Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20230404 DOCKET: C70812

Huscroft, Sossin and George JJ.A.

IN THE MATTER OF: Raymond Mitchell

AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel: Anita Szigeti and Michael B. Schloss, for the appellant Michael Fawcett, for the respondent Attorney General of Ontario

Heard: March 3, 2023

On appeal from the disposition of the Ontario Review Board dated March 29, 2022, with reasons released on May 3, 2022.

Reasons for Decision

1The appellant appeals from the disposition of the Ontario Review Board (“the Board”) ordering that he be transferred from St. Joseph’s Healthcare Hamilton (“St. Joseph’s” or “the Hospital”), a medium security facility, to the high secure unit at Waypoint Centre for Mental Health Care (“Waypoint”).

2The appellant submits that the Board erred in failing to consider Gladue principles in its disposition and that the disposition is unreasonable.

3For the reasons that follow, we dismiss the appeal.

Background

4In 2010, the appellant, a 32-year-old Indigenous man, was found not criminally responsible on index charges of assault with intent to resist arrest and assault causing bodily harm, as well as a second group of offences: mischief, assault with a weapon, and assault causing bodily harm. These offences included assaults against a police officer and a nurse.

5The appellant’s Hospital Report indicates that he could not articulate “any sense of remorse or empathy”, and appeared to have “persecutory delusions, thought intersection and feeling controlled”.

6From 2010 until the disposition under appeal, made in March 2022, the appellant has, but for a brief period in 2016 and early 2017, been detained. From 2010 until 2013 the appellant was detained at Waypoint. In 2013 he was transferred to Ontario Shores Center for Mental Health Sciences secure forensic unit, and in 2014 to its general forensic unit.

7In 2016 the appellant was discharged in the community, but within a year relapsed to cannabis and opioid use, and after damaging his then-girlfriend’s apartment and stabbing her roommate, he was convicted of further criminal offences and detained at Waypoint. From 2019 until the disposition under appeal, the appellant was detained at St. Joseph’s.

8At the appellant’s March 2022 review hearing, the Board had the benefit of a Hospital Report and a Gladue Report. It also received testimony from Dr. Ferencz, the appellant’s attending psychiatrist, and Dr. Chaimowitz, head of Forensic Services at St. Joseph’s and designated Person in Charge.

9Dr. Chaimowitz testified that the appellant could no longer be managed at St. Joseph’s. He expressed concern about the potential for physically assaultive behaviour and described the appellant’s conduct as traumatic to hospital staff. Dr. Ferencz testified that the appellant was causing chronic psychological violence on staff, but noted that “the number of incidents of inappropriate behaviour have gone down” since being advised of the hospital’s recommendation that he be transferred to Waypoint.

10According to the Hospital’s evidence, the appellant has characterological problems, compounded by substance abuse, rather than a primary psychotic disorder. Dr. Ferencz testified that the appellant’s characterological problems are tied to intergenerational trauma, his difficult upbringing, and other issues identified in the Gladue Report.

11The Hospital recommended that the appellant be transferred to Waypoint. The Crown agreed with the Hospital. The appellant did not contest the issue of significant threat, but opposed the transfer to Waypoint. He wanted to stay at St. Joseph’s, or be transferred to another hospital with the same security level.

12The Board found that the appellant’s history “reveals an ongoing pattern over many years of oppositional, threatening, violent and sexually inappropriate behaviour”. The Board acknowledged that the appellant has shown some improvement and demonstrated an ability to conform to hospital rules at various points. However, because of his persistent “threats of violence, sexually inappropriate targeting of female staff”, abscondments, and other evidence detailing his conduct’s detrimental impact on staff, the Board concluded that he poses a risk that cannot be managed at St. Joseph’s.

13The Board referenced the Gladue Report, noting that the appellant “made no efforts to align himself with any of the cultural supports outlined in some detail in the Gladue Report”. The Board also took note of the appellant’s submissions regarding taking judicial notice of his Indigenous status and the potential for systemic racism.

Analysis

(1) The Board’s decision to transfer the appellant to Waypoint was reasonable

14In explaining its disposition, the Board stated, at para. 42:

Based on the evidence at the hearing, in addition to the materials made available to us, the Board finds that Mr. Mitchell is a significant threat to public safety and finds that his risk can no longer be managed at St. Joseph’s or any medium secure facility and is best done at Waypoint. This institution is able to provide the structure and support he requires and hopefully, as stated by Dr. Ferencz at the hearing, can constitute a reset and fresh start for him. In the past, Mr. Mitchell has had success at Waypoint. A reassessment of his diagnosis and potential need for medications might well help with his rehabilitation.

