Court of Appeal for Ontario

Date: 2018-08-31 Docket: C64874

Justices: Watt, Huscroft and Fairburn JJ.A.

In the Matter of: Geoffrey Le Feuvre

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• Joe Hanna, for the respondent
• Anita Szigeti, for the appellant
• Kathryn Hunt, for the Person in Charge of the Centre for Addiction and Mental Health

Heard: August 21, 2018

On appeal from: the disposition of the Ontario Review Board, dated December 18, 2017.

Reasons for Decision

Introduction

[1] Geoffrey Le Feuvre appeals from the December 18, 2017 disposition of the Ontario Review Board, pursuant to which he remains detained at the Centre for Addiction and Mental Health ("CAMH").

[2] Before the Board, the parties agreed that the appellant continues to pose a significant threat to the safety of the public. The only issue on the review concerned the appropriate disposition. The Board continued the appellant's "hybrid order", requiring that he be detained within the Secure Forensic Unit, with discretion to transfer him to the General Forensic Unit. If and when detained within the General Forensic Unit, the Board granted the Person in Charge the discretion to permit the appellant to live in the community in 24-hour a day supervised accommodation.

[3] The appellant argued that the appeal should be allowed and that he should be granted an order detaining him in the General Forensic Unit of CAMH, with the discretionary privilege of residing in the community in supervised accommodation on the approval of the Person in Charge. In the alternative, he asked that the matter be remitted to the Board for a new hearing before a differently constituted panel of the Board. Despite the position taken by counsel for the appellant (not appeal counsel) before the Board – that a detention order was appropriate – the appellant also submitted to this court that an absolute or conditional discharge should be ordered. In the further alternative, the appellant requested that this court order CAMH to retain independent professional services to break what he described as a treatment impasse.

[4] The Crown and the Person in Charge seek to uphold the Board's disposition, arguing that the Board's decision is reasonable and that there is a reasonable treatment plan in place.

[5] For the reasons that follow, we have concluded that the Board's disposition is not reasonable. The appeal is allowed and the Board is directed to take action in accordance with this decision.

Background

[6] The appellant is a 67-year-old man with a lengthy psychiatric history. Among other things, he has been diagnosed with bipolar disorder, polysubstance dependence, personality disorder (with marked antisocial, narcissistic, and psychopathic traits), and a differential diagnosis of schizoaffective disorder. He lacks insight into his mental health.

[7] He has a number of complex and serious medical conditions, including Hepatitis C, reflux disease, and diabetes. He has a lengthy history of alcohol abuse, a history of marijuana and cocaine use, and has also engaged in glue-sniffing, the use of prescription opiates, and the consumption of methamphetamine.

[8] The index offence occurred in 2007. The appellant was found not criminally responsible on account of mental disorder after having carried out a series of attacks on strangers and having caused damage to property.

[9] The appellant was detained on the General Forensic Unit of CAMH for seven years, with privileges including indirectly supervised passes and the possibility of community living in approved accommodation. However, in 2015, he was transferred from the General Forensic Unit to the Secure Forensic Unit, in order to have access to more effective and suitable rehabilitative programs.

The Evidence

[10] From the perspective of his treating psychiatrist, Dr. Liu, and the CAMH report, the difficulty in returning the appellant to the community is his inability to follow the rules. The appellant's indirectly supervised passes have been suspended since August 2017 because of rule violations and an incident in which he went AWOL in order to obtain cigarettes, which are forbidden in CAMH buildings.

[11] Dr. Liu gave evidence that a plan then under consideration was to transfer the appellant not to the General Forensic Unit but to the LGUD, a more secure and highly supportive general unit, while providing behavioural programs to address these concerns. The transfer was to occur within the following three months.

[12] Under questioning from the Board, Dr. Liu said that transferring the appellant to a secure home in the community was premature in light of his constant rule-breaking, and it was necessary to see how he fared in the general unit before making such a transfer. The Board found that "[t]he hope appears to be that the creation of a specialized behavioural program for Mr. Le Feuvre on the LGUD will pave the way for his re-entry into the community."

Discussion

[13] We start from the position that the Board properly found that the appellant remains a significant threat to the safety of the public, a matter not in dispute at the hearing. The question is whether the Board's disposition is reasonable in light of all of the circumstances.

[14] The Board notes that the "efficacy of rehabilitative programs in the secure unit has been exhausted", and refers to an "apparent impasse" in Mr. Le Feuvre's rehabilitation process. Following that finding, the Board's decision is replete with a sense of urgency. The Board notes:

a. "the need to transfer Mr. Le Feuvre into a General Forensic Unit without delay in order to facilitate his future entry into the community";

b. that "[i]t is abundantly clear that, if Mr. Le Feuvre is ever to get out of Hospital and into the community in supervised accommodation, the general cascading principle does not apply to him";

c. that "[t]he time is now for Dr. Liu and the treatment team to work toward Mr. Le Feuvre's transfer to the LGUD in the near future, with a more immediate view to a resumption of his indirectly supervised passes";

d. that "[i]t may not be reasonably expected that Mr. Le Feuvre will be living in the community in the next reporting year, however, the Board expects the Hospital to work toward that goal by focusing on a transition from the LGUD into the community";

e. that "[t]here may be a maximum level of compliance which [Mr. Le Feuvre] can achieve within the Hospital setting and a transition to a high security, structured facility in the community may be the best option"; and that

f. "active steps need to be taken to look for the correct fit, and efforts made to facilitate Mr. Le Feuvre's placement [in a high security, structured community facility] in a timely fashion." [Emphasis added.]

[15] Plainly, the Board recognized the pressing need to take meaningful steps toward the ultimate goal of returning the appellant to the community. He is 67 years old and in poor health. The Board also noted that the appellant's treatment – suspension of his indirectly supervised passes for mere rule violations (typically involving the appellant's smoking addiction) that "did not rise to the level of a significant threat" – was "bordering on punitive".

[16] Having identified a treatment impasse and recognized the urgency of the situation, it was unreasonable for the Board simply to continue the hybrid order and make suggestions about what CAMH should do – suggestions that do not appear to have been acted upon, at least in a timely way. Given the appellant's advancing age and declining health, the length of his detention, and in particular the lack of progress that has been made in improving his situation, the Board's suggestions to CAMH are inadequate.

[17] Accordingly, we allow the appeal to this extent: the Person in Charge is directed to obtain an independent assessment of the appellant and to have a report prepared, in consultation with the appellant's current treatment team, reviewing the appellant's history and establishing a plan to advance the appellant toward the ultimate goal of reintegration into the community. The report should be prepared within three months of the date of this decision.

[18] The matter is referred back to a differently constituted panel of the Board for rehearing as soon as possible after the report has been prepared and, in any event, not later than the date of the appellant's next annual review.

David Watt J.A.

Grant Huscroft J.A.

Fairburn J.A.