



COURT OF APPEAL FOR ONTARIO

CITATION: Chaudry (Re), 2015 ONCA 317

DATE: 20150508

DOCKET: C57503

Gillese and Lauwers JJ.A. and Speyer J. (
ad hoc
)

IN THE MATTER OF: Baber Javed Chaudry

AN APPEAL UNDER PART XX.1 OF THE
CODE

Michelle OBonsawin and Barbara Walker Renshaw, for the
    appellant the Person in Charge of the Royal Ottawa Mental Health Centre 
    Member of the Royal Ottawa Health Care Group

Michael Davies, for the respondent Baber Javed Chaudry

Grace Choi, for the respondent Attorney General of
    Ontario

Heard:  December 15, 2014

On appeal from the Amended Decision of the Ontario Review
    Board, dated August 22, 2013, with reasons reported at [2013] O.R.B.D. No. 1956.

Gillese J.A.:

[1]

Does this court have the jurisdiction to hear an appeal from a decision
    rendered by the Ontario Review Board (the Board) after a restriction of
    liberty hearing?  Does the Board have the power to order costs as a remedy
    under the
Canadian Charter of Rights and Freedoms
?  Can the Board make
    a costs order on its own motion?  This appeal must answer these important
    questions.

OVERVIEW

[2]

In 2006, Baber Javed Chaudry was found not criminally responsible on
    account of mental disorder in respect of two charges of assault and ordered
    detained within the secure forensic unit of the Royal Ottawa Mental Health
    Centre (the Hospital).

[3]

As mandated by s. 672.81(1) of the
Criminal Code
, R.S.C. 1985,
    c. C-46, the Board held annual hearings to review Mr. Chaudrys detention.

[4]

Prior to the events that triggered the Boards restriction of liberty
    hearing that is the subject matter of this appeal, Mr. Chaudry had an annual
    disposition hearing on July 5, 2012.  Following that hearing, the Board made a
    disposition in which it ordered that Mr. Chaudry be detained within the Secure Forensic
    Assessment Unit of the Hospital, with privileges that included living in the
    community in Hospital approved accommodation.  Mr. Chaudry was approved to live
    in the community with his mother and sister.

[5]

Less than a month after that annual review hearing, Mr. Chaudrys mental
    state had deteriorated and he had become threatening towards his mother.  The Hospital
    issued a warrant of committal, dated August 2, 2012, and asked for police assistance
    in having Mr. Chaudry returned to it.

[6]

Mr. Chaudry was then re-admitted to the Hospitals Secure Forensic Assessment
    Unit, where he remained for approximately two months before being released back
    into the community.

[7]

The Board held a restriction of liberty hearing.

[8]

Through counsel, Mr. Chaudry brought an application within that
    proceeding, asking the Board to find that the Hospital had infringed his
    section 7
Charter
rights by: (1) mishandling his re-admission; (2)
    failing to notify the Board of his restriction of liberty in a timely way; and
    (3) detaining him on a more secure ward than was necessary and failing to
    extend appropriate privileges during his hospitalisation.  Counsel for Mr.
    Chaudry initially also sought an order that the Hospital pay the costs of his
Charter
application.  However, at the outset of the Board hearing, Mr. Chaudry
    withdrew his request for costs.

[9]

Before the Board, the Hospital did not dispute that its failure to give
    timely notice of Mr. Chaudrys restriction of liberty violated his s. 7
Charter

rights.  However, it submitted that it had already reviewed its procedures
    and taken the necessary steps to ensure that this problem would not repeated. 
    Apart from this, the Hospital denied that Mr. Chaudrys
Charter
rights
    had been infringed by its conduct.

[10]

The
    Board concluded that Mr. Chaudrys s. 7
Charter

rights had been
    breached because the last two weeks of his detention on the Secure Forensic
    Assessment Unit did not represent the least onerous and least restrictive
    decision.  It was on the basis of this breach that the Board then ordered the Hospital
    to pay Mr. Chaudry $500 in costs.

[11]

The
    Hospital appeals.  It contends that the Board erred both in concluding that Mr.
    Chaudrys
Charter

rights had been violated and in making a
    costs order against it.  The Attorney General of Ontario supports the Hospital
    on both matters.

[12]

Mr.
    Chaudry takes the opposing view on both matters and, further, asks that the
    appeal be quashed for lack of jurisdiction.

[13]

In
    my view, this court has jurisdiction to hear the appeal.  Furthermore, for the
    reasons that follow, I would allow the appeal.

[14]

This
    appeal was heard in conjunction with
Starz
(Re)
, 2015 ONCA 318,
    which also raises issues about the Boards jurisdiction to award remedies for
Charter
violations.  In the two cases, the Board reached opposite conclusions about
    its ability to make costs orders.

BACKGROUND


The Index Offences

[15]

Mr.
    Chaudrys index offences are two counts of assault.

[16]

The
    first count of assault related to an incident in May 2006 when Mr. Chaudry went
    to his mothers home and asked her for money to pay for insurance.  When she
    refused, Mr. Chaudry punched her on the side of the face and back of the head. 
    She suffered minor injuries.

[17]

The
    second count of assault arose from an incident in August 2006 when Mr. Chaudry
    was living in a shelter.  He assaulted another resident by pushing his lit
    cigarette into the victims calf and burning him.

Diagnosis and History of
    Disposition Orders

[18]

Mr.
    Chaudry was diagnosed with a psychotic disorder in 2000.  On October 4, 2006, when
    he was 27 years old, Mr. Chaudry was found not criminally responsible on
    account of mental disorder in respect of the index offences.  He has remained
    under the jurisdiction of the Board since that time.  His current diagnoses are
    schizophrenia and cannabis dependence.

