



COURT OF APPEAL FOR ONTARIO

CITATION: Kalra (Re), 2014 ONCA 233

DATE: 20140327

DOCKET: C57583

Doherty, Laskin and Feldman JJ.A.

IN THE MATTER OF:  GAURAV
    KALRA

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Gaurav Kalra, appearing in person

Anita Szigeti and Jill R. Presser,
as amicus curiae

Michael Fawcett, for the Crown

Heard:  March 19, 2014

On appeal against the disposition of the Ontario Review
    Board, dated September 6, 2013.

ENDORSEMENT

[1]

The appellant was found NCR in 2010.  He has resided in the Secure
    Treatment Unit at the Brockville Mental Health Centre (Brockville Hospital) since
    2011.  The appellant suffers from schizophrenia.

[2]

The index offences involved the harassment of a former high school
    classmate.  While the offences were serious and no doubt terrifying for the
    victim, the appellants conduct did not involve personal violence.  He has no
    other criminal involvement.  The appellants mental disorder manifests itself
    primarily in non-violent and passive conduct.

[3]

The appellant has progressed well in the Brockville Hospital.  He
    continues, however, to lack insight into the nature of his disorder.  There is
    a risk that he would not comply with his medication requirements if he were living
    outside of the hospital.  The appellants parents, while loving and fully supportive
    of their son, lack a full appreciation of the nature his problems.

[4]

At the hearing, the medical staff took the position that the Board should
    make a detention order with a condition allowing the appellant to reside with
    his parents if the medical staff agreed.  The medical staff favoured a
    detention order primarily because the appellant was undergoing a drug treatment
    program involving a gradual reduction in the levels of the anti-psychotic
    medication the appellant was taking.  The aim of the program was to both
    determine the appropriate level of medication for the appellant and demonstrate
    to the appellant his need for the medication.  The medical staff believed that the
    appellant should remain under a detention order so that the hospital could
    closely monitor him as his medication was being reduced and, if necessary,
    adjust that medication.  The staff further believed that there would be a
    significant risk to the public if the drug reduction program were continued
    while the appellant was living in the community under an order that was less
    restrictive than a detention order.

[5]

The Board found that the appellant constituted a significant threat to
    the safety of the public.  The Board also agreed with the medical staff that in
    light of the drug reduction program, a detention order was necessary.  However,
    the Board declined to include a term allowing the appellant to live with his
    parents if the hospital staff agreed.  The Board said:

Given that the hospital is embarking on what is described in
    the hospital report, page 24, as a medication holiday to prove to Mr. Kalra
    that he either does or does not have a mental illness, the Board finds that it
    is too great a risk to the public to allow the privilege of overnight visits
    with his parents or the privilege to live in the community in approved
    accommodation.

[6]

Amicus
argues that the evidence did not establish that the
    appellant posed a significant threat to the safety of the public and that the
    Board should have ordered an absolute discharge.  Alternatively, she submits
    that a conditional discharge allowing the appellant to live with his parents
    was the least onerous and least restrictive disposition available on the
    evidence.

[7]

We are satisfied that there was
    evidence upon which the Board could conclude that the appellant
posed
    a significant threat to the safety of the public.  The appellants conduct that
    led to the NCR finding, the nature of his mental disorder, his lack of insight
    and the concerns that he would not comply with medication requirements, taken
    together, provide a basis for a determination that the appellant posed a
    significant threat to the safety of the public.

[8]

The Board did not explore in any detail the question whether the
    appellant posed a significant risk to the safety of the public.  This is
    understandable as it was conceded before the Board that the evidence was
    sufficient to clear the significant threat threshold.  The Boards
    determination that the appellant posed a significant threat to the safety of
    the public was reasonable on this record.

[9]

We do, however, agree with the second submission of
amicus
.  The
    Board erred in failing to impose a conditional discharge.  As we read the
    Boards reasons, it imposed a detention order because of the risk posed to the
    community were the appellant to be in the community while undergoing the drug reduction
    program instituted by the hospital.  With respect, restrictions on the
    appellants liberty cannot be justified on the basis of a risk created by a
    course of treatment which, while appropriate within the hospital, is viewed as
    inappropriate in the community.  The Board should have considered the nature of
    the risk posed by the appellant by reference to treatments, if any, that were available
    within the community and appropriate for the appellant.  If such a treatment
    program existed, the Board should have considered the risk factors by reference
    to that program and not the program being followed in the hospital.

[10]

The
    question for the Board in choosing between a conditional discharge and a
    detention order was not whether the hospitals proposed drug treatment plan
    could be carried out safely outside of the hospital, but whether terms and
    conditions could be imposed that would adequately address public safety
    concerns were the appellant to be granted a conditional discharge.  If those
    concerns could be adequately addressed, then a conditional discharge was the
    least onerous and least restrictive disposition available.

[11]

In
    considering whether appropriate conditions could be fashioned, the Board had to
    take into account the willingness of the appellant and his substitute decision-makers
    (his parents) to consent to a term in the conditional agreement requiring the
    appellant to take whatever psychiatric treatment the hospital personnel mandated. 
    We were advised during oral argument that the appellant and his parents are
    still prepared to provide that consent.

[12]

We
    are satisfied that a conditional discharge is the appropriate order.  In coming
    to that conclusion, we have considered the following:

·

the nature of the index offences;

·

the absence of any criminal activity or other violence in the
    appellants past apart from the index offences;

·

the appellants progress in the two years he has been in the
    Brockville Hospital;

·

the support of the parents of the appellant and their developing
    appreciation for the nature of their sons mental illness;

·

the absence of any relapse by the appellant during the time
    period in which his medication has been significantly reduced; and

·

the appellants willingness to consent to an order requiring him
    to comply with the treatment prescribed by the hospital, and his parents
    willingness to consent to a similar order in their capacity as his substitute
    decision-maker.

[13]

The
    disposition of the Board should be set aside and a disposition ordering a
    conditional discharge on the following terms should be substituted:

a)

The appellant is to
    reside with his parents at 6 Wolfgang Drive, Nepean, Ottawa;

b)

The appellant is to
    notify the Person in Charge and the Ontario Review Board of any change in
    address within 24 hours of moving;

c)

The appellant is to
    report to the Person in Charge of the Brockville Mental Health Centre or its
    designate at least twice per week at times directed by the hospital;

d)

The appellant will
    consent, to the extent that he can consent, to take the psychiatric treatments
    as prescribed by the relevant medical personnel at the Brockville Mental Health
    Centre.

e)

To the extent that the
    appellants consent is ineffective, his parents as the appellants substitute
    decision-makers will consent to any treatment prescribed by the hospital
    personnel at Brockville Mental Health Centre.

f)

The
    appellant shall refrain from contact or communication direct or indirect with
    Victoria Frank, Sandra Frank or Robert Frank.

g)

The appellant shall not
    attend within 500 metres of 18 Cherrywood Drive, Guelph, Ontario; and

h)

The appellant shall
    not attend within 500 metres of any known place of worship, education,
    employment or residence of Victoria Frank, Sandra Frank or Robert Frank.

[14]

For
    the purposes of this disposition, the Brockville Mental Health Centre or its
    designate is specified as the place to which a police officer may deliver the
    accused in the event of a breach or suspected breach of the order.

Doherty J.A.

John Laskin J.A.

K. Feldman J.A.


