



COURT OF APPEAL FOR ONTARIO

CITATION: Murray (Re), 2020 ONCA 547

DATE: 20200901

DOCKET: C67746

Tulloch, Paciocco and Harvison Young JJ.A.

IN THE MATTER OF: Jason Murray

AN APPEAL UNDER PART XX.1 OF THE
CODE

Jason Murray, acting in person

Ailsa Miller, for the respondent, Attorney General of
    Ontario

Lennard M. Dimitry, appearing as
amicus curiae

Heard: August 19, 2020 by video conference

On appeal from the disposition of the Ontario Review
    Board dated, October 30, 2019.

REASONS FOR DECISION

OVERVIEW

[1]

Jason Murray, with the assistance of
amicus curiae
, appeals from
    the Ontario Review Board (the Board) disposition of October 30, 2019,
    requiring his detention at a forensic psychiatric facility. This order is
    subject to discretionary supervised community release conditions. Further
    conditions require that Mr. Murray abstain from alcohol and drugs, provide
    urine and breath samples, and not possess weapons.

[2]

Grounds of appeal advanced at the hearing include challenges to the
    reasonableness of the disposition, and to the fairness of the hearing. For
    reasons that follow, we must dismiss Mr. Murrays appeal.

MATERIAL FACTS

[3]

Mr. Murrays mental disorder is currently diagnosed to be schizophrenia.
    The evidence before the Board is that Mr. Murray, an otherwise accomplished
    gentleman, continues to have a very significant delusional system involving a
    considerable amount of paranoia, including the belief that he is being raped
    and tortured by hospital staff and targeted by government.

[4]

The index offences that resulted in the July 7, 2016 finding that Mr.
    Murray was not criminally responsible on account of his mental disorder
    involved findings relating to six breaches of three separate probation orders,
    a count of mischief for defacing property with the letter V (understood to be
    as in V for Vendetta), and possession of a concealed weapon. Mr. Murray,
    who has a prior criminal record that includes threatening and assault
    convictions, was arrested on these charges in a bar, while consuming alcohol
    and in possession of a box cutter. He had screwdrivers strapped to his wrists,
    concealed under his clothing. Mr. Murray explained that he felt compelled to
    carry these weapons for quick use should the need arise, and he related
    incidents in which he said others had tried to kill him.

[5]

At the time, Mr. Murray was also in possession of a bag of suspected
    marijuana. Although Mr. Murray denies he is a drug abuser, evidence presented
    at his ORB hearings supports the conclusion that he has a history of substance
    abuse.

[6]

At his initial disposition hearing on September 9, 2016, Mr. Murray was
    placed under an ORB detention order. That disposition has been affirmed after
    each Board review.

[7]

Regrettably, Mr. Murray did not attend the ORB hearing that resulted in
    the detention order of October 30, 2019, that he is now appealing. On July 14,
    2019, Mr. Murray notified the Board that he would not be doing so in protest
    because of interference by forensic hospital staff in the preparation of his
    case, and the Boards refusal to accept the relevance of evidence he wished to
    present. The October 30, 2019 hearing was conducted in his absence.
Amicus
    curiae
was appointed to protect his legal interests and did so admirably.

THE ISSUES

[8]

Mr. Murray, with the assistance of
amicus
, now raises two grounds
    of appeal from that October 30, 2019 detention order: (1) that the Boards
    finding that he presents a significant threat to public safety is unreasonable,
    in part because the Boards analysis is cursory and failed to engage positive
    factors that would favour a finding to the contrary, and (2) that the Board
    breached its obligation to make inquiries into his allegation that forensic
    hospital staff prevented him from preparing for the annual review by
    interfering with his use of a computer and internet access, thereby exhibiting
    bias. Based on the first ground of appeal, Mr. Murray seeks an absolute
    discharge. If only the second ground of appeal succeeds, the request is for a
    new hearing.

[9]

In support of his appeal Mr. Murray offers fresh evidence including
    his claim that in 2017 his evidence was switched out with evidence supporting
    the ORBs case, as well as video documentary films he has prepared that he says
    prove that he is not delusional.

