Her Majesty the Queen et al. v. Everingham
[Indexed as: R. v. Everingham]
Ontario Reports
Court of Appeal for Ontario,
Cronk, LaForme and Hourigan JJ.A.
October 27, 2014
122 O.R. (3d) 641 | 2014 ONCA 743
Case Summary
Charter of Rights and Freedoms — Search and seizure — Privacy — Not criminally responsible ("NCR") detainee at secure forensic psychiatric facility not having objectively reasonable expectation of privacy in his online communications on hospital computer — Detainee's rights under s. 8 of Charter not engaged by condition restricting his ability to communicate via e-mail without staff monitoring of content of e-mails — Canadian Charter of Rights and Freedoms, s. 8.
Criminal law — Mental disorder — Dispositions — Not criminally responsible ("NCR") offender diagnosed with sexual disorders including sexual sadism and pedophilia and being assessed as high risk for future sexual violence — Review board imposing condition restricting his ability to communicate via e-mail without staff monitoring of contents of e-mail — NCR accused in secure psychiatric hospital having significantly diminished expectation of privacy as do patients detained under Mental Health Act — Condition reasonable and not violating offender's rights under Mental Health Act or s. 8 of Charter — Condition that offender be accompanied by staff when accessing community also reasonable — Canadian Charter of Rights and Freedoms, s. 8 — Mental Health Act, R.S.O. 1990, c. M.7.
The appellant was found not criminally responsible in 1975 on charges of assault and assault causing bodily harm, and was also serving two life sentences imposed in 1975 for forcible seizure, rape and attempted murder of an eight-year-old girl. His diagnoses included various sexual disorders (paraphilia, sexual sadism and pedophilia) as well as antisocial personality disorder and polysubstance abuse. His treatment team was of the opinion that he continued to be a high risk for future sexual violence and his score based on actuarial and phallometric testing still placed him in the highest risk group for future sexual violence, despite his age and the fact that he is partially wheelchair bound. The appellant had access to a computer in hospital, and used it to access the Internet and send e-mail. The staff expressed concern that he could try to use his Internet access to try to contact children or other vulnerable females. He communicated with a person he described as an adult female whom, he asserted, was aware of his past offences and that he was detained in a secure psychiatric facility, but hospital staff had no information about that person or anyone else he contacted via e-mail. The appellant refused to allow hospital staff to contact the person he was communicating with via e-mail. In 2013, the Ontario Review Board ordered the [page642] appellant detained within the secure forensic unit of the hospital. The appellant did not contest that part of the disposition. The board imposed a condition restricting the appellant's ability to communicate via e-mail without staff monitoring of the contents of the e-mail, and ordered that he be permitted to enter the community only when escorted by staff. The appellant appealed those conditions.
Held, the appeal should be dismissed.
The computer condition was reasonable. Where an NCR offender's index offences and mental disorders are of a serious sexual nature, it is squarely within the board's jurisdiction under s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46 to craft a condition restricting access to the Internet and online communications to ensure that public safety is protected. The computer condition did not violate the appellant's rights under s. 8 of the Canadian Charter of Rights and Freedoms. Should he wish to avoid having his communications monitored, he could choose to communicate with others via the telephone or by letter rather than by e-mail. The hospital sought to balance his rights with their obligation to protect the public by permitting him access, subject to supervision. NCR accused have a significantly diminished expectation of privacy while detained in hospital pursuant to Part XX.1 of the Criminal Code. As an NCR detainee at a secure forensic psychiatric facility, he could not be said to have an objectively reasonable expectation of privacy in his online communications on a hospital computer. Patients admitted to hospital under the authority of the Mental Health Act have a diminished expectation of privacy in the mail they send by reason of s. 26(2) of that Act, which empowers hospital officials to open and examine the contents of a patient's mail in defined circumstances and there is no reason to conclude that e-mail within a secure psychiatric facility should not also be subject to similar scrutiny. The hospital had not failed to comply with the Act.
