Court of Appeal for Ontario

Citation: Labelle (RE), 2012 ONCA 618

Date: 20120920

Docket: C55368

Before: Doherty, Hoy and Pepall JJ.A.

In the Matter of: Daniel Labelle

An Appeal Under Part XX.1 of the Code

Counsel: Suzan E. Fraser as amicus curiae Daniel Labelle, appearing in person Molly Flanagan, for the respondent, Ministry of the Attorney General Janice E. Blackburn, for the respondent, Person in Charge of Waypoint Centre for Mental Health Care

Heard: September 17, 2012

On appeal against the disposition of the Ontario Review Board dated, February 8, 2012.

Endorsement

[1] The appellant was found NCR some eight years ago. He was for several years held as a dual offender having been convicted of manslaughter in an unrelated proceeding.

[2] The appellant is held in detention under an order of the Ontario Review Board (the “Board”) at the maximum security facility at Oak Ridges.

[3] The appellant does not challenge the order detaining him at Oak Ridges, but does argue that the Board erred in its refusal to order, as a term of the detention order, that the appellant be transferred to the psychiatric facility at Brockville for the purposes of obtaining an independent assessment of the appellant’s psychiatric condition.

[4] The appellant seeks an independent assessment primarily on the basis that his psychiatric diagnosis has changed significantly. His treating psychiatrist at the time of the hearing before the Board does not accept the diagnosis that had led to the NCR finding some eight years earlier.

[5] The Board reached the following conclusions:

• the appellant posed a significant threat to the safety of the public;

• Oak Ridges provided a secure and orderly environment for the appellant. That environment was important to the maintenance of the appellant’s stability;

• the level of management of the appellant provided at Oak Ridges was “necessary to contain the risk”;

• there was no present need for a further assessment as a precondition to the Board’s exercise of its jurisdiction under s. 672.54.

• a treatment course for the appellant’s suspected attention deficit hyperactivity disorder (“ADHD”) was available at Oak Ridges and there was some reason to believe that the appellant would be amenable to that treatment; and

• if warranted, at some point in the future, an independent psychiatric assessment could be carried out at Oak Ridges.

[6] Each of the findings outlined above is supported in the record.

[7] The Board accepted that it had the authority to make the assessment order requested. There is some debate as to when the Board can make an assessment order apart from its power under s. 672.121: see Mazzei v. British Columbia 2006 SCC 7. We need not address that controversy on this appeal as the respondents are prepared to accept, for the purposes of this appeal, that the Board had the power to make an assessment order even though there was no suggestion that a treatment impasse had arisen.

[8] We see no error in the Board’s exercise of its discretion to refuse the requested assessment order. We cannot agree with the submission of amicus that the Board’s refusal to order an assessment constitutes a failure in its duty to “seek out and consider” evidence relevant to the determination of an appropriate disposition. The Board considered the evidence put before it that was relevant to the suggested transfer to Brockville for the purposes of an independent assessment. There were real difficulties associated with that proposed transfer from a security point of view. There was nothing to be gained from a risk assessment point of view. There was also good reason to conclude that the course of treatment proposed at Oak Ridges could proceed and could potentially assist the appellant and clarify the diagnosis. An independent assessment at Oak Ridges remained an available option, if deemed appropriate.

[9] The Board did conduct the appropriate inquiry. That inquiry led it to conclude that transfer to Brockville for assessment purposes was not necessary for the Board to arrive at the appropriate disposition under s. 672.54. In our view, that conclusion was a reasonable one. As the Board exercised its discretion in a reasonable manner, the court should not interfere.

[10] The appeal is dismissed.

“Doherty J.A.”

“Alexandra Hoy J.A.”

“S.E. Pepall J.A.”