COURT OF APPEAL FOR ONTARIO

CITATION: O'Donnell (Re), 2014 ONCA 18

DATE: 20140110

DOCKET: C56641

Feldman, Tulloch and Lauwers JJ.A.

Her Majesty the Queen

and

Person In Charge of Waypoint Centre for Mental Health Care

Respondent

and

Frederick O’Donnell

Appellant

Frederick O’Donnell, appearing in person

Jill R. Presser, appearing as amicus curiae

Janice Blackburn, for the respondent, Waypoint Centre for Mental Health Care

Andreea Baiasu, for the respondent, Ministry of the Attorney General

Heard: September 19, 2013

On appeal from the disposition of the Ontario Review Board dated January 23, 2013 with reasons for disposition dated February 19, 2013.

Feldman J.A.:

[1] The appellant was found not criminally responsible on account of mental disorder in respect of 17 charges in November and December, 2005 that included graphic threats of death and sexual violence to his former female probation officer and threats of death by arson to members of his family. He has been detained at the Oak Ridge Division of the Waypoint Centre for Mental Health Care (“Oak Ridge”) since January, 2006.

[2] He appeals the latest disposition made by the Ontario Review Board (“the Board”) dated January 23, 2013, wherein the Board continued the appellant’s detention in the maximum secure facility at Oak Ridge. The Board ordered that a program be created for the appellant’s detention in custody which may include certain privileges at the discretion of the person in charge: a) to attend within or outside of the hospital for necessary medical, dental, legal or compassionate purposes; and b) hospital grounds privileges beyond the secure perimeter, escorted by staff.

[3] The appellant submits that the Board erred by failing to order that his detention be reduced to a medium secure setting. Amicus curiae appointed to assist the court submits that the decision of the Board is unreasonable, and raises three grounds of appeal on the appellant’s behalf to support his request to be moved to a medium secure setting: 1) the Board erred by failing to address the obvious treatment impasse that had been reached after seven years at Oak Ridge; 2) the Board erred by failing to order the least onerous and least restrictive disposition; 3) the Board erred by failing to consider the appellant’s re-integration into society.

[4] Amicus asks that this court set aside the disposition made by the Board and order a) that the appellant be transferred to a medium secure facility; or b) an independent assessment of the appellant at Brockville Mental Health Centre; or c) a new hearing with such directions as this court deems appropriate.

Reasons of the Board

[5] In its reasons, the Board reviewed the appellant’s index offences, his background, the evidence at the hearing, the submissions of the parties, its findings and its prior disposition.

[6] The offences involved a number of written death threats and threats of sexual violence against the appellant’s former female probation officer as well as threats made to the appellant’s uncle and grandmother. The offences spanned a period from August 2001 to October, 2005. The threats were violent and graphic. The 2005 threats were contained in letters the appellant attempted to send from jail, which were intercepted by prison authorities. He also made telephone calls to the probation officer and to members of his family threatening death by burning their houses down. A number of the offences also constituted breaches of probation orders.

[7] The appellant has a significant criminal record for a range of offences including failure to comply, fraud, theft, indecent phone calls, sexual assault, and uttering threats. He was subject to a number of restraining orders regarding some family members. He has limited education and a history of alcohol abuse. He has also experimented with cocaine. He reported that he stopped drinking in March, 2004.

[8] His current diagnoses were: paraphilias of sexual sadism, rape preference, voyeurism, exhibitionism, pedophilia non-exclusive; alcohol abuse disorder and possible cannabis abuse disorder in remission in a controlled setting; mild mental retardation (with fetal alcohol spectrum disorder); borderline personality disorder; anti-social personality disorder; speech impediment; edentulous; inability to sustain work, school or programs; ego-dynastic sexually deviant fantasies.

[9] Based on intellectual testing in 2008, Dr. Percy found that the appellant’s intellectual functioning was compromised to the extent that it impacts his ability to benefit from therapeutic programs and to understand abstract concepts. He has had more than 20 psychiatric hospital admissions

[10] The appellant is capable of consenting to his own treatment. At the time of the hearing, he resided on Ward 4 of Oak Ridge’s Independent Living Program, but his pattern had been to constantly request transfers from one ward to another, for example, to a more structured ward then back to one allowing for more independence. The record indicated that the appellant had made several such transfer requests during the past year. Ultimately, the doctors decided to keep him on Ward 4 in order to provide him with some consistency.