The community access condition was also reasonable. The board took into account such factors as the significant risk to public safety posed by the appellant, his elevated risk measurements on phallometric testing, his lack of personal support mechanisms outside the hospital, and of a realistic and feasible community access plan, the severity of his index offences, an incident of violence towards a co-patient in 2012, and the fact that, at the time of the hearing, he had no community access privileges at all. There was no clear evidence about how mobile the appellant was without his wheelchair and, given all of the evidence, a cautious approach was required to the appellant's reintegration into the community. The evidence amply supported the board's conclusion that the appellant's continued detention with staff-escorted community access was the least onerous and restrictive disposition.
Cases referred to
Everingham v. Ontario, 1993 CanLII 9406 (ON SC), [1993] O.J. No. 55, 100 D.L.R. (4th) 199, 13 C.R.R. (2d) 213, 37 A.C.W.S. (3d) 1275 (Gen. Div.); R. v. Conway, [2010] 1 S.C.R. 765, [2010] S.C.J. No. 22, 2010 SCC 22, 75 C.R. (6th) 201, 320 D.L.R. (4th) 25, 402 N.R. 255, 263 O.A.C. 61, 211 C.R.R. (2d) 326, 2010EXP-1926, J.E. 2010-1051, EYB 2010-175167, 1 Admin. L.R. (5th) 163; Weatherall v. Canada (Attorney General), 1993 CanLII 112 (SCC), [1993] 2 S.C.R. 872, [1993] S.C.J. No. 81, 105 D.L.R. (4th) 210, 154 N.R. 392, J.E. 93-1436, 83 C.C.C. (3d) 1, 23 C.R. (4th) 1, 16 C.R.R. (2d) 256, 20 W.C.B. (2d) 187
Statutes referred to
Canadian Charter of Rights and Freedoms, s. 8
Criminal Code, R.S.C. 1985, c. C-46, Part XX.1 [as am.], s. 672.54 [as am.]
Mental Health Act, R.S.O. 1990, c. M.7 [as am.], s. 26, (2) [page643]
APPEAL from the disposition of the Ontario Review Board, [2013] O.R.B.D. No. 3236.
Michael Davies, for appellant.
Maura Jetté, for respondent Her Majesty the Queen.
Michelle O'Bonsawin, for respondent Brockville Mental Health Centre — Royal Ottawa Health Care Group.
The judgment of the court was delivered by
CRONK J.A.: —
I. Introduction
[1] By disposition dated November 27, 2013, the Ontario Review Board (the "board") ordered the appellant, Donald Everingham, detained within the secure forensic unit of the Brockville Mental Health Centre (the "hospital"). As part of its disposition, the board also ordered that (1) the appellant "refrain from the use of computer devices, unless he gives permission to hospital staff to monitor their use for content and messaging" (the "computer condition"); and (2) with the approval of the person in charge of the hospital, the appellant be permitted to enter the community of Brockville, escorted by staff (the "community access condition").
[2] The appellant does not challenge his continued detention at the hospital or the board's conclusion that he continues to represent a significant threat to the safety of the public. Instead, he seeks to set aside the computer and community access conditions imposed by the board.
II. Background in Brief
[3] The appellant is a dual-status offender. He was found not criminally responsible ("NCR") on October 1, 1975 on charges of assault and assault causing bodily harm. He is also serving two life sentences imposed on May 5, 1975 for convictions for forcible seizure, rape and the attempted murder of an eight-year-old girl. He has been under the jurisdiction of the board for approximately 37 years.
[4] The appellant was detained at Waypoint Mental Health Centre ("Waypoint") from 1975 to March 28, 2012, when he was transferred to the hospital. Both Waypoint and the hospital are designated, secure forensic psychiatric facilities.
[5] The appellant's current diagnoses include various sexual-related disorders (paraphilia: sexual sadism; and pedophilia: heterosexual type), as well as antisocial personality disorder, [page644] polysubstance abuse and various diseases associated with aging (for example, coronary artery disease and degenerative disc disease). The appellant is approximately 66 years old and, much of the time, uses a wheelchair.
