



COURT OF APPEAL FOR ONTARIO

CITATION: Shortt (Re), 2020 ONCA 651

DATE:  20201016

DOCKET: C67425

Fairburn A.C.J.O., MacPherson
    and Coroza JJ.A.

IN THE MATTER OF: Wesley Shortt

AN APPEAL UNDER PART XX.1 OF THE
CODE

Jeff Marshman, for the appellant

Dena Bonnet, for the respondent
    Attorney General of Ontario

James P. Thomson and Julia Lefebvre,
    for the respondent Person in Charge of St. Josephs Healthcare Hamilton

Jill R. Presser and Cassandra DeMelo,
    for the intervener Criminal Lawyers Association

Heard: September 11, 2020 by video conference

On appeal from the disposition of the
    Ontario Review Board dated July 23, 2019, with reasons dated August 20, 2019.

MacPherson J.A.:


A.

introduction

[1]

The appellant, Wesley Shortt, has been detained
    in forensic custody since March 7, 2007 after he was found NCR with respect to
    one count of uttering threats and one count of failure to comply with
    probation. He is currently detained at St. Josephs Healthcare Hamilton (Hospital).
    Since at least 2014, the Ontario Review Board (Board) has repeatedly held
    that, at the discretion of the Person in Charge of the Hospital, Mr. Shortt is
    eligible to live in the community of Southern Ontario in accommodation approved
    by the Person in Charge.

[2]

Mr. Shortt is eligible to live in a community
    residential setting if appropriate supports are provided. If this happens, his
    detention in forensic custody would not be necessary for public safety, nor would
    it advance any of the factors in s. 672.54 of the
Criminal Code
.

[3]

Unfortunately, this component of the Boards
    dispositions for Mr. Shortt, consistent for the last six years, has not been
    implemented. While the Hospital continues to support Mr. Shortts integration
    into a community residential setting, he has not been integrated into a
    community setting because, despite its best efforts, the Hospital has been
    unable to locate a suitable setting or to obtain meaningful information from
    the Government of Ontario as to when such a setting might become available.

[4]

To break this impasse, Mr. Shortt applied for
    relief under the
Canadian Charter of Rights and Freedoms
at his annual
    review hearing. He argued that his continued detention in forensic custody
    violated s. 7 of the
Charter
. If successful on this argument, he sought
    a prospective remedy under s. 24(1) of the
Charter
, namely, state
    funding for suitable supportive housing as described by his treatment team at
    the Hospital.

[5]

In a disposition dated July 23, 2019, the Board ordered,
    once again, that Mr. Shortt continue to be detained at the Hospital with
    permission to live in the Southern Ontario community at the discretion of the
    Person in Charge at the Hospital. In reasons dated August 20, 2019, the Board
    dismissed Mr. Shortts
Charter
application, allowing the impasse in
    implementing the community living provision to prevail.

[6]

Mr. Shortt appeals the Boards dismissal of his
Charter
application.

B.

facts

(1)

The parties and events

[7]

On November 10, 2006, Mr. Shortt, who was 26
    years old, was living with his parents in Guelph. During an argument, he
    threatened to kill his father. The police were called and Mr. Shortt was
    arrested. At the conclusion of his trial, Mr. Shortt was declared NCR; he has
    been detained in the forensic hospital system since then, a period of more than
    13 years.

[8]

Mr. Shortt has severe physical and intellectual disabilities.
    His weight and diminished mobility pose difficulties related to personal hygiene.
    His disabilities require specialized care and support. The Hospital has
    provided these throughout his detention. The members of his family who could
    offer support  his father, mother, sister and uncle  have all passed away
    while he has been in forensic detention.

[9]

According to Mr. Shortts treatment team, despite
    being stable from a psychiatric perspective, the distress caused by his ongoing
    detention in a forensic hospital, in the face of six consecutive annual Board
    orders that he is eligible to reside in the community at the discretion of the
    Person in Charge of the Hospital, has caused Mr. Shortt to regress and engage
    in primitive coping mechanisms. In 2019, this court found that the long wait
    for transition into appropriate alternative residential arrangements has
    created understandable frustration for Mr. Shortt. This has led to a
    deterioration in his progress:
Shortt (Re),
2019 ONCA 232, at para. 3.

(2)

The Boards 2019 decision

[10]

The Boards 2019 decision concerned the
    annual review of Mr. Shortts case as well as his application for relief
    pursuant to ss. 7 and 24(1) of the
Charter
.

[11]

The
Board
accepted the parties
    joint submission that Mr. Shortt continued to be a significant threat to public
    safety and, accordingly, continued his previous disposition. This disposition
    required Mr. Shortt to be detained at the Hospital, with a range of privileges
    to be extended at the discretion of Person in Charge, including community
    living:

1.
IT IS ORDERED that the accused be detained at Forensic Psychiatry
    Program of St. Josephs Healthcare Hamilton, West 5th Campus, Hamilton.

