



COURT OF APPEAL FOR ONTARIO

CITATION: Kalra (Re), 2018 ONCA 833

DATE: 20181018

DOCKET: C65288

Hoy A.C.J.O. and Watt J.A. and Then J. (
ad
hoc
)

IN THE MATTER OF: GAURAV KALRA

AN APPEAL UNDER PART XX.1 OF THE
CODE

Jeff Marshman, for the appellant Gaurav Kalra

Dena Bonnet, for the respondent Crown

Barbara Walker-Renshaw, for the respondent Person in
Charge of the Royal Ottawa Mental Health Centre

Heard: September 14, 2018

On appeal from the disposition of the Ontario Review
Board, dated April 3, 2018, with reasons reported at
Kalra (Re)
,
[2018] O.R.B.D. No. 877.



Hoy A.C.J.O.:



[1]

Gaurav Kalra appeals the Ontario Review Boards
disposition dated April 3, 2018, continuing his conditional discharge. He
argues that the Boards finding that he continues to pose a significant threat
to the safety of the public is unreasonable. He seeks an order allowing this
appeal, setting aside the decision of the Board, quashing the conditional
discharge, and substituting an absolute discharge in its place.

[2]

For the following reasons, I would allow the appeal and
grant the relief sought.

Overview

The Index Offences

[3]

On June 2, 2010, Mr. Kalra was found not
criminally responsible on account of mental disorder (NCR) with respect to one
count of criminal harassment; one count of mischief under $5000; one count of
transportation fraud; and one count of failing to comply with recognizance.

[4]

At the time of the index offences, Mr. Kalra was
24 years old and living with his parents in Ottawa. He had withdrawn socially,
had lost interest in his studies, and was unable to maintain employment. He
often went missing from home.

[5]

On February 27, 2009, Mr. Kalra arrived
uninvited at the Guelph home of the complainant, a former high school classmate.
He was described as disoriented. Police attended at the complainants home and
brought Mr. Kalra to a mental health facility for the evening.

[6]

On March 13, 2009, Mr. Kalras mother phoned
police to report him missing. The police apprehended Mr. Kalra at a bus station
in Guelph. Mr. Kalra told the police that he intended to visit the complainant.
After speaking to the complainants mother, the police learned of the February
27, 2009 incident and cautioned Mr. Kalra on the offences of trespassing and
criminal harassment. He was told not to have any further contact with the
complainant.

[7]

Mr. Kalra again attempted to contact the
complainant, both in person and by telephone, on three other occasions in March
2009. Police described the complainant and her family as becoming upset by
Mr. Kalras behavior. He was arrested and charged with criminal harassment on
March 23, 2009, and released on bail with the condition that he reside with his
father in Ottawa and have no contact with the complainant. Despite those terms,
Mr. Kalra went missing on several occasions, sometimes taking his fathers
vehicle.

[8]

On November 9, 2009, Mr. Kalra drove his
fathers vehicle to the complainants house. When he arrived, he collided with
the garage door, causing approximately $2000 worth of damage. He left a note
for the complainant before fleeing on foot.

[9]

On November 10, 2009, Mr. Kalra returned to the
complainants house by taxi. He did not pay the driver. Mr. Kalra was met at
the door of the complainants house by her father. He left another note for the
complainant, before being arrested by police without incident.

[10]

These further incidents gave rise to the charges
of mischief under $5000, breach of recognizance, and transportation fraud.

[11]

Mr. Kalras communications with the complainant
were largely incoherent. While the notes Mr. Kalra left for the complainant
suggested a level of emotional intimacy that did not exist in reality, they did
not contain any discernible threats of violence or expressions of sexual
interest.

[12]

Mr. Kalra later explained that, prior to the
index offences, he felt as though people were following him. He wanted to
contact a popular big guy from high school, who he believed would help him feel
safe. Mr. Kalra was unable to locate this individual and thought that the
complainant, who Mr. Kalra believed knew the big guy, would be able to help
him find the individual. Mr. Kalra denied any romantic interest in the
complainant.

Supervision by the Board

[13]

As a consequence of the NCR verdict, Mr. Kalra
has been subject to the Boards jurisdiction since September 1, 2010. His
current diagnosis is schizophrenia.

[14]

In July 2011, Mr. Kalra was found incapable of
consenting to treatment under the
Health Care Consent Act, 1996
, S.O
1996, c. 2, Schedule A. His father acted as his substitute decision-maker. Mr.
Kalras condition was treated and improved.

