Court of Appeal for Ontario

Date: 2019-12-05 Docket: C65778 Judges: Watt, Miller and Fairburn JJ.A.

In the Matter of: David Walker

An Appeal Under Part XX.1 of the Code

Counsel:

• Suzan E. Fraser, for the appellant
• Amy Alyea, for the respondent, the Attorney General of Ontario
• Janice E. Blackburn, for the respondent, Person in Charge of Waypoint Centre for Mental Health Care

Heard: September 13, 2019

On appeal against the disposition of the Ontario Review Board dated June 29, 2018, with reasons dated July 27, 2018.

Reasons for Decision

Introduction

[1] The appellant committed a violent sexual assault and was found not criminally responsible because of mental disorder (NCR) in 1981. He came under the authority of the Ontario Review Board. On May 31, 1997, while on a community pass from his forensic hospital, the appellant committed another violent sexual assault. He was convicted of offences including sexual assault with a weapon, robbery, uttering threats and unlawful confinement. He was subsequently declared a dangerous offender on February 16, 1999, and has been in the penitentiary since his initial placement hearing. He is subject to a disposition from the Review Board that he be detained at Waypoint Centre for Mental Health Care (Waypoint) should he cease to be subject to a term of imprisonment.

[2] The appellant is therefore a dual status offender as defined by s. 672.1(1) of the Criminal Code, meaning that he is subject to a sentence of imprisonment in respect of one or more offences and a custodial disposition (detention order) under s. 672.54(c) in respect of others.

[3] The single issue on this appeal is whether the Review Board erred in its interpretation of the Criminal Code provisions requiring it, on application of the offender, to hold a placement hearing to determine whether the current place of custody of the offender is inappropriate to meet that offender's mental health needs or to safeguard the well-being of other persons.

[4] The Review Board's position is that s. 672.69(2) requires it to schedule a placement hearing on application by a dual status offender if – and only if – the Review Board is satisfied that there has been a significant change in the offender's circumstances. The Review Board's position is that although it has the authority to conduct a placement hearing together with a review hearing – as was its former common practice – an offender can only trigger the scheduling of a placement hearing after the Review Board has first determined that there has been a significant change in circumstances.

[5] The appellant objects to this "bifurcated" approach to a placement hearing and argues that the Review Board had an obligation to order a placement hearing in the circumstances of the appellant.

[6] For the reasons that follow, we disagree.

Background

[7] In a pre-hearing conference on May 15, 2018, held prior to his annual review hearing, the appellant advised that he wished to be moved from prison to Waypoint, and would make that request at the June 27, 2018 review hearing. The appellant was advised that the June 27 hearing would likely be a disposition review only, but that if the evidence at the review hearing established a significant change in the appellant's circumstances that would warrant a placement hearing, the Review Board would likely order a placement hearing to take place at a later date and before a different panel.

[8] At the June 27 review hearing, the appellant argued that the Review Board had an obligation to review the appellant's placement on its own motion, which did not depend on the existence of a significant change in circumstances. In the alternative, the appellant contended that the evidence heard by the Review Board in the review hearing established that there had been a significant change in the appellant's circumstances, necessitating that a subsequent placement hearing be scheduled.

[9] In its reasons, the Review Board did not address the submission that it was obligated to review the appellant's placement on its own motion.

[10] Considering the alternative submission, the Review Board found there was insufficient evidence to establish a significant change in circumstances. It was therefore not obligated to schedule a placement hearing. In reviewing the evidence said to establish a significant change in circumstances, the Review Board noted:

• There is no recent evidence to counter the 2008 Forensic Psychiatric Report of Dr. Hucker, concluding that the appellant had access to "a much better coordinated regimen of sex offender programming within CSC than within the Ontario Forensic Mental Health System, which, of necessity, focusses mainly on the management of chronic psychosis". Furthermore, the appellant was not being treated with anti-psychotic medications and there was no evidence that he suffered from psychosis.

• With respect to the argument that the appellant's participation and engagement in programming has improved since 2008, the Review Board concluded that the 10 years of criminogenic programming did not alter the risk he poses as a dangerous offender.

• With respect to the argument that the appellant's risk to the safety of the public has been reduced and he can now be managed at Waypoint, the Review Board highlighted a 2017 Correctional Plan that concluded "(t)here have been minimal gains made in this case that could be seen as mitigating risk."

• With respect to the argument that the treatment of the appellant's criminogenic needs would be better addressed within a forensic mental health facility such as Waypoint, the Review Board accepted the evidence of Dr. Tapscott that the appellant's mental health needs are met at the Bath Institution. The Review Board also noted the absence of any evidence of augmented (or any) treatment for sex offenders within Ontario's Forensic Mental Health System.