2.
IT IS FURTHER ORDERED that the person in charge of the St. Josephs
    Healthcare Hamilton, West 5th Campus create a program for the detention in
    custody and rehabilitation of the accused within the Forensic Psychiatry
    Program of St. Josephs Healthcare Hamilton, West 5th Campus, in which the
    person in charge, in his or her discretion, may permit the accused:



(h) to live in the community of Southern
    Ontario in accommodation approved by the person in charge.

[12]

With respect to the
Charter
application,
    Mr. Shortt claimed that his s. 7 right to liberty was breached as he has been
    eligible, and ready, to be placed in the community since 2014. The Hospital
    agrees that Mr. Shortt has been eligible and ready to live in the community
    with appropriate supports since 2014 and says that the only reason he has not
    been placed in a community residential setting is that its efforts to place him
    there have been met with roadblocks. Against this backdrop, Mr. Shortt advanced
    the argument that the appropriate remedy for the Governments violation of his
    s. 7 right would be an order that the Government pay for his community housing
    and potential support personnel.

[13]

The Board rejected Mr. Shortts
Charter
application,
    essentially for four reasons that it summarized in four headings:

a.

The law is clear that procedural fairness
    requires that all affected or interested parties to an order need to be heard.

b.

The law is also clear on the limits of the Boards
    inquisit[orial] duties and our obligation to deal with systemic issues.

c.

The Board finds that it does not have the
    statutory authority to grant the remedy sought.

d.

The Board finds that the remedy of funding
    housing is analogous to an order requesting us to order costs or damages and is
    beyond our powers or authority.

[14]

Mr. Shortt appeals from this ruling.

C.

issues

[15]

I would frame the issues as follows:

1.

Did the Board err by determining that the proper
    responding parties were not before it for purposes of Mr. Shortts
Charter
application?

2.

Did the Board err by regarding the remedy sought
    as essentially a systemic, not a personal, remedy?

3.

Did the Board err by finding that it did not
    have the statutory authority to grant the remedy sought by Mr. Shortt?

4.

Did the Board err by finding that the remedy of
    funding housing is analogous to an order for costs or damages and, therefore,
    beyond its authority to grant?

5.

If the answers to Issues 1-4 are Yes, should
    the court:

(a)
return the
Charter
application to the Board for
    consideration and disposition; or

(b)
decide the issue?

6.

If the answer to Issue 5 is (b), did the
    respondents conduct violate s. 7 of the
Charter
?

7.

If the answer to Issue 6 is Yes, what is the
    appropriate remedy?

D.

analysis

(1)

The proper parties

[16]

The Boards first reason for dismissing Mr.
    Shortts
Charter
application was perceived procedural unfairness to
    the Government respondent (but not to the Hospital). As expressed by the Board:

The Board accepts the submission of counsel on
    behalf of the Ministry of the Attorney General that the proposed remedy is not
    just and is inappropriate in the circumstances, because the Ministry of the
    Attorney General is not the appropriate party from which to seek relief.

As counsel for the Ministry of the Attorney
    General points out in paragraph 13 of his written submissions, the Applicant
    himself identifies the health and developmental services in Ontario,
    specifically Developmental Services Ontario (DSO), as the source of the
    residential impasse, none of which is under the jurisdiction, or direction, of
    the Ministry of the Attorney General.

The only parties before us were the Attorney
    General and the Hospital. Counsel for Mr. Shortt was asking us to order the
    State to fund appropriate housing. Even if one could identify which is the
    appropriate funding Ministry they are not before us today.

[17]

With respect, I do not agree with this analysis,
    either at a general level or, especially, in relation to the circumstances of
    Mr. Shortts history before the Board.

[18]

At a general level, the Board has broad inquisitorial
    powers, including the power to gather evidence. It can cause records and
    witnesses to be subpoenaed, including experts to study the case and provide the
    required information. The breadth of the Boards potential examination was
    described by the Supreme Court of Canada in
Winko v. British Columbia
    (Forensic Psychiatric Institute)
, [1999] 2
    S.C.R. 625, at para. 61:

[The Boards inquiries] will closely examine a
    range of evidence, including but not limited to the circumstances of the
    original offence, the past and expected course of the NCR accuseds treatment
    if any, the present state of the NCR accuseds medical condition, the NCR
    accuseds own plans for the future,
the support services
    existing for the NCR accused in the community
and, perhaps most importantly,
    the recommendations provided by experts who have examined the NCR accused.
    [Emphasis added.]

