This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.
“Szigeti said that in decisions such as Shortt and Sim (Re) 2020 ONCA 563, the Court of Appeal is showing increasing frustration with the ORB repeatedly rehearing matters but failing to implement the court’s clear direction.”
“Where the situation rises to a level of ‘impasse,’ the board is mandated to break that impasse. This ability to order the government to provide the resources necessary to break the impasse is a new remedy available now to the accused and the board.”
Ontario Appeal Court decision a victory for not criminally responsible accused: lawyers
Tuesday, October 27, 2020 @ 9:45 AM | By John Schofield
Shortt (Re) 2020 ONCA 651 R. v. Conway 2010 SCC 22 Winko v. British Columbia (Forensic Psychiatric Institute) [1999] 2 S.C.R. 625Sim (Re) 2020 ONCA 563
The Ontario Court of Appeal has ruled that the Ontario government and the Ontario Review Board violated a man’s Charter right to liberty for the past six years by keeping him confined to a psychiatric hospital — even after his medical team and the board agreed in 2014 he could be moved into supportive housing in the community.
The Appeal Court’s Oct. 16 decision in Shortt (Re) 2020 ONCA 651 ordered the government at Wesley Shortt’s next Ontario Review Board (ORB) hearing in November to “respond immediately and meaningfully to this pressing need for implementation” of the supportive housing recommendation by the end of the year.
According to facts detailed in the decision, Shortt, who has severe physical and intellectual disabilities, was 26 years old and living with his parents in Guelph, Ont., in November 2006 when he threatened to kill his father during an argument. The police were called and he was arrested.
Following a trial, he was found not criminally responsible (NCR) with respect to one count of uttering threats and one count of failure to comply with probation. He was committed to forensic custody in March 2007 and is currently detained at St. Joseph’s Healthcare in Hamilton. During his time in forensic custody, his parents and some other family members died, removing the option of family support in the community.
Although Shortt is still considered to pose a significant threat to public safety, his psychiatrist and medical team, backed by the ORB, have agreed since 2014 that the risk can be managed and that he is eligible to live in the community with the appropriate support.
Under the auspices of the Criminal Code, the ORB annually reviews the status of every person who has been found to be NCR or unfit to stand trial for criminal offences for mental health reasons.
For six consecutive years, it considered the same recommendation for Shortt, but repeatedly put off acting on it when told by his hospital team that, despite their best efforts, they could not find a suitable place for him in the community and had received no assistance from the Ontario government in finding one.
To break the impasse, Shortt argued at his 2019 ORB hearing that his continued detention in forensic custody violated his s. 7 liberty rights under the Charter and that the prospective remedy under s. 24(1) of the Charter should be state funding for suitable supportive housing.
The board dismissed his Charter application, noting among other things that the ORB’s inquisitorial duties and its obligation to deal with systemic issues were limited, that it did not have the statutory authority to grant the remedy sought, and that the remedy of funding housing was similar to an order requesting costs or damages, which a previous Appeal Court decision ruled was beyond its powers. It also ruled that it could not hear the Charter application because it did not have “all affected and interested parties before it” — namely the Ministry of Children, Community and Social Services, which oversees supportive housing for those with mental health issues. Shortt appealed the dismissal of his Charter application.
In overturning the ORB decision, the Court of Appeal pointed to cases such as R. v. Conway 2010 SCC 22 to determine that the ORB is a “court of competent jurisdiction” that is entitled to decide Charter questions, to grant remedy, and with the inquisitorial duty to insist that all interested and affected parties appear before it.
The ORB also erred by equating a funding order with an order for costs or damages, the Appeal Court ruled. Referring to Winko v. British Columbia (Forensic Psychiatric Institute) [1999] 2 S.C.R. 625, the Appeal Court noted that Part XX.1 and s. 672.54 of the Criminal Code oblige the ORB to “protect the public from the NCR accused who poses a significant threat to public safety while safeguarding the NCR accused’s liberty to the maximum extent possible.”
The Court of Appeal rejected the Crown’s argument on appeal that community living would essentially be the same as life in the hospital, ruling that that would not “accord with the requirement for maximum liberty.”
