



COURT OF APPEAL FOR ONTARIO

CITATION: Ohenhen (Re), 2018 ONCA 65

DATE: 20180126

DOCKET: C62946 and C62913

Watt, Tulloch,
    Pardu, Benotto and Roberts JJ.A.

C62946

IN THE MATTER OF:
    Julius Ohenhen

AN APPEAL UNDER PART
    XX.1 OF THE
CODE


AND

C62913

IN THE MATTER OF:
    Gaurav Kalra

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Anita Szigeti and Joseph Berger for the appellant,
    Julius Ohenhen

Jill R. Presser and Andrew Menchynski, for the
    appellant Gaurav Kalra

Amy Alyea for the respondent, Her Majesty the Queen

Gavin S. MacKenzie for the respondent, the Person in
    Charge of the Centre for Addiction and Mental Health

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

Heard: June 30, 2017

On appeal against the disposition of the Ontario Review
    Board dated, November 1, 2016.

On appeal against the disposition of the Ontario Review
    Board dated, October 18, 2016.

Tulloch J.A.:

A.

introduction

[1]

Both appellants appeal the detention orders imposed on them by the
    Ontario Review Board in November 2016.

[2]

The common issue raised in these appeals is whether an accused who has
    been found not criminally responsible on account of mental disorder and incapable
    of consenting to his own treatment under the
Health Care Consent Act, 1996
,
    S.O. 1996, c. 2, Sched. A., can fulfill the consent requirement for the
    condition regarding psychiatric or other treatment under s. 672.55(1) of the
Criminal
    Code
, R.S.C. 1985, c. C-46.

[3]

This court has provided inconsistent conclusions on this issue in the
    past, although, for the most part, it has answered that the condition is
    unavailable to such accused persons, since they cannot consent to the
    treatment, they cannot consent to the condition.

[4]

Both appeals were ordered to be heard before a five-judge panel of this
    court, in keeping with this courts practice when it wishes to consider
    overruling a past decision.

[5]

For the reasons that follow, I agree with the appellants that they were
    capable of fulfilling the s. 672.55(1) consent requirement.

[6]

Because of the passage of time since the dispositions before us, I will
    not otherwise consider the reasonableness of the Boards dispositions. I would
    allow the appeals and remit them back for re-hearing before the Board.

B.

BACKGROUND

(1)

Mr. Ohenhen

(a)

Index offences and criminal history

[7]

Mr. Ohenhen has an extensive criminal record that began when he was a
    youth. Between January 1990 and October 2003, he faced 33 criminal charges
    including charges of assault, assault with a weapon, aggravated assault,
    uttering threats, criminal harassment, and possession of a prohibited weapon.
    He has also been found to have breached court orders.

[8]

Mr. Ohenhens index offences concern matters going back to 1992
    involving the same female victim. He was convicted of criminally harassing her
    in 1992. He contacted her again through correspondence in 2003, and was charged
    with uttering threats and criminal harassment. In 2006, he contacted her by
    sending her a letter in which he threatened to kill her and her family. Around
    the same time, he also called a Crown attorney pretending to be a police
    officer.

(b)

Mr. Ohenhen under Board supervision

[9]

On June 11, 2007, Mr. Ohenhen was ordered to be detained at a medium
    secure unit of the Centre for Addiction and Mental Health (CAMH). He has been
    diagnosed as schizophrenic and suffering from an Anti-Social Personality
    Disorder.

[10]

In
    October 2007, he was found to be incapable of consenting to psychiatric
    treatment. This finding was upheld by the Consent and Capacity Board in 2008.

[11]

For
    the first two years after admission to CAMH, he exhibited periods of verbal and
    physical aggression, instability and threatening behaviour. He began to receive
    antipsychotic medication in 2009, and responded well. In 2010, he was
    transferred to a minimum secure unit. He stopped showing signs of aggression
    and violence, although he continued to lack understanding of his psychiatric
    illness. While he did not perceive the need to take his medication, under the
    supervision of his mother, who is his substitute decision-maker, he did take
    the medication as prescribed.

[12]

In
    2014, Mr. Ohenhen challenged his capacity finding again before the Consent and
    Capacity Board. At that hearing, he testified to his desire to stop taking
    medication if he was found to be capable of making treatment decisions.

[13]

In
    July 2015, the Board made a detention order with community living privileges.
    Mr. Ohenhen was placed in high-support housing with adequate medical
    supervision. His condition has been relatively stable since that time.

(c)

The disposition under appeal

[14]

Following
    a hearing on November 1, 2016, the Board decided to continue the detention
    order with community living privileges.

[15]

The
    Board concluded that Mr. Ohenhen posed a significant threat to public safety.
    In that regard, the Board noted his significant record of anti-social behaviour
    including assaults, use of weapons, and homicidal ideation. It determined that
    a detention order was both necessary and appropriate.

[16]

The
    Board accepted the testimony of Dr. Liu that a detention order was necessary,
    even though Mr. Ohenhen was a rule-governed person who would comply when told
    that he must do something. Dr. Liu noted that he had some history of
    non-compliance with taking medications. This concerned Dr. Liu, since, in his
    medical opinion, Mr. Ohenhen needed to take anti-psychotic medication on a
    permanent basis.