[19]

More importantly, Mr. Shortts situation cried
    out for a hearing on the merits by the Board at the annual review in July 2019.
    In its decision in March 2019, relating to the Boards 2018 decision dealing
    with Mr. Shortt, this court said, at paras. 8-9:

In the present case, more than four years have passed since the
    hospital determined that Mr. Shortt could live in a community residential
    setting with appropriate and significant support.
The hospital has made meaningful inquiries
. They have
    contemplated creative solutions, such as long-term care. Mr. Shortt is
    fortunately surrounded by caregivers devoted to his wellbeing.
The difficulty for the hospital and Mr. Shortt
    is that their efforts are impeded by factors beyond their control
.
    Without assistance, this situation is not going to improve.

Given the clear impasse,
    it was an error on the Boards part to repeatedly reach its dispositions based
    on the material introduced only by the hospital
. The Board has
    the obligation and the power to try to break the clear impasse concerning Mr.
    Shortts residential community placement by exercising its inquisitorial powers
    and gathering significant evidence, including expert evidence. [Emphasis
    added.]

[20]

A year after its 2018 decision, and with
    knowledge of this courts 2019 decision allowing the appeal from that decision,
    the Board once again complimented the Hospital on its efforts, internally and
    externally, on behalf of Mr. Shortt. Specifically, the Hospitals point person
    on Mr. Shortts file, social worker Karen Durocher, was praised for her efforts
    on his behalf, including her efforts to find a place for Mr. Shortt in the
    community through the Developmental Services of Ontario Residential Placement

(DSO) program under the auspices of the Ministry of Children,
    Community and Social Services (MCCSS).

[21]

Some of the Boards comments about Ms.
    Durochers evidence bear highlighting:

As the Hospital Report indicates, under the
    heading 
Developmental Services of Ontario Residential Placement
, Ms.
    Durocher still believes that resources from DSO, which is under the
    jurisdiction of the MCCSS, could create a community living placement that would
    meet Mr. Shortts complex needs.



Ms. Durocher does not know where Mr. Shortt is
    on the waitlist. This information is not given to the hospital or the public.



Ms. Durocher is very involved in advocating
    for Mr. Shortt.

Ms. Durocher has no information on how the
    MCCSS makes its decisions.

[22]

Against the backdrop of this courts decision on
    Mr. Shortts appeal last year, and Ms. Durochers efforts this year culminating
    in her indication that she has no information on how the MCCSS makes its
    decisions, the Board erred by concluding that it could not hear Mr. Shortts
Charter
application because it did not have all affected or interested parties before
    it.

[23]

The provincial Government was present,
    represented by the Attorney General. The MCCSS would appear to be the most
    obvious source of information concerning housing and financial support for
    disabled persons. However, it is up to the Government to identify the relevant
    ministry by which it should be represented and that would be in the best
    position to provide the required information. Critically, everyone, including
    the MCCSS, especially after this courts decision in 2019, knew that the input
    of the MCCSS in sorting out the problem would be required. There is no onus on
    a
Charter
claimant to identify from what budget their requested remedy
    should come.

[24]

Against the backdrop of six years of
    unwillingness or inability to provide suitable accommodation for Mr. Shortt in
    the Southern Ontario community, it was incumbent on the Government, through
    either the MCCSS as a party, or working with the Attorney General, to respond
on
    the merits
to Mr. Shortts
Charter
claim. At a minimum, the Board
    should have expected, and insisted on, this.

(2)

Personal v. systemic remedy

[25]

The Board concluded that Mr. Shortts
Charter
application sought, essentially, a systemic remedy to a province-wide
    housing shortage for disabled persons rather than a personal remedy for Mr.
    Shortts five-year detention in a forensic hospital after he was eligible for
    living in the community. The Board said:

As the courts have indicated many times, the Board
    is an expert panel. However, it deals with the treatment and liberty rights of
    the NCR patient and not with systemic issues. We agree with counsel that it is
    a sad situation for Mr. Shortt and many, many others in his situation that the
    lack of proper funding forces NCR patients to stay in hospital longer and at a
    greater cost to the government than building group homes would. That being
    said, we do not have the authority to force Her Majesty the Queen to rearrange
    its budgets to satisfy the needs of Mr. Shortt, or others in a similar
    position.

[26]

I am not persuaded by this analysis or this
    characterization of the request for relief. Mr. Shortts
Charter
application was focused on his situation. The relief sought was for him alone:
    an order  that the Applicant be released from the Hospital and placed in
    appropriate community housing funded by the Attorney General forthwith or, in
    the alternative, that the Applicant be conditionally discharged.

