COURT OF APPEAL FOR ONTARIO

CITATION: Baumann (Re) 2015 ONCA 603

DATE: 20150909

DOCKET: C58375

Strathy C.J.O., Tulloch and Hourigan JJ.A.

IN THE MATTER OF: Tim Baumann

AN APPEAL UNDER PART XX.1 OF THE CODE

Erin Dann, for the appellant

Alexander Alvaro, for the respondent, Her Majesty the Queen

Julie A. Zamprogna Balles, for the respondent, St. Joseph's Health Care London

Heard: December 5, 2014

On appeal against the disposition of the Ontario Review Board dated January 28, 2014.

Tulloch J.A.:

A. OVERVIEW

[1] The appellant appeals the disposition of the Ontario Review Board dated January 28, 2014 ordering his continued detention at the General Forensic Unit of the Southwest Centre for Forensic Mental Health Care, St. Joseph’s Health Care London.

[2] The alleged index offence occurred on October 6, 2007, at approximately 8:40 p.m. The appellant was accused of exposing himself to an 11-year-old boy in the change room of a public swimming pool in London, Ontario.

[3] At the time, the appellant was 44 years old. He was charged with willfully committing an indecent act. On October 15, 2008, the appellant was found unfit to stand trial due to an intellectual disability. As a result, he came under the jurisdiction of the Ontario Review Board.

[4] Since 2009, the appellant has been considered a significant risk and has been subject to various detention orders made by the Board. These detention orders have allowed him the privilege of residing in the community with his mother.

[5] At his most recent Review Board hearing on January 20, 2014, the Board found that the appellant remained a significant risk to the community and continued his detention, subject to the privileges of residing with his mother and maintaining his job in the community.

[6] The appellant raises two main grounds of appeal.

[7] First, he submits that the Review Board erred by finding that he remains a significant threat to the public and by refusing to recommend that the court hold an inquiry to determine if a stay of proceedings should be granted. The appellant argues that the Board provided no reason for rejecting the uncontradicted evidence of the expert, and that its finding of significant risk is unsupported by the evidence and unreasonable in the context of this case.

[8] Second, the appellant submits that the Board erred by failing to impose the least onerous and least restrictive disposition, which in this case should have been a conditional discharge.

[9] The hospital supports the appellant’s submissions. The Crown opposed on the basis that the appellant still poses a significant risk to the public.

[10] For the reasons that follow, I find that the Board considered the totality of the evidence before it in deciding that the appellant continued to pose a significant threat to public safety. This decision was reasonable in the circumstances.

[11] I agree with the appellant with respect to the second issue. The Board erred in failing to consider the least onerous and least restrictive disposition. I would therefore order that this matter be sent back to the Review Board to consider whether the imposition of a conditional discharge could ensure public safety.

B. FACTS:

[12] The appellant’s history of sexual incidents involving children dates back to 1972, when he was only nine years old. In total, there are four separate reported incidents involving inappropriate sexual conduct prior to the commission of the index offence. Two of these incidents resulted in criminal charges. In 1994, the appellant exposed himself to his then five-year-old nephew. This incident did not come to light until 1996, when the appellant again exposed himself to the same nephew. The child told his parents and the Children’s Aid Society, and eventually the police became involved. In statements given to the police, both the child and the appellant indicated that mutual kissing of the genitalia had also occurred. As a result, the appellant was convicted of two counts of sexual assault. He received a suspended sentence and two years’ probation. According to the hospital reports, the appellant participated in counselling during those years, which appeared to provide him with the ability to exercise some degree of self-control over the sexual impulses that he reported were “always there”.

[13] Since being found unfit, a number of psychological assessments have been conducted on the appellant. All have concluded that while he seemed to understand that his actions are inappropriate and that it was wrong for adults to make sexual advances toward children, he did not appear to appreciate the potential negative impact on the child victims involved. He suffers from mild retardation and scores below the 1^st percentile relative to the general population on a standard vocabulary test. In addition, the assessments concluded that the appellant would require significant support and supervision to ensure that he was able to meet his basic needs and function in the community.