[17]

Dr.
    Liu found Mr. Ohenhen to be in need of continued psychiatric treatment, as he
    had poor insight into his illness. The doctor noted that he had reiterated that
    if he was not compelled to take his medication, then he would not do so.

[18]

The
    hospital submitted to the Board that Mr. Ohenhen required external constraint
    to maintain his current clinical stability, given his lack of insight. Mr.
    Ohenhens clinical team also indicated that it required the authority to
    approve his housing, and the ability to rapidly re-admit him to the hospital
    should his mental state deteriorate, or should he stop taking his medication.
    The Board noted that his risk to the community had been managed by the high
    level of support he received through his supervised housing and his outpatient
    care.

[19]

After
    considering all of the evidence, the Board ordered that Mr. Ohenhen be detained
    at the General Forensic Unit of CAMH pursuant to terms and conditions which
    allowed him to live in the community in approved accommodation.

[20]

Given
    the Boards finding that a detention order was the necessary and appropriate
    disposition rather than a conditional discharge, the Board held that it did not
    have to consider the issue of whether the appellant could consent to a s. 672.55(1)
    condition.

(2)

Mr. Kalra

(a)

Index offences

[21]

On
    June 2, 2010, Mr. Kalra was found not criminally responsible on account of
    mental disorder on charges of criminal harassment, mischief under $5,000,
    transportation fraud, and failure to comply with a recognizance.

[22]

Those
    charges related to a series of incidents that took place a year earlier, in
    2009, involving a young female former classmate. At the time, Mr. Kalra was 24
    years old. He was living with his parents in Ottawa. He had withdrawn socially,
    lost interest in his studies, and was unable to maintain employment. He
    repeatedly went missing from home.

[23]

In
    February 2009, he showed up uninvited and unwanted at the complainants home in
    Guelph. She called local police, who then spoke to Mr. Kalra. A couple of weeks
    later, in March 2009, he returned to Guelph. He called the complainant from the
    bus station. He was later cautioned by police about trespassing and criminal
    harassment. Nonetheless, three days later, he called the complainant again,
    leaving a voicemail message on her phone.

[24]

About
    a week later, he called the complainant once more. After being told that she
    was not home, he came to the complainants home, stood on her front lawn, and
    said he would not leave until a letter he had brought with him was delivered to
    the complainant. He left on foot but then returned five hours later and stood
    on the lawn. Police were contacted and arrested him for criminal harassment.

[25]

Mr.
    Kalra was released on bail on condition that he reside with his father in
    Ottawa and that he have no contact with the complainant. Despite those terms,
    he went missing on several occasions, sometimes taking his fathers vehicle.

[26]

On
    November 9, he took his fathers vehicle and crashed it through the
    complainants garage door. He then fled on foot. An envelope and a note to the
    complainant were found at the scene. A day later he returned. The police came
    and arrested him. Police found a note to the complainant stuck to the front
    door of her home. Mr. Kalra was then charged with mischief under $2,000 for the
    garage crash and for failure to comply with the terms of his recognizance.

(b)

Mr. Kalra under Board supervision

[27]

Mr.
    Kalra has been subject to the Boards dispositions since September 1, 2010.
    Central to the main issue in these appeals, in 2011 he was found incapable of
    consenting to medical treatment under the
Health Care Consent Act
.
    Although both parents have been approved as substitute decision-makers, his
    father has served as his substitute decision-maker ever since.

[28]

Under
    the Boards initial dispositions, Mr. Kalra was detained in hospitals. This
    continued until March 2014. While under detention, his condition improved. He
    participated in programming, including stress management, medication
    management, and psychotherapy sessions.

[29]

Mr.
    Kalra has consistently sought less onerous, less restrictive dispositions from
    the Board, appealing the Boards dispositions in each of the last four years.

[30]

In
    March 2014, this court allowed his appeal:
Kalra (Re)
, 2014 ONCA 233
    (
Kalra 2014
). The Board had imposed a detention order because it
    felt that the hospitals proposed drug treatment program could not be carried
    out safely in the community. That proposed program involved a gradual reduction
    in the levels of the anti-psychotic medication that he was taking. The
    detention order would then allow the hospital to closely monitor Mr. Kalra as
    his medication was reduced, and, if necessary, make adjustments.

[31]

This
    court set aside that disposition and substituted a conditional discharge. While
    agreeing that it was reasonable for the Board to find Mr. Kalra posed a
    significant threat to the safety of the public, this court held that the Board
    should have considered whether those safety concerns could be addressed through
    the terms and conditions of a conditional discharge. Without reference to other
    decisions of this court, the court in
Kalra 2014
held the following:

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.

Kalra 2014
, at para. 11.

[32]

In
    its substituted conditional discharge order, the court included the following
    treatment conditions:

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.

Kalra 2014
, at para. 13.

[33]

At
    the next two Board reviews, the Board imposed conditional discharges with
    treatment conditions, the same disposition substituted by this court in
Kalra
    2014
. Mr. Kalra complied with those dispositions without incident.

[34]

When
    Mr. Kalra appealed the Boards disposition in 2015, the Crown, in response to
    the appeal, challenged the legality of imposing a treatment condition on an
    individual who was incapable of consenting to medical treatment.

