further
    submissions. The appellant also argues that the unredacted victim impact
    statements, which contained inadmissible prejudicial material, appear to have
    influenced the Board to reject the joint submission. The result, the appellant
    asserts, was an unreasonable disposition.

[23]

The
    respondent Crown submits there was no true joint submission in this case and
    the hearing did not proceed as though there were one. The Board was entitled to
    reject the proposed disposition and did so for reasons amply supported by the
    record.  The Board had discretion to accept the victim impact statements and
    to disregard the improper portions. There is no basis for finding the
    disposition was unreasonable or resulted in a miscarriage of justice.

Issue One: Was
    a joint submission before the Board?

[24]

If
    a joint submission were before the Board, then its obligations under this
    courts decision in
Osawe
came into effect. The appellant argues that
    even though the Crown reserved on whether to support the proposed disposition
    at the outset of the hearing, the Crowns support of it during argument made it
    the functional equivalent of a joint submission.

[25]

I
    disagree. There were a number of contextual factors in this case that made it
    clear to the Board and to the parties that some issues were contested.

[26]

First,
    the hearing context was somewhat unusual in that, apart from the immediate
    parties, three victims were present in the hearing room and one was present via
    videoconferencing, each of whom requested the opportunity to read their victim
    impact statements. They uniformly opposed the extension of privileges. In
    addition, a member of the media was present. It was not likely that the Board
    would simply accept a number of contested privileges.

[27]

Second,
    the Board saw its task as working from its prior disposition. The Board Chair
    noted that: What we are doing today is dealing with the request from the
    hospital to add three privileges. But that prior disposition, only five months
    previous, found the appellant remains a significant threat. The Board needed
    evidence before departing from its prior understanding.

[28]

Third,
    the Crowns reservation was not merely formal or perfunctory. In fact, the
    Crown advised that it would be: seeking, by way of an additional condition, in
    order prohibiting Mr. Klem from entering the District of Sudbury, with some
    exceptions. This was specifically noted by the Chair before evidence was
    called, when he observed that Crown counsel: hasnt quite committed himself to
    any position which is fair and fine.

[29]

In
    the specific context of this hearing, it was clear from the outset that a
    number of issues were in contention and the hearing progressed on the basis
    that there was no joint submission. The appellant could not reasonably have
    expected that the Board would simply adopt the proposed disposition. I would
    not find that this hearing involved a joint submission that attracted the
    application of
Osawe
.

[30]

I
    now turn to the second issue, although it is not strictly necessary to analyse
    given the outcome of the first issue.

Issue Two: Did the Board give the
    parties adequate notice of its intention not to accept the joint submission?

[31]

On
    the assumption that there was a functional joint submission in this case, I
    begin by setting out the governing principles and then address their
    application.

The Governing Principles

[32]

As
    I noted in
Benjamin (Re)
, 2016 ONCA 118, this court has provided
    guidance to the Ontario Review Board about the adequacy of notice required to
    inform parties making a joint submission that it may not be accepted,
    particularly in
Osawe (Re)
, at para. 73. I will not repeat that
    discussion here. Further, in
Benjamin (Re)
I noted, at para. 23, the
    context of the matter and what occurred at the hearing can indicate the
    proposed disposition will not be easily accepted by the Board and must be amply
    demonstrated on the evidence.

The Principles Applied

[33]

I
    draw here on the review of the proceedings before the Board set out in the
    previous section of these reasons, which sets the context.

[34]

First,
    nothing in the Chairs statements or approach would have signalled the Boards
    acquiescence to the proposed disposition. During the cross-examination of Dr.
    Pytyck, the chair interjected: So that everyone understands and I have no idea
    if the Board is going to permit community living, but if the Board did permit
    and if Mr. Klem then took up residence in Whitby, how would the hospital follow
    him

[35]

Second,
    the Crowns cross-examination of Dr. Pytyck, and the cross examinations carried
    on by members of the Board were substantive and relatively lengthy. All five
    Board members asked Dr. Pytyck probing and pointed questions.

