



COURT OF APPEAL FOR ONTARIO

CITATION: Elman (Re), 2021 ONCA 783

DATE: 20211105

DOCKET: C69119

Watt, Benotto and Trotter JJ.A.

IN THE MATTER OF: McElman Elman

AN APPEAL UNDER PART XX.1 OF THE
CODE

Andrew Stastny, for the appellant

Mark Luimes, for the Attorney General

Leisha Senko, for the Centre for Addiction and Mental
    Health

Heard: September 24, 2021 by video conference

On appeal against the disposition of the Ontario Review
    Board dated March 4, 2021.

Trotter J.A.:

A.

introduction

[1]

This appeal arises from the Ontario Review Boards rejection of a joint
    submission that the appellant be conditionally discharged.

[2]

The appellant, McElman Elman, was found not criminally responsible on
    two charges of criminal harassment and two charges of failing to comply with a
    recognizance. He was referred to the Board for a disposition hearing.

[3]

The appellant, the hospital, and the Crown all submitted that a
    conditional discharge was the appropriate disposition. They differed only on
    the issue of whether the appellant should be ordered to refrain from consuming cannabis,
    as opposed to being ordered to undergo treatment.

[4]

The Board imposed a detention order.

[5]

The appellant submits that the proceedings were unfair because the Board
    failed to provide him with adequate notice of its intention to depart from the joint
    submission. The hospital and the Crown now contend that there was no joint submission
    and therefore no obligation to provide notice. In the alternative, they submit
    that questions posed by Board members during the hearing provided sufficient
    notice that the joint submission was in peril. Moreover, they say the
    disposition was reasonable.

[6]

I am of the view that there was a joint submission before the Board on
    the fundamental issue of whether the appellant should be conditionally
    discharged as opposed to being detained in a hospital. However, the questions
    posed by two Board members provided adequate notice that the joint submission
    was at risk. Therefore, I would dismiss the appeal on this basis. Additionally,
    the fresh evidence admitted on appeal, which reveals that the appellant has
    been readmitted to hospital twice since his original disposition hearing,
    supports the reasonableness of the Boards conclusion that a detention order
    was appropriate.

B.

background

[7]

At the time of the proceedings, the appellant was 29 years old. He
    suffers from schizoaffective disorder (bipolar type) and cannabis use disorder.
    He has documented psychotic symptoms dating back to 2013.

[8]

The victim of the harassment is a former employee of CAMH. She has never
    had a personal, medical, or professional relationship with the appellant.
    However, he believes that she is a supernatural being who is in love with him and
    guides him. The appellant believes they will be together one day. He
    experiences auditory hallucinations in the form of the victims voice, even
    though he takes anti-psychotic medication.

[9]

The charges arose because, despite being subject to a s. 810 peace bond,
    the appellant messaged the victims sister and expressed his love for the
    victim. He wrote to the victims mother, claiming he was the victims number 1
    admirer.

[10]

On
    July 24, 2020, and on consent, the appellant was found not criminally
    responsible on account of mental disorder:
Criminal Code
, R.S.C. 1985,
    c. C-46, s. 16. He was referred to the Board for a disposition hearing: s.
    672.47(1). In the meantime, he remained on bail.

C.

proceedings before the board

(1)

Pre-Hearing Conferences

[11]

Four
    pre-hearing conferences were conducted by the Hon. Mr. David McCombs. Among
    other things, these conferences resulted in the preparation of a risk
    assessment report, written by Dr. Roland Jones.

[12]

Dr.
    Jones recommended that the least onerous and least restrictive disposition was
    a conditional discharge with conditions that the appellant: report to CAMH not
    less than once every two weeks; that he abstain from illicit substances and
    from cannabis; and submit urine samples for screening on a random basis when
    directed by the hospital.

[13]

At
    one of the pre-hearing conferences, counsel for the hospital and the Crown
    indicated that they would seek a non-contact condition to protect the victim.
    This was uncontroversial. The appellants counsel alerted the other parties
    that he would raise concerns about a cannabis abstention condition, proposing a
    treatment-based approach instead.

[14]

In
    his final pre-hearing conference report on December 14, 2020, the Hon. Mr.
    McCombs wrote, The sole contested issue will be whether the Boards
    disposition should include a requirement that Mr. Elman abstain from cannabis
    use.

