CITATION: Johnson (Re), 2007 ONCA 200

DATE: 20070322

DOCKET: C45013

COURT OF APPEAL FOR ONTARIO

RE:

IN THE MATTER OF RUSSEL JOHNSON (accused)

BEFORE:

SHARPE, SIMMONS and CRONK JJ.A.

COUNSEL:

Suzan E. Fraser

for the appellant

Riun Shandler and Maura Jette for the respondent, Attorney General of Ontario

Michele Smith for the respondent, Administrator Mental Health Centre –Penetanguishene

HEARD & RELEASED ORALLY:

March 20, 2007

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

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant submits that the Board erred in law by applying the incorrect legal test, namely, by focusing on public safety to the exclusion of the other statutory considerations, and by failing to consider other treatment opportunities available to the appellant. The appellant further submits that the Board unreasonably disregarded the expert evidence of Dr. Bradford that the appellant could be managed in a medium security facility at the Royal Ottawa Health Care group.

[2] We are unable to accept these submissions.

[3] In our view, the reasons of the Board demonstrate that it considered all statutory criteria and carefully assessed and balanced the appellant’s treatment needs and opportunities in relation to the risk he posed to the public. There was ample evidence to support the Board’s finding that tight controls effectively eliminating the appellant’s opportunity to interact with females other than staff were necessary to manage the risk he posed. While there was some evidence that the appellant could be held in an all-male unit at the Brockville facility, those arrangements could not be assured over the long term and, at the time of the hearing, a proposed new facility which might provide that assurance was not yet operational. The Board was entitled to conclude that the proposed plan of management of the appellant remained “speculative” and insufficient to meet the risk posed by the appellant.

[4] As the Board noted, a temporary trial of the appellant on anti-androgen medication was necessary before he entered treatment in a medium secure facility. Dr. Ramshaw was willing to administer that trial but the appellant was unwilling to accept such treatment from her. In our view, it was not unreasonable for the Board to conclude on this evidence that the appellant’s commitment to remain on anti-androgen medication had not been established and that, accordingly, he was not an appropriate candidate for residence in a medium secure setting.

[5] Accordingly, the appeal is dismissed.