COURT OF APPEAL FOR ONTARIO

CITATION: Palmer (Re), 2013 ONCA 475

DATE: 20130711

DOCKET: C56301 and C56325

Rosenberg, Watt and Pepall JJ.A.

IN THE MATTER OF: Adam Sean Palmer

AN APPEAL UNDER PART XX.1 OF THE CODE

Adam Sean Palmer, in person

Michelle O’Bonsawin, for the Royal Ottawa Health Care Group, Brockville Mental Health Centre

Suzan E. Fraser, for Adam Sean Palmer

Janice E. Blackburn, for the Person in charge of Waypoint Centre for Mental Health Care

Suhail A. Q. Akhtar, for the Ministry of the Attorney General

Heard: April 25, 2013

On appeal from the disposition of the Ontario Review Board dated, October 16, 2012, with reasons dated October 29, 2012.

Rosenberg J.A.:

[1] The appellant, Adam Sean Palmer, was found not criminally responsible on account of mental disorder on a charge of second degree murder in July 2005. He has been subject to dispositions of the Ontario Review Board since that time. The psychosis that was the basis for the NCR finding was soon brought under control, and Mr. Palmer was progressing well through the system, eventually moving to the General Forensic Unit at St. Joseph’s Health Centre in Hamilton. By October of 2010, he had achieved community living privileges, and had, in previous years, lived on a co-ed unit with no issues with female co-patients.

[2] His progress through the system stalled, however, in November of 2010, when he was charged with the sexual assault of an 18 year old female patient. Mr. Palmer was held at the Hamilton Wentworth Detention Centre until his trial in 2012. He was acquitted of the charge of sexual assault and transferred to Waypoint Centre for Mental Health Care (“Waypoint”). He remained there until his annual review hearing in September 20, 2012. Following this hearing, the Ontario Review Board ordered that he be transferred to a medium secure all-male unit at the Brockville Mental Health Centre (“Brockville”). Both he and Brockville appeal from this disposition.

[3] The appellant Palmer argues that the Board misused the sexual assault allegation, and that there was no need for him to be transferred to an all-male unit. He submits that he should be transferred to Providence Care, Mental Health Services – Forensic Site in Kingston. The appellant Brockville submits that the Board did not make sufficient inquiries about the suitability of transferring the appellant to its all-male unit. For several reasons, it submits that that unit is inappropriate for the appellant and that a placement at the all-male unit is not the least onerous and least restrictive disposition. Brockville has filed fresh evidence in support of its position.

[4] For the following reasons, I would dismiss both appeals.

THE FACTS

[5] Some elaboration of the facts surrounding the 2010 sexual assault allegation is necessary to understand the grounds of appeal. The appellant claimed that his sexual activity with the 18 year old complainant was consensual. There was, however, little dispute about the surrounding facts. The appellant was complying with his medication regime and was not displaying any signs of psychosis. However, while on an unaccompanied day pass, he purchased alcohol and he and the complainant drank together. Drinking alcohol was a breach of a condition imposed by the Board. The appellant engaged in sexual acts with the complainant. According to the appellant, the complainant then fell down, striking her head, at which point he and another patient carried the complainant back to the hospital and left her outside the hospital security office. A medical examination showed that the complainant had haemorrhaging in the vagina, soreness in her anal area and lower back, and bruising to her right eye.

[6] Following his acquittal and his transfer to Waypoint, the appellant did well, and there were no issues with his behaviour. The treatment team was of the view that the appellant did not require the maximum security setting at Waypoint. It recommended a cautious progression and a placement at the secure forensic programme at Brockville.

[7] At the hearing, there was no dispute that the appellant remained a significant threat to the safety of the public given his history of violence, substance abuse, and breach of both court orders and orders of the Board. Dr. Jeff Van Impe, the appellant’s former treating psychiatrist, testified that the appellant could be managed in a medium secure setting, and that the best next step was admission to an all-male forensic unit. In his opinion, a medium security unit that also had female patients would not be adequate to control the risk posed by the appellant. This would make the Providence facility inappropriate at this time.

