DATE: 20020312
DOCKET: C35777
COURT OF APPEAL FOR ONTARIO
In the matter of Michael Roger Pinet (accused)
RE:
MICHAEL ROGER PINET (Appellant) – and – THE ADMINISTRATOR OF ST. THOMAS PSYCHIATRIC HOSPITAL AND THE ATTORNEY GENERAL OF ONTARIO (Respondents)
BEFORE:
MORDEN, SHARPE and CRONK JJ.A.
COUNSEL:
Suzan E. Fraser for the appellant
Riun Shandler for the Ministry of the Attorney General
Janice E. Blackburn for the Administrator of St. Thomas Psychiatric Hospital
HEARD:
February 22, 2002
RELEASED ORALLY:
February 22, 2002
E N D O R S E M E N T
[1] It was accepted before the Ontario Review Board and before this court that this is not a case where the disposition could be an absolute discharge or a discharge subject to conditions under Criminal Code ss. 672.54(a) and (b) respectively. The appellant accepts that he is a significant threat to the safety of the public. Accordingly, the case is governed by s. 672.54(c). The appellant must be detained in custody subject to such conditions as the Board considers appropriate. What is in issue is a condition imposed by the Board that the appellant be transferred to and detained at the Oak Ridge Division of the Mental Health Centre in Penetanguishene.
[2] The appellant submits that we should interfere with the Board’s decision on the basis that it unreasonably concluded that there were issues of risk and trust justifying the transfer and, also, failed to consider the breaches of fiduciary duty committed by female staff members and the Blackwells in their relationship with the appellant. The appellant also submitted that the Board relied on irrelevant considerations or failed to consider proper considerations.
[3] It is common ground that the relevant considerations are those set forth in s. 672.54:
…. the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused …
[4] As far as the standard of review is concerned, it is clear that we are obliged to accord the Board’s decision a high level of deference. This is explained in this court’s decision in Peckham v. Ontario (Attorney General) (1994), 93 C.C.C. (3d) 443 at 455:
In the present case, the Board had to review extensive psychiatric material and consider somewhat conflicting psychiatric opinions. In doing so, the Board was required to assess the mental condition of the accused, the dangerousness of the accused, the treatment prospects of the accused, and the treatment regime that would best fit the dictates of s. 672.54. All of these judgments called into play the Board’s medical expertise and its knowledge of the various facilities available within the mental health system. This court has neither that expertise nor that knowledge, and must show curial deference to those judgments in applying the reasonableness standard in s. 672.78(1)(a). That said, if after due regard to the Board’s advantaged position and its expertise, the court concludes that the disposition is unreasonable, it must intervene. (Emphasis added.)
This passage is particularly relevant to the case before us.
[5] We are satisfied that the Board’s decision is reasonably supported by the evidence and that, in arriving at it, the Board took the proper considerations into account. The Board concluded in its reasons:
Patients who are housed in medium security who enjoy indirectly supervised hospital and grounds privileges and community access, must be capable of a degree of trust before these privileges can be used. In Mr. Pinet’s case, for reasons which are well-documented and were fully supported by the evidence heard, Mr. Pinet has been unable to maintain the level of trust which he enjoyed for a period of time at this facility. He has been confined to the ward since the summer of 1998. Dr. Komer’s evidence is that he is not a candidate for community access in the reasonably foreseeable future.
The Board finds that a medium secure milieu is no longer appropriate for Mr. Pinet. The live issues are those of risk and trust. Secondarily, but also important is the availability of programming, which by the nature of maximum security will be more accessible to Mr. Pinet in Oak Ridge. Ms. Fraser, on behalf of her client, submitted that the submissions of the other parties amount to “writing off” Mr. Pinet. The Board is of the view, that this is not the case, given Mr. Pinet’s proven ability in the past, to progress in the areas of education, behaviour and participate appropriately in programming and activities, that he could again form a more positive therapeutic alliance with those charged with the responsibility of caring for him. The Board has found that this can be best accomplished in a maximum secure facility, with a maximum amount of structure and attention paid to the challenges which he presents.
[6] The following factors support the disposition:
(a) the uncontradicted expert evidence that the appellant presented a significant risk to the safety of the public;
(b) the uncontradicted expert evidence that the appellant was not ready for planned reintegration into the community in the reasonably foreseeable future;
(c) the uncontradicted expert evidence that the appellant has not been progressing for some time at the St. Thomas facility;
(d) the uncontradicted expert evidence that Oak Ridge, although a maximum secure facility, would be the least restrictive environment for the appellant given his assessment and treatment needs; and
(e) the absence of any evidence to suggest that either St. Thomas or any other medium secure facility would be a more appropriate setting for the appellant.
[7] In Penetanguishene Mental Health Centre v. Ontario (Attorney General) (2001), 158 C.C.C. (3d) 325 at 333-337 this court held that the judgment of the Supreme Court of Canada in Winko v. British Columbia (Forensic Psychiatric Institute) (1999), 135 C.C.C. (3d) 129 did not alter this court’s decision in Pinet v. Ontario (1995), 100 C.C.C. (3d) 343 to the effect that “the least onerous, least restrictive” test does not apply to conditions imposed under clauses (b) and (c) of s. 672.54.
[8] In our view, the proposed fresh evidence does not meet the applicable admissibility conditions. Further, much of it is more properly to be considered in the appellant’s next review under the Criminal Code.
[9] The appeal is dismissed.