Court of Appeal for Ontario

Citation: R. v. Johnson, 2012 ONCA 328

Date: 2012-05-23

Docket: C53441

Before: Doherty, Simmons and LaForme JJ.A.

Between:

Her Majesty The Queen

Respondent

and

Russel Maurice Johnson

Appellant

and

Person in Charge of Mental Health Centre Penetanguishene

Respondent

Counsel:

Suzan E. Fraser, for the appellant

Robert Gattrell, for the respondent Crown

Janice Blackburn, for the respondent Administrator, MHC-Penetanguishene

Heard and released orally: May 9, 2012

On appeal from the Disposition of the Ontario Review Board dated July 28, 2010.

Endorsement

[1] The appellant appeals from a disposition of the Ontario Review Board directing that he continue to be detained at the Oak Ridge Division of the Mental Health Centre in Penatanguishene.

[2] At the Board hearing, counsel for the appellant conceded the appellant remains a significant risk to the safety of the public. However, counsel submitted that the least onerous and least restrictive disposition would be to transfer the appellant to a medium secure all male unit at the Brockville Mental Health Centre.

[3] The appellant argues that the Board’s disposition is unreasonable because two issues skewed its assessment of the least onerous and least restrictive alternative issue, and because the Board misapprehended the evidence concerning the treatment available at the two centres.

[4] We do not accept these submissions. The fact that the appellant, a serial sexual murderer, continues to minimize the sexually deviant aspect of his offences, was properly relevant to the question of the nature of the threat that he poses and the level of supervision and structure he requires.

[5] Further, the Board’s findings concerning the potential for reduced staff diligence over time in a medium secure setting and concerning the availability of treatment at the two centres are supported by the evidence that was before it.

[6] In particular, concerning the treatment issue, the Board noted that “both Dr. Jones and Dr. Bradford testified that in creating a plan of treatment and rehabilitation for Mr. Johnson, no different modalities would be available at Brockville than are available at Oak Ridge, there is not a lot of variation in the psychosocial and recovery therapies that could/would be offered, and the core elements of treatment for someone with Mr. Johnson’s constellation of diagnoses are the same at both hospitals.”

[7] In addition, we note that it is clear from the record that Dr. Bradford would not be the appellant’s treating psychiatrist in the event of his transfer to the Brockville facility.

[8] The appellant also argues that the Board erred in making an assessment of the “long term quality of life” at the Oak Ridge facility “a primary consideration” in determining his placement. We disagree.

[9] On our review of its reasons, the Board carefully considered the statutory criteria relevant in his placement. Particularly having regard to the fact that there would be no difference in the treatment available for the appellant at the two facilities; that the appellant has no immediate prospects for release; and that the appellant would necessarily be subject to extra security if placed at Brockville, we see no error in the Board’s finding that the programs and the relative freedom available to the appellant at Oak Ridge were a relevant consideration.

[10] The appeal is therefore dismissed.

Signed: “Doherty J.A.”

“Janet Simmons J.A.”

“H. S. LaForme J.A.”