Northeast Mental Health Centre v. Rogers, 2007 ONCA 561

CITATION: Northeast Mental Health Centre v. Rogers, 2007 ONCA 561

DATE: 20070813

DOCKET: M35353 (C47454)

COURT OF APPEAL FOR ONTARIO

LaFORME J.A. (In Chambers)

BETWEEN:

THE PERSON IN CHARGE OF THE NORTHEAST MENTAL HEALTH CENTRE

Appellant

and

KEVIN ROGERS

Respondent

James P. Thomson for the appellant

J. Kenneth Alexander for the respondent

Peter Scrutton for the Attorney General of Ontario

Joe Wright for the Ontario Review Board (proposed intervenor)

Heard: August 2, 2007

ENDORSEMENT

[1] On May 31, 2007, Mr. Rogers was found not criminally responsible on account of mental disorder on charges of carrying a concealed weapon and resisting arrest.[^1] On July 9, 2007, pursuant to s. 672.47 of the Criminal Code the Ontario Review Board (the “Board”) conducted its initial hearing and ordered that Mr. Rogers be detained at Northeast Mental Health Centre (NEMHC). The Board released its reasons for its disposition on July 27, 2007.

[2] On July 24, 2007 NEMHC brought a motion to this court seeking an order “suspending” the disposition order of the Board pending the appeal of the Board’s decision. In addition, also pending the appeal, MEMHC wanted Mr. Rogers transferred to the Oak Ridge Site of the Mental Health Centre, Penetanguishene (Oak Ridge).

[3] The motion of NEMHC was initially heard be MacFarland J.A. on July 26, 2007. She adjourned the matter to August 2, 2007 to enable the participation of the other interested parties. In the interim, and after reviewing the materials filed by NEMHC, she ordered that Mr. Rogers be transferred from “the Monteith Correctional Complex in Timmons, Ontario” to Oak Ridge “pending further order of this court”.

[4] On August 2, 2007 I heard full argument from all the parties, which included NEMHC, Mr. Rogers, the Attorney-General for Ontario, and the Board.[^2] These reasons are solely in response to NEMHC’s motion to suspend the order of the Board pending the appeal.

ANALYSIS

[5] This motion requires a consideration of two principles that flow from Part XX.1 of the Criminal Code: (i) the authority to suspend a disposition of the Board pursuant to s. 672.76; and (ii) the degree of binding authority of Review Boards, which has been ascribed to them through our jurisprudence: see Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, 2006 S.C.C. 7.

The Law

[6] The authority to suspend a disposition of the Board is found in s. 672.76 of the Criminal Code. The relevant portions of this section are:

s. 672.76(1) Any party who gives notice to each of the other parties, within the time and in the manner prescribed, may apply to a judge of the Court of Appeal for an order under this section respecting a disposition or placement decision that is under appeal.

(2) On receipt of an application made pursuant to subsection (1), a judge of the Court of Appeal may, if satisfied that the mental condition of the accused justifies it …

(b) by order, direct that the application of a placement decision or disposition made under paragraph 672.54(b) or (c) be suspended pending the determination of the appeal;

[7] There appears to be little judicial consideration of these provisions, and I am unable to extract from it any precise test as to how this court is to consider and apply the suspension provisions. Nevertheless, a brief review of some of the jurisprudence provides valuable insight into how a judge of this court should approach a motion brought under s. 672.76.

[8] In Conway v. Brockville Psychiatric Hospital (1994), 1994 8781 (ON CA), 18 O.R. (3d) 27 (Ont. C.A.) Griffiths J.A. viewed s. 672.76 as granting a judge of this court the authority to “relieve against a board disposition pending appeal where it is in the best interest of the accused having regard to his mental condition”. Justice Griffiths also offered some additional important principles for judges to consider for applications under s. 672.76.

[9] First, the onus is on the applicant to demonstrate compelling reasons to doubt the validity or soundness of the Board’s disposition. And second, the section should only be invoked in extraordinary circumstances. I concur completely with these additional principles.

[10] In Penetanguishene Mental Health Centre v. Ontario (Attorney General) (2001), 2001 24036 (ON CA), 154 C.C.C. (3d) 187 (Ont. C.A.), Osborne A.C.J.O. had occasion to consider Conway. He was of the opinion that the main purpose of s. 672.76 “is to suspend dispositions in light of changes in circumstances which may, pending an appeal, make compliance with the earlier disposition inappropriate”. He went on to conclude that:

Before suspending a disposition, the court must be satisfied that the mental condition of the accused justifies it (s. 672.76(2)). The burden of persuasion lies with the moving party, in this case the hospital Administrators and the order is discretionary.

[11] I would only part company with this conclusion by saying that, in my opinion, s. 672.76 is not limited to “changes in circumstances”. I do agree that the focus of the inquiry on any such motion is the mental condition of the accused.

[12] While the few authorities to this point are very helpful, in my view, the degree of analysis is now more involved when a more fulsome consideration is given to the legislation and to more recent legal authority.

