Court of Appeal for Ontario

Citation: Girard (Re), 2015 ONCA 256

Date: 2015-04-14

Docket: C58620

Before: Doherty, Cronk and Hourigan JJ.A.

In the Matter of: Robin Girard

An Appeal under Part XX.1 of the Code

Counsel: Lynn H. Cayen, for the appellant Amanda Rubaszek, for the respondent, the Attorney General of Ontario Janice Blackburn, for the Person in Charge, North Bay Regional Health Centre

Heard and orally released: April 2, 2015

On appeal against the disposition of the Ontario Review Board dated March 20, 2014.

Endorsement

[1] The appellant was found not criminally responsible on account of mental disorder in March 2014 on charges of resisting a police officer, possession of marijuana under 30 grams and failure to appear.

[2] The disposition under appeal resulted from the appellant’s first appearance before the Ontario Review Board. The North Bay Regional Health Centre and the appellant’s treating psychiatrist, Dr. Arthur Keith, took the position that the appellant posed a significant threat to the safety of the public.

[3] Dr. Keith testified that although the appellant had been diagnosed with delusional disorder and paranoid personality disorder, these diagnoses were provisional. It was likely the appellant was suffering from a psychotic illness which could be triggered by marijuana use. Dr. Keith stated that in light of the appellant’s continued marijuana use, his admitted intention to drive while impaired, the risk that he would remove his father from his nursing home without authorization and with force if necessary, and the concern expressed by the appellant’s half-sister that he would retaliate against his family for keeping his father in the nursing home, the least onerous and least restrictive disposition would be to detain the appellant in the hospital.

[4] Based on the evidence of the psychiatrist, the hospital, the OPP, and the appellant’s half-sister, the Board concluded that the appellant met the significant risk threshold. Detention in a secure forensic unit was the least onerous and least restrictive disposition in the circumstances. However, the Board imposed a hybrid disposition, which permits the hospital to transfer the appellant to the general forensic unit and to provide him with indirectly supervised community access if the hospital determines that his condition had improved sufficiently to justify that variation.

[5] Counsel for the appellant argues that the Board erred in finding that he posed a significant risk to public safety. She submits that there was no evidence to support this conclusion and that it was an error for the Board to make reference to previous criminal charges against the appellant that were ultimately withdrawn. Counsel argues that the Board erred in failing to grant the least onerous and least restrictive disposition which she contends is an absolute discharge or, alternatively, a discharge on conditions.

[6] We disagree with these submissions. The disposition was not unreasonable and, in our view, was supported by the evidence. Even if the Board erred in giving some weight to the withdrawn criminal charges, the appellant’s own statements, as reported to the treatment team, regarding his entitlement to use weapons and his refusal to abide by the laws of the land, supported the Board’s conclusion that the appellant posed a significant risk to public safety. That finding is also supported by the unanimous opinion of the appellant’s treatment team.

[7] The Board recognized that there was some uncertainty surrounding the appellant’s diagnosis. Consequently, the Board decided that a hybrid order permitting the hospital to liberalize the restrictions on the appellant’s detention at its discretion was appropriate. In our view, the Board did not err in holding that a hybrid detention order was the least onerous and least restrictive disposition available to the appellant in the circumstances.

[8] Counsel also raises two procedural fairness arguments. We see no merit to either procedural fairness argument. With respect to the alleged late delivery of the hospital report, that issue was not raised before the Board. The Board cannot be criticized for not unilaterally inquiring into the timing of the delivery of the report and any potential prejudice to the appellant when the appellant was represented by counsel before the Board.

[9] There is nothing in the comments made by the ORB at the outset of the hearing that could reasonably suggest any possibility of bias in favour of the hospital.

[10] With respect to the second procedural complaint, the Board delivered its written reasons several weeks after announcing its decision. In our experience, this is entirely consistent with the practice of the Board and indicative of nothing that could suggest any unfairness or bias on the part of the Board.

[11] The appeal is dismissed.

“Doherty J.A.”

“E.A. Cronk J.A.”

“C.W. Hourigan J.A.”