[6] Prior to his transfer to the hospital in March 2012, the appellant's actuarial risk assessment on the Sexual Offender Risk Assessment Guide ("SORAG") was updated. The appellant scored in the highest of nine ascending categories of actuarially measured risk on this test.
[7] As a result of his index offences, described above, and his scores on the SORAG and other phallometric tests, the appellant's treatment team considers that he continues to be a high risk for future sexual violence despite his advanced age.
[8] While at Waypoint and continuing at the hospital, the appellant has maintained contact with a person, described by him as an adult woman in New Mexico, named "Patricia". The evidence as to whether the appellant had access to the Internet, and hence to e-mail (online) communications with "Patricia" while at Waypoint is unclear. Similarly, the record does not establish precisely when the appellant's contact with "Patricia" commenced.
[9] However, there is no dispute that the appellant had access to a computer in his living quarters at Waypoint and that he spent most of his free time on the ward occupied with the computer. He acquired considerable computer-related knowledge in the process.
[10] On the appellant's transfer from Waypoint to the hospital, his Waypoint treatment term identified computer use and Internet access as a risk factor of concern, in light of the "potential victims [that] could be accessed via this tool". The hospital report filed with the board contains this warning from the appellant's Waypoint treatment team regarding both computer and community access:
The Team does recommend a cautious progression and stresses [the appellant] will require escorted privileges in any less secure setting. In addition, it is important that he not have access to vulnerable females or children. Any internet access would also be a concern as [the appellant] is quite adept and knowledgeable with respect to computers and it is possible potential victims could be accessed via this tool.
[11] Nonetheless, following his transfer to the hospital and prior to the board's November 2013 disposition, the appellant was permitted to use a hospital computer, with Internet access, in the hospital library under very limited supervision. The hospital report states: [page645]
While on the ward, [the appellant] spends his time playing video games or speaking with some of the co-patients on the ward. He has been actively involved with recreational activities to the extent he is able to with his current level of privileges. This includes playing the organ once a week under the supervision of Recreational Therapist, Ken Rossetti, and using the computer to surf the internet and email social contacts, once or twice a week, again under the supervision of Ken Rossetti. Mr. Rossetti monitors, from a distance, . . . [the appellant's] use of the internet and thus is able to see in a general sense what content he is viewing on the internet. Although Mr. Rossetti is able to see that he is sending emails, he would not be aware of the content of the emails or who they are sent to. [The appellant] himself said that he sends emails to an adult female in New Mexico named Patricia. [The appellant] would not allow the treatment team to contact her for any collateral information. He told the treatment team that she is aware of his index offences and the fact that he is residing in a psychiatric hospital. He said the relationship is not the treatment team's business.
(Emphasis added)
[12] Thus, hospital staff have no information or knowledge about "Patricia", including her age, save for the appellant's self-report that "Patricia" is an adult woman who lives in New Mexico.
III. Discussion
(a) Computer condition
[13] In his factum, the appellant raised various complaints concerning the computer condition. However, during oral argument, the focus of his complaints was narrowed significantly. Through counsel, he clarified that he does not challenge the hospital's authority to monitor his access to various websites available on the Internet. Rather, he objects to the restriction on his ability to communicate via e-mail on a hospital computer, without monitoring of the content of his e-mails by hospital staff. He submits that this restriction was neither anticipated nor sought by any party at the hearing. He says that the computer condition is unreasonable and overbroad, and that it offends his rights under the Mental Health Act, R.S.O. 1990, c. M.7 (the "Act") and s. 8 of the Canadian Charter of Rights and Freedoms.[^1]
[14] I would not accede to these submissions.
(i) Hearing fairness
[15] I am not persuaded that any hearing unfairness arose as a result of the imposition of the computer condition. [page646]
[16] The transcript of the board hearing reveals that the issue of the appellant's use of an Internet-connected computer at the hospital was the subject of questioning by board members. Both the legal member of the panel and the alternate chairperson of the board questioned the appellant's attending psychiatrist, Dr. J. Gray, about the appellant's use of a hospital computer, and any attendant risk to the public, during Dr. Gray's testimony before the board. As a result of their questions, the prospect of a possible condition restricting the appellant's computer use, including for the purpose of online exchanges over the Internet, clearly emerged as a live issue.