ANALYSIS

A.

THE FINDING OF SERIOUS THREAT WAS REASONABLE

[10]

We
    do not accept Mr. Murrays contention that the Boards determination that he is
    a significant threat to public safety is unreasonable. The reasoning of the
    Board can bear even a somewhat probing examination, and we must decline to
    interfere:
R. v. Owen
, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 33.
    Specifically, the Boards reasoning is both internally coherent and justified
    in light of the legal and factual constraints, including the evidence before
    the Board, the submissions made, and the impact of the decision on Mr. Murray:
Canada
    (Minister of Citizenship and Immigration) v. Vavilov
, 2019 SCC 65, 441
    D.L.R. (4th) 1, at paras. 102-106.

[11]

We
    recognize that the Findings of the Board section of the Boards Reasons for
    Disposition is concise, including only one paragraph addressing its significant
    threat finding. This, however, is not a fair measure of the reach of the
    Boards reasoning on this issue. The Board was explicit that it accepted the
    evidence of Dr. Courtright and the Hospital Report which it summarized in
    commendable depth in the Evidence at Hearing section of its Reasons for
    Disposition.

[12]

When
    the Boards Reasons for Disposition are read in their totality it is plain that
    the Board found that Mr. Murray, who has a significant criminal history and a
    history of substance abuse, suffers from an elaborate paranoid delusional
    system believing that he is a target. The Board found that he has a history of
    improvising and carrying weapons and has admitted to being prepared to use weapons
    to protect himself from the threats he perceives. It noted that, at the time
    of the disposition hearing, Mr. Murray was refusing to accept treatment in the
    belief that he is not mentally disordered and that the prescribed medication is
    harmful to him. He has been deemed treatment incapable. The Board accepted
    evidence that Mr. Murray is a fit man who engaged in a planned escape from
    hospital staff during an escorted pass and was gone for approximately six days.
    It also accepted the conclusion that it is predictable based on Mr. Murrays
    history and his current mental state that unless detained he will abuse
    substances. On this fully supported, transparent and coherent basis the Board
    found that, [t]here is no doubt  that Mr. Murray would likely act out in an
    aggressive, assaultive manner and act out in a criminal manner involving
    serious injury to members of the public if he is not subject to a detention
    order.

[13]

Nor
    is there any basis for concluding that the Board failed to consider the
    positive factors that favour the appellant, including his intelligence, his
    more remote history of being gainfully employed and making a meaningful
    contribution to society, his lack of aggression towards staff during detention,
    and his compliance with unit rules. These considerations, which Mr. Murray also
    highlighted eloquently before us during the appeal hearing, were brought
    forward by Dr. Courtright after she was specifically asked to advise the Board
    of Mr. Murrays positive features. The Board expressly accepted her
    testimony and related these facts in its summary of the evidence.

[14]

There
    is therefore no basis for concluding that these considerations were disregarded
    notwithstanding that they were not explicitly laid out in the paragraph where
    the Board summarizes its serious threat finding. This is not a case such as
Marchese
    (Re)
, 2018 ONCA 307, 359 CCC (3d) 408, at paras. 10-11, where material
    evidence was alluded to but not identified, or
Hammoud (Re)
, 2018 ONCA
    317, at para. 9, where the reasons raised a concern that the Board may have
    failed to apply the proper test. On the evidence before it, the Board was
    entitled to find Mr. Murray posed a serious threat notwithstanding these
    positive considerations, and the path to the Boards decision is clear.

[15]

Nor
    is the decision rendered unreasonable because the Board could have been more
    explicit about the need for the conditions that were attached to the
    disposition order. No issue was taken during the hearing with the suitability
    of those conditions which were already in place. These conditions are
    manifestly reasonable in the circumstances, given the Boards finding of Mr.
    Murrays planned and deliberate elopement during an escorted pass, as well as
    the opinion of the clinical team that Mr. Murrays path to move into the
    community is his acceptance of medication.