[19]

Mr.
    Chaudry resides in the community with his mother and sister. He has lived with them
    while subject to detention orders.

[20]

At
    the time of his first hearing before the Board, Mr. Chaudry was detained at the
    Hospital, but he was later discharged to live at a local group home. In 2008,
    the Hospital contemplated recommending an absolute discharge but reconsidered
    after Mr. Chaudry resumed cannabis use. In 2009 and 2010, Mr. Chaudry was
    granted conditional discharges.  However, in 2010, he relapsed and resumed
    using cannabis.  He was voluntarily re-admitted to the Hospital where he
    remained from October 2010 to January 2011.  He was then discharged and
    returned home to live with his mother and sister.

[21]

In
    April 2011, Mr. Chaudry went on a trip to Pakistan with his mother and sister. 
    Unfortunately, he forgot his medication.  Although his medication was couriered
    to him, he went almost two weeks without it.  When he returned to Canada, he
    reported auditory hallucinations and decreased sleep.  Following his annual
    hearing in June 2011, the Board ordered that Mr. Chaudry be detained in the
    Hospital with privileges up to and including living in the community.

[22]

At
    Mr. Chaudrys 2012 annual review, the Board accepted the parties joint
    submission that he continued to pose a significant threat to the safety of the
    public.  By disposition dated July 5, 2012 (the 2012 Disposition), the Board ordered
    that Mr. Chaudry be detained within the Secure Forensic Assessment Unit of the Hospital,
    with privileges that included living in the community.

Circumstances Leading to Mr.
    Chaudrys Re-admission to Hospital

[23]

Following
    the 2012 Disposition, Mr. Chaudry continued to reside with his mother and
    sister.  However, his condition began to deteriorate.  In the week preceding
    his re-admission to the Hospital, Dr. Ward and members of Mr. Chaudrys family
    observed that he was showing signs of increased psychosis, grandiose delusions
    and bizarre persecutory ideation.  Dr. Ward was Mr. Chaudrys attending
    psychiatrist and had been since 2006.  During an interview with Dr. Ward, Mr.
    Chaudry said that he was a Superior Court judge and discussed a grand plan for
    himself and the universe.

[24]

Dr.
    Ward was concerned that Mr. Chaudrys behaviour was similar to the behaviour
    that Mr. Chaudry exhibited at the time of the index offences.  On July 24,
    2012, she gave Mr. Chaudry a prescription for a new medication and discussed
    with him the possibility of his re-admission to the Hospital.

[25]

On
    July 28, 2012, Dr. Ward received an email from Mr. Chaudrys sister, who is a
    medical doctor.  In her email, Mr. Chaudrys sister said that he had
    deteriorated since the 2012 Disposition.  He was increasingly disturbed by
    voices and he could be heard to be shouting loudly and telling them to shut
    up.  She said that she and his mother had never seen Mr. Chaudry as disturbed
    and angered by the voices that he was hearing.  She noted that he was also
    easily aggravated and very aggressive, particularly towards their mother.  She
    indicated that both she and Mr. Chaudrys mother supported his re-admission
    into the Hospital.

[26]

On
    August 2, 2012, a bed became available at the Hospital. A forensic outpatient nurse
    contacted Mr. Chaudry and asked him to voluntarily return to the Hospital.  At
    first Mr. Chaudry said that he needed a day to prepare, and then he said that it
    would be a week before he would be ready. When the nurse told Mr. Chaudry that
    Dr. Ward wanted him admitted immediately, he became extremely angry and verbally
    abusive.

[27]

Dr.
    Ward was concerned that if she asked Mr. Chaudrys mother or sister to bring
    him into the Hospital he might pose a threat to them so she sent a Form 49 warrant
    of committal to the police, asking that they apprehend Mr. Chaudry and bring
    him to the Hospital.

[28]

Although
    the Form 49 ordered that Mr. Chaudry be brought to the Hospital, the Hospitals
    cover letter stated that if the police were unable to take Mr. Chaudry to the
    Hospital between the hours of 8:00 a.m. and 5:00 p.m., they should take him to
    the Ottawa Hospital, Civic Campus (the Civic Campus), for medical clearance. 
    The Hospital has since changed its procedures to provide that when the police
    rely on a Form 49, the patient is to be taken to the Hospital no matter what
    time of day he or she is apprehended.

Mr. Chaudrys Re-admission and
    Detention

[29]

The
    police apprehended Mr. Chaudry at his home on the evening of August 2. They handcuffed
    him and took him to the Civic Campus.  There, a doctor was called to do an
    assessment of Mr. Chaudry.

[30]

Mr.
    Chaudrys mother and sister had followed the police to the Civic Campus.  They waited
    there with Mr. Chaudry and the police.

[31]

At
    approximately 11:30 p.m., the police removed Mr. Chaudrys handcuffs and left.
    Eventually, a doctor assessed Mr. Chaudry and sent him and his family to the
    Hospital.  When they arrived at the Hospital, the doors were locked.  At the
    insistence of Mr. Chaudrys mother, Mr. Chaudry was admitted at approximately
    1:30 a.m.

[32]

Dr.
    Ward testified that Mr. Chaudry was even more delusional at the time of his
    re-admittance than he had been prior to her decision to have him re-admitted. 
    He remained acutely psychotic until the middle of September.

[33]

Mr.
    Chaudry was housed in the Secure Forensic Assessment Unit from the time of his
    re-admission on August 3, 2012, until October 2, 2012, when he was discharged
    and resumed living at his mothers home. During his previous Hospital stay, Mr.
    Chaudry had been detained in the Forensic Rehabilitation Unit.

[34]

Dr.
    Ward testified that patients in the Secure Forensic Assessment Unit have access
    only to a specific yard and gym.  They are not permitted privileges such as
    access to other units in the Hospital or its grounds.

