Court of Appeal for Ontario
Date: 2019-05-06 Docket: C65796 Judges: Brown, Roberts and Zarnett JJ.A.
In the Matter of: Denis Lucien LePage
An Appeal Under Part XX.1 of the Criminal Code
Counsel:
- Michael Davies, for the appellant
- Christine Tier, for the respondent Attorney General of Ontario
- Janice E. Blackburn, for the respondent Person in Charge of the Waypoint Centre for Mental Health Care
Heard: April 24, 2019
On appeal against the disposition of the Ontario Review Board dated July 10, 2018.
Reasons for Decision
[1] The appellant, Denis Lucien LePage, has been under the jurisdiction of the Ontario Review Board ("the Board") since 1978, following a finding of not guilty by reason of insanity to the charge of possession of a weapon for a purpose dangerous to the public peace. For the vast majority of that time he has been at the Waypoint Centre for Mental Health Care or its predecessor ("Waypoint"). Mr. LePage has been diagnosed as suffering from Query Asperger's Disorder and Mixed Personality Disorder with Obsessive-Compulsive, Schizoid and Antisocial features.
[2] On June 21, 2018 the Board convened a review hearing. The evidence before the Board indicated, and the parties jointly submitted, that Mr. LePage remained a significant threat to public safety and that his continued detention at Waypoint was justified. The evidence also revealed a treatment impasse in that Mr. LePage does not engage constructively with the clinical team at Waypoint, and refuses Waypoint's attempts at therapy, but that he does, however, have faith in the psychiatrists and staff at Royal Ottawa Mental Health Centre (ROH).
[3] This led the parties to jointly submit to the Board that the appellant should continue to be detained at Waypoint with no change to the then current terms and conditions of his disposition. They also requested that there should be an in-patient assessment of the appellant at ROH. They disagreed on whether the terms of the in-patient assessment should include there being additional security present if a female patient was admitted to the Secure Assessment Unit at ROH where the appellant was expected to be during his assessment. The appellant objected to such a term as unnecessary. After the hearing before the Board, but before it made its disposition, ROH advised that it could not accommodate the appellant as an in-patient for an assessment. It indicated that an assessment could be done via Telemedicine Video Technology (OTN), an approach rejected by the appellant.
[4] The Board accepted the parties' joint submission and found that the appellant remained a significant threat to public safety and that he should continue to be detained at Waypoint on the terms previously in place and so provided in the disposition. The Board also accepted their joint request for an independent assessment but stated that it could not dictate to ROH how to manage the appellant during an assessment or whether the assessment should be done on an in-patient basis or OTN. It therefore included in its disposition the following term:
[3] AND IT IS FURTHER ORDERED that the person in charge of Waypoint Centre for Mental Health Care;
(b) arrange for an independent assessment of the appellant.
In its reasons for disposition, it stated that the details of the assessment would have to be worked out between the hospitals and the parties.
[5] The appellant appeals from para. 3(b) of the disposition. He asks that that paragraph be quashed and substituted with an appropriate disposition for his transfer to ROH for an independent psychiatric assessment.
[6] All parties before us agree that para. 3(b) of the Board's disposition reflects an error by the Board justifying appellate intervention. We agree. It was the Board's responsibility to determine whether an assessment should take place, where, and under what conditions in order to address the treatment impasse at Waypoint. It ought not to have transferred that responsibility to the parties to work out: see Gonzales (Re), 2017 ONCA 102. To be sure, the Board could take into account the extent to which the parties were agreed on terms for an assessment and if satisfied with the terms, order them or determine any points that were not agreed. But that is not what occurred, leaving the parties effectively without an order for an independent assessment that could be implemented.