[17] Following the board's questions, counsel for the parties were afforded an opportunity to ask further questions of Dr. Gray and to make submissions concerning the appellant's access to a hospital computer. Crown counsel addressed this issue in further submissions, requesting that the board restrict the appellant's Internet access in much the same terms as are reflected in the computer condition ultimately imposed by the board. The appellant's counsel elected to make only minimal submissions. No adjournment of the hearing was sought by any party.
[18] In the light of the contents of the hospital report and the nature and gravity of the appellant's index offences, the question of his access to the Internet via the use of a hospital computer -- for any purpose -- was a highly relevant and proper consideration. Further, the procedures employed by the board in seeking further information from Dr. Gray on this issue, described above, ensured procedural fairness.
[19] In my view, therefore, there can be no sustainable complaint that the appellant was prejudiced by the fact that this issue emerged at the hearing or by the manner in which the Board addressed the issue during the hearing.
(ii) The computer condition is reasonable
[20] Nor am I persuaded that the computer condition is unreasonable on the facts of this case. The board reasoned as follows concerning the imposition of the computer condition:
It is also a concern of the Review Board that the accused has developed a relationship with a woman via internet and that the hospital has no information about the nature of that communication or whether this woman is potentially at risk of being influenced by the accused or whether the accused is communicating sexual fantasies or thoughts that the hospital should know about. Accordingly, the board will require a condition that the accused should not have access to the hospital computer unless it can be monitored for content by hospital staff. [page647]
[21] I agree with the concern expressed by the board. In my opinion, there is nothing unreasonable about this concern or the imposition by the board of a condition limiting the basis on which the appellant may access an Internet-connected computer owned by the hospital.
[22] The board enjoys broad authority under s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46 to craft conditions to a disposition that it regards as necessary or appropriate in the interests of protecting the public from dangerous offenders, while treating NCR patients fairly. The board's obligation to protect the liberty of an NCR accused by fashioning the least onerous and least restrictive disposition must be understood in the context of its companion and overarching obligation to protect public safety.
[23] The appellant's hospital treatment team and the board have no information concerning the appellant's online activities, including the nature of his e-mail communications with the person he describes as "Patricia" or, indeed, with anyone else. Internet access affords a portal to worldwide communications, including communications with children and vulnerable adults. Where an NCR offender's index offences and mental disorders are of a serious sexual nature, it is squarely within the board's jurisdiction under s. 672.54 of the Criminal Code to craft a condition restricting access to the Internet and online communications to ensure that public safety is protected.
[24] In this case, the evidence of the appellant's index offences, the nature of his mental illnesses, the concerns expressed by his former treatment team regarding his access to the Internet, the appellant's documented reluctance to disclose the nature of his e-mail communications, and the board's mandate to protect the public all strongly supported the imposition of a condition that defined the circumstances under which the appellant would be permitted to access the Internet, for e-mail or other purposes. The imposition of such a condition, in my opinion, was eminently reasonable. The hospital cannot be expected to manage the appellant's risk based solely on his self-reporting of the nature of his online communications.
[25] It is also important to note that the computer condition does not deny the appellant access to a computer or the Internet. The computer condition, as framed, permits use of computer devices by the appellant, including Internet-connected computer devices, so long as the appellant first consents to the monitoring of his use of such devices by hospital staff. It is apparent that the computer condition was crafted by the board, quite properly, with a view to fashioning the least onerous and least [page648] restrictive condition to facilitate the appellant's use of the Internet while also ensuring that the public is not put at risk by such use.
[26] I make these additional observations. First, the computer condition does not restrict or seek to impose monitoring on all communications by the appellant with third parties. Nothing in the computer condition constrains the appellant's ability to communicate by mail or telephone as he wishes, including, for example, with his legal counsel.