[35]

In
    the Forensic Rehabilitation Unit, however, patients may be permitted to visit
    other parts of the Hospital or its grounds, or even to enter the community if
    their condition warrants this privilege.

[36]

Dr.
    Ward testified that while Mr. Chaudrys condition justified his admission to,
    and detention in, the Secure Forensic Assessment Unit for much of his period of
    hospitalization, towards the end of that period he could have been transferred
    to the Forensic Rehabilitation Unit. He was not transferred because there were
    no beds available in the Forensic Rehabilitation Unit.

The Restriction of Liberty Hearing

[37]

Section
    672.56(2)(b) of the
Criminal Code
required the Hospital to notify the
    Board that it had, for a period exceeding seven days, significantly increased
    the restrictions on Mr. Chaudrys liberty.  The Hospital failed to give the
    Board the required notice.  According to Dr. Ward, this failure was due to inadvertence
    on the Hospitals part when a key member of its staff was away on holidays.

[38]

On
    September 26, 2012, Mr. Chaudrys counsel informed the Board of the situation
    and requested a restriction of liberty hearing.

[39]

The
    Board held a hearing into the restriction of Mr. Chaudrys liberty on May 27,
    2013.  At that time, the Board also considered Mr. Chaudrys application for a
    determination that his
Charter
rights had been violated by the manner
    of his re-admission to, and continued detention in, the Hospital.  Although Mr.
    Chaudry sought, in his application, an order requiring that the Hospital pay
    the costs of the application, he abandoned that request at the hearing. 
    Consequently, the Hospital did not address the costs issue in its submissions
    to the Board.

THE BOARD DECISIONS

[40]

By
    decision dated May 30, 2013 (the Initial Decision), the Board stated that the
    restriction of Mr. Chaudrys liberty by re-admission to the Hospital was
    warranted, andrepresented the least onerous and least restrictive decision.  The
    Initial Decision also affirmed that the 2012 Disposition remained appropriate.

[41]

In
    reasons dated August 1, 2013 (the Board Reasons), the Board gave reasons for its
    decision in this matter.  The Board reiterated its determinations in the
    Initial Decision and explained why it had reached them.  It explained that the
    restriction on Mr. Chaudrys liberty by re-admission to the Hospital was reasonable
    and warranted, given his condition at that time.  It also found that the Hospitals
    decision to request police assistance in apprehending Mr. Chaudry was justified. 
    It observed that in light of comments made by Mr. Chaudry, it was reasonable for
    the Hospital to have been concerned that Mr. Chaudry did not wish to be
    hospitalized and, based on Mr. Chaudrys decompensated and increasingly
    aggressive state, it was reasonable for the Hospital to have been concerned for
    his mothers safety. The Board found that the Hospital was justified in using a
    Form 49 to have Mr. Chaudry brought in by police.  It further found that it had
    no concerns about the police actions.

[42]

The
    Board went on to indicate that it was significantly disturbed and concerned
    by the inappropriate way in which Mr. Chaudry had been re-admitted to the
    Hospital.  It referred to the delay between Mr. Chaudrys apprehension and his
    re-admission to the Hospital, and the way Mr. Chaudry and his family were
    treated by the Hospital staff when they arrived.  The Board found that this chain
    of events was the result of the Hospitals decision to request that Mr. Chaudry
    be brought to the Civic Hospital if he were not apprehended between the hours
    of 8:00 a.m. and 5:00 p.m.

[43]

The
    Board said that Mr. Chaudry ought to have been taken directly to the Hospital where
    personnel and procedures should have been in place for a quick admission.  It
    concluded on this issue by noting that the Hospital had made significant
    changes to its policies and procedures in regard to re-admission, and was hopeful
    that the new procedures would ensure that similar events were not repeated.

[44]

The
    Board concluded that Mr. Chaudrys detention in the Secure Forensic Assessment
    Unit was justified at the time of re-admission, given his medical condition.
    However, it stated that Mr. Chaudrys continued detention in that unit up to
    the time of his discharge, and his inability to exercise privileges he would
    otherwise have been entitled to exercise, were not warranted and reasonable
    and constituted a violation of his rights under s. 7 of the
Charter
.

[45]

The
    Board noted that it was unaware of any precedent in which the Board had ordered
    costs to a party on a
Charter
application.  However, it concluded that
    allowing costs was the only available remedy for the violation of Mr. Chaudrys
Charter
rights.  It then ordered the Hospital to pay the sum of $500 in
    costs to Mr. Chaudrys counsel.

[46]

On
    August 22, 2013, the Board issued an amended decision which reflected the Board
    Reasons (the Amended Decision). The Amended Decision stated that while Mr.
    Chaudrys initial re-admission to the Hospital was warranted, his continued
    detention on the Secure Forensic Assessment Unit was not the least onerous and
    least restrictive decision, contrary to s. 7 of the
Charter
.

THE ISSUES

[47]

The
    Hospital raises three issues on appeal.  It submits that the Board:

1.  erred in finding that
    Mr. Chaudrys continued detention on the Secure Forensic Assessment Unit was
    not the least onerous and least restrictive disposition and was contrary to s.
    7 of the
Charter
;

2.  does not have the jurisdiction
    to award costs as a remedy under s. 24(1) of the
Charter
; and

3.  erred in ordering costs against
    the Hospital on its own motion.

[48]

Mr.
    Chaudry raises a further issue.  He submits that there is no statutory right of
    appeal from the Amended Decision and, therefore, this court is without
    jurisdiction and the Hospitals appeal must be quashed.