[27]

It is obvious that, in drafting his
Charter
application,
    Mr. Shortt was aware of this courts decisions in
Starz (Re)
, 2015
    ONCA 318, and
Ohenhen (Re)
, 2017 ONCA 960.

[28]

In
Starz
, Gillese J.A. said, at para.
    111:

[T]he Boards focus is necessarily on the NCR
    accused person before it. Its role is not to make broad or general
    pronouncements but, rather, to ensure that the particular NCR accused person is
    subject to the least onerous and least restrictive conditions consistent with
    public safety.   To that end, the Board has the power to make remedial orders
    directed at the particular NCR accused person.

[29]

In
Ohenhen
, the NCR accused applicant
    sought both an individual remedy and several overtly systemic remedies against
    the respondent CAMH  including mandatory protocols and education procedures
    relating to staff  for the alleged violation of the applicants
Charter
rights. The Board found a violation of the applicants
Charter
s. 8
    right and granted an individual remedy; however, it did not grant the systemic
    remedies. As explained by Roberts J.A., at para. 16:

The role of the Board is to determine the
    appropriate disposition for each individual NCR accused person who appears
    before it. Its jurisdiction does not extend to the kind of systemic,
    institutional orders sought here. The Boards statutory mandate as a
    specialized tribunal under Part XX.1 of the
Criminal Code
is the
    ongoing supervision of the treatment, assessment, detention and discharge of
    NCR accused persons in a responsive,
Charter
-compliant fashion, with
    the broad power to attach individualized conditions:
Conway
, at para.
    94;
Chaudry (Re)
, at para. 93. In particular, the Board can make
    appropriate orders to ensure that the
Charter
rights of individual NCR
    accused persons are respected, and that its dispositions in relation to those
    individuals are followed.

[30]

In my view, Mr. Shortts
Charter
application is entirely consistent with
Starz
and
Ohenhen
. He
    is invoking the
Charter
to ensure that
his
right to liberty
    under s. 7 is respected and that the Boards most recent disposition relating
    to him, and indeed six consecutive dispositions since 2014, are implemented in
    a fair fashion by the respondents.

(3)

The Boards statutory jurisdiction

[31]

Although the Board uses a separate heading in
    this part of its decision, its reasons are very terse and tend to collapse into
    the procedural unfairness (proper parties) and personal/systemic dichotomy
    issues discussed above. After restating its earlier conclusions on these
    issues, the Board concludes:

We do not believe that the powers given by
    statute, being part XX.1 of the
Criminal Code
, grant us the authority,
    nor the jurisdiction, to grant the order or remedy being sought by the
    applicant.

Accordingly, in my view, in spite of
    a separate heading, the Board does not articulate an additional reason for its
    result in this section of its decision.

(4)

Analogy to costs and damages orders

[32]

The Board is a court of competent jurisdiction.
    It is entitled to decide constitutional questions, including
Charter
questions, that arise in the course of its proceedings:
R. v. Conway
,
    2010 SCC 22.

[33]

This court has determined that the Board does
    not have jurisdiction to award costs or damages as
Charter
remedies.

[34]

In
R. v. Chaudry
, 2015 ONCA 317,
    Gillese J.A. said this about costs, at para. 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.

[35]

In the companion appeal
Starz
, Gillese
    J.A. said this about damages, at para. 95:

In my view, this same reasoning applies to the
    question of damages. I see nothing in Part XX.1 that indicates that Parliament
    intended to empower the Board to make orders for damages. Just as in the case
    of claims for costs, the potential for making an order for damages would bring
    an adversarial tenor to Board hearings, which would detract from the inquisitorial
    approach the Board is to take and which would divert the Boards attention from
    the twin goals of public safety and the fair treatment of NCR accused persons.

[36]

Relying on these decisions, the Board concluded
    that a potential funding order for housing for Mr. Shortt would pose similar
    problems:

We also agree, with respect to the opinion
    expressed in
Re Starz
, that there is no difference between the Boards
    inability to quantify damages and its inability to quantify the amount of funds
    needed to provide the remedy that the applicant is seeking. It would turn the
    Board hearing into essentially a Royal Commission, which is outside of our
    authority.



[W]e do not have the authority to force Her
    Majesty The Queen to rearrange its budgets to satisfy the needs of Mr. Shortt,
    or others in a similar situation.

[37]

I do not agree with this analysis. In my view,
    funding orders are not the same as, or even analogous to, costs and damages
    awards. On this point, I adopt the succinct description of the difference set
    out in the factum of the intervener Criminal Lawyers Association:

Funding orders serve a different purpose from
    either costs or damages. They are not punitive. Rather, they seek to remedy
Charter
breaches caused by inadequate resources, not punish for
Charter
breaches. They do not require some marked or unacceptable conduct by state
    actors. There need not be any malice or bad faith by the state to recognize
    that a funding order is appropriate.



