DATE: 20060206

DOCKET: C44045

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. JAMES S. ALLEN (Appellant)

BEFORE:

SHARPE, BLAIR and ROULEAU JJ.A.

COUNSEL:

James S. Allen, accused appellant

Deborah Krick

for the respondent

Anita Szigeti, amicus curiae

HEARD:

February 3, 2006

On appeal from the disposition of the Ontario Review Board dated February 21, 2005.

E N D O R S E M E N T

[1] This is an appeal from an Ontario Review Board disposition. The appellant James Sidney Allen is currently a patient at the Brockville Psychiatric Hospital and had an annual review hearing before the Board on February 16, 2005. The disposition provided that Mr. Allen be detained in a minimum secure unit. The disposition also directed the person in charge of the hospital to create a program for the detention, custody and rehabilitation of the accused and permit, among other things, that the accused could “live in the community in 24-hour supervised accommodation approved by the person in charge”. It is the timing and interpretation of this latter provision that were the focus of this appeal.

[2] The appellant is 44 years old. On January 8, 1976, when he was 14 years old, he was found not guilty by reason of insanity on a charge of murder. He has been a patient in mental health hospitals since that time. The appellant has been diagnosed with sexual disorder, paraphilia and sexual sadism. In recent years, reports concerning the appellant have been quite positive and there has been a focus on attempting to reintegrate him into the community. The appellant’s treatment team is of the opinion that the appellant could be managed in accommodation with 24-hour supervision. Given the length of time that the appellant has been a patient and his age, there is concern that if integration in the community is not commenced in the near future, his integration will become virtually impossible and he will be institutionalized for life. This concern, as well as other factors, no doubt accounted for the Board’s statement in its reasons for disposition that: “We think strong efforts should be made to integrate the accused into the community. There is an urgent need to achieve this. In the circumstances there will be no change in the disposition save that paragraph 2(f) be amended to provide: ‘To live in the community in 24-hour supervised accommodation approved by the person in charge.’”

[3] The accused argues that, based on the record and the reasons, it is clear that he is ready to be integrated into the community and that the Board directed that his integration was to be achieved urgently. This led to the Review Board’s disposition order, which gave the person in charge of the hospital the discretion to permit the accused to live in the community in 24-hour supervised accommodation approved by the person in charge. Despite the order, it is apparent that the person in charge (as opposed to the members of the appellant’s treatment team) refuses to allow the accused to live in the community unless the 24-hour supervised accommodation includes having a person there awake and on duty at all times. No such facility exists in the community and the accused, therefore, argues that the disposition order, by including such a provision, was incapable of implementation and therefore defective.

[4] The Crown maintains that the order is not defective as there are 24-hour supervised facilities available in the community as set out in the disposition order. To qualify as a 24-hour supervised accommodation, a facility need not have a person on duty and awake 24 hours a day. This additional qualification is one being required by the person in charge of the hospital and the imposition of an additional requirement of this nature is within the discretion afforded to the person in charge pursuant to the disposition order. It is quite conceivable, therefore, that the person in charge may, at some later date, decide that the specification that someone be awake at all times is no longer required. Then, at that point, the accused could, pursuant to the disposition order, be placed into this type of 24-hour supervised accommodation within the community.

[5] On the record, we consider that the Review Board’s conclusion that “the accused is a significant risk to the safety of the public and must be detained” was reasonable and should stand. Further, we are unable to conclude that the disposition order of the Review Board is defective because no “24-hour supervised accommodation” is available.

[6] We are, however, concerned that the person in charge of the hospital may not be implementing the disposition order as it was intended by the Review Board. Although we dismiss the appeal, we note that a new hearing is scheduled to occur within the next week. To ensure that the most appropriate disposition order is issued and put into effect, we urge the Review Board to obtain the information it requires to resolve the apparent impasse between the person in charge of the hospital and the treatment team as to the type of community facility that is required, and to ensure compliance with the spirit as well as the letter of its disposition order. While that is a matter for the Board to decide, it would appear to us that there may be a need for an independent psychiatric evaluation of the accused as well as a report on the various community facilities available to respond to his needs. The focus of the hearing could then be on whether the accused requires supervision by someone who is awake 24 hours a day and, if the Board does not accept the conclusion of the person in charge that release in the community cannot occur unless those conditions are met, specifically to address the most appropriate disposition in such circumstances.

[7] The person in charge of the hospital is a party to the proceeding pursuant to s. 672.1 of the Criminal Code. He chose not to appear before the Board or this court, putting us at a disadvantage in dealing with this appeal.

[8] The appeal is therefore dismissed. However, we urge the Board and the person in charge of the hospital to take the foregoing comments into account at the forthcoming hearing.