[14] The particulars of the main assessments are outlined below.

[15] Dr. Milton Blake conducted a psychological assessment following the appellant’s conviction on the two counts of sexual assault. Dr. Blake concluded that while the appellant seemed to understand that his actions were illegal, and that it was wrong for adults to make sexual advances towards children, he did not appear to appreciate the potential negative impact on the child involved. The doctor diagnosed the appellant as mildly mentally retarded. He concluded that the appellant's history of sexual offences did not show a clear-cut escalating pattern “that would qualify him as a dangerous or even potentially dangerous sexual offender”.

[16] The doctor further concluded that due to the appellant's inability to understand the negative impact of his actions, together with his physiologically normal sexual drive, he could reoffend in the future if the opportunity presented itself.

[17] Following the 1996 charges and conviction, the appellant's family increased their supervision of him to minimize the risk of him reoffending. However, in October 2007, due to a small change in his routine, the appellant was in a public changing room at the same time as children when he allegedly committed the index offence. In discussing his actions with respect to the index offence, the appellant could offer no explanation for what occurred, and said that he did it because “he had the chance”.

[18] During the legal proceedings related to the index offence, another psychological assessment was conducted in August 2008. The findings were consistent with the 1996 assessment. This assessment concluded that the appellant's cognitive abilities were well below average. He would require significant support and supervision to ensure he was able to meet his basic needs and in order to function in the community.

[19] In October 2008, another doctor assessed the appellant and determined that he was not fit to stand trial due to a developmental disability with a mild to moderate retardation resulting from hypoxia at birth. The doctor concluded that the appellant’s intellectual deficit would profoundly impair his ability to manipulate information and participate meaningfully in his defence.

[20] In February 2009, the appellant’s treating physician, Dr. Ellis, concurred with earlier assessors that the appellant requires a structured, simple, and routine program. Dr. Ellis also noted that without appropriate supervision, the appellant would be at risk of reoffending again and acting on his sexual drives.

[21] The appellant subsequently appeared before the Review Board and was ordered detained in the minimum security unit with conditions that allowed him to live in the community in approved accommodation. That order has remained in place until now, with some changes in the accompanying conditions. Since then, the appellant has consistently lived in the community with his mother, and has never been brought back into the hospital. He is visited each month by hospital outreach members at his home and he has weekly visits with a case worker for socialization.

[22] The appellant's mother is now elderly and as a result, his family has made contact with various social services agencies to facilitate the appellant's care, should his mother become unable to care for him. While he has been placed on a waiting list for housing, any move is unlikely unless his mother is no longer able to care for him at her home.

[23] The appellant and his family recognize that he presents a constant risk to the safety of children if left unsupervised. As such, the family has indicated that they are taking all precautions to ensure that no further incidents occur.

[24] According to the hospital report, it appears that the appellant will be permanently unfit, given the absence of a co-morbid psychiatric illness and the permanent nature of his intellectual disability. The appellant's treatment team believes that his behaviours are shaped by his cognitive deficits and developmental delays and as such, are unlikely to change. Accordingly, proper supervision is critical to manage the risk. In this regard, the treatment team, in cooperation with the appellant's family, have put together the current safety protocol and have been effective in preventing the appellant from reoffending.

[25] As a result of the implementation of the safety protocol, as of the end of 2013, the treatment team concluded that the appellant was not a significant threat to the safety of the public and, consequently, no longer met the criteria for continued involvement with the Review Board.

C. The January 20, 2014 Review Board Hearing

[26] The most recent Review Board hearing was held on January 20, 2014. At the hearing, Dr. Ellis testified on behalf of the hospital and stated that while the appellant remained unfit and would be unfit permanently due to his intellectual disability, he no longer met the threshold of significant risk. He recommended that consideration be given to referring the appellant's case to a court to determine if a stay should be granted.