[15]

Mr. Kalra has consistently sought less
restrictive dispositions during the time he has been subject to the Boards
jurisdiction. Under the Boards initial dispositions, Mr. Kalra was detained in
secure forensic custody. This continued until March 2014, when this court
allowed his appeal of the detention order imposed by the Board and substituted
a conditional discharge:
Kalra (Re)
, 2014 ONCA 233, [2014] O.J. No.
1425. Since that time, Mr. Kalra has resided with his parents in Ottawa.

[16]

In March 2018, Mr. Kalra successfully challenged
the 2011 finding that he was incapable of consenting to treatment. The Consent
and Capacity Board (CCB) determined that Mr. Kalra was capable of
appreciating the reasonably foreseeable consequences of his decision to accept
or reject treatment. In particular, the CCB found that Mr. Kalra was capable of
consenting to the anti-psychotic medication prescribed to treat his
schizophrenia. The CCB reached this conclusion notwithstanding the testimony of
Dr. Jonathan Gray, Mr. Kalras attending psychiatrist, who maintained before
the CCB that Mr. Kalras stated insight into his illness and understanding that
he needed to continue taking his medication was strategically motivated to
obtain an absolute discharge from the Board.

The Disposition under Appeal

[17]

The Board most recently convened on March 26,
2018, following the CCBs finding that Mr. Kalra was capable of consenting to
treatment, to review Mr. Kalras disposition.

The Parties Positions before the Board

[18]

At the hearing, both the Crown and the Person in
Charge of the Royal Ottawa Mental Health Centre (the Hospital) took the
position that Mr. Kalra remained a significant threat to public safety and
should be conditionally discharged. The Crown and the Hospital requested that
the conditional discharge include a consent to treatment condition, pursuant to
s. 672.55(1) of the
Criminal Code
, R.S.C. 1985, c. C-46, and that Mr. Kalra
be required to live within 150 kilometers of the Hospital.

[19]

Mr. Kalra and his counsel argued that he was not
a significant threat to the public and therefore he should receive an absolute
discharge. In the alternative, Mr. Kalra asked for a conditional discharge,
without a consent to treatment condition. Mr. Kalra affirmed his commitment to
continue seeing Dr. Gray and continue receiving medical treatment for
schizophrenia, even if absolutely discharged.

The Boards Reasons for Disposition, dated April 16, 2018

[20]

In its Reasons for Disposition dated April 16,
2018, the Board explained that it had concluded Mr. Kalra continued to pose a
significant threat to public safety. As a consequence, it imposed a conditional
discharge, which included a requirement that Mr. Kalra reside within 150
kilometers of the Hospital and report to the Person in Charge each month. However,
the Board did not impose the consent to treatment condition requested by the
Crown and the Hospital.

[21]

In reaching this decision, the Board accepted
Dr. Grays evidence that it is essential for Mr. Kalra to remain on
anti-psychotic medication to avoid the re-emergence of the psychotic symptoms
present at the time of the index offences.

[22]

Dr. Gray reported that, beginning in July 2017,
Mr. Kalra told him that if he received an absolute discharge he would continue
to take his medication and continue to see Dr. Gray. These assurances coincided
with statements by Mr. Kalra suggesting improved insight into the nature of his
illness and its role in the index offences. Historically, Mr. Kalra has
demonstrated little insight into his illness and has been guarded in discussing
the index offences.

[23]

In Dr. Grays opinion, Mr. Kalras statements
were not credible and were strategically motivated to obtain an absolute
discharge. Dr. Gray opined that if Mr. Kalra were granted an absolute
discharge, he would eventually discontinue treatment.

[24]

The Board acknowledged that Dr. Gray might be
mistaken in his belief that Mr. Kalras statements were fabricated with the
goal of obtaining an absolute discharge, but indicated that considerable
deference should be given to Dr. Grays opinion.

[25]

The Board indicated that, having had an
opportunity to hear Mr. Kalra testify, it was unconvinced from his answers and demeanour
that he accepted that his behaviour at the time of the index offences, or more
recently when his medication had been changed,
[1]
was attributable to schizophrenia.

[26]

The Board noted that although Mr. Kalra had been
compliant in taking his medication and attending appointments while living in
the community, he opposed the imposition of a treatment condition in his disposition.
After acknowledging that this was a fair position for Mr. Kalra to take in
light of his history of complying with his treatment plan, the Board continued:

Nonetheless, it is curious that despite his
now verbal assurances that he needs medications to control his illness, this
does not seem to translate to a commitment to this in his Disposition. His
position not to consent to s. 672.55(1), taken alone, would not be particularly
highlighted were it not also viewed in the context of other factors such as his
unwillingness to have his family meet with Dr. Gray; his view that visits by
his social worker are intrusive; his reluctance to meet Dr. Gray at the
hospital if absolutely discharged; the contrast of his previous years (and some
months in the past year) of denial that he suffered from schizophrenia or
needed medication; requests for a drug holiday; his continuing reluctance to
concede that his behaviour during the index offences, and more recently when
medication was changed, was due to symptoms of his mental illness.