[49]

Because
    Mr. Chaudrys submission goes to the threshold question of whether this court
    has the jurisdiction to hear the Hospitals appeal, I will deal with it
    first.

DOES THIS COURT HAVE JURISDICTION TO HEAR THE APPEAL?

[50]

As
    I will explain, a careful review of the relevant legislative provisions leads
    to the conclusion that this court has jurisdiction to hear an appeal from a
    Board decision rendered after a restriction of liberty hearing.

The Right to Appeal a Board
    Disposition to this Court

[51]

This
    courts jurisdiction to hear appeals in matters involving mental disorder comes
    from s. 672.72(1) of the
Criminal Code
, which gives a party the right
    to appeal a Board disposition to this court:

672.72
(1)
Any
    party may appeal against a disposition made by
a court or a
Review Board
,
    or a placement decision made by a Review Board,
to the court of appeal

of the province where the disposition or placement decision was made on any
    ground of appeal that raises a question of law or fact alone or of mixed law
    and fact.   [Emphasis added.]

[52]

Disposition
    is defined in s. 672.1(1) to mean an order made by aReview Board under section
    672.54

[53]

Section
    672.54 refers to, among other things, a Board disposition made under s. 672.83:

672.54 Where a court or Review Board makes a
    disposition under  section  672.83 .
[1]


[54]

In
    the present case, as I will explain, the Board made the Amended Decision under s.
    672.83.  Because disposition in s. 672.1(1) is defined to mean a Board order
    made under s. 672.54 and s. 672.54 refers to a Board disposition made under s.
    672.83, the Amended Decision falls within the statutory definition of disposition
    and this court has jurisdiction to hear an appeal against it.

The Amended Decision is a
    Disposition under s. 672.83

[55]

I
    will now explain how it is that the Amended Decision is a disposition by the
    Board under s. 672.83.

[56]

Section
    672.56(1) gives the Board the power to delegate to the person in charge of the hospital
    the authority to direct that the restrictions on an accused persons liberty be
    increased or decreased. Such a direction is deemed to be a Board disposition:

672.56 (1)
A Review
    Board
that makes a disposition in respect of an accused under paragraph
    672.54(
b
) or (
c
)
may delegate to the person
    in charge of the hospital authority to direct that the restrictions on the
    liberty of the accused be increased or decreased
within any limits and
    subject to any conditions set out in that disposition,
and
    any direction so made is deemed for the purposes of this Act to be a
    disposition made by the Review Board
.  [Emphasis added.]

[57]

In
    the present case, by means of para. 2 of the 2012 Disposition, the Board
    delegated to the Hospital the authority described in s. 672.56(1), namely, the
    authority to direct that the restrictions on Mr. Chaudrys liberty be increased
    or decreased subject to certain conditions.

[58]

Under
    s. 672.56(2)(b), the Hospital was required to give notice to the Board because
    it had significantly increased the restrictions on Mr. Chaudrys liberty and
    the increased restrictions had remained in force for more than seven days:

(2) A person who increases the restrictions on
    the liberty of the accused significantly pursuant to authority delegated to the
    person by a Review Board shall

(b) give notice of the increase as soon as is
    practicable to the accused and, if the increased restrictions remain in force
    for a period exceeding seven days, to the Review Board.

[59]

Section
    672.81(2.1) required the Board to hold a hearing to review the Hospitals
    decision to significantly increase Mr. Chaudrys liberty restrictions:

672.81(2.1) The
    Review Board shall hold a hearing to review a decision to significantly
    increase the restrictions on the liberty of the accused, as soon as practicable
    after receiving the notice referred to in subsection 672.56(2).

[60]

As
    I have explained, s. 672.56(1) deemed the Hospitals decision to increase the
    restrictions on Mr. Chaudrys liberty to be a Board disposition (the deemed
    Board disposition).  When the Board held the hearing as required under s.
    672.81(2.1), s. 672.83(1) required the Board to review the deemed Board disposition
    and make any other disposition that it considered appropriate:

672.83
(1)
At a hearing held pursuant to section 672.81the Review Board
    shall
, except where a determination is made under subsection 672.48(1)
    that the accused is fit to stand trial,
review the
    disposition made in respect of the accused and make any other disposition that
    the Review Board considers to be appropriate in the circumstances
.  [Emphasis
    added.]

[61]

As
    required by s. 672.83(1), the Board reviewed the deemed Board disposition.  The
    result of that review was the Amended Decision.  Thus, the Amended Decision was
    the disposition that the Board considered to be appropriate, in the
    circumstances.  In the Amended Decision, the Board confirmed the Hospitals
    decision to re-admit Mr. Chaudry and ordered that the 2012 Disposition
    continue.

[62]

Although
    the Board called the Amended Decision a decision  not a disposition  and
    although the style of cause of the Amended Decision refers to a hearing held
    pursuant to section 672.81(2.1), in fact, the Amended Decision is the Boards
    disposition made pursuant to s. 672.83.

[63]

To
    be clear, in my view, for this court to have jurisdiction over the appeal, it
    was not necessary that the Board order the 2012 Disposition to continue. When  the
    Board reviews a disposition at a restriction of liberty hearing under s.
    672.83(1), it must make the disposition that [it] considers appropriate. 
    Accordingly, whatever disposition it makes pursuant to s. 672.83(1) is subject
    to appeal under s. 672.72(1).

Summary and Concluding Remarks on
    this Issue

[64]

In
    sum, therefore, because:

-

s.
    672.1(1) defines disposition to mean a Board order made under s. 672.54,

-

s.
    672.54 refers to a Board disposition under s. 672.83, and

-

s.
    672.83 requires the Board to review the deemed Board disposition made under s.
    672.56(1) and make such disposition as it considers appropriate,

the Amended Decision falls within the statutory
    definition of disposition in s. 672.1(1).  Thus, this court has jurisdiction to
    hear the Hospitals appeal against that disposition (i.e. the Amended Decision)
    under s. 672.72(1) of the
Criminal Code
.