[27] Dr. Ellis' evidence and opinion was based largely on the existence of the safety protocol and the commitment of the appellant's family, including the appellant's brother, to continue to provide the same level of supervision outside the authority of the Board as when he is under the Board's jurisdiction. In addition, the appellant's brother has agreed that he will take over the supervision of the appellant should his mother become unable to do it. Dr. Ellis expressed confidence in the family's insight into the appellant's need for a high level of supervision. He also noted that in the event that the family's supervision was to break down, the appellant would be placed in supervised housing by social services.

[28] Dr. Ellis also acknowledged during his testimony that in previous years he and the treatment team concluded that the appellant did present a significant risk, and that there had been no significant change or progress in the appellant's mental status or intellectual ability since the previous disposition was made detaining the appellant. Dr. Ellis further acknowledged that without the safety protocol in place, the appellant would continue to present a significant risk. Furthermore, while the appellant's family has indicated a willingness and commitment to supervise the appellant, Dr. Ellis did not believe any member of his family had applied for guardianship of the appellant.

[29] The Board accepted Dr. Ellis' evidence on the issue of the appellant's fitness, and found that the appellant continues to be unfit, and is likely to remain unfit permanently.

[30] On the issue of risk, the Board found that the appellant continued to pose a significant threat to public safety, despite the evidence of Dr. Ellis. The Board relied on Dr. Ellis' evidence at both the appellant's 2012 hearing as well as at the 2014 hearing when he testified that there was no significant change in the appellant’s mental status or intellectual ability and that if he was to be left unsupervised with a child, he would still pose a significant threat and likely reoffend.

[31] While the Board acknowledged that the structured safety protocol and family support appeared to be working, they concluded that these did not "reach the level of diminishing the significant threat" posed by the appellant.

[32] The Board also suggested that if a family member were to obtain legal guardianship of the appellant, entitling them to make decisions on his behalf, such a “safeguard” might mean the significant threat threshold would not be met.

D. ANALYSIS:

(1) Standard of Review

[33] This court can only interfere with the Board’s decision, per s. 672.78(1) of the Criminal Code, R.S.C., 1985, c. C-46, if we are of the opinion that:

1. the decision is unreasonable or cannot be supported by the evidence;

2. the decision is based on an error of law; or

3. there was a miscarriage of justice.

[34] The appellant’s argument is based on the reasonableness of the Review Board’s decision. The appellant submits that the Board’s finding that he continues to pose a significant risk, in light of the evidence of Dr. Ellis, is unreasonable in the circumstances. Furthermore, he submits the Board’s findings are unsupported by the evidence. I disagree.

(2) Was the Board’s decision that the appellant remains a significant threat to the public unreasonable or unsupported by the evidence?

[35] There is no issue that the appellant remains unfit to stand trial, and that he is likely permanently unfit as found by the Board. At issue is whether or not he still poses a danger to the safety of the public.

[36] With respect to the issue of significant risk, the Review Board made the following findings:

[A]lthough there was evidence from Dr. Ellis that there were various protocols and structures put in place by family members, in the opinion of the Board, Mr. Baumann remains a significant threat to public safety. We make this finding based on the evidence of Dr. Ellis from the previous hearing, at which time he advised the Board that in his opinion, Mr. Baumann remained a significant threat. There has been no change with respect to Mr. Bauman’s mental state since that time, and while the Board acknowledges that the protocols and family support seem to be working in a positive manner, they do not reach the level of diminishing the significant threat posed by Mr. Baumann. Dr. Ellis acknowledged his previous statement as quoted above to still be true (as qualified by him with respect to protective measures in place).

[37] It is clear from the reasons that the Review Board considered the evidence of Dr. Ellis in its totality, and disagreed with his opinion as to the issue of significant threat.

[38] The finding of whether or not the appellant posed a significant threat is within the purview of the Board to make. The Board, as an expert tribunal, was entitled to reject the evidence of Dr. Ellis and arrive at its own conclusion based on all the evidence which was before it: see R. v. Starson, 2009 ONCA 826, at para. 6.