“This is an exceptional case,” supernumerary Justice James C. MacPherson wrote for the three-judge Appeal Court panel, which included Associate Chief Justice J. Michal Fairburn and Justice Steve Coroza. “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.
“It is against this very unusual backdrop,” the decision added, “that Mr. Shortt’s liberty has been violated, and not in accordance with the principles of fundamental justice.”
Jeff Marshman, Grant & Marshman Criminal Defence Jeff Marshman with Toronto-based Grant & Marshman Criminal Defence, who served as counsel for the appellant, said it was the kind of case he felt personally invested in because of the injustice involved. Through its inaction, the ORB was effectively warehousing Shortt in the hospital, he added, which raised clear Charter concerns.
Marshman said the Court of Appeal decision is a strong reminder that the government can’t meet its constitutional obligations through “impenetrable bureaucracy and underfunding.”
“The government has certain constitutional obligations to people who’ve been found NCR and who are detained under this NCR regime, and it can’t simply lay back and throw out bureaucratic impediments that frustrate the rights and freedoms of people in the NCR system,” he told The Lawyer’s Daily.
“And with respect to the board, it’s a strong reminder that the board has a very active role to play in ensuring that NCR accused’s liberty and dignity is preserved and advanced meaningfully, and that includes not sitting back and saying, ‘This is a really sad, difficult problem, but there’s nothing we can do about it.’ ”
Jill Presser, Presser Barristers The Criminal Lawyers’ Association (CLA) was granted intervener status in the appeal, represented by Jill Presser of Toronto-based Presser Barristers and Cassandra DeMelo of Toronto-based DeMelo Law.
Presser said that, among other issues, the CLA argued that the onus should not be on the NCR detainee to determine how governments should fund supportive housing.
“Sure, hold the Charter claimant to their standard burden of proof,” she told The Lawyer’s Daily, “but don’t require them to reach behind the veneer of government and figure out who their appropriate payer is. How are they going to do that? That’s not fair, and the Appeal Court agreed with us about that.”
The Court of Appeal decision could potentially benefit the many people in the forensic mental health system whose care has suffered due to a lack of government funding, predicted Presser.
“You see it across the system that the resources aren’t there — that people languish in jails when they could be in hospitals, that people languish in hospitals when they could be in the community because the resources and the supports aren’t there,” she said. “And this decision could have precedential value or precedential impact in terms of individual people within the forensic mental health system using it as a precedent to bring Charter challenges and asking the board to make specific orders that the government makes the resources they need available.”
Anita Szigeti, counsel for The Empowerment Council Toronto lawyer Anita Szigeti, co-author of the 2020 book A Guide to Mental Disorder Law in Canadian Criminal Justice, was rebuffed in her bid for intervener status in the appeal as counsel for The Empowerment Council, a Toronto-based advocacy group for clients, survivors and ex-clients of mental health and addiction services.
Nevertheless, she celebrated the decision, calling it important for a host of reasons, “including that there is a s. 24(1) remedy that may be available to accused persons who are not provided housing or services that would make a discharge from hospital possible.
“We will have to wait and see how the cases that come before the review board now develop the range of Charter remedies in this regard that may become available,” she added in an e-mail to The Lawyer’s Daily.
Szigeti said that in decisions such as Shortt and Sim (Re) 2020 ONCA 563, the Court of Appeal is showing increasing frustration with the ORB repeatedly rehearing matters but failing to implement the court’s clear direction.
“The court is clearly signalling to the board that, in situations where the board itself has granted the accused a particular privilege, the failure to implement that privilege year after year is something the board must investigate,” she said. “Where the situation rises to a level of ‘impasse,’ the board is mandated to break that impasse. This ability to order the government to provide the resources necessary to break the impasse is a new remedy available now to the accused and the board.”
Crown counsel Dena Bonnet, who represented the Ministry of the Attorney General in the appeal, declined a request for an interview. “As this matter is within the appeal period, it would be inappropriate to comment,” Ministry spokesperson Brian Gray said in an e-mail.
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