DATE: 20010328

DOCKET: M27114/C34987

COURT OF APPEAL FOR ONTARIO

RE: THE ADMINISTRATOR OF THE PENETANGUISHENE MENTAL HEALTH CENTRE AND THE ADMINISTRATOR OF THE WHITBY MENTAL HEALTH CENTRE (Applicants/Appellants on Appeal) v. THE ATTORNEY GENERAL FOR ONTARIO (Respondent) v. PERTTI TULIKORPI (Respondent)

IN THE MATTER OF a Hearing held by the Ontario Review Board Pursuant to Section 672.81 of the Criminal Code of Canada

AND IN THE MATTER OF Pertti Tulikorpi, an accused detained at the Penetanguishene Mental Health Centre

BEFORE: OSBORNE A.C.J.O.

COUNSEL: Linda Omazic for the appellants

Shawn Porter for the respondent, Attorney General for Ontario

Delmar Doucette for the respondent, Tulikorpi

HEARD: March 21, 2001

E N D O R S E M E N T

[1] The Administrators of the Penetanguishene and Whitby Mental Health Centres (Penetanguishene and Whitby) have appealed the disposition of the Ontario Review Board (the Board) given on July 24, 2000. The Board’s reasons were released on August 25, 2000. In its disposition which is under appeal, the Board rejected the evidence of Dr. Jacques, the accused’s attending psychiatrist at Penetanguishene. Dr. Jacques opined that the accused should remain in the maximum secure confines of the Mental Health Centre at Penetanguishene and that he not be transferred to Whitby, a medium secure hospital. The Board concluded that the accused should be transferred to Whitby in part on the basis that a medium secure hospital facility was the least onerous and restrictive place of confinement for the accused.

[2] The Administrators have moved to suspend the Board’s July 24, 2000 disposition. The authority to suspend a disposition of the Board is found in s. 672.76 of the Criminal Code. The relevant parts of s. 672.76 are:

s. 672.76(1) Any party who gives notice to each of the other parties, within the time and in the manner prescribed, may apply to a judge of the Court of Appeal for an order under this section respecting a disposition or placement decision that is under appeal.

(2) On receipt of an application made pursuant to subsection (1), a judge of the Court of Appeal may, if satisfied that the mental condition of the accused justifies it …

(b) by order, direct that the application of a placement decision or disposition made under paragraph 672.54(b) or (c) be suspended pending the determination of the appeal;

[3] The Administrators rely on the affidavit evidence of Dr. Jacques in support of their motion. Dr. Jacques’ affidavit was sworn on March 13, 2001. In his affidavit, Dr. Jacques stated that he remained of the view that the accused should be detained in a maximum secure hospital facility, that is at Penetanguishene. He noted that the accused has a long history of mental illness and hospitalization dating back to 1986 when he was diagnosed with chronic schizophrenia. Dr. Jacques added that the accused has little insight as to his mental disorder and treatment needs. According to Dr. Jacques, the accused requires consistent monitoring and supervision. He stated that the clinical team in the hospital at Penetanguishene is unanimous in its view that a maximum secure hospital facility remains the most appropriate setting for the accused.

[4] Dr. Jacques’ affidavit evidence, as Mr. Doucette correctly noted, mirrors his evidence at the accused’s July review hearing.

[5] The Administrators’ appeal from the Board’s July 2000 disposition is scheduled for oral argument on April 5, 2001. Looked at generally, the Administrators advance two grounds of appeal. First, they contend that the disposition under appeal was unreasonable in that it does not accord with the evidence led at the accused’s annual review hearing. This submission focuses is Dr. Jacques’ uncontradicted evidence. Second, the Administrators submit that the Board erred in basing its decision to move the accused from a maximum to a medium secure hospital facility on the least onerous and least restrictive standard set out in s. 672.54. The Administrators’ position is that that standard is applicable only to the issue of which of the three available dispositions referred to in s. 672.54 (absolute discharge, conditional discharge and detention in custody in a hospital) is appropriate.

[6] The Board’s disposition which is under appeal, is not automatically stayed as a result of the appeal. Thus, the Administrators are required to seek an order under s. 672.76 in order to suspend the disposition. For reasons that follow, I am not satisfied that the suspension order sought should issue.

[7] It seems to me that s. 672.76’s main purpose is to suspend dispositions in light of changes in circumstances which may, pending an appeal, make compliance with the earlier disposition inappropriate. This view of s. 672.76 accords with the present tense language of the section which focuses on the mental condition of the accused at the time of the motion. Before suspending a disposition, the court must be satisfied that the mental condition of the accused justifies it (s. 672.76(2)). The burden of persuasion lies with the moving party, in this case the hospital Administrators and the order is discretionary. See Conway v. Brockville Psychiatric Hospital (1994), 1994 CanLII 8781 (ON CA), 18 O.R. (3d) 27 (Ont. C.A.).

[8] As a purely practical matter, I see very little to suspend. As I have said, the disposition ordering the transfer of the accused from Penetanguishene to Whitby was made in July 2000. I was told during oral argument that that disposition has not been implemented. Thus, as matters now stand, the accused remains in a maximum secure hospital, the Penetanguishene Mental Health Centre. He is apparently number four on the waiting list for admission to Whitby. I find it somewhat unrealistic to conclude that he is likely to be transferred from Penetanguishene to Whitby in the next 13 days, that is before his appeal is heard. Thus, as I see it, there is no need to make the order sought.

[9] Accordingly, the motion is dismissed.

“C.A. Osborne A.C.J.O.”