



COURT OF APPEAL FOR ONTARIO

CITATION: Roberts (Re), 2021 ONCA 869

DATE: 20211208

DOCKET: C68888 & C69217

Strathy C.J.O., Hourigan and
    Paciocco JJ.A.

IN THE MATTER OF: Mark Sheldon Roberts

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita
    Szigeti and Maya Kotob, for the appellant

Manasvin
    Goswami, for the respondent, Attorney General for Ontario

Michele
    Warner, for the respondent, the Person in Charge of the Centre for Addiction
    and Mental Health

Heard: November 26, 2021

On appeal from the disposition of the
    Ontario Review Board, dated September 24, 2020, with reasons dated October 22,
    2020, and the disposition dated February 17, 2021, with reasons dated March 8,
    2021.

REASONS FOR DECISION


A.

introduction

[1]

There are two appeals before the court. The
    initial appeal (C68888) is from a 2020 disposition order that Mr. Roberts be
    detained with privileges including community living. Mr. Roberts submits that
    this order was unreasonable. He is unrepresented on this appeal and has not had
    the assistance of
amicus
.

[2]

While he was living in the community pursuant to
    the 2020 disposition order, the Centre for Addiction and Mental Health (CAMH)
    revoked Mr. Roberts community living privileges and detained him in the
    hospital. The most recent appeal (C69217) arises from a hearing of the Ontario
    Review Board (the Board) on January 27, 2021, pursuant to s. 672.81(2.1) of
    the
Criminal Code
, R.S.C., 1985, c. C-46, relating to CAMHs decision to
    significantly increase the restrictions on Mr. Roberts liberty.

[3]

The issue raised in this most recent appeal by
amicus
on behalf of Mr. Roberts concerns a recent change in dispositions made by some
    panels of the Board to simply require that the accused be detained at the Forensic
    Service of a forensic psychiatric institution, rather than describing the
    security level of the unit (general or secure) in which the accused is to
    be detained, which was the former practice of the Board.

[4]

This new practice apparently flows from requests
    by the institutions themselves. Some institutions, like CAMH, request a general
    detention order to the Forensic Service, while others have de-designated
    their facilities by ceasing the previous practice of identifying each forensic
    unit by its security level.

[5]

In this case, the Board implemented the
    institutions requested change without explaining its reasons for doing so, and
    without specifying the conditions or restrictions applicable to Mr. Roberts
    detention.

[6]

In light of the fresh evidence adduced by the
    institution, which we will admit, we are satisfied that the current
    restrictions on Mr. Roberts liberty are appropriate, and that they will be
    reviewed by the Board at a restriction of liberty hearing and his annual
    hearing, both of which are pending.

[7]

Nevertheless, as explained below, we express our
    concern that while the practice of de-designation of Ontario forensic
    psychiatric facilities may well have sound clinical and risk management
    justifications (which we have not explored and upon which we come to no
    conclusion), this does not absolve the Board of the responsibility to arrive at
    a disposition that is the least onerous and least restrictive to the accused.
    That may require the Board to give some specificity to the package of conditions
    that will apply to the accused, including the structure of the forensic unit
    and the security applicable to the accuseds detention. These are matters that
    will require a full record and submissions.

[8]

We also address below the initial appeal (C68888)
    brought by Mr. Roberts without the assistance of
amicus
.

B.

Background

[9]

On June 26, 2014, Mr. Roberts was found not
    criminally responsible on account of mental disorder on a charge of criminal
    harassment on multiple occasions in 2012-2013 in relation to his landlords
    daughter. He has been diagnosed with schizophrenia, cannabis use disorder (in
    sustained remission as of August 2020), and personality disorder with paranoid
    and obsessive-compulsive traits.

[10]

On August 19, 2019, the Board issued a
    disposition, ordering Mr. Roberts to be detained at the General Forensic Unit
    of CAMH. His privileges included residing in the community in accommodation
    approved by the person in charge.