[11] The hospital report described the appellant as needy and attention-seeking, giving numerous examples of his attention-seeking behavior and his tendency to manipulate, mislead, and split staff. It also described his frequent mood changes from happy to sad and suicidal.

[12] Another example of the appellant’s habit of changing his mind related to his decision about whether he would take drugs he was prescribed. He had been taking injections of Lupron, a medication to address his paraphilias, but he had recently requested that it be discontinued. When he asked that it be re-instated, Dr. Livermore, his psychiatrist, decided against acceding to this request right away. The appellant had also recently requested an antidepressant that had been discontinued, but it was determined there was no clinical reason for its prescription.

[13] The hospital report included the results of sexual preference testing that the appellant had undergone in 2007-2008. The report said that his primary interest was in pre-pubescent females between 10 and 16 years old, but Dr. Livermore stated that the actual ages were 10 to 35 years old. Phallometric testing was positive for children and for rape preference. The appellant told Dr. Livermore that the Lupron reduced his sex drive, although he continued to have sexual sadistic fantasies, albeit less intrusive ones.

[14] Five witnesses testified at the hearing: Dr. Livermore; Austin Mixemong, a spiritual counsellor; Chuck Bennett, a psychometrist; Dr. Brian Jones the vice-president of the hospital responsible for the forensic division; and the appellant.

[15] Dr. Livermore emphasized the appellant’s habit of constantly changing his mind about decisions regarding his care and treatment and his need for consistency and stability, which is why the doctor decided to maintain him on Ward 4. He also described how the appellant is obstructionist and seeks attention on the ward. He gave the opinion that the reason the appellant has not exhibited violent behavior while detained is because of the highly structured environment of the secure forensic unit, and that in a less secure facility, including medium security, the appellant would be unsafe; he added that community outings would be unsafe. Dr. Livermore’s opinion was that attending programs had not been effective in reducing the appellant’s risk to the community. He pointed out that the appellant often does not stay in the programs until completion. Dr. Livermore stated that the appellant’s risk was as high as when he came to Oak Ridge.

[16] Dr. Livermore had commenced an Individual Management Plan for the appellant and reported that the appellant was not happy with it. He gave the opinion that the appellant should not be moved to a medium secure facility, and that Oak Ridge was the only place where the appellant’s risk could be appropriately addressed. He also believed that the appellant would have less freedom at a medium secure facility because of the lower staff to patient ratio.

[17] Finally, Dr. Livermore advised that the appellant has been weaned off most medication for psychiatric issues over the previous two years and takes only Buspirone for agitation and anxiety.

[18] Mr. Mixemong has had counselling sessions with the appellant although the appellant is not of aboriginal ancestry. Mr. Mixemong also reported that the appellant repeatedly changes his mind about whether he wants to continue with the counselling.

[19] Mr. Bennett testified that there was an attempt to update the appellant’s cognitive function testing but the appellant was unable to complete the tests.

[20] Dr. Jones explained that forensic patients are not allowed off the Oak Ridge grounds for activities or outings.

[21] The appellant expressed the desire to be allowed to go off the grounds. He minimized his offences and did not believe he posed a significant threat to the community. He criticized the reports as outdated and requested a new assessment by a doctor in Brockville. He did agree that he could be manipulative with staff. He did not accept the Individual Management Plan and was not prepared to participate in it. He agreed that he suffers from borderline personality disorder and that he was a sexual predator. He also agreed that in that way he represents a high risk to the community. He said he had committed many sexual crimes for which he was never arrested. He explained that he becomes very anxious in anticipation of the Board hearings and requested a hearing every 24 months rather than annually.

[22] The appellant initially asked for an adjournment of the hearing because his counsel had written to three medium security facilities to ask if they would accept his transfer and only one had responded by the time of the hearing. The one that responded was not willing to accept him. The panel refused to grant the adjournment on the basis that it could order a transfer if it found that a medium secure facility was the least onerous and least restrictive disposition for the appellant, without the concurrence of the institution. The Board specifically acknowledged that the transfer issue was a live issue to be determined at the hearing: it could make the transfer order at the hearing or could order a rehearing within a short period of time if it needed more information before making the transfer order.