Analysis

The Statutory Scheme

[11] The statutory scheme for dual status offenders is set out in ss. 672.67 to 672.71 of the Criminal Code. It sets out the approach for prioritizing two custodial orders: one made pursuant to the sentencing provisions of Part XXIII of the Criminal Code, and one made pursuant to the mental disorder provisions of Part XX.1 of the Criminal Code.

[12] Section 672.67(1) of the Criminal Code provides that where a court imposes a sentence of imprisonment on a dual status offender, "that sentence takes precedence over any prior custodial disposition, pending any placement decision by the Review Board." The scheme therefore prioritizes the most recent custodial order, presumably on the basis that the most recent order best reflects the offender's current state of psychiatric health. Where the criminal conduct was found to have been committed wilfully and resulted in a conviction, it is more likely that the offender's mental disorder was not acute at that time.

[13] Nevertheless, s. 672.68(2) enables the Review Board to make a change to the offender's placement in order to better meet the offender's mental health needs, or to better safeguard other persons. Section 672.68(2) provides the Review Board with the authority to make a placement determination after giving notice to the offender and the Minister, "where the Review Board is of the opinion that the place of custody of a dual status offender pursuant to a sentence or custodial disposition made by the court is inappropriate to meet the mental health needs of the offender or to safeguard the well-being of other persons".

[14] Additionally, s. 672.69(2) provides a dual status offender with the power to apply for a placement hearing: "(t)he Review Board shall hold a hearing as soon as practicable to review a placement decision, on application by the Minister or the dual status offender who is the subject of the decision, where the Review Board is satisfied that a significant change in circumstances requires it."

[15] Section 672.69(3) further provides that "(t)he Review Board may of its own motion hold a hearing to review a placement decision after giving the Minister and the dual status offender who is subject to it reasonable notice."

The Appellant's Argument

[16] The appeal is centred on the statutory interpretation of the above provisions. The appellant argues that the Review Board erred in not carrying out its statutory obligation to review placement whenever it reviews an offender's disposition.

[17] The appellant submits that placement decisions are inextricable from dispositions, in that they both require the Review Board to consider the present circumstances of the offender, and that the appropriateness of placement is always in issue on a disposition review. The Review Board is said to have erred in following a bifurcated approach – to not schedule a placement hearing unless significant change is established in the review hearing. The appellant contends that is, "placement" is an essential element of disposition, such that placement must always be considered whenever disposition is reviewed. The appellant refers to this as the "holistic" approach, which it contrasts with the "bifurcated" approach followed by the Review Board in this case.

[18] The appellant draws support from the former practice of the Review Board, which was to conduct a placement review when it conducted an annual disposition review, and to give notice of both hearings simultaneously.

[19] In the alternative, the appellant argues that even if placement review is not inherently an aspect of a disposition review, the Review Board in this case fettered its jurisdiction by not considering whether to order a placement review on its own motion. The appellant advances an interpretation of s. 672.69(3) that would require the Review Board to order a change in placement so as to make the least restrictive disposition consistent with public safety.

Application

[20] We are not persuaded by either of the appellant's arguments.

[21] As a preliminary matter, with respect to the standard of review, the Review Board is interpreting the provisions of its home statute and is presumptively entitled to deference. With this in mind, the fact that the Review Board formerly interpreted the provisions of the Code differently does not establish that the present interpretation is unreasonable.

[22] On the Review Board's interpretation of the Code, a significant change in the circumstances of the offender is a prerequisite to the Review Board granting a request to schedule a placement hearing on the offender's application. The Review Board is interpreting its home statute and its interpretation is entitled to deference. The appellant has not identified any basis on which we could interfere with the Review Board's interpretation of its obligations under the Code.

[23] With respect to the appellant's argument that the Review Board was necessarily required to conduct a placement review as a part of a disposition review, we disagree. The interpretation advanced by the appellant conflates the two independent review schemes established in the Code and the distinct criteria appropriate to each. The fact that there will be some commonality in the factors assessed in each review does not provide, in the face of statutory language to the contrary, any warrant to combine them.

[24] With respect to the second argument, we do not agree that the Review Board fettered its discretion. The fact that the Review Board has the jurisdiction to schedule a placement review on its own motion does not establish that it was required to do so in the circumstances of the appellant, or that its failure to do so was the result of the adoption of an invariable policy. There was no evidence before the Review Board to suggest that a change in placement would advance the goals of the statutory scheme. We are not persuaded by the appellant's argument that he was not in a position to adduce evidence in this regard because of his incarceration. It would not have been difficult for the appellant, through counsel, to have sought information from Waypoint as to what therapeutic programming – if any – was available at Waypoint to meet what the appellant asserts are his therapeutic needs. The evidence before the Review Board was that the appellant has no therapeutic needs that are not met in his current placement at the Bath Institute, and that Waypoint does not provide programming for sex offenders. The Review Board made no error in not scheduling a placement hearing.

Disposition

[25] The appeal is dismissed.

"David Watt J.A."

"B.W. Miller J.A."

"Fairburn J.A."