Abernethy (Re), 2021 ONCA 509

Court of Appeal for Ontario

Date: 2021-07-16 Docket: C67878 & C68716

Before: Watt, Pardu and Trotter JJ.A.

In the Matter of: Robert Abernethy

An Appeal Under Part XX.1 of the Code

Counsel: Daniel J. Brodsky, for the appellant Manasvin Goswami, for the respondent, Attorney General of Ontario Leisha Senko, for the respondent, Person in Charge of the Centre for Addiction and Mental Health Jessica R. Szabo, for the respondent, Person in Charge of Ontario Shores Centre for Mental Health Sciences Julia Lefebvre, for the respondent, Person in Charge of Waypoint Centre for Mental Health Care

Heard: July 2, 2021 by videoconference

On appeal from the dispositions of the Ontario Review Board dated December 16, 2019 (C68716) and September 11, 2020 (C67878), with reasons dated January 6, 2020 and October 5, 2020.

Reasons for Decision

1The appellant appeals from two dispositions of the Ontario Review Board.

2The first, issued on December 16, 2019, transferred him from the Ontario Shores Centre for Mental Health Sciences (“Ontario Shores”), in Whitby, to the Centre for Addiction and Mental Health (“CAMH”), in Toronto. It was common ground that he should not stay at Ontario Shores and that a detention order should be made for some other facility. The appellant expressed a preference to go to CAMH and the Board acceded to that request, although alerting the appellant that the waiting list could be as long as a year. The appellant remained at the Secure Forensic Unit of Ontario Shores while waiting for a transfer.

3The second, issued on September 11, 2020, concerns an early review scheduled at the request of Ontario Shores. By August 2020, the appellant’s condition had worsened and Ontario Shores asked that he be sent instead and immediately to the highly secure Waypoint Centre for Mental Health Care (“Waypoint”), in Penetanguishene. Waypoint was prepared to accept the appellant. The appellant’s position was that he still wanted to go to CAMH and proposed an interim placement at facilities in Brockville or Hamilton until a place could be found for him in CAMH. The Board made a detention order for Waypoint.

The appeal from the December 16, 2019 disposition

4At the hearing this court concluded that this disposition was now moot. It had been superseded by the subsequent disposition. As a general rule, this court does not decide moot cases and there is no reason to depart from that approach here.

The appeal from the September 11, 2020 disposition

5There was no dispute that the appellant continued to constitute a significant threat to public safety and that a detention order was required. The issue the Board had to decide was where the appellant should be detained.

6The appellant was found not criminally responsible for the killing of two co-workers in 2011. He had a significant criminal record preceding these index offences, including several convictions for assault. He has been detained at Ontario Shores since 2015.

7The Board accepted the evidence of his treating psychiatrist, Dr. Harrigan, that the appellant’s manipulative, exploitive, menacing and threatening behaviour had resulted in serious psychological harm to staff and that there was a substantial risk of harm from him to staff and co-patients at Ontario Shores. The appellant had never taken any form of structured programing at Ontario Shores and was now confined to the most secure area, with little opportunity for exercise of privileges because staff did not feel safe escorting him to the limited privileges which might be available to him. It was impossible for staff to work with the appellant on a therapeutic level. There was, in any event, no treatment for psychopathy and no medications that could be offered. The treating doctor had to be accompanied by two security guards when dealing with the appellant.

8The appellant’s behaviour was getting worse. Dr. Harrigan testified that the appellant could no longer be safely managed at Ontario Shores or other similar facilities. In her view, the treatment team at Waypoint would be better placed to engage the appellant by leveraging the broader range of privileges available there.

9The appellant exhibited similar behaviour at the hearing before the Board.

10The Board concluded that a necessary and appropriate disposition would be a transfer to the maximum secure facility at Waypoint:

Given the management and therapeutic impasse which has been reached, the panel is unanimously of the opinion that the necessary and appropriate disposition, considering all of the provisions of s. 672.54 of the Criminal Code, would be a transfer to the maximum secure facility at Waypoint. The panel finds that to maintain the current Disposition of a transfer to CAMH would not adequately address the Board’s role in crafting a disposition of which the paramount consideration is to protect public safety, which includes staff and co-patients.

11The Board rejected the appellant’s proposal for a transfer to a different hospital, concluding that the maximum-security perimeter fence, surrounding the Waypoint facility, offered “a much larger physical environment” for Mr. Abernethy than the secure wards of the other proposed hospitals, and further “[w]ith the flexibility that this brings management of Waypoint and the treatment team, to the earning and exercising of unit privileges, it is hoped that Mr. Abernethy will be able to establish a therapeutic relationship with a new treatment team and all the staff at Waypoint.”

Analysis

12The Board’s decision was reasonable. It was obliged to consider the factors set out in s. 672.54 of the Criminal Code: “the safety of the public which is the paramount consideration, the mental condition of the accused, and the reintegration of the accused into society and the other needs of the accused.”

13The Board responded to the ongoing concern for public safety caused by the appellant’s behaviour while at the same time creating new opportunities for treatment and use of privileges by the appellant. The Board did not err by including within the ambit of public safety the safety of hospital staff and the appellant’s co-patients.

14There is nothing here which displaces the deference owed to the Board about the best way to manage the risk that the appellant poses to others. The Board’s reasons reflect an “internally coherent and rational chain of analysis” that is “justified in relation to the facts and the law”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, at para. 85.

Disposition

15Accordingly, the appeal from the disposition of December 16, 2019 is dismissed as moot. The appeal from the disposition of September 11, 2020 is dismissed.