(2)

The Hearing

[15]

On
    January 21, 2021, the Board conducted the disposition hearing. At the outset of
    the hearing, the pre-hearing conference reports were identified by the Chairperson
    and acknowledged to form part of the record of proceedings.

[16]

The
    parties then stated their positions. The positions of the appellant and the
    hospital were consistent with the positions they took at the pre-hearing conferences.
    The Crown advised the Board that it would reserve its final decision until
    the evidence of Dr. Jones was complete. This appears to be a departure from its
    position before the Hon. Mr. McCombs.

[17]

The
    Board had the benefit of the risk assessment report prepared by Dr. Jones.
    It was filed as an exhibit. In his report, Dr. Jones indicated that the
    appellant has experienced psychotic symptoms since at least 2013. Between 2013
    and 2015, he was periodically admitted to Toronto East General Hospital and
    CAMH. His current diagnosis is schizoaffective disorder (bipolar type) and
    cannabis disorder.

[18]

Dr.
    Jones elaborated on the appellants obsession with the victim. The appellant
    sees her as a healer and a goddess, views he has held for a number of years.
    Dr. Jones said, And even despite medication, despite treatment, he still
    continues to hold these beliefs very firmly. The appellant enjoys hearing the
    voices and does not want them to stop.

[19]

In
    his report, Dr. Jones wrote that the appellant is committed to not contacting
    the victim, but he is waiting for a time when he is permitted to do so. The
    appellant told Dr. Jones that he searches for the victims name on the internet
    and is always on the lookout for her when he is outside. The appellant said that
    he would not contact her even if he were aware of where she lived. However, Dr. Jones
    testified, its not clear to me whether he would initiate contact if he was
    provided with her address or were to discover it.

[20]

Dr.
    Jones recommended that the appellant should refrain from consuming cannabis
    because of the strong relationship between cannabis and psychosis[a]nd it is
    expected that the cannabis use is contributing or exacerbating the psychotic
    symptoms he has. The appellant has expressed a desire to stop consuming
    cannabis, but has found it difficult to do so.

[21]

Dr.
    Jones found the appellant to be very cooperative with the assessment and the
    whole process. He testified, And aside from the delusional beliefs he has, he
    functions very well in other areas of his life. Hes got very many pro-social
    attitudes towards work, into bettering himself, but he continues to have these
    auditory hallucinations and delusions, and has little insight into that.

[22]

In
    favouring a conditional discharge, Dr. Jones relied on the fact that the
    appellant had been on a community treatment order for some time, and it was beneficial.
    The appellant attended his appointments and was compliant in receiving
    anti-psychotic medication injections, although he was inconsistent in taking
    oral mood-stabilizing medication. Dr. Jones further explained:

There havent been any incidents of physical violence, and
    theres been no recent attempts to contact the victim. And for those reasons,
    because he appears to be adequately managed in the community, a conditional
    discharge is felt to be the most appropriate, taking into account the necessity
    for having the least onerous and least restrictive disposition.

[23]

As
    discussed in more detail below, one of the Board members, Dr. Gary Chaimowitz,
    questioned Dr. Jones about the utility of a conditional discharge in the face
    of the appellants ongoing cannabis use. Another Board member shared Dr.
    Chaimowitzs concerns, and pursued a similar line of questioning.

[24]

In
    the face of these questions, Dr. Jones acknowledged that a detention order
    would make it easier for the hospital to respond to breaches, but maintained
    that the least restrictive disposition was a conditional discharge. He noted
    that, if the appellant decompensated, taking action under the
Mental Health
    Act
, R.S.O. 1990, c. M-7 would be the appropriate method of returning him
    to the hospital.

[25]

At
    the end of the evidentiary portion of the hearing, the parties all made brief
    submissions. Counsel for the hospital made some preliminary remarks about the
    appellant being a significant threat to the safety of the public and the serious
    impact of the appellants conduct on the victim. She then essentially reiterated
    what the Hon. Mr. David McCombs wrote in his final pre-hearing memo: That
    being said, just addressing theone outstanding issue here, specifically the
    cannabis use term. She submitted that it should be an outright prohibition.

