Hines (Re), 2022 ONCA 402

Court of Appeal for Ontario

Date: 2022-05-18 Docket: C69829

Judges: Simmons, Harvison Young and Coroza JJ.A.

In the Matter of: Christopher Hines

An Appeal Under Part XX.1 of the Code

Counsel: Mercedes Perez, for the appellant Linda Shin, for the respondent, Attorney General of Ontario Julia Lefebvre, for the respondent, Person in charge of Waypoint Centre for Mental Health

Heard: May 6, 2022

On appeal from: The disposition of the Ontario Review Board, dated August 12, 2021, with reasons dated August 30, 2021.

Reasons for Decision

[1]

Background

On August 12, 2013, the appellant Mr. Hines was found not criminally responsible on account of mental disorder (“NCRMD”) on four charges of failing to comply with a probation order and three charges of assaulting a peace officer.

2At his most recent Ontario Review Board (the “Board”) hearing on July 30, 2021, all parties agreed that the appellant continued to present a threat to public safety, and that a continuation of the detention order was necessary. The only substantive issue was whether his continued detention at the high secure (maximum secure) unit at the Waypoint Centre for Mental Health was the least onerous and restrictive disposition available. The appellant requested a transfer to a medium secure facility in the Greater Toronto Area.

3Although a hospital report had originally recommended a transfer to either the Centre for Addiction and Mental Health (“CAMH”) in Toronto or Ontario Shores Centre for Mental Health Science in Whitby, a subsequent update to that report dated July 30, 2021, changed its recommendation to a continuation of the existing disposition.

4That change was based upon two main factors. First, in the view of the hospital and the appellant’s treating psychiatrist, Dr. Hudson, the responses from CAMH and Ontario Shores did not support the feasibility of a transfer. Ontario Shores, a medium secure facility, declined a transfer on the basis that it could not manage the risk presented by the appellant. CAMH advised that the wait for a bed could last years. Second, the day before the hearing, there was an incident of aggression which required the isolation of the appellant for three hours.

5Following the hearing, the Board accepted the hospital’s updated recommendation that the existing disposition be continued. The appellant appeals on the basis that the decision was unreasonable. He claims the Board failed to render the least onerous and restrictive disposition available, especially by failing to order a transfer to CAMH.

[6]

Analysis

We do not accept these submissions.

7In reviewing the hospital reports and the evidence given at the hearing, the Board expressly considered both the progress that Mr. Hines has made and the evidence indicating that a transfer order would be premature. In particular, it noted that Ontario Shores, a medium secure facility, would not accept a transfer because it was not confident that it could manage the risk posed by the appellant. It also considered the fact that CAMH had indicated that while it does have the ability to manage the risk posed by the appellant’s condition, the waiting list is long and may take more than a year.

8Further, while acknowledging that the appellant had made significant progress over the reporting year, the Board noted that he still suffered residual symptoms from his schizophrenia (now in partial remission) and had been opposed to an increase in his Clozapine medication until the previous week. It also considered Dr. Hudson’s evidence that he was reluctant to increase the appellant’s medication until medications to manage the side effects were available. The side effects were the reason for the appellant’s unwillingness to take the Clozapine to begin with. Dr. Hudson advised that while he was hopeful that the medication regimen could be optimized and render the appellant’s condition more stable, other issues, such as the diagnoses of antisocial personality disorder and borderline personality disorder, still needed to be addressed.

9Having reviewed the evidence before it, the Board agreed that a transfer at that time would be inappropriate. In the past reporting year there had been 10 aggressive instances and three seclusions, the most recent within the previous 48 hours, and one incident of physical aggression in the last reporting year.

10These recent events, the Board continued, must be considered within the context of his history, both at Waypoint and less secure facilities.

11Moreover, the Board agreed that it would not be appropriate to guess how Mr. Hines will do in the coming year, especially in light of the most recent event, set out in the Update. Dr. Hudson was quite clear that the hospital would call an early Board hearing if Mr. Hines were to become more responsive to an increase in his Clozapine dosage. This approach is appropriate, the Board found, so as not to set up Mr. Hines for failure nor to increase his risk to the safety of the public.

12The appellant argues that the Board should have ordered the transfer to CAMH, and that its failure to do so was unreasonable because it amounted to a failure to render the least onerous and least restrictive disposition. He submits that the concerns about his condition at the point of acceptance by CAMH could be addressed in a number of ways. First, the Board could ensure a re-hearing prior to a transfer being effected to ensure and reconfirm that the appellant was ready for a transfer. This would ensured that “the objective of Mr. Hines’ ultimate community reintegration (albeit step-wise and cautious) was not delayed by factors that had no relation to significant risk (i.e., wait lists at the receiving hospital).” Second, he suggests that the existing disposition could have been maintained with a provision mandating an early review “in a few months”.

13We disagree.

14The record before the Board supported the disposition rendered. The Board was expressly cognizant of its obligation to provide the least onerous and restrictive disposition given the risk posed by the appellant to the safety of the public.

15Given the hospital’s undertaking to call an early hearing if appropriate, it was open to the Board to accept Dr. Hudson’s and the hospital’s recommendation that a premature transfer would set the appellant up for failure and require his return to Waypoint.

[16]

Conclusion and Disposition

The appellant does not argue that the Board applied incorrect legal principles, but that it erred in concluding that a transfer at this time was not appropriate, given the speculation as to when a place would become available and the appellant’s condition at that point. In essence, the appellant asks this court to reweigh the evidence. That is not our role. We are unable to say that the Board’s decision fell outside of a range of reasonable outcomes given the record before it. The appeal is therefore dismissed.