[23] The position of the hospital and the Crown was that the appellant should stay at Oak Ridge with the highest level of privileges available, which was his then current disposition. The appellant asked for a transfer to a medium secure, all-male unit. The appellant’s counsel did not support the suggestion of a 24 month review as had been proposed by the appellant, suggesting there should be an annual review.

[24] The Board found that the appellant remains a significant threat to the safety of the public. The panel referred to the appellant’s criminal record, the seriousness of the index offences, the psychiatric diagnoses, the phallometric testing results of preference for young women, children and rape, the appellant’s impulsive attention-seeking behavior and his inability to stick with a decision. They also noted the appellant’s acknowledgement of a high risk to reoffend with sexual offences and his borderline personality disorder. Finally, they noted that he had recently chosen to discontinue his Lupron.

[25] The Board’s disposition was that the least onerous and least restrictive disposition for the appellant was the then current one. The Board concluded that all the evidence supported the finding that the only place where the appellant can currently be maintained is the secure forensic unit at Oak Ridge. The Board discussed the possibility of transfer to Brockville or the Centre for Addiction and Mental Health (“CAMH”) in the medium secure all-male units, but concluded that the appellant would not have the level of liberty there that he has at Oak Ridge where he attends chapel, the Café, bingo, and walks, all escorted by staff.

[26] The Board discussed the fact that the appellant’s Sex Offender Risk Appraisal Guide (“SORAG”) score puts him in the 99^th percentile to reoffend sexually. They noted that he had made little improvement since coming to the Oak Ridge facility and that he was unable to commit to a therapy or to programs.

[27] Finally, the Board observed that although the appellant was requesting a transfer to a medium secure facility, the filed hospital report quoted him saying he really wanted to stay at Oak Ridge where he was comfortable. The Board also mentioned that the appellant’s family members had indicated that they would not visit him if he was transferred to a medium secure facility.

[28] Based on all of those reasons, the Board continued the disposition at Oak Ridge, finding it to be the least onerous and least restrictive.

Issues

[29] The appellant submits that he should be transferred to a medium secure institution, and that he should be reassessed at another institution as he has not been treated at Oak Ridge since 2006. Amicus submits that the Board erred in three ways: 1) by failing to address the issue of treatment impasse; 2) by failing to order that the appellant be transferred to a medium secure institution as the least onerous and least restrictive disposition or to order that he be assessed for that purpose; and 3) by failing to consider the appellant’s re-integration into society.

Standard of Review

[30] Section 672.78 of the Code allows the court of appeal to set aside a decision of the Board where: a) it is unreasonable or cannot be supported by the evidence; b) it is based on a wrong decision on a question of law, unless no substantial wrong or miscarriage of justice has occurred; and c) there was a miscarriage of justice.

Analysis

(1) Did the Board err by failing to identify that Oak Ridge had reached a treatment impasse in its care of the appellant?

[31] In Mazzei v. Director of Adult Forensic Psychatric Services, 2006 SCC 7, [2006] S.C.R. 326, at para. 42, the Supreme Court of Canada explained the mandate of the Board and its entitlement to order a re-evaluation of treatment approach in the case of a treatment impasse: “where no progress has been made or is likely to be made.”

[32] Amicus submits that the appellant has made efforts to make himself ready to be cascaded down to a medium secure facility, such as attending programs, socializing well with patients and staff, not being violent or using illicit substances, tending to his spiritual needs, and taking prescribed medications. She also argues that the Independent Management Plan proposed for the appellant is not aimed at his rehabilitation but rather to address issues the appellant is experiencing with staff who complain about dealing with him. Finally she points to the fact that the appellant has been prescribed and then taken off 70 psychotropic drugs that have not had an effect. She also submits that when the appellant was willing to recommence his Lupron, Dr. Livermore’s decision to withhold that medication was not a therapeutic one. She submits that after seven years there is nothing more that Oak Ridge can do for the appellant and a fresh assessment is required.

[33] I reject this submission. This is not a situation of treatment impasse. Although the appellant had not made any significant progress at Oak Ridge by the time of the hearing, it was not unforeseeable that he could progress in the future.

