



COURT OF APPEAL FOR ONTARIO

CITATION: Ohenhen (Re), 2017 ONCA 960

DATE: 20171207

DOCKET: C60572

Strathy, C.J.O., Doherty and Roberts JJ.A.

IN THE MATTER OF: Julius Ohenhen

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti and Jill R. Presser, for the appellant,
    Julius Ohenhen

Amy Alyea, for the respondent, the Attorney General of
    Ontario

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

Heard: November 9, 2017

On appeal from the Disposition of the Ontario Review
    Board, dated May 7, 2015, with reasons dated June 1, 2015, reported at [2015]
    O.R.B.D. No. 1168.

L.B. Roberts J.A.:

[1]

The appellant confines his appeal to the refusal of the
    Ontario Review Board (the Board) to grant the systemic remedies sought by him
    under s. 24(1) of the
Canadian Charter of Rights and Freedoms

for the violation of his s. 8 right to be free from unreasonable
    search and seizure. The respondents concede that the appellants s. 8 right was
    violated when unauthorized urine samples were seized from him, but contend that
    the Board did not have jurisdiction to grant the requested systemic remedies.

[2]

The appellant does not appeal from the Boards
    finding that his ss. 7, 9 and 10
Charter
rights were not violated. Nor does he seek to overturn the Boards disposition that
    he remain detained at the Centre for Addiction and Mental Health (CAMH). That
    decision was overtaken by the Boards subsequent disposition order dated November
    1, 2016, which was issued following the next annual review hearing. The appellant
    appealed from the latter order; this courts judgment with respect to that
    appeal is under reserve.

[3]

I would dismiss this appeal for the reasons that follow.

(i)

Mootness of the appeal

[4]

The parties agree that the present appeal is moot because
    the disposition order under appeal was overtaken by the November 1, 2016 order.
    The respondents argue that this court should not exercise its jurisdiction to
    hear the appeal.

[5]

I disagree. This appeal raises the significant issue of
    the scope of the Boards remedial powers under s. 24(1) of the
Charter
, which is a matter of importance not only to the appellant but to NCR
    accused persons generally and to the Board:
Starz (Re)
, 2015 ONCA 318,
[
2015
]
O.J. No. 2331, at para. 52,
leave
    to appeal refused, [2016] S.C.C.A. 459
.

[6]

This is an important question capable of
    repetition, which could prove difficult to review, given the annual review
    process for the Boards dispositions. Moreover, the record is sufficient and
    the issue has been fully developed and argued. The Supreme Court in
Mazzei
    v. British Columbia (Director of Adult Forensic Psychiatric Services)
, 2006 SCC 7,
[
2006
]
1 S.C.R. 326, at para. 15, exercised its discretion
    to hear an appeal from a superseded disposition for similar reasons. In
Starz
    (Re)
, at paras. 52-54, this court adopted the reasoning from
Mazzei
, and determined that the appeal should
    be heard even though the appellant had since been granted an absolute discharge
    and was no longer under the Boards jurisdiction.

[7]

Accordingly, I would exercise this courts discretion
    to hear this appeal.

(ii)

Factual and procedural background

[8]

On June 11, 2007, the appellant was found not
    criminally responsible on account of a mental disorder (NCR) on charges of
    intimidation and criminal harassment. As a result, he was admitted to CAMH as
    an in-patient on August 17, 2007. When his annual review hearing was held on February
    26 and April 27, 2015, the appellant had been accepted into a community
    residence that provides a high level of support and supervision.

[9]

In advance of the hearing, the appellant brought an
    application for a declaration that his s. 8 right, among other
Charter
rights, had been breached because CAMH staff took three urine
    samples from him without lawful authority under his disposition. On February
    18, 2014, the Board had removed the previous requirement from his disposition that
    the appellant provide urine samples. The appellant provided urine samples on
    February 27 and March 16, 2014, because he was unaware that the February 18
    disposition removed the previous obligation to provide samples. He refused to
    provide urine samples when requested to do so on two occasions in July, 2014. He
    gave a urine sample on January 8, 2015 because, he alleged, the nurse
    threatened to withhold his privileges if he failed to do so.

[10]

On
    his application, the appellant sought both the individual remedy of a
    declaration that his
Charter
rights had been violated, as well as the
    following systemic remedies in relation to CAMH administrative processes and
    protocols:

(i)

a direction to CAMH to overhaul
    its processes to ensure that dispositions and reasons of the Board in respect
    of each of their clients are delivered to, received and reviewed by front-line
    staff charged with the care, observation, treatment or supervision of the
    client;

(ii)

a direction to CAMH to implement
    a quality assurance protocol to ensure its staff are in fact familiar with the
    terms and conditions of each of their clients disposition orders;

(iii)

a direction to CAMH to create a
    protocol, process or policy on what steps staff must take before approaching a
    client to request a urine sample, to inform themselves about whether they have
    the authority to make the request, and what they must advise the client with
    respect to the clients right to refuse to provide a sample, as well as what
    the sample will be screened for specifically, whether illicit substances or
    medication compliance, or whatever use the requester intends to make of the
    sample; and

(iv)

a direction to CAMH to provide
    education to all front-line staff to dispel any notion that all NCR accused
    persons under the Boards supervision are prohibited from the use of alcohol or
    substances, or must subject themselves to, or provide samples of their bodily
    fluids for, any screening for substances, or for any other purpose.