[65]

I
    would add two final comments.

[66]

First,
    this interpretation accords with the courts past practice of hearing appeals
    of Board decisions arising from restriction of liberty hearings: see, for
    example,
Re Saikaley
, 2012 ONCA 92, 109 O.R. (3d) 262.  Second, this
    interpretation is consistent with the legislative intent underlying Part XX.1 of
    the
Criminal Code
, which is to give NCR accused persons the right of
    appeal from Board decisions that affect their liberty interests.

[67]

For
    these reasons, I would reject Mr. Chaudrys request that the Hospitals appeal
    be quashed for want of jurisdiction.

DID THE BOARD ERR IN FINDING THAT MR.
    CHAUDRYS CONTINUED DETENTION ON THE SECURE FORENSIC ASSESSMENT UNIT WAS NOT
    THE LEAST ONEROUS AND LEAST RESTRICTIVE DISPOSITION AND CONTRARY TO SECTION 7 OF
    THE CHARTER?

[68]

In
    its Amended Decision, the Board stated that Mr. Chaudrys continued detention
    on the [Secure] Forensic Assessment Unit did not represent the least onerous
    and least restrictive decision, contrary to section 7 of the
Charter

    (the Finding).  From the Board Reasons, it appears that the Finding is based
    on the Boards view that in the last two weeks of Mr. Chaudrys stay in the
    Hospital, while housed in the Secure Forensic Assessment Unit, Mr. Chaudry should
    have been given the privileges associated with detention on the Forensic
    Rehabilitation Unit.

[69]

The
    Hospital submits that the Finding was unreasonable and unsupported by the
    evidence. It contends that the Board did not conduct any analysis of whether Mr.
    Chaudrys detention in the relevant two-week period met the least onerous and
    least restrictive standard.  In this regard, the Hospital notes that the least
    onerous and least restrictive standard is informed by a number of factors,
    including the treatment needs of the accused and the need to protect the
    public.  The Hospital further submits that the Boards s. 7 finding is devoid of
    analysis and unfounded in the evidence.

[70]

Mr.
    Chaudry argues that the Finding was proper and reasonable, based on Dr. Wards
    own testimony that in the last two weeks of his detention, he could have been housed
    in the Forensic Rehabilitation Unit but was not moved there because no beds were
    available.  He submits that the Board was entitled to conclude from this
    evidence that his liberty had been infringed to a greater extent than necessary
    to protect public safety.  Given this conclusion, Mr. Chaudry says that a
    finding that his s. 7 rights had been breached was inevitable.

[71]

I
    would accept the Hospitals submission on this issue.

[72]

As
    I have explained above, when the Hospital exercised its delegated authority to
    direct that the restrictions on Mr. Chaudrys liberty be increased, it acted
    pursuant to s. 672.56(1).  In the exercise of that delegated authority, any
    restrictions that the Hospital placed on Mr. Chaudry had to fall within the
    envelope of conditions enumerated by the Board in the 2012 Disposition.  The
    Hospital was required to give due regard to Mr. Chaudrys liberty interest in
    light of the twin goals of public safety and treatment:
M.L.C. v. Ontario
    (Review Board)
, 2010 ONCA 843, 104 O.R. (3d) 450, at paras. 27-28.
    Further, the Hospital was obliged to ensure that the conditions it imposed met the
    least onerous and least restrictive standard:
M.L.C.
, at para. 45.

[73]

Similarly,
    when the Board reviewed the Hospitals decision to significantly restrict Mr.
    Chaudrys liberty pursuant to s. 672.81(2.1), it was required to determine
    whether the Hospitals decision met the least onerous and least restrictive
    standard:
M.L.C.
, at para. 46.

[74]

If
    the Hospitals decision met the least onerous and least restrictive standard,
    then there was no violation of Mr. Chaudrys s. 7 rights.  This conclusion
    follows from the Supreme Courts reasoning in
Winko v. British Columbia
    (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625, at para. 71, that
    the least onerous and least restrictive standard does not violate s. 7. The
    court held that the standard is not overbroad and ensures that the NCR
    accuseds liberty will be intruded upon no more than is necessary to protect
    public safety.

[75]

Thus,
    the question for the Board was whether, in failing to give Mr. Chaudry the
    privileges associated with detention on the Forensic Rehabilitation Unit during
    the last two weeks of his hospitalization, the Hospital breached the least
    onerous and least restrictive standard.  The Board concluded that it had.  In
    my view, it erred in reaching that conclusion.

[76]

To
    begin, it is not clear to me that the Board tested the Hospitals decision
    against the least onerous and least restrictive standard.  Although the words least
    onerous and least restrictive appear in the Amended Decision, they do not
    appear in the Board Reasons.  Rather, at page 19 of the Board Reasons, the
    Board states that Mr. Chaudrys continued detention on the Secure Forensic
    Assessment Unit without being able to exercise privileges that he otherwise
    would have been entitled to exercise was not reasonable and warranted.  Later
    on that same page, the Board again states that Mr. Chaudrys inability to
    exercise the privileges that his condition would have warranted was not
    warranted and reasonable, and therefore violated Mr. Chadurys s. 7 rights. 
    With respect, the Board was required to assess whether the Hospitals decision
    to significantly restrict Mr. Chaudrys liberty satisfied the least onerous and
    least restrictive standard, and not whether the decision was warranted and
    reasonable.

[77]

In
    any event, however, the Finding is not supported by the evidence.

