Ontario Review Board can remedy Charter Breaches with funding orders: Court of Appeal

The Court of Appeal has found that the Ontario Review Board has jurisdiction to remedy Charter breaches with funding orders, “a big step forward” for the many with severe disabilities who are stranded in the system due to lack of resources, says Jill Presser.

“Lack of funding has really been a big problem in the forensic psychiatric system,” says Presser, a criminal defence lawyer from Toronto. “We very often see individuals with severe mental health issues languishing in jails while they wait for a treatment bed or an assessment bed. We see individuals under the Review Board's jurisdiction languishing in maximum security when the Board has said they could move down to medium or minimum, but the beds aren’t available. We see [not criminally responsible] accused languishing in hospital… when everybody recognizes they could move into the community.”

“We see a lack of resources being a really big problem that ends up impacting on the rights of a very vulnerable group of people.”

The Ontario Review Board is an independent tribunal which has jurisdiction over those found unfit to stand trial or not criminally responsible (NCR) due to mental disorder.

In Shortt (Re), 2020 ONCA 651, the Court ruled the Review Board must work with the government to move Wesley Shortt out of custody in a hospital and into the community.

Wesley Shortt has spent the last 13 years detained in a forensic psychiatric hospital after being found NCR for one count of uttering threats and one count of failure to comply with probation. For the last six years in his annual review, the Review Board has deemed Shortt eligible to live in the community if the proper resources are provided. But Shortt’s numerous and complicated mental health and cognitive challenges, as well as his lack of available family support, mean he would require significant resources to live in the community, rather than the hospital.

Shortt is detained at St. Joseph’s Healthcare Hamilton and the hospital has been unable to coordinate with the Government of Ontario to get Shortt set up to live in the community, since he was first ruled eligible to do so in 2014.

“Year after year, Mr. Short would go back to the board to have his annual hearing. And everybody would agree that he could safely be discharged out of – basically being an inmate in hospital to living in the community,” says Presser. “But there being no resources, he had to continue living detained in hospital.”

In 2019, having again received the same result from the Review Board, Shortt appealed his disposition to the Court of Appeal.

The Court of Appeal agreed to hear the case, finding Shortt was legally entitled to the least restrictive and least onerous disposition that is consistent with public safety. The Court sent Shortt back before the Review Board.

He then brought a Charter challenge before the Review Board, arguing his continued detention violated his s. 7 right to life, liberty and security of the person. He sought a remedy under s. 24 to be given state funding for suitable housing and medical support. The Review Board refused to hear the Charter challenge, arguing that though the Ministry of the Attorney General was represented at the hearing, it was not the government entity which would end up funding Shortt’s resettlement and support. The Review Board declined to hear the case, deciding that it did not have the jurisdiction to make funding orders because, based on previous Court of Appeal jurisprudence, it could not order costs or damages to remedy Charter breaches.

Shortt appealed again.

Court of Appeal Justices James MacPherson, Michael Fairburn and Steve Coroza all agreed the Review Board was incorrect in refusing to hear the Charter motion and that Shortt’s s. 7 rights were violated. The Court found it was not up to Shortt to figure out the specific government agency by which his supports would be funded – if government were represented at the hearing, that would be sufficient.

The Court rejected the Review Board’s argument that it could not remedy the Charter breach because the funding order sought as a remedy was not the same as the costs and damages the Review Board could not order. The funding order for Shortt’s housing and support in the community lacked the punitive element present in a costs or damages award for a Charter breach.

The Court sent Shortt back to the Review Board and directed that a party representing government must attend the hearing and work with the Board to find the resources and find Shortt a place to live.

The Court found that when an NCR accused appears before it, the Review Board must take its inquisitorial duty “very seriously” and proactively seek out evidence and information that will aid in fulfilling its mandate of writing the “least onerous, least restrictive disposition that is consistent with public safety,” says Presser.