Court of Appeal for Ontario

CITATION: Boucher (Re), 2015 ONCA 135

DATE: 20150302

DOCKET: C59101

Watt, Pepall and Huscroft JJ.A.

BETWEEN

In the Matter of Trevor Boucher

An Appeal Under Part XX.1 of the Code

Breese Davies and Owen Goddard, for the appellant

Maura Jetté, for the Ministry of the Attorney General

Michele Warner, for the Centre for Addiction and Mental Health (“CAMH”)

Heard: January 30, 2015

On appeal from the disposition of the Ontario Review Board, dated June 19, 2014, with reasons released July 8, 2014.

ENDORSEMENT

[1] Trevor Boucher appeals from the disposition of the Ontario Review Board dated June 19, 2014, with reasons released July 8, 2014. The Board ordered that the appellant be detained at the General Forensic Unit of CAMH with a condition that he be allowed to live in the community in accommodation approved by CAMH.

[2] On February 3, 2010, the appellant was found not criminally responsible on a count of threatening death or bodily harm (involving his mother) and three counts of assault. He has been subject to dispositions of the Board since that time. The disposition under appeal was made following a hearing pursuant to an annual review required by s. 672.81(1) of the Criminal Code.

[3] The appellant submits that the Board failed to apply the proper test when it ordered that he continue to be detained at CAMH. He focused on the Board’s statement that returning to live with his mother was not the “safest first step” for the appellant. He submits that the Board recognized that he was ready for discharge and it should have ordered a conditional discharge.

[4] The Board found that the appellant continued to represent a significant threat to the safety of the public. The Board heard and considered evidence relating to a conditional discharge including the recommendation of the appellant’s treatment team that he needed close structure and supervision and that he was not ready for a conditional discharge; the hospital had to be able to approve his accommodation. The treatment team considered having the appellant live with his mother but rejected this alternative as lacking viability.

[5] The Board considered that the appellant required ongoing supervision but accepted that he was ready to live in the community. However, there was a waiting list for housing programs. Although Mr. Boucher’s mother testified that she was willing to have him live with her in her one-bedroom apartment and that she would supervise him, the Board noted that she was both the victim of the offences and had also minimized their severity.

[6] The Board concluded that a detention order was necessary to approve housing for the appellant. We see no error in this regard. Giving the Board the power to require CAMH`s approval of accommodation is only possible under a detention order: see Re Runnals, 2012 ONCA 295 and Re Runnals 2014 ONCA 264.

[7] The appellant argued that the Board erred by failing to consider the appropriateness of a conditional discharge and by imposing a detention order.

[8] We disagree. The impugned passage must be read in context. The Board stated as follows:

The Board finds that Mr. Boucher continues to represent a significant threat to the safety of the public. His risk flows from polysubstance abuse, which had been in control in a secure and monitored environment. He has a past history of assault and threatening when unwell, but has not yet made the transition to living in the community without a return to substances. While in hospital, he has used alcohol in breach of his disposition on one occasion, without a clear trigger. This is some indication of the nature of his dependence and speaks to the need for ongoing supervision to prevent relapse that could lead to risk to others.

Mr. Boucher has made a positive transition over the past year from the secure forensic unit to the general forensic unit. He has worked cooperatively with his treatment team and is ready now for discharge to the community. The delay is in availability of housing that the hospital is prepared to approve. Although a conditional discharge would permit Mr. Boucher to return to the community faster, his liberty is not the only feature we must consider. We must also consider safety and Mr. Boucher's reintegration and other needs. We agree that at this initial step back into the community, the hospital ought to be able to approve Mr. Boucher's living arrangements. Although eventually returning to live with his mother might be appropriate, it is not felt that this is the safest first step. We agree. Accordingly, we find that a detention order is necessary in order to approve housing.

[9] It is apparent that the Board considered the relevant criteria including the appellant’s liberty interest and made the least onerous and restrictive disposition. It left the appellant’s current privileges and supervisory terms in place and added a term allowing the appellant overnight passes into the community for up to seven days at a time, in order to facilitate greater community access.

[10] In our view, the Board’s decision reveals no legal errors and is reasonable given the evidence that was before the Board. There is no basis for this court to interfere.

[11] Counsel informed the Court that, subsequent to the Board’s decision, CAMH approved apartment accommodation and will be transitioning the appellant over the next several weeks. This is a positive development but does not affect the disposition under appeal.

[12] The appeal is dismissed.

“David Watt J.A.”

“S.E. Pepall J.A.”

“Grant Huscroft J.A.”