[36]

Dr.
    Braden asked Dr. Pytyck about the underlying vascular problems, which are
    likely progressive and irreversible. She responded that vascular disorders are
    unpredictable and could change, literally within an instant.

[37]

Dr.
    Pytyck accepted Dr. Chatterjees observation that vascular processes tend to
    have sort of step-wise and sudden deteriorations.  Dr. Pytyck said she was
    aware of the possibility that there could be an acute event and the onset of
    psychoses could be very rapid, but also indicated that with respect to the
    index offence, there was at least a year of events that did not involve any
    psychotic symptoms. There was then approximately one to two weeks of paranoia
    that preceded the index offences and it was in the context of a withdrawal of
    anti-hypertensives and Benzodiazepines.  She agreed that this was pretty
    rapid. Dr. Chatterjee asked questions about the release plan for the
    appellant to begin to reside in the community. She noted that, we dont have a
    huge period of stability.

[38]

Ms.
    MacIntyre asked Dr. Pytyck questions about the Klems family and/or friends.
    They have no roots in the Whitby community, and as Ms. MacIntyre stated, that
    leaves an awful lot on, on the shoulders of Mrs. Klem. The appellant was
    estranged from both of his children.  In response to a question from Justice
    McRae, Dr. Pytyck indicated that she felt that the appellant had a testy
    interpersonal style.

[39]

In
    my view, these questions by panel members sought to get at the heart of the
    security concerns that the Board had about extending the appellants
    privileges. It was fully open to the appellants counsel to have called the
    appellant and his wife to provide additional evidence, but that did not occur.

[40]

In
    my view, while the Chair did not state at the outset that the proposed
    disposition was in issue, the context of this hearing, together with the
    pointed questions asked by the Crown and the members of the panel, made it very
    clear that panel members were highly doubtful about the wisdom of the
    privileges proposed to be extended in the joint submission so shortly after the
    previous disposition. In my view the notice was adequate, procedurally fair and
    in compliance with
Osawe
.

[41]

The
    Board gave reasons for its disposition that were amply supported by the record.

Issue Three:
    Did the Board err in law by receiving into evidence four unredacted victim impact
    statements that contained inadmissible material?

[42]

The
    appellant submits that the Board erred in law by receiving into evidence four unredacted
    victim impact statements that contained material not permitted by s. 672.5(14) of
    the
Criminal Code
.
[2]
The Board declined to admit a proposed victim impact statement from the
    appellants daughter, noting that she did not fall within the definition of
    victim under the
Criminal Code
.

[43]

While,
    I agree that the victim impact statements contained impermissible material that
    was inflammatory in nature, the Boards acceptance of the unredacted statements
    into evidence did not taint its disposition.

The Governing Principles

[44]

The
Criminal Code
sets the boundaries of the admissible content of victim
    impact statements. At the time of the hearing, ss. 672
.
5(14)-(15) of

the
Criminal
    Code

provided:

672.5(14)

A

victim of

the offence may p
r
epare and
    file with the court or Review Board a written statement describing the harm
    done to, lo
s
s suffered by,

the victim arising from the comm
i
ssion of the offence.

672.5(15) The court or Review Board shall ensure that a copy of
    any statement filed in accordance with subsection (14) is provided to the
    accused or counsel for the accused, and the prosecutor, as soon as practicable
    after a verdict of not criminally responsible on account of mental disorder is
    rendered in respect of the offence.

[45]

Under
    these provisions, the Board was only permitted to allow as a victim impact
    statement a written statement describing the harm done to, or loss suffered
    by, the victim arising from the commission of the offence. In an ideal world,
    victims would complete their impact statements in full compliance with the
    requirements of the
Criminal Code
.
[3]


[46]

If
    the statements go beyond what which is admissible, a number of preliminary
    steps could be taken.

[47]

Those
    taking the statements from the victims could advise on how the statements would
    need to be revised to comply with the
Criminal Code
.

[48]

Counsel
    for the accused and the Crown could discuss redacting offending comments from
    the statements before they are tendered to the Board.

