Court of Appeal for Ontario

Citation: MacLean (Re), 2012 ONCA 909

Date: 20121221

Docket: C55624

Doherty, MacPherson and Blair JJ.A.

In the Matter of: Gregory MacLean

An Appeal under Part XX.1 of the Code

Counsel: Gregory MacLean in person Joseph Di Luca, as amicus curiae Jennifer Mannen, for the Attorney General of Ontario Barbara Walker-Renshaw for the Person in Charge of Ontario Shores Mental Health Centre

Heard and released orally: December 19, 2012

On appeal against the disposition of the Ontario Review Board dated, May 22, 2012.

Endorsement

[1] Mr MacLean seeks to set aside the disposition of the Ontario Review Board dated May 22, 2012, finding that he posed a significant threat to the safety of the public and ordering him detained on the Secure Forensic Service at Ontario Shores Centre for Mental Health Sciences (“Ontario Shores”).

[2] In August, 2011, Mr. MacLean was found Not Criminally Responsible in relation to two counts of assaulting a peace officer, two counts of mischief to property and two counts of failing to comply with a recognizance. Just prior to the hearing leading to this appeal, he had been detained in the General Forensic Service at Ontario Shores. The hospital requested an earlier review hearing before the Board on the basis that the General Forensic Unit was not able to manage Mr. MacLean’s increasingly difficult and threatening behaviour, and asked that he be transferred to the Secure Forensic Service.

[3] The Board found that Mr. MacLean continued to pose a significant threat to the safety of the public and granted the hospital’s request that he be transferred to the Secure Forensic Service. In doing so the Board relied upon a number of factors, including: (i) a review of the index offences; (ii) the severity of Mr. MacLean’s illness (schizophrenia, paranoid type, as well as what are known as Capgras delusions, which are themselves considered to be very dangerous types of delusions): (ii) the fact that Mr. MacLean’s illness was untreated (because he refused treatment): (iv) his complete lack of insight into his illness or need for treatment; and (v) his aggressive behaviour in hospital. All of these considerations were open to the Board based on the hospital and other records filed and, in particularly, the evidence of Mr. MacLean’s treating psychiatrist, Dr. Bottas.

[4] In his Notice of Appeal, Mr. MacLean raises a number of grounds attacking the reliability and truthfulness of the evidence of Dr. Bottas and the manner in which she infringed his religious rights and freedoms in arriving at her diagnosis. He argues today that he has not really received any additional benefits from his transfer. He asks for an absolute discharge.

[5] Mr. Di Luca, as amicus curiae, focused on one ground of appeal: he submitted the Board erred in applying the test for determining the least onerous and least restrictive disposition and, in particular, erred by engaging in circular reasoning in finding that detention in the Secure Forensic Service was appropriate because “in the event” the appellant becomes violent “everyone will be safer.”

[6] We do not accept these submissions.

[7] We see no error in the Board’s assessment of the evidence of Dr. Bottas, which the Board was entitled to accept, as it did. There was ample basis in the record for the Board’s findings, as outlined above, leading to the finding that Mr. MacLean continued to pose a significant risk to the safety of the public. Given that finding, the Board was correct in holding that Mr. MacLean is not a candidate for an absolute discharge.

[8] Nor was the Board’s conclusion that the least onerous and least restrictive disposition was a detention order featuring Mr. MacLean’s transfer to the Secure Service unit unreasonable.

[9] At the time as the Board held, Mr. MacLean was not a suitable candidate for community living – and, therefore, for a conditional discharge – given his potential for threatening behaviour, his untreated illness, his lack of insight into his illness and his determination to keep his body free of medication and to be self-sufficient. The evidence of Dr. Bottas was that, in such circumstances, Mr. MacLean would be “very unlikely” to abide by the restrictions or conditions imposed upon him and that it would be “completely unrealistic” that he could function well in the community.

[10] This leaves the Board’s determination that the least onerous and least restrictive disposition was for Mr. MacLean to be detained in hospital and, in particular, on the Secure Service unit at Ontario Shores. We observe that, in arriving at its determination of what is the least onerous and least restrictive determination, the Board is required to take into consideration: (i) the need to protect the public from dangerous persons, (ii) the mental condition of the accused, (iii) the reintegration of the accused into society, and (iv) the other needs of the accused: Criminal Code, s. 672.45(2)

[11] Here – as the Board acknowledged – Dr. Bottas’ recommendation that Mr. MacLean would have more freedom on the Secure Forensic Service appears, at first blush, paradoxical. However, the Board’s acceptance of that view was reasonable in the circumstances, in our opinion. The evidence was that Mr. MacLean would, in fact, enjoy greater liberties and freedom on the Secure Forensic Service than he then enjoyed on the General Forensic Service because of the more favourable staff-to-patient ratio on the former and because his aggressiveness and threatening behaviour to staff required him to be on “close observation” on the General Forensic Service. “Close observation” means that he must be directly observed by a nurse every 15 minutes and that he is not permitted to enjoy off-ward privileges except for emergency or compassionate reasons. On the Secure Forensic Service, on the other hand, Mr. MacLean would be given greater freedom, should he choose to enjoy it, to access the hospital’s grounds and the community (because of the higher staff-to-patient ratio, patients on the Secure Service are permitted, under supervision, to go onto the hospital grounds daily and into the community twice a week). It follows that Mr. MacLean’s detention under the terms ordered by the Board is actually less onerous and less restrictive than would be the case had he been ordered to be detained on the General Forensic Service.

[12] Finally, we do not agree that the Board engaged in “circular reasoning” based on speculative evidence to conclude that, because Mr. MacLean may in the future refuse to consent to treatment and act out violently as a result of incapacity proceedings, thus potentially endangering staff and others “in the event” that happened, that he should be placed on the Secure Service. The Board’s concern in this regard was simply an additional incidental benefit flowing from the decision already made to place Mr. MacLean on the Secure Forensic Service and in any event, given Dr. Bottas’ opinion, we are not able to say that the concern was unreasonable in the circumstances.

[13] For all of the foregoing reasons, we dismiss the appeal.

“D. Doherty J.A.”

“J.C. MacPherson J.A.”

“R.A. Blair J.A.”