Court File and Parties

CITATION: R. v. O'Donnell, 2010 ONCA 572

DATE: 20100902

DOCKET: C51699

COURT OF APPEAL FOR ONTARIO

Blair, MacFarland, and Watt JJ.A.

BETWEEN

Her Majesty The Queen and the Mental Health Centre Penetanguishene

Respondents

and

Frederick O’Donnell

Appellant

Counsel:

Frederick O’Donnell in person and Jill R. Presser as Amicus Curiae

Janice Blackburn for the Mental Health Centre Penetanguishene

Holly Loubert, for the respondent

Heard: September 1, 2010

On appeal from the disposition of the Ontario Review Board dated February 3, 2010, with reason delivered on March 3, 2010.

APPEAL BOOK ENDORSEMENT

[1] In our view the Board’s decision was not unreasonable and was amply supported on the record. Nor do we see any error in law.

[2] First, we do not accept that this is a “treatment impasse” situation, as Mr. O’Donnell, happily, is reported to be making some progress, and his current treatment program involving Lupron is still very much a work in progress, but showing positive results. Given his characteristic ambivalence, any more concrete treatment plan would be difficult to devise at this stage.

[3] Secondly, the Board did not fail in its duty of inquiry, in our view. There was ample evidence to support its conclusion that Mr. O’Donnell was not yet ready for transfer to a medium security facility, and the Board did not rely on the administrator’s letter from the Centre for Addiction and Mental Health (CAMH) and Ontario Shores as dispositive in that regard, but rather relied on the record as a whole.

[4] Thirdly, the Board did not err in failing to give effect to Mr. O’Donnell’s liberty interests. It expressly considered this issue and concluded, as it was reasonably entitled to do on the evidence, that Mr. O’Donnell’s liberty interests are currently less restricted at Oak Ridge – given the various privileges he enjoys – than would be the case were he transferred to a medium security facility where, because of the risk to others he poses, he would likely be confined to his ward.

[5] Finally, although there may be something to be said for obtaining a more recent and up-to-date formal assessment done in a maximum security environment, we cannot say that the Board’s decision not to order an independent assessment in a medium security institution was unreasonable, given their view that it was unnecessary, on the evidence, and, particularly, that the risk such an exercise would create for other vulnerable patients in such an institution was too great.

[6] Mr. O’Donnell asked that his mother, grandmother and uncle be removed from his no-contact list. They have provided revocable consents that he may contact them. We think it best to leave this up to the family members. As the Board noted, the family members were not canvassed about this deletion, and the evidence was that the no-contact provision is in place to assist family members and other victims and that the provision does not interfere with his treatment.

[7] Accordingly, the appeal is dismissed.