



COURT OF APPEAL FOR ONTARIO

CITATION: Girard (Re), 2016 ONCA 985

DATE: 20161228

DOCKET: C62512

Juriansz, Watt and Roberts JJ.A.

IN THE MATTER OF:  Robin Girard

AN APPEAL UNDER PART XX.1 OF THE
CODE

Robin Girard, in person

Howard L. Krongold,
amicus curiae

Kevin Rawluk, for the Attorney General of Ontario

Janice Blackburn, for the Person in Charge of North Bay
    Regional Health Centre

Heard: December 20, 2016

On appeal against the disposition of the Ontario Review
    Board dated July 12, 2016.

Juriansz J.A.:

[1]

After the hearing of this matter on December 20, 2016 the appeal was
    allowed for reasons to follow. These are the reasons.

[2]

In 2014, the appellant was found NCRMD on counts of resisting a peace
    officer and of failing to attend court. He was detained at North Bay Regional
    Health Centre.  The Ontario Review Board found him a significant threat to the
    safety of the public. He was diagnosed with oppositional defiant disorder and
    cannabis use disorder.

[3]

On June 30, 2016, the Board held its third hearing to review Girards
    disposition. Girard was to participate via videoconference and was
    unrepresented by counsel.  At the very outset of the hearing the appellant
    objected to being addressed by his name, preferring the title General
    Executor. He also objected to the Chair being a member of the Board. In short
    order, the situation deteriorated and the Chair excluded the appellant from the
    hearing by having both the audio and video connections turned off.

[4]

The transcript evidently begins after the Chair has addressed the
    appellant as Mr. Girard. The transcript after that until he is excluded is as
    follows:

Mr. Girard: General Executor, please. We have a problem with
    Mister.

The Chair: The record states that your name is officially for
    us Mr. Girard, and that is the way Im going to address you.

Mr. Girard: No, you will not address us like that. And who am I
    talking to?

The Chair: Youre talking to Guy Goulard, I will be introducing
    the chair

Mr. Girard: Well, we object about you being present at the
    Board because  because of you we have this

The Chair: Mr. Girard,

Mr. Girard:  ORB.

The Chair: Mr. Girard  Mr. Girard,

Mr. Girard: There is no Mister. Dont call us Mister.

The Chair: I will give you one more chance then we will proceed
    in your absence. Is that clear?

Mr. Girard: You  you will call us General Executor, and we
    object to the constitution of this Board as you are  this is a great prejudice
    to our most fundamental rights. You

The Chair: Okay.

Mr. Girard:  have been  object to you being on the Board
    because you  you

The Chair: Mr. Girard,

Mr. Girard: The last time  the last time  dont call us
    Mister. The last time you told us that we have a mental illness, and you are
    not in that position. I dont think you are psychiatrist to determine that.

The Chair: I will give you five seconds to change your mind or
    youre cut off, and well proceed in your absence. Is that clear?

Mr. Girard: You have no authority to do so. You have no
    jurisdiction.

The Chair: Cut off the  both the sound and image. We are
    proceeding in your absence, sir. Is the Crown okay with that?

[5]

At this point, the appellant was cut off.  The Chair noted that the
    Crown was okay with his exclusion.
Amicus
was appointed to represent
    the appellants interest.  The hearing continued and was completed in his
    absence. The Board ordered a conditional discharge on conditions that were
    significantly less restrictive than those of the 2015 disposition.

[6]

The
Criminal Code
grants the Chair of the Board the discretion
    to order that the accused be removed during the hearing. Section
    672.5(10)(b)(i) provides The court or the chairperson of the Review Board may
(b)
cause the accused to be removed and barred from re-entry
    for the whole or any part of the hearing
(i)
where the
    accused interrupts the hearing so that to continue in the presence of the
    accused would not be feasible. The statutory precondition to the exercise of
    the power is that it would not be feasible
to continue in the presence
    of the accused because of his or her interruptions.

[7]

Section 672.5(10)(b)(i) does not seem to have been judicially
    interpreted. However its wording mirrors that of s. 650(2)(a) of the
Criminal
    Code
. Section 650(2)(a) permits a judge presiding over a criminal trial to
    exclude the accused from the trial where the accused misconducts himself by
    interrupting the proceedings so that to continue the proceedings in his
    presence would not be feasible. Section 650(2)(a) has been the subject of much
    judicial consideration.

[8]

It is well-established that the power to exclude an accused from his
    trial under s. 650(2)(a) is to be exercised exceedingly sparingly and only when
    there is  really no alternative.  For example, in
R. v. Fabrikant
(1995), 97 C.C.C. (3d) 544, Proulx J.A. of the Québec Court of Appeal said at
    paragraph 49:

As in Canada, the American courts have taken the position that
    any limitation on such fundamental rights as the right to be present, to
    present his case and to be heard can happen only after a trial court has looked
    "for corrective measures that do least injury to these rights consistent
    with the preservation of an orderly court atmosphere.

[9]

The same principles developed under s. 650(2)(a) should apply to s.
    672.5(10)(b)(i). The language of the two provisions is almost identical. An NCR
    accuseds liberty interests are at stake just as they may be in a criminal
    trial.

[10]

In my view, the Chair failed to exercise the required judicial patience
    and restraint before resorting to his power under s. 672.5(10)(b)(i). He made
    no effort to determine whether corrective measures or accommodations would have
    made it feasible to proceed with the appellant present.

[11]

The most obvious corrective measure is that the Chair could consider
    addressing the appellant other than by calling him Mr. Girard. It is worth
    observing that at the 2015 disposition hearing the Board (the same Chair at the
    June 2016 hearing) had called him André and the hearing proceeded
    uneventfully. In 2016, the disposition hearing was adjourned after first coming
    before a differently constituted Board. The Chair of that Board recognized that
    the appellant preferred the title Executor Girard.

[12]

I further observe that the Consent and Capacity Board in its decision
    dated May 2, 2014 accommodated the appellants preference as to how he should
    be named. The Consent and Capacity Board followed the example set up by the
    Supreme Court in
Starson v. Swayze
, 2003 SCC 32, [2003] 1 S.C.R 722.
    In that case, the Supreme Court noted the appellant preferred to be called "Professor
    Starson" rather than by his legal name, and referred to him according to
    his preference throughout its reasons.

[13]

Here, the Chairs five second ultimatum to the appellant makes clear he
    was not open to attempting to find an alternative acceptable way of addressing
    the appellant.

[14]

Even if there were some clinical reason for refusing to accommodate the
    appellants preference, the Chair could have taken a short adjournment to allow
    the elevated atmosphere to calm down.

[15]

Finally, if all reasonable measures failed to prevent the appellant from
    persisting in interrupting the hearing, the Chair could have considered the
    less drastic measure of cutting off the appellants microphone only and
    allowing him to continue to be able to observe and listen to the hearing, and
    to provide any submissions through the
amicus
.

[16]

In my view, the Boards action was hasty and precipitous and not in
    accordance with s. 672.5(10)(b)(i).

[17]

I add that the Chair ought to have allowed the appellant to articulate
    his objections to the Chair presiding and to the Board
s
    jurisdiction to reject him, and to have ruled upon them after listening to and
    considering them.

[18]

I would allow the appeal, set aside the Boards disposition, and remit
    the matter to the Board for a rehearing before a differently constituted panel
    as soon as is practicable. Until the next disposition following the rehearing,
    the appellant is subject to the conditions listed in the July 12, 2016
    disposition that has been set aside.

Released:

DEC 28 2016                                    R.G.
    Juriansz J.A.

RGJ                                                  I
    agree David Watt J.A.

I
    agree Lois Roberts J.A.