[8] The evidence before the Board was that there are two medium security all-male units in Ontario, one at the Centre for Addiction and Mental Health (“CAMH”) in Toronto and one at Brockville. Dr. Van Impe noted that CAMH would not be appropriate for the appellant. As he explained:

[M]y preference would be for Brockville … Mr. Palmer has been candid with me that there may be some … in centers such as Toronto there may be some influences, you know, some bad influences on him and he actually discussed that with me this morning, so I believe he … I don’t know for sure, but I believe he’d probably prefer Brockville to CAMH as well.

The Notice Issue

[9] As required by Rule 13 of the Board's Rules of Procedure, Waypoint advised Brockville of its intention to recommend to the Board that the appellant be transferred to, and detained in, the Secure Forensic Program at Brockville. Brockville had recently established an all-male unit in its medium secure forensic programme. The notice did not specify detention at the all-male unit. The notice included copies of Waypoint’s Hospital Report to the Board as well as copies of the most recent Disposition and Reasons for Disposition. The Hospital Report clearly set out the allegations surrounding the sexual assault charge. On August 13, 2012, Brockville responded to the Notice by letter, which included the following: “we have limited bed availability for forensic rehabilitation in the near future while we provide care for longer stay patients. Our waiting list has grown to over one year.” The letter then continued as follows:

We are unable to comment whether we can take the individual as his mental status would not be known at the time a bed becomes available. We would be pleased to reconsider in the future if this individual is referred at that time.

[10] It went on to recommend that the appellant explore options in North Bay or Kingston due to its limited bed availability in the near future. Brockville did not seek party status at the appellant’s up-coming hearing.

[11] Dr. Van Impe was asked about the letter from Brockville. He testified that it was the first time he had seen a letter like that from Brockville. As he said:

I’m a little confused by the … [“]we are unable to comment whether we can take this individual as his mental status would not be known at the time[”] … well you could say that about any person here. No one -- no one can predict the future of what they’re going to be like tomorrow let alone six months from now so, … that seems to be unusual wording to me. I would suggest that perhaps [they] are attempting to avoid giving a definitive yes or no with regards to Mr. Palmer. … I don’t know what they’re saying.

[12] On September 5, 2012, Waypoint gave Rule 13 notice to the all-male secure unit at CAMH. CAMH responded that its waiting list was well in excess of a year. It also noted that Brockville had recently established an all-male unit that specialized in treatment of people with primary Axis II pathology. The letter continued as follows:

The hospital report indicates that much of Mr. Palmer’s risk arises from his antisocial personality disorder. It is striking that he has had to be detained at Waypoint on 2 occasions, most recently following an allegation of sexual assault at Hamilton while he was detained on a general forensic unit. The hospital report is clear that, particularly when less structure and entertainment is provided, Mr. Palmer engages in a number of antisocial activities and makes management extremely difficult.

[13] The appellant, through his then counsel, provided Rule 13 notice to three other medium secure facilities including Providence. Providence responded that it would accept the appellant’s transfer to its facilities. The two other facilities, North Bay Regional Health Centre and Ontario Shores Centre for Mental Health Services were unwilling to accept the transfer because they did not have secure all-male units. They were concerned about the risk to vulnerable female patients.

The Fresh Evidence

[14] Brockville applied to adduce fresh evidence in the form of an affidavit from Dr. A.G. Ahmed, the Associate Chief of Psychiatry at the Integrated Forensic Program of the Royal Ottawa Health Care Group, which manages Brockville. The affidavit and accompanying exhibit describes the All-Male Unit. The unit was officially created in May 2012. It contains 15 beds for patients detained under the Board. A patient is first admitted to the Assessment and Stabilization Unit. Once stabilized, the patient is transferred to the All Male Unit. Most of the patients detained on the All Male Unit remain there for at least two years. Due to the existing waiting list, it is unlikely that an accused will be admitted in one year’s time. The greatest liberty granted to patients on the all-male unit is escorted privileges.

