





CITATION:
Runnalls
          (Re), 2011 ONCA 364



DATE: 20110509



DOCKET: C52689



COURT OF APPEAL
          FOR ONTARIO



OConnor A.C.J.O., Blair and Epstein JJ.A.



BETWEEN:



Her Majesty the Queen



Respondent



and



The Person in Charge of the Northeast Mental Health
          Centre



Respondent

and

Nelson
          Shaun Runnalls



Appellant

Nelson Runnalls, appearing in person

Michael Davies, as
amicus curiae



Grace Choi, for the respondent, Her Majesty the Queen

Janice Blackburn, for the respondent, the Person in Charge
          of the Northeast Mental Health Centre



Heard:
April 28, 2011



On appeal from the disposition of
          the Ontario Review Board dated July 23, 2010.



ENDORSEMENT

[1]

In 2004, the appellant was found not criminally
    responsible on account of a mental disorder on a number of criminal charges.  Since then, he has been detained at the North
    Bay Psychiatric Hospital.

[2]

The Ontario Review Board conducted an annual review
    hearing on July 12, 2010.  In its
    disposition on July 23, 2010, the Board continued the appellants detention
    subject to conditions.  The appellant,
    who represents himself on this appeal, appeals the disposition and requests
    that this court substitute a conditional or absolute
discharge

[3]

This court appointed Mr. Michael Davies to act as
amicus curiae
on the appeal.
Amicus
argues that the Board erred by failing to appoint counsel or
amicus curiae
to assist the appellant at
    his hearing or, in the alternative, by failing to provide proper assistance to
    the appellant to assure a full and fair hearing.

[4]

We will address the arguments of the
amicus curiae
first.  At the commencement of the hearing before the
    Board, the appellant sought an adjournment to await the appeal of the previous
    years disposition.  The appellant also
    requested an adjournment so that he could have an independent psychiatric
    assessment.  Both requests were denied.

[5]

During the course of the discussion relating to the
    adjournment requests, counsel for the hospital indicated that the hospital
    would prefer to see the appellant represented by counsel.  The appellant, who had been represented by
    counsel on other occasions, had not requested counsel.  In the ensuing discussion, the following
    exchange took place between the Chair and the appellant:

The Chair: ... Would you get a lawyer if you got an
    adjournment?

The appellant: Well, if.

The Chair: [y]ou really do need counsel.

The appellant: Well, what do you need counsel
for ...


The Chair: To defend you, to act for you, who knows
    what hes doing.

[6]

On returning, the Board dismissed the appellants
    application for an adjournment, concluding that the appellant elected not to
    have a lawyer and that a further psychiatric examination would be redundant.

[7]

In his Notice of Appeal, the appellant did not rely on
    the Boards failure to appoint counsel as a reason for setting aside the
    Boards disposition.

[8]

Section 672.5(7) of the
Criminal Code
provides that an accused has the right to be
    represented by counsel at a hearing before the Board.

[9]

Section 672.5(8) casts a duty on the Board to appoint
    counsel in certain circumstances.  It provides
    in part as follows:

(8)  If an
    accused is not represented by
counsel,
Review Board
    shall, either before or at the time of the hearing, assign counsel to act for any
    accused

(a)

(b)
wherever
the interests
    of justice so require.

[10]

In
R. v. LePage
(2006),
    214 C.C.C. (3d) 105, this court held that s. 672.5(8) confers the authority
    upon the Board to appoint counsel to represent the NCR accused or to appoint
amicus curiae
.  The Board may choose to appoint
an
amicus
curiae
when an accused does not wish to
    have counsel represent him or her.

[11]

The question arises whether the Board properly
    considered the test in s. 672.5(8) in deciding to proceed with the appellants
    hearing without appointing counsel.

[12]

We start by noting that the language of the section is
    mandatory.  The Board
shall
appoint
    counsel if the interests of justice so require.  In Ontario, we are fortunate to have a number
    of lawyers, such as Mr. Davies, who are available to act for an NCR accused or
    as
amicus curiae
in these types of cases.  Indeed, the Board often appoints counsel.

[13]

In considering whether the interests of justice
    require the appointment of counsel, the Board should determine whether there
    can be a fair hearing if it proceeds with the NCR accused unrepresented.  A variety of factors may be relevant to such
    a consideration, including the wishes of the NCR accused, the mental state of
    the NCR accused and his or her capacity to participate in the hearing without
    the assistance of counsel, the history of the proceedings, the nature of the
    issues likely to arise, and the impact of any delay in obtaining counsel.  There may well be other factors.  No factor is determinative.  In the end, the Board should assess the
    totality of the circumstances in arriving at its decision.

[14]

A Review Board should take care in drawing conclusions
    about an NCR accuseds capacity to participate in a hearing without counsel
    based on his or her involvement in earlier hearings or other legal
    proceedings.  Annual review hearings are
    mandatory.  An NCR accused does not
    initiate an annual review.  Moreover, an
    NCR accuseds mental state may vary significantly from one year to the next
    depending on a variety of factors.  Given
    that NCR accused are among the most vulnerable persons in the justice system and
    given that annual reviews engage their liberty interests, it is important that
    Review Boards carefully consider whether the interests of justice require that
    an NCR accused be represented before proceeding on an unrepresented basis.