[11]

The respondents conceded and the Board found that the appellants s.
    8
Charter
right was infringed when the urine
    samples were taken after the requirement had been removed from the appellants
    most recent disposition. The Board granted the individual remedy requested by
    the appellant, finding that his s. 8
Charter
right had been breached.
[1]

[12]

However, the Board determined that it did not have jurisdiction to
    grant the systemic remedies requested by the appellant. In the alternative, the
    Board concluded that even if it did have such jurisdiction, it would not
    exercise it in this case primarily because CAMH had already implemented almost
[2]
all of the steps that were
    being requested by the appellant.

(iii)

Analysis

[13]

I
    agree with the respondents that the Board does not have the jurisdiction to
    grant the systemic remedies requested by the appellant.

[14]

It
    is well established that the Board is a court of competent jurisdiction, and
    that it is entitled to determine
Charter
issues that arise in the
    course of Board proceedings in relation to individual NCR accused persons:
R.
    v. Conway,
2010 SCC 22, [2010] 1 S.C.R. 765, at para. 84;
Chaudry (Re)
,
    2015 ONCA 317, [2015] O.J. No. 2332, at para. 103, leave to appeal refused, [2016]
    S.C.C.A. No. 460. Accordingly, as this court concluded in
Starz (Re)
,
    at para. 110: It follows that the Board is entitled to make findings that an
    NCR accused persons
Charter
rights have been infringed, and can order
    appropriate remedies.

[15]

However,
    Parliament did not imbue the Board with free remedial rein:
Conway
,
    at para. 97. As this court explained in
Starz (Re)
, in the context of
    declaratory orders, the Board does not have jurisdiction to make the kind of
    broad orders that go beyond the circumstances of the individual NCR accused person
    before it. The courts analysis at para. 111 applies with equal force to the
    present case:

The essential point for this discussion is that the Boards
    focus is necessarily on the NCR accused person before it. Its role is not to
    make broad or general pronouncements but, rather, to ensure that the particular
    NCR accused person is subject to the least onerous and least restrictive
    conditions consistent with public safety. To that end, the Board has the power
    to make remedial orders directed at the particular NCR accused person. Making
    declarations  given their broader range and purpose  would necessarily divert
    the Boards attention from the person before it because it would have to
    consider the broader implications for a broader group. Not only would it
    detract from the Boards primary role and functions, it is likely to protract
    proceedings before the Board.

[16]

The
    role of the Board is to determine the appropriate disposition for each
    individual NCR accused person who appears before it. Its jurisdiction does not
    extend to the kind of systemic, institutional orders sought here. The Boards
    statutory mandate as a specialized tribunal under Part XX.1 of the
Criminal
    Code
is the ongoing supervision of the treatment, assessment, detention
    and discharge of NCR accused persons in a responsive,
Charter
-compliant
    fashion, with the broad power to attach individualized conditions:
Conway
,
    at para. 94;
Chaudry (Re)
, at para. 93. In particular, the Board can make
    appropriate orders to ensure that the
Charter
rights of individual NCR
    accused persons are respected, and that its dispositions in relation to those
    individuals are followed.

[17]

While
    the Boards jurisdiction does not extend to the imposition of systemic changes
    on the institutions in which NCR accused persons are detained, practically
    speaking, its orders may still affect institutional practices and procedures as
    they relate to an individual NCR accused person. The Board has the power to bind
    hospital authorities and to impose binding conditions regarding or supervising the
    medical treatment of the individual NCR accused persons who reside there:
Mazzei
,
    at para. 39.

[18]

If
    CAMH had taken no steps to remedy the
Charter
breaches in this case,
    the Board would have had the jurisdiction to make appropriate remedial orders,
    so long as they were in relation to the appellant. This could logically include
    orders that would affect CAMHs processes and protocols as they related to the
    appellant, to ensure that the content of his disposition was known and
    respected in order to obviate the risk of further breaches occurring. This is
    consistent with the Boards mandate under the NCR regime, which as explained
    above, directs the Boards focus to the specific NCR accused person before it
    in each case, pursuant to an individualized assessment-treatment model:
Mazzei
,
    at para. 28;
Starz (Re)
, at para. 111. The Board has the power to
    redress any aspect of the appellants detention that does not meet the least
    onerous and least restrictive standard:
Chaudry (Re)
, at para. 98.

[19]

I
    also observe that, while the Board does not have the jurisdiction to order at
    large that an institution make broad, systemic changes to its processes, it is
    open to the Board to make findings and non-binding suggestions as to what
    should be done to rectify systemic problems:
Chaudry (Re)
, at para.
    99.

Disposition

[20]

The
    Board did not err in determining that it lacked jurisdiction to grant the
    systemic remedies requested by the appellant. Accordingly, I would dismiss the
    appeal.

Released: December 7, 2017

L.B. Roberts J.A.

I agree G.R. Strathy C.J.O.

I agree Doherty J.A.





[1]

The Board initially issued a declaration that the appellants
    s. 8
Charter
right had been breached. However, after reviewing this
    courts decision in
Starz (Re)
, 2015 ONCA 318, the Board revised its
    June 1, 2015 reasons to a make a finding to the same effect.



[2]
The appellant submits that CAMH did not implement the important step of
    occasional random checks to ensure that staff were collecting urine samples in
    a
Charter
-compliant manner and in accordance with the dispositions of
    NCR accused persons.