[78]

Dr.
    Ward testified that Mr. Chaudry was acutely psychotic until two weeks prior to
    his discharge.  During the period of acute psychosis, he had significant
    hallucinations, irritability and disorganization and could not be transferred
    to the Forensic Rehabilitation Unit.  While on the Secure Forensic Assessment
    Unit, Mr. Chaudry had visits with his family and he had access to a large yard,
    the gym and treatment groups.  He did not have access to the rest of the
    Hospital or its grounds.

[79]

Once
    Mr. Chaudrys condition began to improve, the Hospital promptly began planning
    to discharge him to the community.  Although Mr. Chaudry was well enough to
    have been transferred to the Forensic Rehabilitation Unit in the last two weeks
    of his Hospital stay, there were no beds available in the Forensic
    Rehabilitation Unit at that time.

[80]

Dr.
    Ward testified that the Hospital does not have secure access to its grounds
    (apart from the grounds to which Mr. Chaudry had access), which means that its
    grounds are basically open to the public.  A patient that has access to those
    grounds has the potential to obtain contraband, such as drugs.  Dr. Ward explained
    that allowing a patient to go back and forth between the two units creates a risk
    that contraband will move between them.  Thus, giving Mr. Chaudry access to the
    Hospital grounds would have created the risk that contraband such as drugs
    could be moved into the Secure Forensic Assessment Unit.  Illegal drugs on the
    Secure Forensic Assessment Unit, in which seriously ill patients are resident,
    poses a safety risk to the other patients on that unit and to the staff who
    care for them.

[81]

In
    my view, public safety concerns include concerns about other patients and
    Hospital staff.  Thus, Dr. Wards evidence demonstrates that, in establishing
    Mr. Chaudrys privileges in the last two weeks of his hospitalization, the
    Hospital carefully considered and balanced Mr. Chaudrys treatment needs with
    public safety concerns.  The restrictions were no more than what was necessary
    to protect public safety.

[82]

A
    concluding comment is in order.  On several occasions, the Board has exhorted the
    Hospital to find a way to allow the NCR accused person to exercise the
    privileges that his or her condition warrants, even if the person is detained
    on the Secure Forensic Assessment Unit because of a lack of beds in the
    Forensic Rehabilitation Unit: see, for example,
Williams (Re)
, [2008]
    O.R.B.D. No. 1883, at para. 21;
Dasilva
(Re)
, [2011] O.R.B.D.
    No. 1088, at para. 24; and

Baragengana (Re)
, [2013] O.R.B.D.
    No. 669, at para. 30. In those cases, the particular security concerns
    expressed by Dr. Ward do not appear to have been raised.  Based on that evidence,
    I have concluded that Mr. Chaudrys privileges were limited no more than
    necessary to protect public safety.  Nothing I have said, however, is intended
    to diminish the strength of the Boards exhortations that the Hospital find a
    way to allow NCR accused persons to exercise the privileges their condition
    warrants.

[83]

In
    the circumstances of this case, however, as I have explained, the Hospital met
    the least onerous and least restrictive standard and, therefore, there was no
    breach of Mr. Chaudrys s. 7 rights.

[84]

Accordingly,
    I would allow this ground of appeal.

DOES THE BOARD HAVE JURISDICTION TO
    AWARD COSTS AS A REMEDY UNDER S. 24(1) OF THE
CHARTER
?

[85]

The
    Hospital submits that the Board does not have the jurisdiction to award costs
    as a remedy under s. 24(1) of the
Charter
.

[86]

I
    agree.  In my view, given the statutory framework governing the Board,
    including its mandate, structure and functions, Parliament did not intend that
    the Board be empowered to order costs as a s. 24(1) remedy.

The Boards Remedial Jurisdiction:
    General Principles

[87]

Section
    24(1) of the
Charter
provides:

Anyone whose rights or freedoms, as guaranteed by
    this Charter, have been infringed or denied may apply to a court of competent
    jurisdiction to obtain such remedy as the court considers appropriate and just
    in the circumstances.

[88]

In
R. v. Conway
, 2010 SCC 22, [2010] 1 S.C.R. 765, at paras. 81-82, the
    Supreme Court set out two questions that must be addressed when a remedy is sought
    from an administrative tribunal under s. 24(1) of the
Charter
:

1.  Does the tribunal have
    the jurisdiction to decide questions of law?

2.  If so, can the tribunal
    grant the particular remedy being sought?

[89]

Conway
itself, at para. 84, answered the first question in the affirmative in respect
    of the Board.  As a quasi-judicial body with significant authority over a
    vulnerable population, the Board is a court of competent jurisdiction with
    authority to decide questions of law and
Charter
questions that arise
    in the course of its proceedings.

[90]

I
    turn, therefore, to the second question.  In the present case, that question becomes:
    can the Board make a costs order as a s. 24(1) remedy for a
Charter

breach?

[91]

Justice
    Abella explains, at para. 82 of
Conway
,

that answering the
    second question is necessarily an exercise in discerning legislative intent:

[W]hat will always be at issue is whether the remedy sought is
    the kind of remedy that the legislature intended would fit within the statutory
    framework of the particular tribunal.  Relevant considerations in discerning
    legislative intent will include those that have guided the courts in past
    cases, such as the tribunals statutory mandate, structure and function (
Dunedin
    [R. v. 974649 Ontario Inc.
, 2001 SCC 81, [2001] 3 S.C.R. 575]).

The Statutory Framework which
    Governs the Board

[92]

Are
    costs orders the kind of remedy that the legislature intended would fit within
    the Boards statutory framework?  Let us begin by considering the statutory
    framework that governs the Board, including its mandate and functions.