[27] Second, during oral argument, the appellant's counsel acknowledged that the board has the authority to deny the appellant access to Internet-connected devices altogether. The board chose not to do so. Instead, it fashioned a condition that permits continued computer and Internet access by the appellant, subject to monitoring in the interests of public and patient safety.
[28] Third, the appellant complains that the computer condition is overbroad. He points out, for example, that the condition as framed is not restricted to Internet-connected computer devices. However, there is no evidence that any of the hospital computers available to patients lack Internet access. Moreover, the appellant has made clear that his objection to the computer condition relates exclusively to the monitoring of the content of his outgoing and incoming e-mails. E-mail communication, like text messaging, is possible only with the use of the Internet.
(iii) Charter and statutory-rights complaints
[29] I also do not accept the appellant's complaint that the computer condition offends his constitutionally protected rights under s. 8 of the Charter or his rights under the Act. I say this for the following reasons.
[30] First, the Supreme Court has recognized that the board has the statutory tools under the Criminal Code "to supervise the treatment and detention of dangerous NCR patients in a responsive, Charter-compliant fashion", and that it has "a broad power to attach flexible, individualized, creative conditions to the discharge and detention orders it devises for dangerous NCR patients": R. v. Conway, [2010] 1 S.C.R. 765, [2010] S.C.J. No. 22, 2010 SCC 22, at paras. 93-94. It is in this context that the computer condition must be assessed for Charter and statutory compliance.
[31] Second, and critically in my view, as an NCR detainee at a secure forensic psychiatric facility, the appellant cannot be said to have an objectively reasonable expectation of privacy in his online communications on a hospital computer. [page649]
[32] Any informational privacy concerns relating to the appellant's online communications arise in a place and in a context governed by a statutory regime that requires the curtailing of liberty to the extent necessary to protect the public.
[33] The curtailment of the appellant's liberty at the hospital is manifest in a number of respects. As the Supreme Court held in Weatherall v. Canada (Attorney General), 1993 CanLII 112 (SCC), [1993] 2 S.C.R. 872, [1993] S.C.J. No. 81, the nature and extent of the Charter interests of an inmate of a correctional facility are necessarily informed by the inmate's institutional setting. The Supreme Court put it this way in Weatherall, at p. 877 S.C.R.:
Imprisonment necessarily entails surveillance, searching and scrutiny. A prison cell is expected to be exposed and to require observation. The frisk search, the count and the wind are all practices necessary in a penitentiary for the security of the institution, the public and indeed the prisoners themselves. A substantially reduced level of privacy is present in this setting and a prisoner thus cannot hold a reasonable expectation of privacy with respect to these practices.
[34] This reasoning is apposite here. The appellant is detained at the hospital as an NCR accused by operation of law. Detention in a designated forensic psychiatric facility, as with detention in a correctional facility, necessarily entails "surveillance, searching and scrutiny". The hospital's fresh evidence on appeal, filed on consent, confirms that patients at the hospital are routinely subjected to room searches, visual searches and assessments and "wanding" by hospital staff for security and safety purposes. Thus, as an NCR offender, the appellant has a significantly diminished expectation of privacy under Part XX.1 of the Criminal Code. In these circumstances, his s. 8 Charter rights are not implicated.
[35] The board has found that the appellant poses a significant threat to public safety. On this basis, his liberty is restricted under the statutory scheme for NCR accused codified in Part XX.1 of the Criminal Code. In light of the significant limitations on the appellant's access to the public by reason of his board-ordered detention, the appellant cannot reasonably expect that he will have unsupervised access to the Internet and online communications, without any oversight as to the contents of those communications.
[36] In addition, as I have said, the computer condition is crafted so as to ensure that any monitoring of the appellant's online communications occurs only with his consent. The appellant is free to refrain from accessing Internet-connected computer devices if he does not wish to consent to this monitoring. [page650]
[37] Third, turning to the Act, patients admitted to hospital under the authority of the Act have a diminished expectation of privacy in the mail they send and receive by reason of s. 26(2) of the statute. Under that section, hospital officials are empowered to open and examine the contents of a patient's mail in defined circumstances.