[11]

At Mr. Roberts annual hearing in 2020, which
    resulted in the Boards disposition of September 24, 2020 (the 2020
    Disposition), the Board found that he continued to represent a significant
    threat to the safety of the public. The Board accepted the opinion of Mr.
    Roberts treatment team that a conditional discharge would not adequately protect
    the public and continued his detention order without change.

[12]

Mr. Roberts was thus ordered detained at the
    General Forensic Unit of CAMH. The person in charge of CAMH was to create a
    program for Mr. Roberts detention and rehabilitation, with discretion to,
    among other things, permit him to live in the community in accommodation
    approved by the person in charge.

[13]

The 2020 Disposition is the subject of Mr.
    Roberts appeal in C68888.

[14]

Prior to the events that served as the basis for
    the February 17, 2021 disposition (the 2021 Disposition), Mr. Roberts was
    living in the community, pursuant to the 2020 Disposition. In October 2020, Mr.
    Roberts began harassing a victim who worked at a Metro grocery store. On
    multiple occasions, Mr. Roberts visited or called the grocery store to contact
    the victim. He was charged on December 5, 2020 with harassment by repeated
    communication, harassment by repeated following, and entering premises where entry
    is prohibited. He was admitted to CAMH on December 10, 2020. When asked at the
    hospital what he would do if given passes by CAMH, Mr. Roberts replied that he
    would go back to Metro to buy groceries. He continued to leave phone messages
    for the victim.

[15]

These events, and the hospitals conclusion that
    public safety required a significant increase in restrictions, triggered a
    restriction of liberty hearing pursuant to s. 672.81(2.1) of the
Criminal
    Code
to review the hospitals decision.

[16]

The question before the Board was whether the
    hospital was justified in significantly increasing the restrictions on Mr.
    Roberts liberty. Counsel for the hospital argued that the decision to readmit Mr.
    Roberts was warranted, and that the restrictions remained the least onerous and
    least restrictive option available. Counsel for the Attorney General
    recommended that the Board add three conditions to the disposition: that Mr.
    Roberts not be within 500 meters of the victim or any place he knows her to
    work, live, go to school, frequent or happen to be; that Mr. Roberts not be
    within 500 meters of the Metro store where the victim worked; and that Mr.
    Roberts not contact the victim either directly or indirectly. Counsel for Mr.
    Roberts opposed the position of the hospital that Mr. Roberts be detained at
    the Forensic Service at CAMH.

[17]

The Board agreed with Mr. Roberts readmission
    to the hospital. The Board accepted the position of the Crown that the three
    conditions should be added to the disposition and held that Mr. Roberts ongoing
    restriction remained the least onerous and least restrictive disposition in his
    case.

[18]

In its disposition, the Board articulated
    conditions that largely mirrored those contained in the 2020 Disposition. One
    notable difference is that the Board in its 2021 Disposition ordered that Mr.
    Roberts be detained at the Forensic Service at CAMH (as opposed to the General
    Forensic Unit).

[19]

As noted above, the 2021 Disposition is the
    subject of the appeal in C69217.

[20]

Both CAMH and the Attorney General brought
    motions to introduce fresh evidence in C69217. In brief, CAMHs fresh evidence
    indicates that on March 10, 2021, Mr. Roberts was transferred from a General
    Forensic Unit to a Secure Forensic Unit at CAMH, where he has remained
    continuously up to the present. CAMHs position is that Mr. Roberts continues
    to require the structure and staffing support of a Secure Forensic Unit. CAMH
    reported this increase in Mr. Roberts restrictions to the Board on March 18,
    2021. A restriction of liberty hearing to review this increase in restrictions
    was scheduled to be heard on April 7, 2021 and discussions about scheduling are
    continuing to this date, as set out in the fresh evidence. It appears that part
    of the challenge is attributable to Mr. Roberts request that the review take
    place in person. A pre-hearing conference had been scheduled for December 1,
    2021 to determine whether in-person Board hearings are expected to resume and,
    if so, to discuss hearing dates.