All of these factors, even without taking Dr.
Grays opinion about Mr. Kalras motives, support that Mr. Kalras insight is
not consistent with recognizing the need for treatment and support while
suffering from a life-long illness of Schizophrenia.

[27]

The Board found that these factors supported the
conclusion that Mr. Kalra lacked insight into the nature of his illness and the
need for him to continue treatment.

[28]

The Board further accepted the evidence of Dr.
Gray that if Mr. Kalra stopped taking his medication he would experience
similar symptoms to those present during the time of the index offences, and
concluded that Mr. Kalra remained a significant threat to the safety of the
public. The Board found the main risk factors were Mr. Kalras lack of insight
into his illness, his need for medication, and the role that his illness played
in his behaviour during the index offences.

[29]

In the Boards view, Mr. Kalra would not likely
recognize his symptoms of relapse. The Board did not accept that the insight
that Mr. Kalra purported to now have was firmly or at all entrenched in his
consciousness and that his stated intention to continue with medication and
follow-up treatment on an absolute discharge could be relied upon.

[30]

The Board concluded:

Given Mr. Kalras years of history of poor or no insight into
his illness or need for medication or effects of his behaviour when ill, and
without his treating doctors support that this insight has truly and actually
improved, the Board finds that it cannot consider an absolute discharge from
Mr. Kalra at this time. The Board finds he remains a significant threat to the
safety of the public.

[31]

The Board declined to impose the condition the
Crown and the Hospital had sought requiring Mr. Kalra to consent to treatment
because Mr. Kalra has been agreeable to accepting medication and regularly met
his reporting requirements.

The Legal Framework

[32]

Section 672.54(a) of the
Criminal Code
directs that where
an NCR accused is not a significant threat to the safety of the public he or
she must be discharged absolutely.

[33]

In
Winko v. British Columbia (Forensic
Psychiatric Institute)
, [1999] 2 S.C.R. 625, the Supreme Court of Canada
affirmed that the jurisdiction of the criminal law over NCR accuseds extends
only to those who present a significant threat to public safety: para. 33. An
NCR accused is not presumed to be dangerous and bears no burden of proof in
proceedings before the Board: paras. 46, 62. If the Board cannot positively
conclude, based on all the evidence, that the NCR accused poses a significant
threat to the safety of the public, it must grant an absolute discharge: paras.
47-49, 54, 57.

[34]

Section 672.5401 of the
Criminal Code
defines a significant threat to the safety of the public to mean a risk of
serious physical or psychological harm to members of the public  including any
victim of or witness to the offence, or any person under the age of 18 years 
resulting from conduct that is criminal in nature but not necessarily violent.

[35]

Further guidance is provided by
Winko
,
where the Supreme Court described, at para. 57, what amounts to a significant
threat to the safety of the public in the following terms:

[T]he threat must be more than speculative in
nature; it must be supported by evidence. The threat must also be significant,
both in the sense that there must be a real risk of physical or psychological
harm occurring to individuals in the community and in the sense that the
potential harm must be serious. A miniscule risk of a grave harm will not
suffice. Similarly, a high risk of trivial harm will not meet the threshold.
Finally, the conduct or activity creating the harm must be criminal in nature. In
short, Part XX.1 can only maintain its authority over an NCR accused where the
individual poses a significant risk of committing a serious criminal offence. [Citations
omitted.]

[36]

While the contemplated conduct must be criminal,
not all criminal conduct will meet this standard; there must be a risk that the
NCR accused will commit a
serious
criminal
offence:
Winko
,
at paras. 57, 69.

[37]

In summary, and as stated by this court in
Carrick
(Re)
, 2015 ONCA 866, [2015] O.J. No. 6524, at para. 17:

[T]he significant threat standard is an onerous one. An NCR
accused is not to be detained on the basis of mere speculation. The Board must
be satisfied as to both the existence and gravity of the risk of physical or
psychological harm posed by the appellant in order to deny him an absolute
discharge.

See also

Wall (Re)
,
2017 ONCA 713, 417 D.L.R. (4th) 124, at para. 26.

