



COURT OF APPEAL FOR ONTARIO

CITATION: Murray (Re), 2017 ONCA 731

DATE: 20170920

DOCKET: C62916

Watt, Epstein and Brown JJ.A.

IN THE MATTER OF:  Jason Murray

AN APPEAL UNDER PART XX.1 OF THE
CODE

Jason Murray, acting in person

Kelley Bryan, appearing as
amicus curiae


Katherine Beaudoin, for the Attorney General of Ontario

Janice Blackburn, for St. Josephs Healthcare Hamilton

Heard: September 8, 2017

On appeal against the disposition of the Ontario Review
    Board dated, September 9, 2016 and October 24, 2016.

REASONS FOR DECISION

[1]

The appellant, Jason Murray, appeals from two dispositions of the
    Ontario Review Board (the Board): an Initial Disposition dated September 9,
    2016 and the Current Disposition dated October 24, 2016.

[2]

The index offences all occurred in January 2016: failure to comply with
    probation (6 counts); carrying a concealed weapon; and mischief under $5,000.
    On July 7, 2016 the appellant was found not criminally responsible of the index
    offences on account of mental disorder. The trial judge remanded the appellant
    to the St. Josephs Healthcare Hamilton (the Hospital) pending disposition by
    the Board.

[3]

In its Initial Disposition, the Board
    found the appellant suffered from a delusional disorder and was a significant
    threat to public safety. The Board ordered his detention on a general forensic
    unit of the Hospital, with privileges up to accompanied community passes.

[4]

On October 4, 2016 the Hospital transferred the appellant to a secure
    forensic unit under the
Mental Health Act
, R.S.O. 1990, c. M.7
. On October 12, 2016 the Hospital
    asked the Board for an early full review of the Initial Disposition pursuant to
    s. 672.81(2) of the
Criminal Code
,
    R.S.C. 1985, c. C-46
, as well as a restriction of liberties hearing
    pursuant to s. 672.56(2).

[5]

The Board held the hearing on October 19, 2016. In its Current
    Disposition, the Board ordered the appellant detained on a secure forensic unit
    of the Hospital, with the same privileges as contained in the Initial
    Disposition.

[6]

The appellant submits the Boards findings in both dispositions that he
    is a significant threat to the safety of the public were unreasonable. In his
    appeal of the Initial Disposition, the appellant asks this court to substitute
    an absolute discharge or a conditional discharge under which he can return to
    live in the community. In his appeal of the Current Disposition, the appellant
    seeks an absolute discharge or, alternatively, a return to the Hospitals
    general ward with community privileges.
Amicus
submits both hearings
    were procedurally unfair and a new hearing should be directed. The respondents
    take the position both appeals should be dismissed.

[7]

The appellant filed a significant amount of fresh evidence on the
    appeals. Although the respondents submit the materials do not meet the criteria
    for the admission of fresh evidence, they were content we review the materials,
    which we have done.

[8]

The appellants next annual review is scheduled for September 22, 2017.

II.       APPEAL OF THE FIRST DISPOSITION

[9]

Amicus
argues that the Boards first hearing was procedurally
    unfair. The appellant contends he received a fair hearing, but the Initial
    Disposition was unreasonable. The respondents submit the appeal of the Initial
    Disposition is moot.

[10]

We accept the respondents submission. The Initial Disposition is no
    longer in force; it was replaced by the Second Disposition. The appeal from the
    Initial Disposition is moot.

[11]

Amicus
submits that if the appeal from the Initial Disposition
    is moot, this court should exercise its discretion to hear it. We disagree. The
    appeal of the Current Disposition will provide the opportunity to consider the
    live issues between the parties.

[12]

Accordingly, the appellants appeal from the Initial Disposition is
    dismissed as moot.

III.      APPEAL OF THE SECOND DISPOSITION

[13]

Amicus
submits the second hearing was procedurally unfair
    because the Board placed inappropriate limits on the role of
amicus
and failed to provide adequate assistance to the appellant who was
    self-represented.
Amicus
also contends the Current Disposition
    detaining the appellant on the secure forensic ward fell outside the range of
    reasonable outcomes and was not the least onerous and restrictive disposition
    available in the circumstances.

[14]

The appellant disagrees with
amicus
; he submits he received a
    fair hearing from the Board. However, he contends the Current Disposition was
    unreasonable.

The fairness of the hearing

[15]

At both hearings, counsel, Mr. Kerr, was available to act for the
    appellant. The appellant wished to represent himself and declined the
    appointment of counsel. As a result, the Board appointed Mr. Kerr as
amicus
for both dispositions.

[16]

Before us,
amicus
, Ms. Bryan, submits the Board fell into error
    by preventing Mr. Kerr from playing an expansive role of acting for the
    accused. As a result, the Hospitals evidence was not tested seriously in any
    way, including exploring whether the appellant could be detained on a general
    unit, but with less restrictive mechanisms to manage his risk.

[17]

Amicus
further argues the Board failed to provide the appellant
    with the assistance required by a self-represented litigant. In particular, the
    Board failed to inquire into the appellants request that community living be
    included in his disposition.

[18]

We are not persuaded by these submissions.