[7] ROH has now advised that it could accommodate Mr. LePage for an in-patient assessment. Instead of simply setting aside para. 3(b) and sending the matter back to the Board, we set aside para. 3(b) of the Board's disposition and pursuant to ss. 672.78(3)(a) and (c) of the Criminal Code, replace it with the terms for an in-patient assessment at ROH attached to these reasons as Schedule A. Those terms are substantially the product of agreement that has been arrived at by the parties. We were informed during the hearing that the terms have been provided to ROH and are acceptable to it. We are satisfied the terms are reasonable.
[8] We were asked by the respondents to consider whether an additional term ought to be included mandating additional security at ROH if a female patient is admitted to the Secure Assessment Unit. We are satisfied that the combination of the balance of the terms, and the general responsibility of ROH to observe the appellant, keep all concerned safe and to take such steps as it deems appropriate to achieve that, makes a specific provision in this regard unnecessary.
[9] Waypoint asked that we admit fresh evidence on the topic of the amount and responsibility to pay the cost of the assessment, and that we direct that the cost of the independent assessment at ROH be borne by the Board. No party objected to the fresh evidence and we agree it should be admitted. We also agree that the cost of the assessment should be borne by the Board: Ontario (Attorney General) v. Taylor, 2010 ONCA 35, at paras. 3, 14, 15 and 21. That provision is included in the terms in Schedule A. We were advised that counsel for the Board was present in court while that issue was discussed. The Board made no objection to the inclusion of this provision in the terms we ordered.
[10] Accordingly the appeal is allowed to the extent that para. 3(b) of the Board's disposition is set aside and replaced with the terms set out in Schedule A to these reasons. The balance of the Board's disposition shall continue in force.
David Brown J.A.
L.B. Roberts J.A.
B. Zarnett J.A.
Schedule A
The disposition of the Board dated July 10, 2018 is amended by deleting para. 3(b) thereof and replacing it with the following terms:
[1] The person in charge of Waypoint Centre for Mental Health Care shall:
(i) safely and securely transport the accused to the Secure Assessment Unit of the Ottawa Site of Royal Ottawa Mental Health Centre for a comprehensive inpatient assessment for a period not exceeding 60 days as soon as practicable;
(ii) ensure the transfer of the accused from Waypoint Centre for Mental Health Care to Royal Ottawa Mental Health Centre for the independent assessment shall only be with the cooperation of the accused. Physical force is not authorized to implement the Order. The security details of the transfer shall be as directed by the person in charge or his or her designate; and
(iii) detain the accused on readmission from Royal Ottawa Mental Health Centre in accordance with paras. 1 and 2 of the Board's disposition dated July 10, 2018.
[2] The person in charge of Royal Ottawa Mental Health Centre shall detain the accused in custody on the Secure Assessment Unit in which the person in charge shall conduct an inpatient assessment, with all security or supervisory measures that the person in charge deems appropriate, including that the person in charge:
(i) shall secure the accused in his room between 11:00 p.m. and 7:00 a.m.;
(ii) may permit the accused to have access to a secure yard or gymnasium in the hospital, escorted by staff;
(iii) may permit the accused to attend outside the hospital for necessary medical, dental, legal or compassionate purposes, escorted by a minimum of two staff;
(iv) shall safely and securely transport the accused to Waypoint Centre for Mental Health Care Provincial Forensic Programs at the earliest of the completion of the assessment or the expiry of 60 days from admission;
(v) notwithstanding clause (iv) above, may safely and securely transport the accused to Waypoint Centre for Mental Health Care Provincial Forensic Programs at any time should his behaviour warrant it in the opinion of the person in charge of Royal Ottawa Mental Health Centre;
(vi) shall report in writing to the Ontario Review Board and the person in charge of Waypoint Centre for Mental Health Care as to the outcome of the assessment as soon as practicable after the accused's readmission to Waypoint Centre for Mental Health Care Provincial Forensic Programs; and
(vii) shall notify the local police at such times as he or she exercises his or her discretion to permit the accused to enter the community and to advise the local police of the terms and conditions under which he or she permitted the accused to do so pursuant to this clause.