[35]

In
    dismissing the appeal, this court noted the inconsistency between the decision
    in
Kalra 2014
and decisions of this court in
R. v. Coles
,
    2007 ONCA 806 and
Lamb (Re)
, 2014 ONCA 169. However, because the Crown
    raised this issue without cross-appealing, the court felt that it was unable to
    decide the issue, and instead said that it was for the Board to decide at the
    next review:
Kalra (Re)
, 2016 ONCA 390.

(c)

The disposition under appeal

[36]

At
    Mr. Kalras next review in 2016, the legality of his treatment condition was
    challenged. The Board split on this issue 3-2. A majority of the five-member
    Board found that the treatment condition was not allowed under s. 672.55(1) of
    the
Criminal Code
:

[G]iven the clear language of s. 672.55 of the
Criminal
    Code
, consent to the inclusion of a treatment condition in a conditional
    discharge must be provided by the accused, and if he or she is incapable of
    providing such consent, the Board cannot include such a condition in its
    disposition.

[37]

The
    Board majority imposed a detention order with community living. In doing so, it
    stated that it would have imposed that same order even if it had held that it
    could have included a treatment condition.

[38]

The
    Board majoritys disposition was based on its following conclusions.

[39]

First,
    they found that Mr. Kalra lacked insight into his condition, as did his family.
    His insight was described as very suboptimal. He denied that he had a mental
    illness and felt that getting a second opinion would be a waste of time. Mr.
    Kalras father also denied his diagnosis.

[40]

In
    addition, they noted that Mr. Kalra had an ongoing plan to disengage from
    treatment. He had repeatedly stated that he would stop taking his medication if
    he were given an absolute discharge or a conditional discharge without a
    treatment condition. In their view, medication appeared to be essential to
    maintaining the status quo.

[41]

Similarly,
    they noted that Mr. Kalras father only appeared willing to continue to consent
    to the treatment conditions because he was legally required to do so. And they
    were concerned that Mr. Kalras father would not notice any symptoms until it
    was much too late.

[42]

Finally,
    they stressed the importance of the hospital being able to approve where Mr.
    Kalra would reside and to quickly readmit him. Were he to decompensate while
    under a drug holiday or otherwise, the hospital would want to be able to bring him
    in quickly, if necessary. That would be facilitated with a detention order.
    Otherwise, the hospital would need to resort to the
Mental Health Act
,
    R.S.O. 1990, c. M.7, which would take longer and offers a more challenging test
    to meet.

[43]

The
    Board minoritys decision flowed from their conclusion that they could include
    a treatment condition, even though Mr. Kalra was incapable of consenting to
    medical treatment himself. They felt that little had changed since the
    conditional discharge with treatment conditions dispositions had been imposed
    in the past. He had complied with those dispositions without incident. In their
    view though, the appellants risk to the community could only be adequately
    addressed if his compliance with treatment could be assured through a
    treatment order. They would have imposed a conditional discharge with a
    treatment condition as the least onerous, least restrictive disposition
    available.

C.

DISCUSSION

(1)

Overview

[44]

These
    appeals concern when a Board can include conditions regarding psychiatric or
    other treatment as part of a disposition under s. 672.54 of the
Criminal
    Code
.
[1]
Those conditions do not involve the Board prescribing or imposing specific
    treatments itself, but instead have been described as securing a commitment by
    the accused to follow a treatment plan that has otherwise been approved.

[45]

Specifically,
    the question before us is whether a Board can include such a condition when the
    accused has been found incapable under the relevant provincial legislation of
    consenting to the treatment referenced by the condition.

[46]

The
    question arises because s. 672.55(1) of the
Criminal Code
, a section
    concerning the inclusion of conditions regarding treatment under s. 672.54,
    provides that such conditions may only be included where the accused has
    consented to the condition.

[47]

The
    parties dispute whether, in order to consent to this condition, the appellants
    themselves must have the capacity to consent to the medical treatment
    contemplated by the condition. If that is the case, then such a condition was
    unavailable to both accused at the review hearings underlying this appeal.
    Neither had the capacity to consent to the relevant treatment, primarily
    because each lacked insight into his medical condition. Instead, both
    appellants have substitute decision-makers who have been consenting to the
    relevant medical treatments, and who are willing to continue to do so.

[48]

The
    appellants take the position that s. 672.55(1) does not require that they be
    capable themselves of consenting to the treatment to which the condition
    relates. Rather, as Mr. Ohenhen puts it, they should be able to consent to a s.
    672.55(1) condition provided they are able to understand the operation of the
    condition and appreciate the consequences of abiding or failing to abide by it.
    That includes that if they contravene the condition they could be arrested
    without warrant by police and delivered to jail or to a psychiatric facility
    named in the disposition order.

[49]

They
    point out that under s. 672.55(1), as interpreted by the Supreme Court, the
    Board is not prescribing or proposing the treatment itself. Consequently, they
    submit, the accused is not providing consent to the treatment itself either.
    Instead, in their view, the provision presumes that valid consent to treatment
    has been, or will be, otherwise obtained.