B.

THE BOARD DID NOT BREACH ITS DUTY TO INQUIRE

[16]

There
    are cases where a Review Board has an obligation to seek out information not
    presented by the parties, or to conduct an inquiry that goes beyond the record
    presented. In
Winko v. British Columbia (Forensic Psychiatric Institute)
,
    [1999] 2 S.C.R. 625, at para. 54, the Court described the Review Board process
    as inquisitorial. As this court explained in
R. v. LePage
, [2006] O.J.
    No. 4486 (C.A.), at para. 22, the Boards burden to search out and consider
    evidence may extend not only to evidence that favours restricting the NCR
    accused, but also evidence in his or her favour, regardless of whether the
    NCR accused is even present.

[17]

This
    obligation to inquire will arise where there is a foundation before the Board
    supporting the need for further investigation to ensure an appropriate
    decision. For example, in
LePage
and
Mazzei v. British Columbia
    (Director of Adult Forensic Psychiatric Services)
, 2006 SCC 7, [2006] 1
    S.C.R. 326, the record showed a treatment impasse that called for a
    comprehensive review of past and current treatment approaches that might lead
    to a solution. In
Re Magee
, 2020 O.J. No, 2838 an inquiry was required because
    the Board itself suggested that a sexual behaviours assessment would be useful.
    That being so, the Board had an obligation to seek such a report.

[18]

The
    duty to inquire is a unilateral one, falling on the Board. It is not dependent
    on a request for inquiry being made by a party before it. For this reason, we
    are not concerned that no-one, including
amicus
, asked for an inquiry at
    the Board hearing now under appeal. Simply put, even without a request for an
    inquiry having been made, if an inquiry was required in the current
    circumstances, the Boards failure to do so would require a new hearing.
    However, we are not of the view that an inquiry was required into Mr. Murrays
    complaints made in his July 14, 2019 email. The foundation before the Board did
    not call for such inquiry.

[19]

Before
    Mr. Murrays email was received the Board was aware that Mr. Murray had a
    history of attempting to file extensive amounts of irrelevant material,
    including video material, at prior hearings. Indeed, the Board had conducted
    two pre-hearing conferences, one on June 13, 2019, and another on July 8, 2019,
    in which Mr. Murray attempted to have the hearing time extended so that he
    could file before the Board hundreds of pages of documentary material, and
    extensive video material which he believed would show, among other things, a
    Mass Rape Epidemic at the hospital. At both pre-hearing conferences the Board
    implored Mr. Murray to use his editing skills to confine himself to relevant
    material. At the second pre-hearing conference a schedule was established
    during which counsel for the Attorney General and the hospital would review the
    proposed material for relevance. Yet this relevance review did not happen.
    Instead, Mr. Murray elected not to attend the hearing.

[20]

Mr.
    Murray, who has a history of delusions about persecution by the hospital and a
    history of using the internet to post messages that others may perceive to be
    threatening, did not simply complain about hospital staff limiting his computer
    access. He also said in his July 14, 2019 email that they had fried [his]
    laptop and broken his pens. Moreover, he made clear that his decision not to
    attend the hearing was in protest to the Boards belief that all evidence is
    irrelevant accept [sic] for a Psychiatrists finger pointing, and he claimed
    that his evidence for the 2017 hearing had been switched.

[21]

It
    is in this context that the failure of the Board to initiate an inquiry must be
    considered. Given Mr. Murrays history of attempting to file copious amounts of
    irrelevant evidence; his failure to take advantage of the planned review of the
    relevance of his evidence; and the nature of the allegations being made in his
    email of July 14, 2019 in light of his history of delusional thinking about the
    conduct of hospital staff, the Board acted reasonably in not initiating further
    inquiry. Simply put, Mr. Murrays complaint did not have the kind of air of
    reality needed to require the Board to do so.

CONCLUSION

[22]

The
    appeal is dismissed.

M. Tulloch J.A.

David M. Paciocco
    J.A.

A. Harvison Young
    J.A.