[93]

The
    Board was established by, and operates under, Part XX.1 of the
Criminal
    Code
.  It is a specialized statutory tribunal with ongoing supervisory
    jurisdiction over the treatment, assessment, detention and discharge of those
    accused persons who have been found not criminally responsible by reason of
    mental disorder.  The review board regime is intended to reconcile the twin
    goals of protecting the public from dangerous offenders and treating the NCR
    accused person fairly and appropriately.

[94]

The
    Boards statutory mandate is to manage and supervise the assessment and
    treatment of all such persons in Ontario by holding annual hearings and making
    dispositions.  Its functions and tasks call for significant expertise and the Boards
    membership reflects this.  It sits in five-member panels that include the
    chairperson (a judge or a person qualified for or retired from the bench), a
    psychiatrist, and a second psychiatrist or a person with training and
    experience in the field of mental health who is entitled to practice medicine
    or psychology:
Conway
,
at para. 95, and
Criminal Code
,
    ss. 672.38(1), 672.39, 672.4(1).

[95]

The
    Boards method is inquisitorial, not adversarial:
Winko
, at para. 54. 
    In the Board proceedings, the NCR accused bears no onus of proof. Rather, the
    Board is required to search out and consider all relevant evidence, including
    evidence that supports restricting the accuseds liberty and evidence that supports
    increasing the accuseds liberty.

Analysis

[96]

In
    my view, introducing the potential for costs orders would detract from the
    Boards ability to meet its statutory mandate and functions.  The potential of
    a costs order would inevitably raise the stakes for the party facing the
    allegations, heighten the adversarial tenor of the proceedings, and prolong
    Board hearings.  Consequently, if costs orders are available, hearings are
    likely to become more adversarial and less inquisitorial, with a shift in focus
    away from the twin goals of public safety and the fair treatment of NCR accused
    persons.  The Boards expertise is in how best to manage a patients risk to
    the public:
Conway
, at para. 95.  Its expertise is not in assessing
    and fixing costs.

[97]

Moreover,
    as Abella J. noted in
Conway
, at para. 103,
Charter

rights
    can be effectively vindicated through the exercise of statutory powers and
    processes. In this case, the statutory powers given to the Board provide it
    with a sufficient arsenal of remedies.

[98]

As
    explained above, pursuant to ss. 672.81(2.1) and 672.83(1), the Board reviewed
    the Hospitals decision to significantly restrict Mr. Chaudrys liberty (the
    deemed Board disposition) and had the power to make any other disposition that
    it considered appropriate, in the circumstances.  Accordingly, the Board had
    the power to redress any aspect of Mr. Chaudrys detention that did not meet
    the least onerous and least restrictive standard.

[99]

Further,
    the Board can make findings and non-binding recommendations, which would
    provide guidance to hospitals on the proper discharge of their obligations.

[100]

That this can be
    an effective remedy is borne out by the facts of this case.  By the time the
    Board heard this matter, the Hospital had already investigated what had taken place,
    and reviewed its procedures and policies both for admitting individuals on
    detention orders and for notifying the Board about restriction of liberty
    hearings.

[101]

Indeed, the
    Hospital had already implemented important changes both to its procedures for
    such re-admissions and to ensure that notice is properly given. Under the new
    admission procedure, when the Hospital requests that the police apprehend a
    patient, the police are to bring the patient to the Hospital at any time of
    day. (Recall that under the old procedure, at the Hospitals direction, the
    police took Mr. Chaudry to the Civic Campus because he was apprehended after
    5:00 p.m.)

[102]

Furthermore, under
    the new notice procedure, when the Hospital issues a Form 49 warrant of
    committal, a letter advising the Board of this is immediately drafted and
    placed in the patients file. That letter is then automatically sent to the
    Board seven days later, pursuant to s. 672.56(2)(b).

[103]

Although I have concluded
    that the Boards statutory mandate, structure and functions are not consistent
    with any legislative intent that the Board have the power to award costs, my
    conclusion does not undermine the important role that the Board plays in
    respect of
Charter

issues.  The Board has the jurisdiction to
    apply the
Charter

to issues that arise in the proper exercise
    of its statutory functions.  This ensures that the Board will play a primary
    role in determining
Charter

issues that fall within its
    specialised jurisdiction.

[104]

I would conclude
    on this ground of appeal by observing that, in my view, the Board erred in relying
    on
R. v. 974649 Ontario Inc.
, 2001 SCC 81, [2001] 3 S.C.R. 575

(
Dunedin
)

when it ordered the Hospital to pay costs.

[105]

In
Dunedin
,
    the respondents were charged under the Ontario occupational health and safety legislation
    with failing to comply with safety requirements on a construction project. 
    They sought Crown disclosure but, ultimately, had to bring a motion to obtain it. 
    A justice of the peace, acting under the
Provincial Offences Act
,
    R.S.O. 1990, c. P.33 (the

POA
), heard the motion and ordered
    disclosure.  He also ordered the Crown to pay costs of the motion to the
    respondents.  The Supreme Court upheld the costs order, ruling that justices of
    the peace acting under the
POA
have the power to make costs orders
    against the Crown for
Charter

breaches.

[106]

In my view, there
    are two crucial differences between the statutory mandates, functions and
    powers of a provincial court operating under the
POA
, and the Board
    operating under Part XX.1 of the
Criminal Code
.  The first is that s.
    90(2) of the
POA

expressly empowers provincial courts to make
    orders for the payment of costs in certain circumstances.  The second is that the
    use of costs orders by the provincial courts to discipline untimely disclosure is
    integrally related to their function as quasi-criminal trial courts:
Dunedin
,
    at para. 93.