[50]

As
    an alternative, the appellants say that if capacity to consent to medical
    treatment is required for consenting to the s. 672.55(1) condition, then their
    substitute decision-makers should be able to consent to the condition on their
    behalves.

[51]

The
    respondents, on the other hand, argue that this provision precludes a Board
    from including a s. 672.55(1) condition in its disposition for an accused, if
    that accused is incapable of consenting to the treatment referred to in the condition.

[52]

They
    argue that any distinction between consent to treatment and consent to a
    condition to take treatment is a distinction without a difference. As the
    Person in Charge of Royal Ottawa Mental Health Centre explains, a condition
    regarding treatment effectively requires consent to the treatment imposed by
    the condition. Thus, the argument goes, by consenting to the condition, the
    incapable accused is indirectly consenting to treatment, even though a lawful
    process under provincial law has determined that he or she is unable to consent
    to treatment.

[53]

The
    Crown and CAMH point out that the Supreme Court has held that the ordinary
    meaning of the word consent in the context of medical treatment is understood
    to be voluntary agreement to a medical course of action made with an
    appreciation of all material information and risks:
R. v. Conception
,
    2014 SCC 60, [2014] 3 S.C.R. 82, at para. 22.

[54]

The
    respondents also argue that the plain language of the provision runs counter to
    the appellants alternative argument that substitute decision-makers should be
    able to consent on an accuseds behalf. In further support of this position,
    they point out that the enforcement provisions in Part XX.1 of the
Criminal
    Code
only apply to accused persons themselves. Thus, they say, it could
    not be that Parliament intended to have others consent to, or be bound by, such
    conditions.

[55]

The
    respondents stress that this court should follow its past jurisprudence on this
    issue. In no fewer than seven brief decisions, this court has stated that a s.
    672.55(1) condition is not available to an accused who is incapable of making
    treatment decisions. They say that the one decision which implicitly held
    otherwise, an appeal involving the appellant Kalra, should not be followed.
    They say it was wrongly decided, and decided without reference to the provision
    and the existing decisions of the court.

[56]

To
    the extent that those past decisions have provided any explanation, they have
    reasoned that the distinction advanced by the appellants is a distinction
    without a difference, as the condition to abide by treatment would effectively
    involve consenting to the treatment that the accused was found to be incapable
    of consenting to under provincial law: see e.g.
R. v. Runnalls
, 2009
    ONCA 504, 251 O.A.C. 284, at para. 19.

[57]

In
    my view, this is not so. After reviewing the impugned provision in its entire
    context, I agree with the appellants that this section does not require that an
    accused, him or herself, have the capacity to consent under the relevant
    provincial law to the treatment referred to in the condition. Rather, the
    section presumes that valid consent to treatment has been, or will be,
    otherwise obtained.

[58]

Instead,
    to consent to the condition, the accused must understand all information relevant
    to the operation of the condition, and appreciate the reasonably foreseeable
    consequences of agreeing to the condition. Generally, this would not require
    the accused to have insight into his or her medical condition, although that
    could possibly factor into the Boards assessment of whether the condition is
    reasonable. In the end, the main point of the condition is that the accused
    commit to cooperate with otherwise approved treatment plans while appreciating
    the consequences this commitment, and any breach of the commitment, however
    that may come about, will have on his liberty.

[59]

I
    come to this conclusion for the following reasons:

·

The text does not specify a specific threshold for capacity, nor
    does it use the language consent to treatment, but rather consent to a
    condition regarding psychiatric or other treatment;

·

This specific language is significant and should be reflected in
    the interpretation of s. 672.55(1) (
or
, in other words, we should not
    rush to incorporate the threshold of capacity for consent to treatment when
    Parliament has specifically chosen different language);

·

Generally, the threshold for capacity to make a decision
    (including to consent to something) takes its form from the context of the
    decision at issue;

·

Threshold for capacity is generally narrowly tailored to the
    decision at issue to infringe on individuals rights to self-determination as
    little as possible;

·

The nature of the condition at issue in this appeal is,
    essentially, one where the accused commits to cooperate with an otherwise valid
    treatment plan in exchange for an increase in liberty;

·

For the proper operation of this condition, an individual need
    not understand the same information or appreciate the same reasonably
    foreseeable consequences required for consenting to the treatment itself;

·

Anything that is unnecessary should not form part of the
    threshold for consenting to the condition;

·

Parliament has put in place appropriate safeguards that address
    concerns relating to this condition;

·

The appellants interpretation supports the purpose of the
    provision and Part XX.1 of the
Criminal Code
by maximizing the
    accuseds liberty while appropriately managing risk to public safety;

·

The respondents interpretation would tend to defeat the purpose
    of the provision and Part XX.1 of the
Criminal Code
by limiting the
    accused from accessing a condition that has otherwise been found to be
    reasonable and necessary, with little or no benefit to the accused or to the
    public; and

·

Each province has the statutory authority to adopt its own
    legislation regarding consent to treatment. It cannot be that the meaning of s.
    672.55(1) will vary among the provinces.

[60]

As
    I agree with the appellants main submission  that an accused may be able to
    consent to the condition even if they are unable to consent to the treatment
    referred to within that condition  I need not consider the alternative
    argument that a substitute decision-maker could consent to the condition, and
    will not do so.