[49]

Further,
    it would be open to the parties to request the Board to rule on the
    admissibility of comments on which counsel could not agree. In such cases, the
    Board would hear submissions from the parties and decide whether to admit the
    statements in whole, with offending portions excised, or at all: see, e.g.
Ibrahim
    (Re)
, [2012] O.R.B.D. No. 1593, at para. 27;
Coles (Re)
, [2010]
    O.R.B.D. No. 941, at paras. 4-7;
Wallace (Re)
, [2008] O.R.B.D.
    No. 2164, at paras. 4-8.

[50]

The
    Board could also, on its own initiative, direct counsel to meet and attempt to
    come to an agreement on which portions of the victim impact statements should
    be redacted during a break in the hearing:
Kachkar (Re)
, [2014]
    O.R.B.D. No. 1356,

[51]

Lastly,
    it would be open to the Board to admit a victim impact statement in full, while
    taking into consideration only those parts of the statement that comply with
    the
Criminal Code
. The Board could identify its concerns with the
    statements and advise the parties that it will only consider the non-offending
    portions of the statement. This could be done on the Boards own motion, or in
    response to concerns or objections raised by counsel:
White (Re)
, [2012]
    O.R.B.D. No. 1641, at para. 11;
Agathos (Re)
, [2009] O.R.B.D. No.
    1157, at para. 2;
Laguta (Re)
, [2012] O.R.B.D. No. 2374, at para. 3.

The Principles Applied

[52]

The
    appellant submits, fairly, that the

victim
    impact

statements

admitted into evidence were replete with
    highly

prejudicial material that

falls outside of the permitted topics. The
    appellant asserts that the impermissible comments consist of: Unproven,
    prejudicial allegations
r
egarding
    the index offences (which are characterized

as

attempted

m
a
s
s

m
urder); and regarding the Appellan
t

s
    present character and dangerousness;

Irrelevant commentary on
    unrelated events and society at large; and Entreat
i
es to the
B
oard to
    restr
i
ct the Appellan
t

s
    freedom

(often in conjunction

with assertions of this

NCR

accu
s
e
d

s

m
or
a
l

bl
a
m
ewor
t
hiness).
    Without detailing the inadmissible comments, these are fair descriptions.

[53]

The
    impermissible comments in the victim impact statements reflect the understandable
    anger and animosity the victims feel, together with fear about the appellants
    true dangerousness, and suspicion about his true state of mind. They also
    reflect distress that the appellant may resume a more normal life considerably
    sooner than he would if he had been sentenced as a criminal and had not been
    found NCR. The appellant asserts that prejudice flows from the inflammatory
    nature of these comments and feelings, which could unduly influence the Board.

[54]

Although
    most of the content of the victim impact statements was permissible under the
Criminal
    Code
, some elements clearly fell outside of what is authorized and what
    the Board is allowed to consider. The Board did not ask the parties to agree on
    redactions, nor did it explicitly state that it would consider only those
    aspects of the statements admissible under the
Criminal Code
.

[55]

Although
    counsel for the appellant before the Board did not object to

the inclu
s
ion
    of

the statemen
t
s, he noted that
in one of the statements,
there
w
ere a few comments that

exceed
    what

is usually allowed. Crown coun
s
el agreed

that

some of

the content of

[the]

.

.

.

statements goes beyond the four corners
    of

whats permitted under the
Code
,
    however, Im confident, as Im sure the rest of the parties are that the Board
    will sift

the grain from the chaff

as it we
r
e
.
The issue of the admissibility of parts
    of the victim impact statements, however, was squarely before the Board.

[56]

The
    Board could have directed counsel immediately to work to redact the statements
    before proceeding, but was not obligated to do so. This would have introduced a
    delay into the hearing and could have put the Board in the difficult position
    of resolving disputes about the redactions in front of the victims themselves.
    Instead, the Board simply allowed the victims their say. Ultimately, the victim
    impact statements do not seem to have influenced the Boards decision. The sole
    reference to the victim impact statements in the Boards reasons was to fairly
    acknowledge that

the

events

of

the index

offence

have

a

significant

impact

on

the

lives

of

each

of

the

victims.
    This description of the Boards use of the statements conforms with what is
    permissible under s. 672.5(14) of the
Criminal Code
.