Unlike financial damages that are difficult to
    quantify when a
Charter
right has been violated, funding orders are more easily quantified.
    Where a breach stems from inadequate resources, the funding remedy is expressed
    as the sum that is reasonably required to make the necessary resources
    available to remedy the breach.

[38]

Accordingly, I conclude that the Board erred by
    determining that a potential funding order was analogous to costs and damages
    orders.

(5)

The path forward

[39]

In light of my conclusion in the previous
    section, it is necessary to consider how to resolve Mr. Shortts
Charter
claim. There are two options  return the case to the Board or determine the
    claim on this appeal.

[40]

Both the Board and this court are courts of
    competent jurisdiction to hear and decide cases involving
Charter
claims. This court has the record that was before the Board and has heard full
    argument from the appellant, two respondents and an intervener. It is
    well-positioned to provide an answer to the
Charter
claim.

(6)

Charter
section
    7

[41]

The Board declined to decide on the merits of
    the appellants
Charter
claim because it held that it did not have the
    jurisdiction to grant the requested remedy. As I have stated, the Board does
    have the jurisdiction to grant a remedy. It was incumbent on the Board to
    consider the merits of the appellants
Charter
application given the
    backdrop against which the application was made, including this courts
    decision on Mr. Shortts appeal in 2019.

[42]

Mr. Shortt contends that the Governments
    failure to provide funding, such that the Boards disposition cannot be implemented
    in the least onerous and least restrictive manner, infringes his liberty
    interest protected by s. 7 of the
Charter
:
Winko
, at para. 47.
    He further submits that this infringement is arbitrary and, therefore, not in
    accordance with the principles of fundamental justice.

(a)

Right to
    liberty

[43]

The Board and Mr. Shortt have acknowledged that
    the Hospital has done all it can to locate and secure housing for the
    appellant.

[44]

At issue in Mr. Shortts
Charter
s. 7
    claim is the Governments apparent failure to assist in implementing the community
    living provision of several Board dispositions.

[45]

Since 2014, the Board has held that the
    appellant may be permitted to live in the community with accommodation approved
    by the Hospital. However, because of bureaucratic and fiscal roadblocks
    outside of the Hospitals control, the community living provisions of the
    disposition have not been implemented.

[46]

The Part XX.1 regime includes an assurance of
    procedural fairness and dignity for the NCR accused, and a commitment to ensure
    that the NCR accuseds liberty interests are to be infringed as minimally as
    possible:
Mazzei v. British Columbia (Director of Adult Forensic
    Psychiatric Services),
2006 SCC 7, at para. 27. It is this emphasis on
    maximizing liberty that differentiates the Part XX.1 regime from its
    predecessor, which was held to be unconstitutional in
R. v. Swain
, [1991] 1 S.C.R. 933:
Mazzei
, at para. 26.

[47]

In
Winko
, the Supreme Court held that
    [t]he dual objectives of Part XX.1, and s. 672.54 in particular, are to
    protect the public from the NCR accused who poses a significant threat to
    public safety while safeguarding the NCR accuseds liberty to the
maximum extent possible
:
Winko
, at para. 70 (Emphasis added). This requires the Board to fashion
    the least onerous and least restrictive disposition:
Winko
, at para. 70.

[48]

The Hospital has a similar obligation. As
    explained by this court in
Campbell (Re)
, 2018 ONCA 140, at para. 59:

The hospitals decision-making power is
    further constrained by the legal considerations that bind the Board in arriving
    at an appropriate disposition. Like the Board, keeping in mind the paramount
    concern for public safety, the hospital must make decisions that provide an NCR
    accused with the utmost liberty compatible with his or her situation. The
    hospital must remain vigilant about interfering with liberty interests as
    little as possible, making decisions that are the least onerous and least
    restrictive to the NCR accuseds liberty  This requirement acts as yet another
    important liberty safeguard for the NCR accused.

[49]

The respondent Attorney General of Ontario (AGO)
    submits that the difference between living in the Hospital and living in the
    community would be so small that the relevant deprivation of liberty cannot
    rise to the level required by s. 7; the AGOs position is that community living
    would essentially replicate life in the Hospital but in a different location.
    The AGO also argues that because Mr. Shortt has received more liberties
within
the hospital since 2014, there is no deprivation of his right to
    liberty.

[50]

In my view,
more
liberty does not accord with the requirement for
maximum
liberty. Community living clearly provides for more freedom and
    fewer restrictions than living in forensic custody. The supports identified by
    the Hospital as being required for community living do not amount to
    replicating the hospital environment. The Boards dispositions have included
    provisions for community living since at least 2014 as an indicator that Mr.
    Shortt had made progress with respect to managing his illness and was therefore
    eligible for fewer restraints on his freedom.