[61]

Of
    course, it is not enough that I simply agree with the appellants. That is
    because, generally, this court does not depart from its past decisions, only
    doing so when the advantages of correcting a past holding outweigh the
    disadvantages of doing so: see Laskin J.A.s discussion of this topic in
David
    Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co.
(2005), 76 O.R. (3d) 161, at paras. 118-29.

[62]

Below,
    I will first explain my conclusion on the consent issue. Then I will set out
    why I believe this court should depart from its past decisions on this issue.

(2)

The interpretation of s. 672.55(1)

[63]

The
    modern approach to statutory interpretation is to read legislative texts in
    their entire context and in their grammatical and ordinary sense harmoniously
    with the scheme of the Act, the object of the Act, and the intention of
    Parliament:
Rizzo & Rizzo Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27, at
    para. 21.

[64]

With
    this approach in mind, I will begin my analysis by reviewing the immediate
    statutory context. This will involve situating the text at issue within its
    statutory context, considering the grammatical and ordinary sense of the text,
    and discussing relevant legal norms. Then, I will examine the greater context,
    including the legislative scheme, the purpose of the Act in general and the provision
    at issue in particular.

(3)

The immediate statutory context

(a)

The provisions place within Part XX.1 of the
Criminal Code

[65]

Section
    672.55(1) is found in Part XX.1 of the
Criminal Code
, the part of the
Criminal
    Code
that deals with mental disorder. The twin goals of Part XX.1 are
    the protection of the public and fair treatment of the accused:
Mazzei v.
    British Columbia (Director of Adult Forensic Psychiatric Services)
, 2006
    SCC 7, [2006] 1 S.C.R. 326, at para. 28.

[66]

To
    achieve these twin goals, Parliament has devised an individualized
    assessment-treatment model:
Mazzei
, at para. 28. Under that model,
    the Board must take into account the mental condition of the accused, the
    reintegration of the accused into society, other needs of the accused, and the
    safety of the public, which is the paramount consideration: s. 672.54. After
    doing so, the Board must craft a disposition that is necessary and appropriate,
    that being the one that is the least onerous and least restrictive disposition
    available to the accused, considering the entire package of conditions that
    could be put in place:
Osawe (Re)
, 2015 ONCA 280, 125 O.R. (3d) 428;
Penetanguishene
    Mental Health Centre v. Ontario (Attorney General)
, 2004 SCC 20, [2004] 1
    S.C.R. 498.

[67]

If
    the accused does not pose a significant threat to the safety of the public, the
    Board must discharge him absolutely: s. 672.54(a). But if he or she does pose
    such a threat, then the Board must either discharge the accused with
    appropriate conditions (a conditional discharge) or direct that the accused
    be detained in custody in a hospital subject to appropriate conditions (a
    detention order): ss. 672.54(b) and (c).

[68]

This
    is where s. 672.55(1) comes into the picture. It speaks to conditions in the
    treatment context, and reads as follows:

672.55 (1)
No disposition made under section
    672.54 shall direct that any psychiatric or other treatment of the accused be
    carried out or that the accused submit to such treatment except that the
    disposition may include a condition regarding psychiatric or other treatment
    where the accused has consented to the condition and the court or Review Board
    considers the condition to be reasonable and necessary in the interests of the
    accused.
[2]

[69]

The
    first part of s. 672.55(1) contains a general prohibition against prescribing
    treatment. While Boards have a general supervisory authority over treatment,
    they are not permitted to prescribe or impose medical treatment for an NCR
    accused:
Mazzei
, at para. 31.

[70]

The
    second part of s. 672.55(1) is not an exception to that prohibition; it merely
    represents an example of the Boards supervisory power over treatment:
Mazzei
,
    at para. 50. It clarifies that the Boards supervisory powers continue even
    where treatment plans are at issue:
Mazzei
, at para. 55. Yet before a
    Board may include a condition to exercise this supervisory power, s. 672.55(1)
    requires it to meet three criteria: it must be reasonable, necessary in the
    interests of the accused, and the accused must have consented to the condition.

(b)

The legislative text in dispute

[71]

The
    key text to be interpreted here is found in the second part of s. 672.55(1)
    concerning the accuseds consent:

[T]he disposition [under s. 672.54] may include a condition
    regarding psychiatric or other treatment
where the
    accused has consented to the condition
and the court or Review Board
    considers the condition to be reasonable and necessary in the interests of the
    accused. [Emphasis added.]

[72]

For
    the majority of the Board reviewing Mr. Kalras disposition, this text was
    plain: to consent to the condition, Mr. Kalra needed to have the capacity to
    consent to the treatment referred to in the condition.

[73]

On
    my reading of the words of this text alone, however, I cannot agree. Without
    more context, the required capacity is unclear. I say so for the following
    reasons.

[74]

First,
    to state the obvious, the text does not actually identify any threshold for
    capacity. It could have done so, for example, by clearly defining a specific
    standard or by incorporating provincial standards by reference explicitly.
    Instead the reader is left to infer the threshold Parliament intended to be
    applied.