[38] In the past, the appellant unsuccessfully challenged the constitutional validity of s. 26 of the Act: Everingham v. Ontario, 1993 CanLII 9406 (ON SC), [1993] O.J. No. 55, 100 D.L.R. (4th) 199 (Gen. Div.). In that case, when upholding the constitutionality of s. 26, the court observed, at p. 8 (QL): "[w]hat is a reasonable expectation of privacy depends on the context. In a context where random searches to ensure safety and security are commonplace, the reasonable expectation of privacy is low."
[39] These comments apply, in my view, with equal force to a patient's online communications in a forensic psychiatric facility. In the context of the living conditions in these secure facilities and in the light of the fresh evidence in this case, the appellant has a significantly reduced expectation of privacy at the hospital. Moreover, I see no evidence of non-compliance by the hospital with the Act.
[40] Accordingly, I would reject the appellant's attack on the computer condition.
(b) Community access condition
[41] At the board hearing, the appellant sought a condition permitting him indirectly supervised access privileges in the hospital and grounds, and in the community, on an accompanied 1:4 staff to patient ratio. The hospital and the Crown supported this request. However, the board declined this request, instead ordering that the appellant be permitted (1) hospital and grounds privileges, escorted by staff; (2) hospital and grounds privileges, on a 1:4 staff-patient ratio, accompanied by staff; and (3) access to the community of Brockville, escorted by staff (the community access condition), all as the person in charge of the hospital might approve.
[42] The appellant submits that the community access condition is unreasonable for the following reasons: (1) the board gave no reasons for its rejection of the appellant's community access request; (2) the evidence indicated that the appellant's request, if granted, would not add to the risk to the community; and (3) since the appellant is confined to a wheelchair, community access on the basis proposed by the appellant would not add to the appellant's elopement risk.
[43] I disagree. [page651]
[44] Contrary to the appellant's contention, the board rejected his community access proposal for numerous cogent reasons. These included (1) the significant risk to the safety of the public posed by the appellant; (2) the appellant's recent commitment to take an antiandrogen medication, the effects of which were not yet measurable; (3) the appellant's elevated risk measurements on phallometric testing, which confirmed that he still experiences significant arousal to rape scenarios and prepubescent situations despite his denial of same; (4) the appellant's historical high-risk conduct for members of the public, particularly children and younger people; (5) the appellant's lack of personal support mechanisms outside the hospital, and of a realistic and feasible community access plan; (6) the severity of the appellant's index offences; (7) a documented incident of violence towards a co-patient in December 2012; and (8) the fact that, at the time of the hearing, the appellant had no community access privileges at all.
[45] Based on these factors (referred to by the board as "observations"), the board concluded that "the least onerous and restrictive disposition for the [appellant] is a continuation of his detention order with 1:4 hospital and hospital grounds supervision and passes into the community, but escorted by staff".
[46] The board's imposition of the community access condition was amply supported by the evidence. It is also consistent with the recommendation of his long-standing treatment team at Waypoint, quoted above, that a "cautious progression", with escorted privileges, be adopted with respect to the appellant's reintegration into the community. Finally, there was no clear evidence before the board regarding the extent of the appellant's mobility without the use of a wheelchair.
[47] In all these circumstances, in my view, the community access condition is reasonable. I see no basis for appellate interference.
IV. Disposition
[48] For the reasons given, I conclude that the appellant's challenges to the computer and community access conditions fail. I would dismiss the appeal.
[49] I note that the appellant's next annual review hearing is scheduled for November 4, 2014. It will be for the board to determine at that hearing whether any changes to the conditions of the appellant's detention are appropriate or necessary, based on the evidence adduced before the board at the new hearing.
Appeal dismissed.
Notes
[^1]: Although the appellant argued in his factum that the board had no jurisdiction to impose the computer condition, he did not pursue this claim in oral argument.