[38]

This court may set aside an order of the Board
only where it is of the opinion that: (a) the decision is unreasonable or
cannot be supported by the evidence; (b) the decision is based on a wrong decision
on a question of law (unless no substantial wrong or miscarriage of justice has
occurred); or (c) there was a miscarriage of justice:
Criminal Code
,
s. 672.78(1);
R. v. Owen
, 2003 SCC 33, [2003] 1 S.C.R. 779, at para.
31.

[39]

The issue on this appeal is the reasonableness
of the Boards conclusion that Mr. Kalra continued to represent a significant
threat to public safety and, by extension, the reasonableness of the Boards
Disposition. In resolving this issue, this court should ask itself whether the
Boards risk assessment and disposition order was unreasonable in the sense of
not being supported by reasons that can bear even a somewhat probing examination.
If the Boards decision is such that it could reasonably be the subject of
disagreement among Board members properly informed of the facts and instructed
on the applicable law, the court should decline to intervene (citations omitted):
Owen
, at para. 33. It is necessary to examine the Disposition, and the
Boards articulated reasons for the Disposition, to determine whether the
Boards decision is acceptable and defensible, having regard to the need to
protect the liberty of the NCR accused as a much as possible, while protecting
society:
Wall
, at para. 22.

Analysis

[40]

I agree with Mr. Kalra that the Boards finding
that he represents a significant threat to public safety is unreasonable.

[41]

The Boards Disposition turned on its concern
that Mr. Kalra lacked insight into his illness, the role that his illness
played in his behaviour during the index offences, and his need for medication.
The Board relied on the evidence of Dr. Gray  namely, that Mr. Kalra would
stop taking his medication if absolutely discharged, decompensate and engage in
behaviour similar to that giving rise to the index offences  in finding that
Mr. Kalra remained a significant threat to the safety of the public.

[42]

As I will explain, however, Dr. Grays evidence
that Mr. Kalra would engage in behaviour akin to the index offence was
speculative. Further, the Board failed to balance the seriousness of the
potential harm and the risk of that harm materializing. This resulted in a
decision that is unreasonable.

The likelihood of Mr. Kalra reoffending

[43]

The evidence before the Board was that the
symptoms of Mr. Kalras illness are well-controlled by medication. When
properly medicated, Mr. Kalra does not pose any threat  let alone a
significant threat  to public safety. At the hearing of this appeal, counsel
for the Crown agreed that Mr. Kalra poses no threat to public safety when
taking his medication. It is also not in dispute that Mr. Kalra must stay on
his medication in order to control his illness.

[44]

As a result, the likelihood of Mr. Kalra posing
a threat to public safety or reoffending was a function of the risk that he
would stop taking his medication, decompensate, experience similar symptoms to
those present at the time of the index offences, and engage in criminal conduct
similar to the index offences. The Board indicated that Dr. Grays evidence was
that if Mr. Kalra stopped taking his medication, the same consequences could be
expected as at the index offence. Dr. Grays testimony on this issue was the
following:

[Counsel for the Crown]: And when you mean
something bad would happen, do you feel that he would revert back to behaviour
like when he initially became unwell and he had the index offence here?

Dr. Gray: Yes. So when he becomes ill he has persecutory
beliefs and he tries to find some kind of relief; the last one was a very
idiosyncratic way of contacting someone from his high school. And according to
what he says, is that when he contacted [the complainant] who knew the person
that he wanted to contact, but in any case, the person he contacts  or the way
that hell try to get help to see relief of these paranoid thoughts; whoever he
contacts will see this as being bizarre; because it will be someone that they
barely know contacting them very impulsively and very fourthly and in an
aggressive way; and theyll have some psychological sequelae from that because
it is frightening to have that happen to them. I think thats how it will
eventually transpire.

[45]

This was the strongest evidence before the Board
regarding Mr. Kalras likelihood of reoffending.

[46]

While the Board was entitled to weigh Dr. Grays
opinion in determining whether Mr. Kalra continued to pose a significant risk
to public safety, the Board was obligated to consider Dr. Grays opinion in
light of the totality of evidence before it.

[47]

Other than the index offences, Mr. Kalra has had
no contact with the criminal justice system. The fact that Mr. Kalra committed
the index offences while suffering from mental illness is not by itself
evidence that he continues to pose a significant risk to the safety of the public,
particularly given that Mr. Kalra has successfully followed his treatment plan
to date:
Winko
, at paras. 60, 62. Both prior to and in the eight years
since the index offences, when he has been subject to the supervision of the
Board, Mr. Kalra has not engaged in any violent, verbal, physically aggressive,
or otherwise criminal behaviour.