[75]

Second,
    I note that Parliament uses language that the accused must consent to the
    condition [regarding psychiatric or other treatment], rather than consent to
    treatment. The Supreme Court has said that this precise wording selected by
    Parliament is significant and relevant, and the interpretation of s. 672.55(1)
    should reflect that specific legislative distinction:
Mazzei
, at
    para. 52.

[76]

As
    the Supreme Court further explained in
Conception
, where Parliament
    intends to differentiate between consent to treatment and other forms of
    consent in Part XX.1, it does so explicitly. Arguably, it has done so here. Had
    Parliaments intention been to require that the accused him or herself consent
    to treatment, language similar to that in s. 672.62(2), which links consent
    directly to treatment, rather than indirectly, could have made that intent
    clearer:
Conception
, at para. 23.

[77]

Third,
    it follows that I do not necessarily consider the Supreme Courts statement in
Conception
on the ordinary meaning of consent in the context of medical treatment to be
    determinative of this issue. The real issue, as I will explain, is not the
    general requirements for capacity to make a decision; it is the nature of the
    decision itself.

(c)

The nature of the s. 672.55(1) condition

[78]

To
    me, the nature of the s. 672.55(1) condition suggests that an accused would not
    require the same level of capacity to consent to the condition as they would to
    consent to the treatment plan referred to by the condition. I base this on my
    reading of
Mazzei
, which also suggests that consenting to the
    condition is not effectively the same as consenting to the treatment. I would
    therefore reject the proposition that the appellants suggested interpretation
    relies on a distinction without a difference. Before returning to
Mazzei
,
    I would first like to elaborate on the context-driven nature of capacity and
    consent.

(i)

Capacity and consent

[79]

The
    law has long recognized that a persons capacity to make important life
    decisions is not an all-or-nothing proposition; rather, there are varying
    degrees of capacity required that derive from the nature of the decision being
    made.

[80]

As
    my colleague has explained, simpler acts require lower levels of understanding,
    while more complicated ones require greater understanding:
Calvert
    (Litigation Guardian of) v. Calvert
(1997), 32 O.R. (3d) 281 (Gen. Div.)
    (per Benotto J., as she then was) affd by 37 O.R. (3d) 221 (C.A.). This is
    true both across and within categories of decision making. For example, a
    person may be capable of managing personal care, but not his or her finances.
    Or, a person may have the capacity to make a will for a simple estate, but not
    for a more complicated one.

[81]

Generally,
    Ontario law provides that a person has the capacity to make a decision if they
    are able to understand the information that is relevant to making that decision
    and able to appreciate the reasonably foreseeable consequences of that decision
    or lack of decision: see e.g.
Substitute Decisions Act
, 1992, S.O.
    1992, c. 30, ss. 6 (property decisions) and 45 (personal care decisions);
Health
    Care Consent Act
, s. 4(1) (medical treatment);
Conception
, at
    para. 22 (medical treatment).

[82]

This
    capacity is presumed. Generally, that presumed capacity is only removed with
    precision; no more is taken away for any longer period than what is called for
    by the context: see e.g.
Health Care Consent Act
, ss. 4(2), 15.

[83]

This
    reflects that [a] persons right of self-determination is an important
    philosophical and legal principle:
Calvert
, at para. 52. Because of
    the importance of personal autonomy in our society, courts are slow to take
    away a persons right to decide:
Calvert
, at para. 57.

[84]

Calvert
illustrates another relevant aspect of capacity and consent: a person may have
    the capacity to make decisions regarding certain aspects of a plan, but not
    all. In
Calvert
, the petitioner had the capacity to separate and the
    capacity to divorce, but not the capacity to instruct counsel in connection
    with the divorce. With the accommodation of a litigation guardian though, she
    was ultimately able to accomplish her goal.

[85]

In
    my view, by leaving the standard for capacity to consent to the condition
    unstated in s. 672.55(1), Parliament intended for this general standard to
    apply, meaning that capacity would be assessed according to the nature of the
    specific condition regarding treatment.

(ii)

Mazzei
on the condition regarding treatment

[86]

In
    these appeals, the type of condition regarding treatment under consideration is
    one that is typically included in dispositions as take treatment as
    prescribed.

[87]

This
    specific condition was considered in
Mazzei
, although the requisite
    capacity to consent was not addressed. In answering a hypothetical question
    about s. 672.55(1), the Supreme Court explained that this condition arguably
    refers to a commitment by the accused himself to continue a certain course of
    treatment, while in the community, which was undertaken or recommended while
    still under hospital detention (emphasis in original):
Mazzei
, at
    para. 53.

[88]

The
    Supreme Court described the condition as one to be fulfilled in order to
    achieve an increase in liberty (by moving from hospital detention to conditional
    discharge in the community, for example):
Mazzei
, at para. 53. It
    cautioned, however, that this condition is not equivalent in nature or in
    scope to prescribing or ordering that medical treatment be provided by health
    professionals:
Mazzei
, at para. 53.

[89]

The
    Supreme Court stated that a Board could validly order an accused to continue
    taking his medication (if the accused consented to the condition, and if the
    condition is reasonable and necessary), but it is implicit that such
    medication would already have been recommended, approved and/or implemented by
    the Director during the accuseds hospital detention:
Mazzei
, at
    para. 55.