The Reasons of the Board

[15] In its review of the facts, the Board referred to the facts of the 2010 sexual assault allegation but also noted that the appellant had been acquitted of this charge. The Board summarized the appellant’s position at the hearing as being that he believed he should be returned to a minimum secure unit with all of the privileges that he had before the incident, including living in the community.

[16] The Board found that the appellant continued to constitute a significant threat to the safety of the public, and observed that this was not disputed. The Board noted the appellant's history of violence, his antisocial personality and substance abuse disorder, and that he had “shown no remorse for the incident involving a vulnerable young female which resulted in the sex assault charges”.

[17] The Board went on to find as follows:

The Board, however, unanimously agrees with Mr. Palmer’s treatment team that in view of his behaviour since he has arrived at this facility about five months ago, his risk can be contained in a medium secure all male unit. He will therefore be ordered transferred to a medium secure all male unit at the Brockville Mental Health Centre…

[18] The Board set out a number of conditions, such as abstaining from alcohol. It went on to provide, in anticipation of a waiting period before the transfer to Brockville, that Waypoint detain the appellant with certain privileges and conditions.

ANALYSIS

Standard of Review

[19] A reviewing court may only set aside an order of the review board where it is of the opinion that the decision is unreasonable or unsupported by the evidence; the decision is based on a wrong decision on a question of law, unless no substantial wrong or miscarriage of justice occurred; or there was a miscarriage of justice: see Criminal Code, R.S.C. 1985, c. C-46, s. 672.78; R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 31.

Brockville’s Appeal

[20] Brockville submits that the Board failed to properly exercise its inquisitorial role. It submits that the Board had a positive duty to seek out further evidence concerning the suitability of Brockville as a placement. In particular, it submits that the Board had a duty to seek out a further explanation of Brockville’s August 13 letter, especially in light of the apparent confusion as to what the letter meant, as testified to by Dr. Van Impe. It submits that the Board should have adjourned the hearing to subpoena a witness from Brockville to clarify its position. Such a witness would have been able to evaluate the appellant's suitability for the All Male Unit.

[21] Brockville also submits that the Board’s disposition is unsupported by the evidence and that the Board did not provide sufficient explanation for its disposition. In particular, the Board did not explain why the appellant could not be transferred to the CAMH all-male unit.

[22] I would not give effect to Brockville’s submissions. Brockville received notice that complied with the Board’s rules. It had the opportunity to respond. It did not suggest that the appellant was not a suitable patient for its facility, only that it had limited bed availability and a waiting list that had grown to over one year. I have considered the fresh evidence. That evidence does not undermine the Board’s disposition. There is nothing in the affidavit that shows that the appellant would be an unsuitable candidate for the All-Male Unit. The fact that there is a waiting list cannot give Brockville a veto over dispositions the Board can make. As counsel for Waypoint pointed out, it is the Board that must decide on the appropriate disposition applying the criteria set out in s. 627.54 of the Criminal Code.

[23] In my view, the Board did not fail to exercise its duty to inquire. The Board’s duty to inquire arises when additional information is necessary, in the Board’s view: see Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at para. 62.

[24] Here, the Board had sufficient information upon which to make its disposition. It had the information about Brockville’s waiting list. But, it also had information from other medium secure forensic units. The information from CAMH was particularly helpful since it not only disclosed the waiting list for its all-male unit but explained that Brockville, in any event, was the more suitable placement for this appellant. Other information at the hearing and from the other facilities supported the view that if the appellant were to be transferred to a medium secure unit, it would have to be to an all-male unit. That narrowed the possible dispositions to either CAMH or Brockville. Given the evidence, Brockville was obviously the more suitable placement, despite the waiting list. There is no merit to Brockville’s suggestion that the Board should have provided reasons for not ordering the appellant’s placement at CAMH. The reasons are apparent from the record: in CAMH’s response to the Rule 12 notice, the submissions, and Dr. Van Impe’s testimony.