[26]

The
    Crown commenced her submissions by saying, I am going to join the hospital in
    asking for a conditional discharge, but requested a non-contact condition. She
    also submitted that, I am confident that the Board can craft a condition
    regarding cannabis that can assist him with the goal of abstinence.

[27]

Counsel
    for the appellant supported a conditional discharge and suggested to the Board
    that, instead of a prohibition on consuming marijuana, a less onerous condition
    might be imposed, one that required the appellant to seek treatment for
    cannabis use. The rationale for this request was that, given the appellants
    problems with cannabis, a prohibition condition would likely result in the
    appellant being immediately in breach of the disposition order.

[28]

The
    Board members posed no questions to counsel during their final submissions. The
    propriety of a conditional discharge was not raised. At the conclusion of the
    hearing, the Chairperson addressed the appellant and said:

Well, youve heard whats going on and youve heard a lot of
    concern about cannabis use and the difficulties of that has with getting you
    better. What well do now is the Board will meet and make a decision as to what
    the disposition order should be, and you and your counsel will get that
    information in about a weeks time, and then therell be reasons from the
    Review Board following that, maybe within three or four weeks.

(3)

The Boards Decision and Reasons

[29]

On
    January 29, 2021, the Board ordered that the appellant be detained at CAMH, with
    privileges to live in the community in accommodation approved by the person in
    charge. He was ordered to abstain from the consumption of cannabis and to
    report to CAMH not less than once every two weeks.

[30]

On
    March 4, 2021, the Board released its Reasons for Disposition. The reasons
    accurately set out the positions of the parties. However, without referring to
    it as a joint submission, the Board rejected the propriety of a conditional
    discharge. It said:

The Review Board is of the firm view that management of Mr.
    Elmans illness and risk to members of the public is best served through a
    detention order where the Hospital can readily and swiftly respond to any
    change in Mr. Elmans mental state and admit him to hospital or more readily
    arrange programs to deal with what is clearly his commit to the use of
    cannabis, a destabilizing element and an obstacle to any improvement in his
    mental health.

His simple refusal or inability to abstain from cannabis will
    not get Mr. Elman readmitted to hospital under a conditional discharge. On the other
    hand, a simple breach of that condition would provide the Hospital with the
    ability to respond by readmission to hospital if needed if Mr. Elman was on a
    detention order.



The Board considers this order necessary and appropriate for
    both Mr. Elman and the victim of the index offence for the reasons provided
    above. It is only marginally onerous and restrictive for Mr. Elman than the
    conditional discharge disposition proposed by the Hospital, but as the safety
    interests of the victim as a member of the public takes priority, the balance
    weighs in favour of the detention order.

D.

analysis

(1)

Introduction

[31]

The
    Ontario Review Board is not bound by joint submissions. In the leading decision
    of
Re Osawe
, 2015 ONCA 280, 125 O.R. (3d) 428, Laskin J.A. wrote, at
    para. 33: The board undoubtedly has the authority, indeed the duty, to reject
    a joint submission if it is of the view that the joint submission does not meet
    the requirements of s. 672.54 of the
Criminal Code
.

[32]

However,
    the Board owes a duty of procedural fairness to those individuals over which it
    exercises jurisdiction. This includes a duty to give notice when it considers
    rejecting a joint submission and imposing a more restrictive disposition. Notice
    gives the parties an opportunity to address the Boards concerns, by adducing
    (further) evidence, making responsive submissions, or both:
Osawe
, at
    paras. 36-37;
Re Kachkar
, 2014 ONCA 34, 119 O.R. (3d) 641, at paras.
    42-44.

(2)

Was there a joint submission?

[33]

The
    Crown and the hospital submit that there was no joint submission before the
    Board because: (i) the Crown reserved its decision at the outset of the
    hearing and did not join until the evidentiary portion of the hearing was
    complete; and (ii) the disagreement over the cannabis condition made the
    positions of the parties merely overlapping or parallel, falling short of a
    joint submission. I reject both submissions.

[34]

First,
    in this case, the timing of the Crowns assent to the joint submission was
    unimportant in characterizing the nature of what was ultimately presented to
    the Board. It is the essence of the agreement that is paramount, not when it is
    conveyed. That the Crown waited until she had heard Dr. Joness evidence before
    deciding whether she would agree to the hospitals proposal did not detract
    from the fact that, in the end, all parties were asking for the same order  a
    conditional discharge. None of the parties wanted a detention order. Evidently
    satisfied by what she heard during the hearing, the Crown said, I am going to
join
the hospital in asking for a conditional discharge.