[51]

Unlike the analysis for a violation of security
    of the person, where the violation must meet a threshold of serious and
    profound effect on a persons psychological integrity (
New Brunswick (Minister of
    Health and Community Services) v. G. (J.),
[1999]
    3 S.C.R. 46, at para. 60), there is no such threshold when considering a physical
    restraint on a claimant's liberty.

[52]

Since 2014 Mr. Shortt has been eligible to live
    in the community with accommodation as determined by the Hospital. Absent
    funding limitations, Mr. Shortt would be permitted to live in the community.
    For five years Mr. Shortts liberty has been restricted to a greater degree
    than required by s. 672.54, in violation of his s. 7 right to liberty.

(b)

Principles of fundamental justice

[53]

Section 7 allows for restrictions on liberty
    that are in accordance with the principles of fundamental justice. Mr. Shortt
    submits that the restriction on his liberty is arbitrary.

[54]

Arbitrariness is the absence of any link
    between the objective of the law and its negative impact on security of the
    person:
Canada
    (Attorney General) v. Bedford
, 2013 SCC 72, at
    para. 35. A deprivation of a s. 7 right will be arbitrary where the law or
    government action contravenes or undermines the objective of the law:
Bedford
, at paras. 98, 100.

[55]

The only reason advanced for Mr. Shortts continued
    detention in forensic custody is a lack of funding. In 2019, this court held
    that the barrier to community living was a lack of public funding; long
    waiting lists; or inadequate attendant care to respond to Mr. Shortt's
    admittedly complex physical and psychiatric requirements:
Shortt,
at para. 3. Lack of funding, as a potential justification for the
    deprivation of Mr. Shortts liberty, does not properly fall within the scope of
    the s. 7 analysis. Rather, any costs or benefits to the public in relation to
    funding fall within the scope of the s. 1 analysis:
Bedford
, at para. 121.

[56]

All parties agree that while Mr. Shortt
    continues to pose a significant threat to public safety, such that he cannot be
    discharged, this risk can be managed by the means identified in the Boards
    disposition, which includes the availability of community living.

[57]

Section 672.54 sets out the factors that the
    Board must consider when making a disposition. The factors include public
    safety, the mental condition of the accused, the reintegration of the accused
    into society, and the other needs of the accused.

[58]

There is no rational connection between the Mr.
    Shortts continued detention and the purposes of Part XX.1. There would be no
    threat to public safety if the disposition order were implemented under the
    direction of the Hospital, and the goal of reintegration identified in s.
    672.54 is being undermined by Mr. Shortts continued detention in forensic
    custody. Mr. Shortts frustration at waiting five years for appropriate
    residential arrangements, with no end in sight, has led to a deterioration in
    his progress, including angry outbursts, damage to property, and elopements on
    his part:
Shortt
, at para. 3.

[59]

Mr. Shortts continued detention in forensic
    custody undermines the purposes of the Part XX.1 regime set out in s. 672.54
    and is therefore arbitrary. Mr. Shortt has been deprived of his liberty in a
    way that is not in accordance with the principles of fundamental justice.

(c)

Charter
section
    1

[60]

The AGO advanced no argument that any s. 7
    violation could be saved by s. 1. The s. 7 violation is not saved by s. 1.

(7)

Remedy

[61]

In my view, in order to properly assess Mr.
    Shortts
Charter
claim in 2020, it is necessary and important to
    understand what has happened or, more accurately,
not
happened to him
    in the forensic custody system in the last five years. Accordingly, I begin by
    documenting what the treating doctors, social workers, Hospital and the Board
    have said about him throughout this period.

(a)

Doctors, social workers and the Hospital

[62]

In 2014, Dr. Alatishe, Mr. Shortts treating
    psychiatrist, said that he could move into the community in a group home the
    coming year but would require a great deal of support and supervision to live
    in the community:
Shortt (Re)
, [2014] O.R.B.D. No. 2365, at para. 15.

[63]

In 2015, Dr. Alatishe said:

From a psychiatric perspective Mr. Shortt
    would be appropriate to reside in the community of Hamilton with the proper
    supports in place The treatment team continues to be optimistic and hopeful
    that it is foreseeable that Mr. Shortt is able to be transitioned into the
    community in the coming review period. (
Shortt (Re)
, [2015] O.R.B.D.
    No. 1965, at para. 22)

[64]

In 2016, the Board recorded:

The Hospital now believes that the only
    placement that would be possible to both look after Mr. Shortts needs and
    secure ongoing safety of the public is a placement through the Developmental
    Services of Ontario. At the present time the Hospital has been making efforts
    to place Mr. Shortt in a facility under the jurisdiction of DSO.
There need to be assessments done by DSO and to date the
    Hospital has not been able to convince the DSO to proceed with those
    assessments.