[25] I am also satisfied that Dr. Van Impe’s alleged confusion about Brockville’s response did not require further inquiry. It was open to the Board to accept Dr. Van Impe’s opinion that Brockville was simply attempting to avoid giving a yes or no answer. Regrettably, as the evidence in this case shows, waiting lists are a feature of many of the forensic units in Ontario, especially two as specialized as the all-male units at CAMH and Brockville. The alleged uncertainty about the appellant’s mental status when a bed finally became available cannot, on its own, be a reason not to order the transfer in the appellant’s case. The fact was that, aside from the 2010 incident, the appellant had been remarkably stable; his psychosis was under control with medication, he had performed well in the structured setting at Waypoint, and could likewise be expected to do well in a medium secure unit.

[26] Finally, I would note that Brockville’s counsel concedes that if this court were to set aside the Board decision and order a new hearing, the appellant would lose his place on the Brockville waiting list.

[27] I would dismiss Brockville’s appeal.

The Appellant Palmer’s Appeal

[28] This appellant submits that the Board misapprehended the evidence, failed to give adequate reasons, and erred in its treatment of the sexual assault allegation. He submits that the appeal should be allowed and that there should be a new disposition with a placement at Providence or, in the alternative, that there should be a new hearing.

[29] The submission concerning misapprehension of evidence is based on the Board’s summary of the appellant’s position in its reasons. The Board described the appellant’s position as being that he should be returned to a minimum security facility with all of his privileges restored. In my view, the Board’s statement concerning the appellant’s position was not significant. The source of this alleged misapprehension is in the report from the hospital to the Board and in statements the appellant made to Dr. Van Impe. By the time of the hearing, the appellant’s counsel had stated the appellant’s position to be his desire to go to Providence, a medium secure placement. However, it was open to the Board to take into account that the appellant’s real desire was a fast cascade through the system back to where he had been in 2010.

[30] The Board’s reasons are extremely sparse. But, as in other types of cases, the court must take a functional, substantive approach and have regard to the evidentiary record when it is reviewing the adequacy of the Board’s reasons: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 16 and 35. A reading of the record, including the Hospital report, Dr. Van Impe’s testimony and the submissions, shows that the issues facing the Board were very narrow. First, there was no dispute that the appellant continued to represent a significant threat to the safety of the public. There was also no dispute that the appellant no longer required the maximum secure setting at Waypoint. Further, despite the appellant’s wish, as recorded in the hospital report to the Board, that he be returned to minimum security with all of the privileges he had before 2010, all parties agreed at the hearing that he should be transferred to a medium secure facility. The only real issue at the hearing, therefore, was which medium secure facility was appropriate. While it would have been preferable for the Board to have expressly dealt with the appellant’s submission that he be transferred to Providence, an examination of the evidentiary record clearly demonstrates why that placement was inappropriate. Providence does not have an all-male unit.

[31] The more serious concern is the Board’s failure to expressly explain why transfer to an all-male unit was required and whether, in reaching that conclusion, the Board misused the sexual assault allegation.

[32] The Board was entitled to use the facts surrounding the sexual assault allegation in deciding on the least onerous and least restrictive disposition compatible with the appellant Palmer’s situation, despite his acquittal of the criminal charge. There was no formal bar to the Board making use of the underlying facts: R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, at para. 56 and Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63.

[33] In this case, the Board noted the appellant’s acquittal of the criminal charge. That acquittal did not prevent it from using the undisputed information that the appellant purchased and used alcohol to excess in violation of his conditions and engaged in several sexual acts with a vulnerable 18 year old patient. Given those facts, the Board was justified in moving cautiously before returning the appellant to a setting where he would once more be in contact with female patients. The statement that the appellant showed no remorse for this incident was simply one factor justifying the finding that there remained a significant threat to the safety of the public. The statement was based on the record. Dr. Van Impe testified to his concern that the appellant believed that since he was acquitted everything should go back to the way it was. The appellant didn’t “really take into account much the alcohol, the vulnerability of the … female, that sort of thing”.

[34] I would not give effect to the appellant’s grounds of appeal.

DISPOSITION

[35] Accordingly, I would dismiss both appeals.

Released:

“MR” “M. Rosenberg J.A.”

“JUL 11 2013” “I agree David Watt J.A.”

“I agree S.E Pepall J.A.”