[15]

While the reasons of the Board for proceeding without
    appointing counsel for the appellant are brief, we do not conclude that the
    Board erred in reaching the conclusion to proceed.  Both the Chair and counsel for the hospital
    had expressed the desirability of appointing counsel, no doubt because hearings
    with counsel tend to be more focussed.  The appellant had indicated that he did not need counsel.  Obviously, the Board was alive to the issue
    when it retired.  After returning, the
    Chair said:

We discussed it back and forth and we see no reason
    to adjourn this case again.  It was
    adjourned in May.  There has to be some
    finality to these hearings, so were going to proceed this afternoon.  Its very regretful that Mr. Runnalls does
    not have
counsel,
I think that is his choice though.  Certainly counsel is available for him, and
    Im sure that he could have retained a lawyer but he elected not to.

His request for a further psychiatric examination I
    think is rather redundant in view of the number of years that he has been under
    psychiatric care, and previous examination, lengthy psychological examination
    and I see numerous psychiatric examinations, so we will proceed.

[16]

In these circumstances, it is not unreasonable to conclude
    that this specialized Board, chaired by a retired Superior Court judge, was
    aware of the requirement set out in s. 672.5(8) of the
Criminal Code
and considered whether it could proceed to have a
    full and fair hearing without the benefit of having the appellant represented.  It decided that it could.

[17]

We note that in
    making its decision, the Board would have had the benefit of the hospital
    report detailing the history of the appellants detention and his mental health
    problems.  The Board would also have been
    aware that the appellant had participated in a number of other hearings
,
on some occasions with counsel.  In addition, it appears that the appellant had
    the benefit of discussions with counsel prior to the July 12th hearing.  He told the Board that Michael Davies, the
amicus curiae
in the present appeal, had
    recommended that he seek a proper psychological assessment at his July 12th
    hearing.

[18]

For the above reasons, we are not persuaded that the
    Board failed to apply the proper test in not appointing counsel or
amicus curiae
.

[19]

We reviewed the transcript of the hearing which took
    place with the appellant unrepresented.  We do not think that the manner in which the Board conducted the hearing
    constituted a miscarriage of justice.  Nor are we of the view that the Boards disposition in continuing the
    appellants detention constituted a miscarriage of justice.  We set out our reasons for this latter
    conclusion below.  Accordingly, we would
    not interfere with the Boards disposition on the basis that it failed to
    appoint counsel pursuant to s. 672.5(8) of the
Criminal Code
.

[20]

The
amicus
curiae
also argues
that the Board erred in failing to provide appropriate assistance to the
    appellant during the conduct of the hearing.
Amicus
suggests that the Board
    should have explained the process that would be followed, the order of events
    and the ways the appellant could participate in much the same manner that a judge
    presiding at a criminal trial would do for an unrepresented accused:  see for example,
R. v. Tran
(2001), 55 O.R. (3d) 161 (C.A.).

[21]

We consider it essential that a Review Board conducting
    a hearing for an unrepresented NCR accused ensure that the accused understands
    the process and is able to participate to the extent necessary to ensure a fair
    hearing.

We stop short, however, of adopting any hard and fast rules as to
    how a Board should carry out this responsibility.  As mentioned above, the Review Board is a
    specialized body, some of whose members have legal and medical
    backgrounds.  The nature of review
    hearings will vary.  The backgrounds and
    capacities of NCR accused will also vary widely.  What is important in this respect is that the
    Board ensure that the NCR accused understands the nature of the process and is
    able to participate in the hearing.  If
    the Board is not satisfied with respect to these matters, then it should
    adjourn the hearing and exercise its authority to appoint counsel or
amicus curiae
.

[22]

The appellants familiarity with the Board, of course,
    is not determinative of the issue of whether he understood the nature of the
    process and could participate.  However,
    the transcript of the hearing shows that the appellant understood the process
    and was able to participate.  While the
    appellants cross-examination of the only witness called was unfocussed with
    respect to certain points, he did elicit several very relevant points that were
    of assistance to the Board.

[23]

In the end, we are not persuaded that the failure of
    the Board, in this case, to explicitly outline the process that would be
    followed or to otherwise assist the appellant
,

resulted
a miscarriage of justice.  That said
,
it seems
    to us that the best practice for hearings of this nature would be for the Board
    to have a direct discussion with an unrepresented accused to satisfy itself
    that the accused understands the process and is able to participate.

[24]

Finally, we turn to the appellants argument that the
    Boards decision to continue his detention was not warranted on the
    evidence.  We do not accept this
    argument.

[25]

The test for review is one of reasonableness:  see
R.
    v. Owen,
[2003] 1 S.C.R. 779.  The Boards
    reasons for disposition set out many significant factors supporting its
    decision, including the appellants failure to have insight into his mental
    illness and need for medication; the unlikelihood that the appellant would
    continue his medication on his own; his history of alcohol and cannabis use;
    his history of aggressive and violent behaviour when under the influence of
    these substances; his refusal of counselling for substance abuse; his lack of
    acknowledgement of a problem with substance abuse and its impact on his
    behaviour; his association with individuals involved with illicit substance
    abuse; his past criminal record for violence and breaches of court orders; and
    his refusal of educational interventions, which impeded rehabilitation
    goals.

[26]

In our view, the decision of the Board to continue the
    detention was reasonable and supported by the evidence.

[27]

In the result, the appeal is dismissed.

D. OConnor A.C.J.O.

R.A. Blair J.A.

Gloria Epstein J.A.