[90]

In
    my view, this description of the condition regarding treatment is at odds with
    the proposition that consenting to it effectively requires the accused to
    consent to the treatment referred to in the condition.

[91]

First,
Mazzei
generally presumes that consent to the treatment would have
    already been provided.

[92]

Second,
Mazzei
stresses that such conditions do not equate to prescribing or
    imposing treatment. As
Mazzei
makes clear, consent to treatment would
    still be obtained through the respective provincial scheme involving the
    accused and the relevant hospital authorities. The s. 672.55(1) condition does
    not serve as a valid alternative to that voluntary, informed, ongoing consent.
    Combined with the point above, it seems apparent that consenting to commit to a
    course of treatment is not effectively the same as consenting to that actual
    treatment.

[93]

Third,
    the condition is instead described as a tool to manage the accuseds risk to
    public safety in exchange for an increase in liberty. Essentially, as set out
    in
Mazzei
, the accused commits to cooperate with an otherwise valid
    treatment plan to gain greater freedom. Through the resulting condition
    (provided it is found to be reasonable and necessary), the Board then has
    access to the enforcement provisions in the
Criminal Code
, allowing
    for the arrest and return of the accused to hospital custody, should that
    commitment be breached.

[94]

In
    this scenario, the medical implications are relatively minimal compared to the
    liberty implications. The condition aims to maintain the medical status quo
    while increasing the accuseds liberty, so long as it is reasonable to do so.
    Consent to the underlying treatment still flows through the provincial scheme;
    the Boards condition cannot serve as substitute consent to treatment, such
    that consent to treatment is directly affected by it. And risk to public safety
    is managed not through the accuseds concern for his medical condition, but
    rather primarily through the accuseds interest in greater liberty, and, if
    necessary, through arrest powers and detention.

(d)

Evaluation of immediate statutory context

[95]

The
    capacity required to consent to a s. 672.55(1) condition differs from that
    required to consent to the treatment referred to by that condition.

[96]

It
    follows that a person who lacks capacity to consent to that treatment does not
    necessarily lack the capacity to consent to the s. 672.55(1) condition.

[97]

To
    consent to a s. 672.55(1) condition, an accused need only understand
    information and appreciate consequences that are necessary.

[98]

That
    would seem to include all information relevant to understanding the operation
    of the condition and the reasonably foreseeable consequences.

[99]

In
    my view, that would generally not require a person to appreciate all of their
    medical circumstances, though such a lack of understanding or appreciation, as
    I will explain next, could factor into whether a s. 672.55(1) condition is
    reasonable.

(4)

The greater context

(a)

The legislative scheme

[100]

The respondents
    argue that this interpretation is undermined by the legislative scheme, and the
    resulting enforcement problems that Parliament could not have intended. I
    disagree. To the contrary, I am satisfied that Parliament has crafted a careful
    scheme that is responsive to the circumstances at issue.

[101]

In this regard,
    I would highlight that Parliament has put the following mechanisms in place: a
    requirement that any s. 672.55(1) condition be reasonable; broad supervisory
    powers to include appropriate conditions; and enforcement mechanisms for when
    the s. 672.55(1) condition, or any other condition, is contravened.

[102]

Through the
    reasonableness requirement, the Board has great flexibility to consider
    factors that are relevant to the potential effectiveness of the condition, or
    that may otherwise render such a condition unreasonable. In appropriate
    circumstances, this might also include consideration of the accuseds capacity
    to consent to treatment. It might also include exploring the willingness and
    reliability of the accuseds substitute decision-maker. In the end, the
    reasonableness requirement provides the Board with the basis to reject any
    condition that in all the circumstances would be unreasonable.

[103]

In addition,
    with its broad supervisory powers, the Board may draw from a package of
    conditions to craft a disposition that appropriately manages concerns posed by
    a s. 672.55(1) condition. In some circumstances, this may render otherwise
    unreasonable risks reasonable. For example, a Board might include reporting
    conditions related to the treatment plan at issue to highlight threats to the
    Boards risk management strategy, such as the withdrawal of consent. If such a
    condition were breached, it could then allow the Board to engage the
    enforcement provisions of Part XX.1 earlier, and before any dangerous
    decompensation has occurred.

[104]

Finally, the
    enforcement mechanisms found in ss. 672.9 to 672.94 of Part XX.1 provide
    recourse should the accused contravene the s. 672.55(1) condition, any
    conditions related to that condition, or any other condition included in the
    disposition.

[105]

Section 672.91
    provides that a peace officer may arrest an accused if the peace officer has
    reasonable grounds to believe that the accused has contravened a condition of a
    disposition, or is about to do so. For accused persons under a conditional
    discharge, the peace officer may then deliver them to a place specified by the
    Board in its disposition. Ultimately, the Board is able to review the disposition
    containing the s. 672.55(1) condition: s. 672.94.

[106]

Thus, the scheme
    is cogent and clear. The Board, through the enforcement mechanisms and its
    broad supervisory power to impose conditions, is provided with the necessary
    tools to manage risks associated with the condition. When those tools are
    inadequate to manage that risk, the condition is unreasonable, and thus cannot
    be included.