[19]

The October 19, 2016 hearing considered evidence on two issues: (i)
    whether the appellant remained a significant threat to the safety of the
    public; and (ii) whether he should be detained on the Hospitals general or
    secure forensic unit. The hearing understandably focused on the second issue as
    only six weeks had elapsed since the Initial Disposition, the appellant
    continued to suffer from delusional disorder, continued to have no insight into
    his mental illness, and continued to refuse treatment by medication.

[20]

Two witnesses testified at the hearing: Dr. Prat, a Hospital
    psychiatrist, and the appellant.

[21]

The transcript of the hearing shows the Board recognized and discharged
    two of its important duties: (i) to ensure the unrepresented appellant
    understood the process and was able to participate to the extent necessary to
    ensure a fair hearing:
Runnalls (Re)
, 2011 ONCA 364, 106 O.R. (3d)
    291, at para. 21; and (ii) to act as an inquisitorial tribunal, searching out
    and considering not only evidence that supports restrictions on the accused but
    also evidence that supports an absolute discharge or release subject to the
    minimal necessary restraints:
Winko v. British Columbia (Forensic
    Psychiatric Institute)
, [1999] 2 S.C.R. 625, at para. 54.

[22]

Dr. Prat was questioned extensively by Board members about: how the
    appellant acted and was managed on the general unit; alternatives to
    transferring the appellant to the secure unit; the reasons for his transfer;
    his current course of treatment; and the availability of privileges. During the
    appellants testimony, the Chair asked a number of questions to elicit from the
    appellant his evidence about the events on which the Hospital relied to
    transfer him to a secure unit.

[23]

During the Hospitals closing submissions, one Board member asked
    counsel why the Hospital was taking the position the appellant should not have
    indirect grounds privileges. The Chair asked the appellants attending
    psychiatrist, Dr. Ferencz, to provide a detailed answer to the members
    inquiry. The Chair also questioned the appellant during his closing argument in
    order to obtain a clear understanding of the disposition he proposed.

[24]

Given the inquisitorial manner in which the Board conducted the hearing,
    we are not persuaded by
amicus
argument that the Board failed to
    provide adequate assistance to the appellant in the circumstances.

[25]

Nor do we accept the submission that the Board unduly limited Mr. Kerrs
    role as
amicus
at the hearing. The Board did not limit Mr. Kerr, as
amicus
,
    from playing the important role of presenting issues favouring the accused that
    otherwise might not be raised:
R. v. LePage
, 2006 CanLII 37775 (Ont.
    C.A.), at para. 29. At the end of the Boards questions, the Chair asked Mr.
    Kerr whether there was anything arising from the Board members questions. Mr.
    Kerr responded: No thank you. Further, Mr. Kerr made brief closing
    submissions, arguing it was a little questionable about whether the Hospital
    had the grounds to transfer the appellant to a secure unit. The record
    indicates Mr. Kerrs limited participation was more a function of the
    single-issue nature of the hearing combined with the Boards extensive questioning
    of Dr. Prat, than any effort by the Board to limit his role as
amicus
.

The reasonableness of the Boards Current Disposition

[26]

The appellant submits the Board should have granted him an absolute
    discharge.
Amicus
argues the detention of the appellant on the secure
    forensic unit was unreasonable because the Board failed to explore less
    restrictive dispositions.

[27]

The test for review of findings of fact and determinations with respect
    to questions of mixed fact and law is reasonableness:
R. v. Owen
, 2003
    SCC 33, [2003] 1 S.C.R. 779. The Boards finding that the appellant was a
    significant threat to the safety of the public was supported by the evidence:
    the appellants lack of insight into his major mental illness and his need for
    medication; his prior convictions for assault, uttering threats, and assault
    with a weapon; and the unanimous opinion of the appellants treatment team that
    he met the threshold for significant threat to the safety of the public, as
    explained in the Administrators Report to the Board.

[28]

The Boards decision to continue the appellants detention on the secure
    forensic unit was reasonable and supported by the evidence of the events that
    led the Hospital to transfer him.

[29]

We note, however, that the Board refused the Hospitals request to delete
    the appellants indirectly supervised hospital and grounds privileges. The
    Board stated: We have considered this request and are not persuaded that Mr.
    Murray would not be able to utilize such a privilege at some point over the
    next 12 months. As well, the Board specifically referred to the evidence of
    Dr. Ferencz that the Hospital would seek an early review if it concluded the
    appellant could be detained on the general forensic unit without compromising
    public safety. No doubt both issues will be canvassed at the appellants
    upcoming annual review.

IV.      THE JURISDICTIONAL ISSUE

[30]

Finally,
amicus
submits the Board lacked jurisdiction under
    Part XX.1 of the
Criminal Code
to review the appellants restriction
    of liberty because the Hospital used provisions of the
Mental Health Act
to transfer him to the secure forensic unit. However,
amicus
submits
    the Boards lack of jurisdiction had no effect on its ultimate disposition.

[31]

We see no need to address this jurisdictional argument. In its October
    12, 2016 letter to the Board, the Hospital sought a full review of the Initial
    Disposition as an early review pursuant to s. 672.81(2) of the
Criminal
    Code
. Given that request, the Board clearly had jurisdiction under Part
    XX.1 to consider the appellants continued detention on the Hospitals secure
    forensic unit.

V.       DISPOSITION

[32]

For the reasons set out above, we dismiss the appeal.

David
    Watt J.A.
Gloria Epstein J.A.
David Brown J.A.