The Board also heard from Ms. Karen Daroche.
[1]
She is a social worker at the
    hospital.



Ms. Daroche agreed that currently the most
    appropriate placement would be one through Development Services of Ontario.
Ms. Daroche outlined the difficulty both in obtaining funding
    and encouraging DSO to proceed with an application that could assist Mr. Shortt
.
    [Emphasis added.] (
Shortt (Re)
, [2016] O.R.B.D. No. 2456, at paras.
    14, 17-18)

[65]

In 2018, the Board recorded:

Dr. Alatishe indicated that the Hospital was
    open to trying to find creative solutions to the difficulty of arranging for a
    residence with the necessary supports for Mr. Shortt. In particular, he stated
    that the team was open to trying to find a supervised residence for Mr. Shortt
    and potentially using PASSPORT funding to pay for the additional physical care
    needed. (
Shortt (Re)
, [2018] O.R.B.D. No. 1882, at para. 18)

[66]

In 2019, the Board noted that Dr. Alatishe
    testified:

Of all the options available to Mr. Shortt,
    accommodations provided by Developmental Services Ontario (DSO) best meet his
    needs and mirror what he is receiving in the hospital.



DSO is not the only option available to Mr.
    Shortt for community living, but it is the most appropriate pathway.

[67]

The Board also considered the testimony of Karen
    Durocher, a social worker at the Hospital who has been working on Mr. Shortts
    discharge planning since 2014. The Board commended Ms. Durocher and the
    Hospital for all their diligent efforts on Mr. Shortts behalf. However, in
    spite of those efforts, the Board noted that Ms. Durocher has no information
    on how the MCCSS makes its decisions or how the priorities are assigned by
    DSO.

(b)

The Board decisions: 2014-2019

[68]

In its 2016 decision, the Board said this, at
    para. 35:

We note that the social work team has been
    working for at least four years to find an appropriate community placement. We
    are inclined to accept the observations that Development Services Ontario is
    the only opportunity for this gentleman to be placed in the community.
It is concerning to this Board, the evidence that frequently
    patients in forensic hospital are given rather low priority at Development
    Services of Ontario
. The Board would hope and expect that DSO would make
    every effort to assist in finding funding and the appropriate placement for Mr.
    Shortt. We would urge the Hospital to continue their efforts with DSO, to have
    DSO do the necessary assessments so that Mr. Shortt can be given every consideration
    for a placement through that agency. [Emphasis added.]

[69]

In 2017, the Board said, at para. 23:

In looking forward, it is likely that within
    the next year Mr. Shortt will be assessed by DSO and be a candidate for funding
    which could lead to a transfer into a community setting ... [W]ith the support
    of DSO funding, he could make a step into the community within the next year.

[70]

In 2018, the Board said, at paras. 18 and 24:

In response to questions from Board members,
    Dr. Alatishe indicated that the Hospital was open to trying to find creative
    solutions to the difficulty of arranging for a residence with the necessary
    supports for Mr. Shortt.



The Board encourages the Hospital to continue
    to seek out creative solutions to the difficulty of finding a residence with
    the necessary psychiatric and physical supports for Mr. Shortt.

[71]

In 2019, the Board observed, at paras. 28-29:

As the Hospital Report indicates, under the
    heading 
Developmental Services of Ontario Residential Placement
, Ms.
    Durocher still believes that resources from DSO, which is under the
    jurisdiction of the MCCSS, could create a community living placement that would
    meet Mr. Shortts complex needs.



Ms. Durocher does not know where Mr. Shortt is
    on the waitlist. This information is not given to the hospital or the public.



Ms. Durocher has no information on how the
    MCCSS makes its decisions.

(c)

Court of Appeal decision: 2019

[72]

Against this backdrop about what treating
    doctors, social workers, the Hospital, and the Board have said about Mr.
    Shortts placement and treatment over the last five years, it bears repeating
    what this court said in its 2019 decision allowing the appeal from the Boards
    2018 annual review decision, at paras. 8-9:

In the present case, more than four years have
    passed since the hospital determined that Mr. Shortt could live in a community
    residential setting with appropriate and significant support.
The hospital has made meaningful inquiries
. They have
    contemplated creative solutions, such as long-term care. Mr. Shortt is
    fortunately surrounded by caregivers devoted to his wellbeing.
The difficulty for the hospital and Mr. Shortt is that their
    efforts are impeded by factors beyond their control
. Without assistance,
    this situation is not going to improve.