(b)

The object of Part XX.1 and the purpose of the provision

[107]

The object of
    Part XX.1 and the purpose of the provision further support the interpretation
    that the accused him or herself need not have capacity to consent to the
    treatment referred to in the condition.

[108]

Part XX.1 aims
    to maximize the liberty of the accused while protecting public safety. The
    review board regime set out in Part XX.1 is intended to reconcile the twin
    goals of protecting the public from dangerous offenders, and treating NCR
    patients fairly and appropriately:
R. v. Conway
, 2010 SCC 22, [2010]
    1 S.C.R. 765, at para. 88. Public safety is the paramount concern, but an NCR
    patients liberty interest has been held to be the Boards major
    preoccupation within the fence posts staked by public safety:
Conway
,
    at para. 88. In other words, the Board fulfills its primary purpose  by
    protecting the public while minimizing incursions on patients liberty and
    treating patients fairly:
Conway
, at para. 88.

[109]

Section
    672.55(1) is harmonious with these goals. As explained in
Mazzei
,
    Boards may resort to conditions regarding treatment only rarely and in specific
    situations, where for example the Board is contemplating a significant decrease
    in the restraints on an accuseds liberty which is effectively conditional upon
    him or her committing to continue a particular course of treatment:
Mazzei
,
    at para. 55. The purpose of requiring such a commitment, the Supreme Court
    stated, is to ensure that the accuseds threat to public safety is
    appropriately managed while in the community, given that he is no longer under
    the hospitals supervision:
Mazzei
, at para. 55.

[110]

In my view,
    these purposes are promoted by an interpretation that allows accused persons
    incapable of consenting to treatment to access this condition under s.
    672.55(1). That is because it allows for the accuseds liberty to be maximized
    within the fence posts staked by public security. On the other hand, the
    opposing interpretation would diminish liberty unnecessarily. It would deny the
    incapable accused access to a condition which could increase his liberty, even
    when that condition was reasonable and necessary, when risk to public safety
    was appropriately managed, and when consent to the treatment at issue was
    already in place. Such a consequence is unjustifiable, and clearly conflicts
    with the object of the Act. I would reject the interpretation that leads to
    that consequence.

(5)

Conclusion

[111]

To consent to a
    s. 672.55(1) condition, an accused person need not have the capacity to consent
    to the medical treatment referred to in the condition. Rather, the capacity
    required to consent to a s. 672.55(1) condition is the ability to understand
    all information relevant to the operation of the condition and to appreciate
    all reasonably foreseeable consequences of agreeing to the condition.

(6)

Whether this court should overrule its past decisions

[112]

Having come to this
    conclusion on the consent required by s. 672.55(1), I must now weigh the
    advantages and disadvantages of correcting the law and departing from this
    courts past decisions on the issue:
Polowin
, at para. 127. Those past
    decisions include
Coles
;
Runnalls
;
Duquette (Re)
, 2013 ONCA 489;
Lamb
;
Coburn (Re)
, 2016 ONCA 536;
Kalra
    (Re)
, 2016 ONCA 390 (
Kalra 2016
); and
Vethanantham (Re)
,
    2017 ONCA 951.

[113]

The advantages
    generally associated with maintaining such past rulings include consistency,
    certainty, predictability, sound judicial administration, and enhancing the
    appearance of justice:
Polowin
, at paras. 119-20.

[114]

Here, however,
    this courts decision in
Kalra 2014
has led to uncertainty. That
    decision implicitly (and correctly) held that a s. 672.55(1) condition was
    available to an accused who was incapable of consenting to the treatment that
    was referred to by the condition. This uncertainty was reflected in this
    courts decision in
Kalra 2016
, when it held that it could not decide
    the issue (while strongly hinting that it agreed with this courts other
    decisions). And it was again reflected in the split decision of the Board in
    Mr. Kalras underlying Board disposition.

[115]

This
    uncertainty, inconsistency, and resulting lack of predictably diminish the
    advantages associated with following precedent.

[116]

In my view,
    overruling those past decisions would promote the interests of justice by
    removing conflicts and uncertainties in the law.

[117]

Accordingly, I
    would do so.

D.

DISPOSITION

[118]

I would allow
    the appeals and refer these matters back to the Board for re-hearing in
    accordance with the directions of this court.

Released: DW JAN 26 2018

M. Tulloch J.A.

I agree. David Watt J.A.

I agree. G. Pardu J.A.

I agree. M.L. Benotto J.A.

I agree. L.B. Roberts J.A.





[1]
The provision at issue applies to the dispositions made by both courts and
    Review Boards under s. 672.54. For convenience, I will refer to just the Board
    throughout, though this is meant to refer to both.



[2]
The French version of s. 672.55(1) is reproduced here, with emphasis added on
    the parts discussed in greater detail in this decision:

672.55

(1)
La décision
    visée à larticle 672.54 ne peut prescrire de traitement, notamment un
    traitement psychiatrique, pour laccusé ou ordonner que celui-ci sy soumette;
elle
    peut toutefois comporter une condition relative à un traitement
que le
    tribunal ou la commission dexamen estime raisonnable et nécessaire aux
    intérêts de laccusé et
à laquelle celui-ci consent
.