My View of the Proper Approach

[13] Section 672.76 must be understood in the context of the purposes of Part XX.1 of the Criminal Code. One purpose is that review boards are authorized to assess and manage the risk to public safety represented by certain accused persons. They then craft appropriate disposition orders, which protect society and facilitate the medical treatment of the accused person, while restricting that person’s liberty as little as possible: Mazzei, at para. 8.

[14] It is also the case that review boards generally have the jurisdiction to make orders and conditions binding on persons other than the accused person. The orders and conditions by review boards are binding on directors, as well as the treatment teams and hospital administration: Mazzei, at para. 18.

[15] It must therefore be the case that when deciding an application under s. 672.76, the hearing judge must do so in the context of the whole of Part XX.1, the specific provisions being considered, and the extent of the authority of the Board. That is to say, the mental condition of the accused; the protection of the public; facilitation of the treatment of the accused person; the requirement to restrict his liberty as little as possible; and, the authority of the Board to make the binding order it did.

[16] In light of the foregoing, it is readily apparent why an applicant under s. 672.76 must put forward compelling evidence to demonstrate that this is one of the extraordinary cases in which the Board’s disposition, in all the circumstances ought to be suspended pending the appeal. In sum, I generally agree with the earlier pronouncements of judges of this court and, in my view, they demonstrate the proper approach to be taken in deciding motions under s. 672.76, which is something different than that usually applied in staying a judgment pending an appeal.

[17] Put simply, motions under s. 672.76 should only be granted in extraordinary or rare circumstances; there must be compelling evidence adduced by the moving party that demonstrates that the Board’s decision — given the mental condition of the accused person — is unsound or invalid; and, the onus is on the moving party to establish these necessary requirements. It is in this context that I will decide this motion.

Application to this Case

[18] The position of the parties before the Board was: Mr. Rogers sought an absolute discharge, while the Crown, NEMHC, and the Oak Ridge Mental Health Centre all sought a detention order, maximum security at Oak Ridge. Included in the evidence was testimony from Dr. McDonald of Oak Ridge.

[19] The Board unanimously found that Mr. Rogers poses a significant risk to the safety of the public. However, it went on to hold that he did not require detention in a maximum secure facility. This was based largely on evidence that Mr. Rogers managed for six months — immediately prior to the hearing — in a correctional facility without treatment. Mr. Rogers was, therefore, ordered detained in the medium secure unit at NEMHC.

[20] NEMHC has launched an appeal and contends that the Board’s disposition was in error. The essence of the appeal is that “the Board disregarded the evidence at the hearing to the effect that the accused is potentially too dangerous and assaultive to be safely managed in a medium secure facility at the present time”. In other words, the Board simply got it wrong. Pending the hearing of the appeal, NEMHC has brought this motion seeking to have Mr. Rogers transferred to Oak Ridge.

[21] In support of the motion, NEMHC filed affidavits of Dr. Susan Adams and Dr. Angus McDonald. Dr. Adams is the psychiatrist-in-chief of NEMHC and Dr. McDonald is Staff Psychiatrist with the Forensic Division, Oak Ridge. Both doctors share the view that Mr. Rogers poses a risk to the safety of others, which is best managed at a maximum security facility. In my view, this is not compelling evidence; it does not demonstrate that this is the extraordinary case where the relief sought should be granted; and, MEMHC has not met its onus.

[22] The circumstances described by the evidence, while perhaps amounting to more detail, are no different than those that were squarely before, and considered by the Board when it ordered the disposition it did. Indeed, as I have noted, Dr. McDonald’s opinions about Mr. Rogers formed part of the evidence the Board took into account. It is worth noting that the Board was alive to the concerns now being expressed on this motion. The Board’s concluding response is worth repeating:

The Board is mindful of the fact that Mr. Rogers may experience difficulties integrating into the milieu of the open ward at the medium secure level. If the evidence presents that Mr. Rogers behaviour can not be managed within the medium secure unit it will be open to the Hospital to seek an early Board hearing to review his level of security.

[23] The evidence on this motion respecting the mental condition of Mr. Rogers is also the same as it was before the Board. I can find no basis from this evidence to conclude that his mental condition justifies a result different from that found by the Board. Accordingly, the motion must be dismissed.

DISPOSITION

[24] Pursuant to the order of MacFarland J.A., Mr. Rogers was transferred to Oak Ridge pending the hearing of this motion. On August 2, 2007 I reserved my decision in this matter and continued the order of MacFarland J.A. until further order of this court. Given my decision, Mr. Rogers will now be ordered returned to NEMHC in accordance with the disposition of the Board.

“H.S. LaForme J.A.”

[^1]: When he was arrested he was carrying two hunting knives located on his belt, which was under his jacket along with two hammers in the pockets of his trench coat. A third smaller knife was also located in his jacket.

[^2]: By way of separate order, I granted the Board Intervenor status for this motion and all subsequent proceedings on consent of all the other parties. The Board has undertaken to provide very narrow submissions, it will not duplicate arguments of the other parties, and it will not argue the merits of the decision subject of these proceedings.