[57]

In
    my view the Board had discretion to proceed as it did. The Board can reasonably
    be expected to know the relevant law and take it into account. In
White
    (Re)
, the same presiding Chair as here pointed out that some portions of
    the victim impact statements in that case went beyond the four corners of the
Criminal
    Code
provisions and advised the panel would only consider the portions
    that complied with the
Criminal Code
. I note as well that four of five
    panel members here, including the presiding Chair, also sat on the Board

in
Kachkar (Re)
, where the Board requested counsel to meet during a break
    and attempt to agree on the redaction of offending portions of the victim
    impact statements in that case.

[58]

While
    it would have been preferable for the Board to tell the parties that it would
    only consider the admissible parts of the statements, or to direct the parties to
    redact the statements, I reject the appellants argument that the Boards
    failure to do so automatically renders the Boards decision unreasonable.

[59]

Clearly
    the Board, and especially the presiding Chair, were attuned to the issues
    surrounding the permitted use of portions of the victim impact statements. The
    issue was left to the Board, as Crown counsel noted, to separate the grain
    from the chaff and it was not necessary for the Board to explicitly state that
    it would do so. There is no evidence that the Board improperly relied on the
    inadmissible evidence. To the contrary, the Board increased the appellants
    privileges despite the urging of the victims not to do so. The Board did not
    commit a reviewable error by admitting the victim impact statements.

Disposition

[60]

To
    summarize, in the specific context of this hearing, the appellant could not
    reasonably have expected that the Board would simply adopt the proposed
    disposition. I would not find that this hearing involved a joint submission
    that attracted the application of
Osawe (Re)
.


[61]

Assuming,
    however, that the case is to be considered on the basis that it did
,
the
    context of this hearing together with the pointed questions asked by the Crown
    and the members of the panel made it very clear that they were highly doubtful
    about the wisdom of the joint submission so shortly after the previous
    disposition. In my view, the notice was adequate and procedurally fair in
    keeping with
Osawe
.

[62]

There
    is no reason to assume the Board did not simply disregard the non-compliant
    portions in its deliberations. The Board did not err in admitting the
    non-compliant portions of the victim impact statements.

[63]

Finally,
    the Board gave reasons for its disposition that were amply supported by the
    record.

[64]

I
    would dismiss the appeal.

Released: February 12, 2016 DW                                  Lauwers
    J.A.

I
    agree David Watt J.A.

I
    agree C.W. Hourigan J.A.





[1]

The reasons in
Osawe
were released on April
    22, 2015, the day after the Board hearing in this case. The Boards decision
    was released on May 22, 2015
.



[2]
Amendments to this section of the
Criminal Code
and Form 48.2 (Victim Impact Statement  Not Criminally Responsible) came
    into force after the hearing before the Board, and should reduce the risks of
    inappropriate comments being included in the statement.



[3]
I observe the relevant provisions have since been
    amended and now include the requirement that victim impact statements in this
    context adhere to Form 48.2 (Victim Impact

Statement

 Not Criminally
    Respon
s
ible), which provides:

This form may be used to

provide a description of the p
h
ysical or emotional harm, proper
t
y

da
m
age

or
    economic lo
s
s suffered by

y
o
u arising from the conduct for

w
h
ich
    the
a
ccused person
w
as found not criminal
l
y

resp
o
nsible

on account of

mental disorder,
    as well as a description of the impact t
h
at
    the conduct has had on
y
o
u
. []

The Form specifies that

the Victim Impact

Statement
    may not

include, for example: any statement about the conduct of

t
he

accused that

is not relevant to the harm or loss suffered by you; any
    unproven allegation
s
;

[]

or
    except

with

the

courts

or

Review

Boards

approval,

an opinion

or recommendation about the dispositio
n.