[21]

The Attorney Generals motion to adduce fresh
    evidence addresses an issue raised by Mr. Roberts to the effect that the 2021
    Disposition was unreasonable because the conditions imposed duplicate the
    conditions of his bail. The fresh evidence indicates that Mr. Roberts is no
    longer bound by those bail conditions because the criminal charges against him
    were withdrawn in exchange for his entering into a peace bond. That peace bond
    does not include the same terms as the 2021 Disposition.

C.

Issues and Analysis

(1)

The Appeal in C68888

[22]

Mr. Roberts appeals the 2020 Disposition, which
    continued the 2019 detention order.

[23]

In his factum on appeal, counsel for the
    Attorney General submits that Mr. Robertss appeal is moot, because it has been
    superseded by the subsequent 2021 Disposition: see
Halat (Re)
, 2020
    ONCA 143, at para. 2;
Jaffrey (Re)
, 2020 ONCA 113, at para. 1;
Casey
    (Re)
, 2019 ONCA 861, at para. 1.

[24]

Arrangements were made for Mr. Roberts to attend
    in person to argue his appeal, to participate remotely by video conference or
    to participate by teleconference. He declined to do so, for reasons that are
    not apparent. In the circumstances, the appeal in C68888 is adjourned to be
    spoken to in status court.

(2)

The Appeal in C69217

[25]

Through
amicus
, Mr. Roberts appeals the
    2021 Disposition, which ordered that he be detained at the Forensic Service at
    CAMH, as opposed to the General Forensic Unit. In light of the fresh evidence,
    which we admit, we maintain the 2021 Disposition and dismiss the appeal.

[26]

The hospitals request to de-designate the disposition
    order and the Boards approach to that request are important issues that would
    have to be determined on a full evidentiary record. Regardless, the Board was
    required to examine the nature of the restrictions on Mr. Roberts liberty that
    would prevail in the Forensic Service and to determine with some precision the
    restrictions that should apply. Without doing so, it would be impossible for
    the Board to determine that his restrictions were the least onerous and least
    restrictive disposition.

[27]

As
amicus
points out in her very
    helpful factum, in some cases, the Board has required the hospital to describe
    the structure and security of each unit on which the accused may be ordered to
    be detained and the Board will then identify the unit by name or location as
    the one in which the accused is to be detained: see
Fotiou (Re)
, [2019]
    O.R.B.D. No. 1235 and
Fotiou (Re)
, [2019] O.R.B.D. No. 1234;
Menard
    (Re)
, [2019] O.R.B.D. No. 2703, at paras. 19-21 and
Menard (Re)
, [2019]
    O.R.B.D. No. 2702;
Remmer (Re)
, [2019] O.R.B.D. No. 2596, at paras. 28-29;
Pampano (Re)
, [2019] O.R.B.D. No. 2574, at paras. 10, 26 and 34;
Tran
    (Re)
, [2021] O.R.B.D. No. 415, at paras. 36-43 and 45-50;
Sawyers (Re)
,
    [2021] O.R.B.D. No. 150, at paras. 36, 39 and 43;
Kent (Re)
, [2021] O.R.B.D.
    No. 1842, at paras. 4, 26 and 31;
Ramos (Re)
, [2021] O.R.B.D. No. 1929,
    at paras. 28, 30 and 31.

[28]

The issue of de-designation should be addressed
    either at the restriction of liberty hearing or at Mr. Roberts next annual hearing.

[29]

We do not give effect to Mr. Roberts submission
    that the 2021 Disposition was unreasonable because he was already bound by bail
    terms, making the no contact provisions of the disposition unnecessary. The
    fresh evidence filed by the Attorney General establishes that Mr. Roberts is no
    longer bound by the bail conditions, because the charges against him were
    withdrawn in exchange for entering into a peace bond. That bond does not
    include all the relevant terms of the Boards disposition. In any event, there
    is no reason why Mr. Roberts cannot be bound by different conditions, in
    different proceedings and for different purposes.

[30]

We therefore maintain the current disposition
    and dismiss the appeal.

G.R.
    Strathy C.J.O.

C.W.
    Hourigan J.A.

David
    M. Paciocco J.A.


