DATE: 2004-12-09

DOCKET: C41434

COURT OF APPEAL FOR ONTARIO

RE: RICHARD W. DEJONG (Appellant) -and- WHITBY MENTAL HEALTH CENTRE and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (MINISTRY OF THE ATTORNEY GENERAL) (Respondents)

BEFORE: CRONK, ARMSTRONG and BLAIR JJ.A.

COUNSEL: Anthony J. Balka for the appellant

Riun Shandler for the respondent, Her Majesty the Queen in Right of Ontario (Ministry of the Attorney General)

Sonal Gandhi for the respondent, Whitby Mental Health Centre

HEARD AND RELEASED ORALLY: December 3, 2004

On appeal from the disposition order made by the Ontario Review Board dated November 21, 2003.

E N D O R S E M E N T

[1] The appellant appeals from the disposition order made by the Ontario Review Board dated November 21, 2003, whereby the Board ordered the appellant’s continued detention at the Whitby Mental Health Centre, subject to various privileges available at the discretion of the person in charge of the Centre. For the reasons that follow, we conclude that the appeal must be dismissed.

[2] Section 672.54 of the Criminal Code sets out those factors that must be considered by a Review Board when making a disposition under ss. 672.45(2) or 672.47 of the Code. The Review Board, after considering these factors, is required to make one of several authorized dispositions that is the least onerous and the least restrictive to the accused. The test set out under s. 672.54 of the Code applies to hearings held under s. 672.83 of the Code.

[3] We are satisfied that in making its November 21, 2003 disposition, the Board in this case considered the factors outlined in s. 672.54. We reject, therefore, the appellant’s argument that the Board failed to do so.

[4] We also do not accept the appellant’s additional submission that the Board gave inadequate consideration to the requisite factors under s. 672.54. It was for the Board to determine what weight, in the circumstances of this case, was to be placed on each factor. In our view, the record before the Board amply supported the key findings made by it and its conclusion that “[t]he least onerous and least restrictive alternative consistent with not only meeting Mr. Dejong’s needs, but the public safety requirement, is to require him to be detained by the hospital with the anticipated course of more gradual and tiered integration into the community”.

[5] In any event, however, the fresh evidence admitted on consent on this appeal overwhelmingly demonstrates that the appellant is a current threat, both to himself and to members of the public. The hospital’s report dated October 13, 2004, the accuracy of which is not challenged by the appellant on this appeal, details the appellant’s dangerous behavioural difficulties since the date of the Board’s November 2003 disposition. Certain of his behaviours could be said to constitute criminal like activity and clearly establish that the appellant is a significant threat to the safety of others: see Winko v. British Columbia (Forensic Psychiatric Institute), 1999 694 (SCC), [1999] 2 S.C.R. 625 at para. 57.

[6] In view of the decision that we have reached on the merits of this appeal, it is unnecessary to address the preliminary argument advanced by the respondents con-cerning mootness.

[7] For the reasons given, the appeal is dismissed.

“E.A. Cronk J.A.”

“Robert P. Armstrong J.A.”

“R.A. Blair J.A.”