[2]
This includes the time Mr. Kalra spent in secure forensic custody and the four
years he has lived in the community. In short, there is no evidence of a pattern
of behaviour that indicates Mr. Kalra is likely to reoffend.

[48]

Even if one accepts that Mr. Kalra would
discontinue his medication if absolutely discharged, Dr. Grays remaining
evidence as to the likelihood of Mr. Kalra reoffending amounted to nothing more
than speculation that Mr. Kalra might engage in criminal conduct akin to the
index offence: see
Pellett (Re)
, 2017 ONCA 753, 418 D.L.R. (4th) 433.

The gravity of the potential harm

[49]

The appellant concedes, and I accept, that the
index offences were serious criminal offences. However, the potential harm
contemplated by the Board in determining that Mr. Kalra continued to pose a
significant threat to public safety falls towards the least serious end of the
spectrum of serious criminal offences.

[50]

Dr. Gray identified  and the Board appears to
have accepted  the potential risk to public safety as being that Mr. Kalra
would engage in criminal conduct akin to the index offences, which would cause
others psychological distress. While I do not diminish Mr. Kalras behaviour and
its effect on the complainant, the index offences did not involve any real or
threatened violence, or expressions of sexual interest, towards other persons. In
my view, Dr. Grays evidence that others would find Mr. Kalras behaviour frightening,
resulting in psychological sequelae, places the contemplated psychological
harm towards the lower end of the spectrum.

[51]

In its Reasons for Disposition, the Board did
not explicitly weigh the seriousness of the potential harm against the risk of
that harm materializing. This balancing exercise is the core analysis required
by
Winko

and its progeny. Even if Dr. Grays evidence of the
likelihood of Mr. Kalra reoffending were accepted as more than a speculative
possibility of risk, when balanced against contemplated harm falling towards
the least serious end of the spectrum, this is not sufficient to conclude that Mr.
Kalra presents a significant threat to the safety of the public.

The role of insight

[52]

As I have said, the Boards Disposition was rooted
in its concern that Mr. Kalra lacked insight into his illness and therefore
would not continue to take his medication if he received an absolute discharge.
It bears stating that lack of insight is not of itself a basis to deny an
absolute discharge. As the Supreme Court instructs, the mentally ill are not
inherently dangerous:
Winko
, at para. 35. Whether an NCR accused has
insight into his or her mental illness, and the extent of that insight, is only
part of the analysis in determining if there is a significant threat to the
safety of the public. While insight is a treatment goal, it is one some persons
living with mental illness may be unable to fully achieve. In some instances,
particularly where the contemplated harm falls at the lower end of the
spectrum, it may be unreasonable to require, as the Board did here, that an NCR
accuseds insight into his or her illness be entrenched on his consciousness
in order to obtain an absolute discharge.

[53]

It is undisputed that Mr. Kalra has recently
demonstrated greater insight into his illness than in prior years. I leave open
whether the level of insight that the Board required was reasonable in these
circumstances. However, the only reasonable conclusion on the evidence before
the Board is that Mr. Kalra does not pose a significant threat to public
safety. For that reason, the Board was obliged to grant Mr. Kalra an absolute discharge.

Disposition

[54]

I would allow the appeal, set aside the decision
of the Board, quash the conditional discharge, and substitute an absolute
discharge in its place.





Released: AH OCT 18 2018

Alexandra Hoy
A.C.J.O.

I agree. David Watt
J.A.

I agree. Edward Then
J. (
ad hoc
)





[1]

In October 2016, Dr. Gray changed Mr. Kalras anti-psychotic
medication. This resulted in Mr. Kalra experiencing breakthrough symptoms of
schizophrenia. Mr. Kalra resisted Dr. Grays attempts to get him to switch back
to his original medication (an injectable anti-psychotic). Mr. Kalra stated his
preference was to take an oral anti-psychotic that he had previously been
prescribed. Dr. Gray rejected that suggestion, on the basis that it would be
difficult to monitor Mr. Kalras compliance with an oral anti-psychotic. Mr. Kalras
father provided substitute consent to switching back to the former medication
and, following the return to his former medication, Mr. Kalras presentation
improved noticeably. When asked about this decompensation at the Board hearing,
Mr. Kalra acknowledged that his symptoms at the time could be attributable to
schizophrenia, but that he believed his symptoms were the result of the medication
change.



[2]
As noted above, in October 2016 Mr. Kalra began to experience break-through
symptoms of schizophrenia as the result of a medication change. Despite his
decompensation, Mr. Kalra did not engage in any aggressive or criminal conduct.