Given the clear impasse,
    it was an error on the Boards part to repeatedly reach its dispositions based
    on the material introduced only by the hospital
.
    The Board has the obligation and the power to try to break the clear impasse
    concerning Mr. Shortts residential community placement by exercising its
    inquisitorial powers and gathering significant evidence, including expert evidence.
    [Emphasis added.]

[73]

The Board did not do this. Once again, it heard
    from Dr. Alatishe, the treating psychiatrist, and Ms. Durocher, the social
    worker. As set out above, they pointed to the MCCSS, and especially its DSO
    program, as the likely best option for community living with appropriate
    supports for Mr. Shortt. Yet, at the end of the day, Ms. Durocher, a dedicated
    social worker on Mr. Shortts behalf, says that she has no information on how
    the MCCSS makes its decisions. The Boards formal response to this was to
    conclude, on Mr. Shortts
Charter
application:

The only parties before us were the Attorney
    General and the Hospital. Counsel for Mr. Shortt was asking us to order the
    State to fund appropriate housing.
Even if one could
    identify which is the appropriate funding Ministry they are not before us today
.
    [Emphasis added.]

[74]

After its dispositions in 2014, 2015, 2016, 2017
    and 2018, this was not enough. The Board needed to take more seriously its
    inquisitorial role and get to the bottom of why the live in the community of
    Southern Ontario in accommodation approved by the person in charge component
    of its dispositions from those years had not been implemented.

[75]

I have concluded that Mr. Shortts s. 7
Charter
right to liberty has been violated in a way that is not in accordance with the
    principles of fundamental justice.

[76]

The remedy sought by Mr. Shortt in his
Charter
application is: An order allowing the application, releasing the Applicant
    from the Hospital, and directing the Attorney General to fund appropriate community
    housing for the Applicant forthwith.

[77]

At the appeal hearing, in response to a
    question, the appellant acknowledged that an order that the Government (not
    necessarily the Attorney General) provide community housing with appropriate
    supports to Mr. Shortt (without mentioning funding) in a timely fashion (not forthwith)
    would be appropriate.

[78]

I regard this as a fair response. Accordingly, in
    the highly unusual circumstances of this case, where for six years the Hospital
    has deemed Mr. Shortt capable of living in the community yet been unable to
    obtain any meaningful information about why no community setting has been made
    available to him, it is time for an order. I am inclined to make an order with
    two components.

[79]

First, it is almost 14 months since the Boards
    last evaluation of Mr. Shortt. At the appeal hearing, the court was informed
    that his next annual review is scheduled for November 24, 2020. In my view, the
    review should take place. In the Boards last review, based on the joint
    submission of the parties, the Board found that Mr. Shortt continues to
    represent a significant threat to the safety of the public but also that he
    was eligible to live in the community of Southern Ontario in accommodation
    approved by the person in charge. This has been the Boards consistent
    assessment for several years.

[80]

Accordingly, in the interests of public safety
    and fairness to Mr. Shortt, at this stage it is appropriate for the Board to
    conduct its next annual review and determine whether this longstanding privilege,
    to be extended at the direction of the Person in Charge, remains an appropriate
    aspect of the disposition.

[81]

Second, the Government must be ready at the next
    annual review to address the precise location in the community where Mr. Shortt
    can be placed no later than the end of 2020, provided of course that the Person
    in Charge of the Hospital deems that setting appropriate. This will require the
    Attorney General and the MCCSS to work closely together. At this juncture, that
    is entirely appropriate.

[82]

This is an exceptional case. For six years
    running, the Board has deemed Mr. Shortt capable of living in the community at
    the discretion of the Person in Charge of the Hospital. For six years running,
    the Hospital has deemed Mr. Shortt capable of living in the community. The
    difficulty is that, despite its best efforts, the Hospital has not been able to
    determine why an appropriate residential setting has not been made available
    for Mr. Shortt or even when one may be made available. As a result, Mr. Shortt
    has been languishing in the Hospital and his condition is starting to
    deteriorate, a development that stands as the antithesis to one of the ultimate
    purposes of the NCR scheme, to work safely toward the reintegration of NCR
    accused back into society.

[83]

It is against this very unusual backdrop that Mr.
    Shortts liberty has been violated, and not in accordance with the principles
    of fundamental justice. Provided the Board determines that his condition
    continues to warrant the possibility of community living with support, the Government
    must respond immediately and meaningfully to this pressing need for implementation.
    The Governments role at the next annual review hearing must be to identify
    precise implementation, not to contest it.

[84]

I would allow the appeal and make an order
    consistent with the above.

Released: JMF OCT 16 2020

J.C.
    MacPherson J.A.

I
    agree. Fairburn A.C.J.O.

I
    agree. S. Coroza J.A.





[1]

It appears from the record in other years that her last
    name is Durocher.