[107]

Neither of these
    considerations applies to the Board.  There is no equivalent provision in Part
    XX.1 of the
Criminal Code
to s. 90(2) of the
POA
,

nor is
    the Board a quasi-criminal court that determines the guilt or innocence of
    accused persons.  Rather, the Boards supervisory jurisdiction is over the
    treatment and assessment of those persons who have been found by a court to be
    unfit to stand trial or not criminally responsible by reason of mental
    disorder.

[108]

For these
    reasons, I would allow this ground of appeal.

DID THE BOARD ERR IN ORDERING COSTS
    AGAINST THE HOSPITAL ON ITS OWN MOTION?

[109]

At the beginning
    of the Board hearing, Mr. Chaudry, through his counsel, made it clear that he
    was not seeking the costs of his
Charter
application.  As a result, the
    Hospital made no submissions on that matter.  Nonetheless, the Board made a
    costs order against the Hospital.

[110]

Mr. Chaudry
    submits that, in making the costs order, the Board did not deprive the Hospital
    of procedural fairness because its process is inquisitorial and the Board is
    obliged to arrive at the conclusion it thinks proper, no matter what position
    the parties have taken.

[111]

I would not
    accept this submission. In my view, the Board owed the Hospital a duty of procedural
    fairness. It breached that duty by making the costs order on its own motion,
    without giving the Hospital notice that it might be subject to such an order,
    and without giving the Hospital the opportunity to make submissions on the
    matter.

[112]

In
Kachkar
    (Re)
, 2014 ONCA 250, 309 C.C.C. (3d) 1, this court considered the
    circumstances in which the Board owes a duty of procedural fairness to the
    parties before it. At para. 39, Goudge J.A., writing for the court, quoted the
    following from
Cardinal v. Director of Kent Institution
, [1985] 2
    S.C.R. 643, at p. 653:

This Court has affirmed that there is, as a general common law
    principle, a duty of procedural fairness lying on every public authority making
    an administrative decision which is not of a legislative nature and which
    affects the rights, privileges or interests of an individual.

[113]

In
Kachkar
,
    the parties made a joint submission on the accuseds disposition. The Board
    accepted the joint submission, but also granted the accused additional privileges.
    On appeal, the Crown argued that it was denied procedural fairness because it
    was not given the opportunity to make submissions on the additional privileges.
    This court disagreed.  It held that the Crown was not entitled to procedural
    fairness in those circumstances for two reasons. First, the Crown was not an
    individual. Second, the Crown was not advancing before the Board an interest
    it could claim as its own:
Kachkar
, at para. 44. The Crowns
    interest  ensuring that the Board made a disposition that was the least
    onerous and least restrictive disposition consistent with public safety  was
    the public interest, not a private interest:
Kachkar
, at paras.
    43-44.

[114]

The facts of the
    present case, however, are materially different from those in
Kachkar
.
    The Board is clearly a public authority and it made an administrative decision
    when it ordered costs against the Hospital.  The Hospital, for the purposes of
    the duty of procedural fairness analysis, is a person whose rights or interests
    have been affected by the Board decision. Unlike the Crown in
Kachkar
,
    the Hospitals interest in avoiding the costs order is an interest that it can
    claim as its own.  The costs order is a significant decision and, as it adversely
    affects the Hospitals interests, the Hospital would have legitimately expected
    to have been heard on the matter before the Board decided it.

[115]

See also
Elster
    (Re)
,
2011

ONCA 701, [2011] O.J. No. 4947, and
Osawe
    (Re)
, 2015 ONCA 280, [2015] O.J. No. 2050.  In
Elster
, this court
    set aside a condition of a disposition order, in part because the Board had
    imposed the condition without having first heard from the parties on the
    matter.  In
Osawe
, this court set aside the Boards disposition
    because it rejected a joint submission without giving notice to the parties
    that it was inclined to so do.

[116]

Accordingly, in
    my view, the Board owed the Hospital a common law duty of procedural fairness
    in relation to the matter of costs.  The Board breached that duty by failing to
    give the parties the opportunity to address the matter before deciding it.

[117]

I would add
    this.  While it is procedural fairness that dictates setting aside the costs
    order in this case, concern for the integrity of the Boards decision-making
    process leads to a similar conclusion.  Enabling the parties to be heard on
    matters that affect their rights, privileges or interests ensures that the
    Board has the necessary information to properly consider and decide such matters.

[118]

Accordingly,
    even if the Board has the power to make an order as to costs, I would set aside
    the costs order in question on the basis of the Boards breach of its duty of
    procedural fairness.

DISPOSITION

[119]

For these reasons,
    I would allow the appeal, set aside the Amended Decision, including the costs
    order, and reinstate the Initial Decision.

Released: May 8, 2015 (E.E.G.)

Eileen E. Gillese J.A.

I agree. P. Lauwers J.A.

I agree. C.M. Speyer J. (ad
    hoc)





[1]
Section 672.54 of the
Criminal Code
was amended in 2014. The previous version of s. 672.54, in force at the time of
    the Board hearing and quoted above, reads as follows:

Where a court or Review Board
    makes a disposition under subsection 672.45(2) or section 672.47 or 672.83, it
    shall, taking into consideration the need to protect the public from dangerous
    persons, the mental condition of the accused, the reintegration of the accused
    into society and the other needs of the accused, make one of the following
    dispositions that is the least onerous and least restrictive to the accused:

(a) where a verdict of not
    criminally responsible on account of mental disorder has been rendered in
    respect of the accused and, in the opinion of the court or Review Board, the
    accused is not a significant threat to the safety of the public, by order,
    direct that the accused be discharged absolutely;

(b) by order, direct that the
    accused be discharged subject to such conditions as the court or Review Board
    considers appropriate; or

(c) by order, direct that the
    accused be detained in custody in a hospital, subject to such conditions as the
    court or Review Board considers appropriate.