[35]

I
    acknowledge that previous decisions of this court have attached greater importance
    to the Crown having reserved its position at the outset of the hearing: see
Re
    Klem
, 2016 ONCA 119, at para. 24;
Re Ellis
, 2018 ONCA 616, at
    para. 22. However, the significance of one of the parties reserving its
    position is fact-specific.

[36]

In
    this case, it is apparent from the pre-hearing conference reports that the
    parties were joined on the critical issue that the appellant should not be
    detained in a hospital. This was the common position at the end of the
    evidentiary phase of the hearing, expressed explicitly by counsel. Their brief
    submissions further illustrate that they were all acting on the shared assumption
    that the only contentious issue was the form of the cannabis condition. The
    Board posed no questions that may have disabused counsel of their mistaken
    belief.

[37]

Second,
    I disagree that the positions of the parties were merely overlapping or
    parallel. The parties agreed on the main issue that the Board should not
    impose the most onerous disposition available in Part XX.1 of the
Criminal
    Code
 a detention order. The question of what form the cannabis condition
    would take did not detract from the fundamental agreement. Whatever form the
    cannabis condition may have taken, it could have attached to a detention order
    or a conditional discharge.

[38]

Third,
    the Board subsequently characterized the positions taken at this disposition
    hearing as a joint submission. As discussed in the next section dealing with
    fresh evidence, the appellant has since been before the Board at two
    restriction of liberty hearings. In its Reasons from one of these hearings, the
    Board wrote: On January 21, 2021 the Board held Mr. Elmans annual hearing,
    and
notwithstanding a joint submission for a conditional discharge
, the
    disposition was a detention order with the privilege to live in the community
    in approved accommodation (emphasis added).

[39]

Even
    if it could be said that the positions of the parties did not technically amount
    to a joint submission, it did not justify the appellant being stripped of the
    procedural protections recognized in
Osawe
. Many of the same fairness
    concerns prevail when the Board decides to impose a disposition that is more
    severe than what the Crown or the hospital requests. This principle is
    reflected in the sentencing jurisprudence on joint submissions.

[40]

In
R. v. Anthony-Cook
, 2016 SCC 43, [2016] 2 S.C.R. 204, the Supreme
    Court of Canada confirmed the safeguards that must be observed when a
    sentencing judge intends to reject a joint submission: notice to the parties
    and a chance to respond. If, after observing these safeguards, a sentencing
    judge still intends to reject the joint submission, they must provide reasons
    for doing so.

[41]

In
R. v. Blake-Samuels
, 2021 ONCA 77, 69 C.R. (7th) 274, this court
    extended
Anthony-Cook
by insisting on the same safeguards in
    circumstances where, absent a joint submission, a sentencing judge intends to
    impose a sentence more onerous than the Crown requests. MacPherson J.A. held
    that the same fundamental fairness concerns arise (at para. 32).

[42]

I
    would apply the same principle here. The Board was required to give notice of
    its intention to reject the positions of the parties before imposing a
    disposition that none of them wanted  a detention order under s. 672.54.

(3)

Was adequate notice given?

[43]

The
    Board did not provide explicit notice of its concern with the joint submission.
    However, notice need not be explicit; it may take different forms. This was
    explained by Laskin J.A. in
Osawe
, at para. 73:

Notice may be given in different ways. The presiding board
    chairperson may express the boards concerns about accepting a joint submission
    at the hearing itself and ask the parties whether they wish to lead additional
    evidence. If necessary, the board can adjourn its hearing so the parties can
    obtain the further evidence they may require.
Or, the boards concerns about
    accepting a joint submission may be evidence to the parties from the questions
    posed during the hearing by various board members.
If the parties have
    adequate notice from the boards questions, then the parties may ask for an
    opportunity to lead additional evidence or make additional arguments to address
    these concerns. Or, in some cases, concerns about the joint submission may
    arise after the board begins its deliberations, in which case the board may
    need to notify the parties and request further submissions or evidence.
    [Emphasis added.]