[34] The Independent Management Plan was put in place to allow the appellant to focus on fewer activities and goals. Three of the issues that he has to address are his inability to stick to a decision about his care, his inability to sustain interest, attention and attendance at programs and therefore to benefit from them, and his attention-seeking behavior. The ultimate goal of the plan was to enhance his ability to succeed in programs and other endeavors that could diminish the appellant’s risk level.

[35] Dr. Livermore’s approach to the issue of prescribing Lupron indicates that there is an active attempt to continue to find and properly administer the best treatment for the appellant. The history was that the appellant initially took the drug and then asked to go off it. A few days later he agreed to take it again. Dr. Livermore decided that instead of simply allowing the appellant’s pattern of changing his mind about care issues to govern, he would monitor the situation, then conduct a review to determine whether to re-prescribe Lupron or try another medication.

(2) Did the Board err by failing to order the least onerous and least restrictive disposition?

[36] The focus of the appellant’s submission is that the Board should have made inquiries about the ability of a medium secure, all-male institution to accept and manage the appellant. The two institutions suggested were CAMH and Brockville/Royal Ottawa Hospital, the two institutions that had not responded to the appellant’s counsel’s request for transfer.

[37] Amicus argued that without such inquiries, the Board did not know whether it was making the least onerous and least restrictive disposition available. She submitted that the Board failed to consider in its reasons the positive efforts the appellant had made to rehabilitate himself, his candid understanding and insight into his behavior and risk and his need for and willingness to co-operate with supervision.

[38] The issue of whether the correct legal disposition for the appellant was to transfer him to a medium secure facility was squarely before the Board. The Board carefully considered the issue, and accepted the opinion of Dr. Livermore, supported by the hospital and the totality of the evidence, that the appellant was not ready for such a transfer. Both on the basis of public safety and the appellant’s own needs for supervision and care, as well as to allow him the maximum liberties within the institutional setting, the Board concluded that the least onerous and least restrictive disposition was for him to remain in the secure unit at Oak Ridge.

[39] I see no error in the Board’s analysis or conclusion. Having found that the appellant remained a significant threat to the safety of the public, the Board found that “all of the evidence before us supports a finding that the only place that Mr. O’Donnell can currently be maintained is in the secure forensic facility where he currently resides.”

[40] As part of that evidence, the Board had before it the response from North Bay Regional Health Center to the appellant’s request to transfer there. That institution declined to accept the appellant, expressing the opinion that based on his current clinical status and risk to the public he required a maximum security setting. It said they would not be able to safely manage his risk, nor would they be able to provide safe transitional planning into the community.

[41] The Board noted that there had been no reply from the other two requested institutions, CAMH and Brockville, but concluded that it was unlikely that the appellant would be able to enjoy the liberties he is allowed at Oak Ridge in a less secure setting, given his risk level and the staff ratios at those institutions. As a result, it concluded that a transfer to either of those would not be the least onerous or least restrictive disposition.

[42] The Board also took into account the fact that although at the hearing the appellant was requesting a transfer, consistent with his inability to stick with his decisions, when he was asked for the purposes of the hospital report, he had expressed the desire to remain at Oak Ridge. They also thought it was important that the appellant continue to have visits from his family, who had indicated that they would not visit him at a medium secure institution.

[43] In my view, the Board’s decision was reasonable and fully supported by the record.

(3) Did the Board err by failing to consider the issue of re-integration of the appellant into society

[44] The Board did not specifically discuss the appellant’s re-integration into society in its reasons. However, its consideration of the least onerous and least restrictive disposition took that issue into account by addressing the need to protect the public while at the same time providing the appellant with the maximum liberties consonant with his condition, his attitudes and his other needs.

Conclusion

[45] The appellant has another hearing coming up very shortly where the Board will be able to assess the extent of his progress including on the Independent Management Plan. If the appellant has made progress in addressing the three identified issues that were contributing to his inability to improve mentally and emotionally, and in reducing his risk, the Board may specifically assess whether he can now be managed in a medium secure, all-male facility. In particular, the Board may consider the ability of such institutions to provide adequate supervision for the appellant, as well as the range of liberties available in a medium secure setting and whether these are appropriate.

[46] I would dismiss the appeal.

Released: “KF” January 10, 2014

“K. Feldman J.A.”

“I agree. M. Tulloch J.A.”

“I agree. P. Lauwers J.A.”