Based on all the evidence the Board found that the Disposition as noted above was necessary and appropriate.

15There was no question that the appellant’s continued detention was necessary (this was not disputed by the appellant). The only issue was the transfer between St. Joseph’s and Waypoint. The transfer was recommended by the Hospital and supported by the Crown, and was primarily a response to the appellant’s disruptive and inappropriate conduct toward St. Joseph’s staff. As the Board explained, at para. 40:

Evidence at the hearing from Mr. Mitchell’s attending psychiatrist, Dr. J. Ferencz and from the head of Forensic Service, Dr. G. Chaimowitz, detailed the detrimental impact of Mr. Mitchell's behaviour on staff at St. Joseph's. This behaviour has created an atmosphere of fear and anxiety among staff which has escalated to the point that the hospital has determined that the risk posed by him can no longer be tolerated or managed at St. Joseph’s . [Emphasis added.]

16The transfer, to a maximum-security facility, also responded to the public risk posed by the appellant’s abscondments.

17The Board’s decision in favour of the transfer to Waypoint was rooted in the record and its reasons reflect a coherent chain of reasoning. The Board reasonably found that the transfer from St. Joseph’s to Waypoint was necessary and appropriate. We see no reason to intervene.

(2) The Board’s consideration of Gladue principles was inadequate

18Although we conclude that the Board’s decision to detain the appellant in a maximum security setting is reasonable, we note that the Board’s consideration of the Gladue Report, and Gladue principles generally, was inadequate.

19The Board referred to the Gladue Report several times in its reasons and acknowledged that the appellant “had an unfortunate childhood”. The Board wrote that it had reviewed “attempts by the hospital social worker to facilitate support for [the appellant] from local native services that had been to no avail since [the appellant] had declined involvement in this regard”; and later that “[the appellant] was primarily raised by his mother, who is not Indigenous, and had very little contact with his father.”

20The Board’s reasons do not engage with enough detail on this point to discern what relevance the appellant’s indigeneity, family history (including residential schools), and the appellant’s difficult upbringing, had for the Board. Further, while it is not clear why the Board thought it noteworthy that the appellant’s mother is not Indigenous and that he has had little contact with his father, if it was to attenuate the need to consider Gladue principles, the Board would have fell into error: see R. v. Kehoe, 2023 BCCA 2, at paras. 52-57. Gladue principles seek to address precisely the kind of disconnection and related lack of positive social structures found in this case.

21As in sentencing, taking into consideration Gladue principles does not mandate a different result or favoured treatment for Indigenous people. What is required is a “different method of analysis”, which guards against the discrimination that “as experience demonstrates, will occur where decision-makers fail to advert to the specific and particular problems faced by [Indigenous] Canadians in our system of justice”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 59; United States of America v. Leonard, 2012 ONCA 622, 112 O.R. (3d) 496, at para. 63; Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165, at paras. 58-59.

22In the context of the Board’s process, this different method of analysis requires adjudicators to pay particular attention to the unique circumstances of Indigenous people detained in psychiatric facilities, and how those circumstances affect the four statutory criteria to be considered by the Board under the Criminal Code, R.S.C., 1985, c. C-46.

23Pursuant to s. 672.54 the Board is to consider the following four criteria when making a disposition: i) the need to protect the public from dangerous persons, ii) the mental condition of the accused, iii) the reintegration of the accused into society, and iv) the other needs of the accused. In Sim (Re) (2005), 78 O.R. (3d) 183, at para. 16, this court confirmed that Gladue principles apply to proceedings before the ORB, though the court raised some question with respect to the application of Gladue principles to the first and second criteria (i.e., public protection and mental condition of accused). In Faichney (Re), 2022 ONCA 300, at para. 24, Paciocco J.A. clarified that Sim, when read in context, did not suggest that Gladue principles are irrelevant to the first and second statutory criteria. Rather, while Gladue principles may “more commonly inform statutory factors three and four” (reintegration into society and other needs of the accused), they may be relevant to all four factors and the Board should rely on as full a record as possible.

24All of that said, this court’s task is to consider whether the Board’s disposition was reasonable. While improper or inadequate consideration of Gladue may result in an unreasonable decision, we are satisfied that the Board’s disposition here remained reasonable.

Disposition

25The appeal is therefore dismissed.