[44]

Subsequent
    decisions of this court have recognized that notice may be given indirectly or
    implicitly, by Board members asking questions that are significantly probing
    about the core elements of the joint submission: see
Re Benjamin
,
    2016 ONCA 118, at para. 22. Ultimately, whether the questions posed by the
    Board constitute sufficient notice is a contextual inquiry:
Re Nguyen
,
    2020 ONCA 247, 387 C.C.C. (3d) 13, at para. 20.

[45]

The
    questions posed by two Board members in this case constituted notice that the
    joint submission was in peril. The line of questioning pursued by Dr. Chaimowitz
    was specific, extensive, and probing on the issue of whether a conditional
    discharge, as opposed to a detention order, would permit the hospital to effectively
    respond to any decompensation triggered by the appellants cannabis use. Dr.
    Chaimowitz engaged Dr. Jones in a thoughtful discussion of this issue, during
    which he posed the following, probing questions:

Absent a detention order, the hospital has, in my view,
    essentially no tools at its disposal besides suggesting psychoeducation.
What
    do you think the hospital would do when, once the Board issues a disposition
    under conditional or detention, what would the hospital do with the positive
    tests and how would that play out?

So that would be my question. I mean, do you think a
    conditional discharge is going to be sufficient in protecting the public, i.e.,
    managing the risk posed by ongoing marijuana use?...
Do you think a
    conditional discharge would be sufficient with that condition in the
    disposition to manage risk?
[Emphasis added.]

[46]

Another
    Board member pursued a similar theme, asking questions that revealed the same
    skepticism that a conditional discharge would be efficacious in managing the
    appellants risk.

[47]

Consequently,
    I would find that the Board provided
adequate
notice that it was
    concerned with the joint submission; but it was far from
ideal
. It
    would have been preferrable had the Chairperson explicitly expressed the
    Boards reservations about the joint submission, either at the outset of the
    hearing, or later in the proceedings when they became manifest. Similar concerns
    were expressed by Lauwers J.A. in
Benjamin
, at para. 34.

[48]

At
    the end of the hearing, Board members could have briefly withdrawn to confer on
    this issue. Upon resumption of the hearing, questions could have been posed to
    the parties about the feasibility of a conditional discharge. Instead, the
    Board members remained silent. This important issue  whether the Board would
    accede to the joint submission  should not have been left to guesswork. However,
    in all of the circumstances, I cannot conclude that the hearing was procedurally
    unfair.

[49]

I
    would dismiss this ground of appeal.

E.

the fresh evidence

[50]

With
    admirable candour, counsel for the appellant, Mr. Stastny, provided us with an
    update of his clients circumstances since the Boards decision. Unfortunately,
    things have not gone well.

[51]

As
    noted above, the Boards order permitted the appellant to reside in approved
    housing in the community. After the Boards order, his treatment team changed.
    The new team approached the appellants situation differently than Dr. Jones.

[52]

On
    March 15, 2021, when the appellant reported to CAMH as he was required to do,
    he was not allowed to leave. The hospital initiated restriction of liberty
    proceedings under s. 672.56(2) of the
Criminal Code
.

[53]

On
    April 7, 2021, with the consent of the appellant, the Board ordered that the
    appellant remain at CAMH until it was considered appropriate to discharge him
    into the community. This did not happen until June 7, 2021.

[54]

The
    appellant was readmitted to hospital on June 29, 2021. This occurred after he
    failed a cannabis screen. He had also failed to maintain contact with his
    forensic outpatient worker. Another restriction of liberty hearing was held on
    August 4, 2021 at CAMH. This time it was contested. However, the Board ordered
    that the appellant remain at CAMH.

[55]

At
    the hearing of the appeal, we were advised that the appellant remains detained
    at the hospital. Although not before us for adjudicative purposes, these
    post-hearing events, along with the subsequent Board decisions, support the
    wisdom of the Boards earlier decision that a detention order was required in
    the circumstances.

[56]

The
    appellant has been before the Board three times this calendar year  at his original
    disposition hearing, and at his two restriction of liberty hearings. The Board is
    closely monitoring the appellants situation. They will do so again at his
    annual hearing, now scheduled for January 20, 2022.

F.

disposition

[57]

I
    would dismiss the appeal.

Released: November 5, 2021 D.W.

Gary Trotter J.A.

I agree. David Watt J.A.

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


