DATE: 20010410

DOCKET: C35315

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Appellant) v. STEVEN BAKER (Respondent)

BEFORE: DOHERTY, LASKIN and FELDMAN JJ.A.

COUNSEL: Simon N.M. Young for the appellant Delmar Doucette for the respondent Sonal Gandhi for the Mental Health Centre, Penetanguishene Maureen Forestell for the intervener, Ontario Review Board

HEARD: March 26, 2001

On appeal from the disposition imposed by the Hon. D.H. Carruthers, Q.C., dated October 3, 2000.

E N D O R S E M E N T

[1] It is well established that proceedings before the Review Board are inquisitorial. The Review Board has an obligation to “gather and review available evidence pertaining to the four factors set out in s. 672.54 of the Criminal Code”: Winko v. Director, Forensic Psychiatric Institute of British Columbia (1999), 1999 CanLII 694 (SCC), 135 C.C.C. (3d) 129 at 160 (S.C.C.).

[2] Early in the hearing, the Review Board made it clear that it considered the threshold question of the respondent’s dangerousness a live issue even though his counsel had all but conceded that the respondent should be detained in a psychiatric hospital. The Review Board also made it clear during the hearing that it was not satisfied with the information as originally presented by counsel for the Mental Health Centre. Counsel for the Mental Health Centre had called a psychiatrist who proceeded to give certain evidence based on his review of selected documents from the respondent’s psychiatric file. Those documents were not before the Review Board. The Chair asked counsel, who were all familiar with the respondent’s psychiatric records, to go through those records and provide the Review Board with “what we should have”. When the Chair made that request, counsel knew that the Review Board considered the respondent’s dangerousness a live issue in the proceedings.

[3] Crown counsel, counsel for the Mental Health Centre, and counsel for the respondent went through the records and provided the Review Board with additional documentation. That material provided a summary of the respondent’s psychiatric history. There was no suggestion by any counsel that the material was inadequate and would not permit a proper assessment of the respondent’s dangerousness. It was only after the Review Board decided that the threshold requirement of dangerousness had not been passed, that the Crown and Mental Health Centre took the position that the Review Board should have sought out further information before rendering its decision.

[4] We reject this contention. Counsel were familiar with the entirety of the respondent’s psychiatric records. In their view, the necessary information from those records was placed before the Review Board. Counsel could not produce any particular document or piece of information in this court which was not before the Review Board, and which counsel now contends could have had an effect on the decision made by the Review Board.

[5] The Review Board performed its inquisitorial function. It solicited the assistance of counsel in supplementing what the Review Board regarded as an inadequate record. Even after counsel provided additional information, the Review Board was not entirely satisfied with the record. It was, however, satisfied that it could make the necessary assessment of dangerousness. Absent a finding that the Review Board acted unreasonably in determining the scope of its inquiry, or proceeded on some improper principle, we are not prepared to interfere with the Review Board’s determination that it could make the required dangerousness assessment based on the material provided to it and the evidence led by the parties.

[6] The appellant also submits that the decision of the majority of the Review Board granting the respondent an absolute discharge is unreasonable. In making this submission, counsel relies on the unanimous decision of the Review Board made some four months earlier. That Board held that the respondent should be detained in the Mental Health Centre. Counsel also points out that the decision of the majority of the Review Board is contrary to the only expert evidence heard by it.

[7] Recognizing the deference due to the Review Board and the limited jurisdiction of this court in assessing the reasonableness of orders made by the Review Board, we cannot say that the decision made by the majority of the Review Board is unreasonable.

[8] We are, however, satisfied that the majority of the Review Board failed to address all of the factors in s. 672.54 before reaching its conclusion that the dangerousness threshold had not been satisfied. The majority did not consider the mental condition of the respondent and the difficulties associated with his reintegration into society in deciding whether the respondent posed a significant threat to the safety of the public.

[9] The majority recognized that the respondent was severely mentally ill. It did not, however, consider the danger posed to the public by the immediate and unsupervised re-entry of the respondent into the community. The evidence established beyond doubt that the appellant was severely mentally ill, lacked any insight into his illness, would not comply with any medication regime if released from custody, would in all likelihood abuse drugs and alcohol if released from custody, and would in all likelihood refuse to become involved in any rehabilitative process if released from custody. The record also demonstrated that the respondent’s mental condition is worse than it had been when he was found not criminally responsible on account of mental disorder.

[10] In reaching its conclusion, the majority of the Review Board focussed almost exclusively on the previous conduct of the respondent both prior to the finding of not criminally responsible and after his incarceration. While previous conduct is an important consideration in determining dangerousness, it is not the only factor that must be addressed in deciding whether the release of a person would pose a significant threat to the safety of the public. Whatever may have been the nature of the respondent’s conduct prior to his incarceration and his relatively passive conduct while under close supervision in a hospital, the Review Board had to consider what the respondent would do if released back into the community without restrictions, conditions or any form of support.

[11] The serious nature of the respondent’s mental disorder, the very strong likelihood that he would not take necessary medication if released into the community, and the equally strong likelihood that he would abuse alcohol and drugs if released back into the community were all important considerations in predicting his future behaviour. All of these factors should have raised serious concerns. The majority of the Review Board did not consider these factors in evaluating the respondent’s dangerousness.

[12] We would allow the appeal, set aside the order of the Review Board and direct a new hearing. The respondent’s last annual review was in May of 2000. The new hearing should occur before the end of May 2001 and should constitute the respondent’s annual review.

[13] We observe that the record before the Review Board disclosed that since the respondent was found not criminally responsible in 1996, his course of treatment in the institutions has been difficult and largely ineffective. Consequently, his condition has deteriorated. Recently, there has been some improvement. Whatever the explanation, and we assign no blame, the fact that the respondent has deteriorated while in care is a matter of real concern. It appears from the evidence heard by the Review Board that the hospital is now well aware of the history and current situation of the respondent. Steps should be taken prior to the next hearing to institute a course of treatment which will give the respondent a real opportunity to make progress with his illness.

“Doherty J.A.”

“John Laskin J.A.”

“K. Feldman J.A.”