[39] The Board considered the totality of the evidence which was before it. Dr. Ellis’ evidence was that, in light of the safety protocol now in place, the appellant no longer met the threshold of being a significant risk. The Board was also entitled to consider and rely on Dr. Ellis’ evidence that there was no significant change in the appellant’s mental status or his intellectual ability from 2012 to the date of the Review hearing. At the time, Dr. Ellis was of the view that the appellant posed a significant risk of physical or psychological harm to the safety of the public and, in particular, to children. He agreed that the appellant’s sexually inappropriate behaviour is generally impulsive and opportunistic and that there is a risk of a higher level of harm should the appellant be unsupervised in the presence of children.

[40] Considering the fact that the root cause of the appellant’s criminal conduct was attributed to his intellectual deficit or disability, coupled with sexually impulsive and opportunistic behaviour when left alone in the presence of children, the Board’s reliance on this aspect of Dr. Ellis’ evidence was reasonable in the circumstances.

[41] The Board was evidently also concerned with the family’s legal status to provide the requisite structured supervision of the appellant on a 24 hour basis, in light of the fact that no family members had applied for legal guardianship of the appellant. This was a reasonable concern in light of the appellant’s past history in which he has been involved in at least five sexually inappropriate incidents involving children. The Board did recognize the potential safeguards provided by the safety protocol that has been in place, but felt that it was not foolproof should the appellant be outside the control of the hospital without a family member having legal guardianship over the appellant, with authority to intervene if necessary.

[42] The determination of the risk presented by the appellant is reviewable on a reasonableness standard. Having found that the Board’s decision on the issue of significant threat is reasonable in the circumstances, a stay of proceedings is not available.

(3) Did the Review Board err in not considering the least onerous and least restrictive disposition?

[43] The second issue raised by the appellant is that the Review Board err in not imposing the least onerous and least restrictive disposition, which in this case should have been a conditional discharge. Having found that the appellant still posed a significant risk to the safety of the public, the Board was then obliged to make a determination on the appropriate disposition, considering the criteria set out in s. 672.54 of the Criminal Code.

672.54 When a court or Review Board makes a disposition under subsection 672.45(2), section 672.47, subsection 672.64(3) or section 672.83 or 672.84, it shall, taking into account the safety of the public, which is the paramount consideration, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is necessary and appropriate in the circumstances:

(a) where a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused and, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely;

(b) by order, direct that the accused be discharged subject to such conditions as the court or Review Board considers appropriate; or

(c) by order, direct that the accused be detained in custody in a hospital, subject to such conditions as the court or Review Board considers appropriate.

[44] In determining the proper disposition in cases of unfit accused, the Board must choose between imposing a detention order and a conditional discharge. The criteria for an order of absolute discharge under s. 672.54(a) are: (i) a verdict of not criminally responsible (NCR) on account of mental disorder has been rendered in respect of the accused; and (ii) in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public. The appellant has not been found to be NCR on account of mental disorder. The Review Board held that he continues to be unfit to stand trial and remains a significant threat to public safety. He does not meet either of the requirements for an order of absolute discharge under s. 672.54(a). The only two dispositions available are discharge subject to conditions and detention in custody in a hospital, as per ss. 672.54(b) and (c).

[45] Section 672.54 also provides that the following factors should be considered by the Board in making their disposition:

• the need to protect the public from dangerous persons;

• the mental condition of the accused;

• the reintegration of the accused into society; and

• the other needs of the accused.

The Board must arrive at a disposition which is the “least onerous and least restrictive” to the accused. It is the entire “package of conditions” that is to be the least onerous and least restrictive: see Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20, [2004] 1 S.C.R. 498, at para. 71.

[46] In this case, nowhere in the reasons is there any indication that the Board considered the appropriateness of a conditional discharge, which would have been the least onerous and least restrictive disposition in the circumstances.

[47] I agree with the submissions by counsel on behalf of the appellant that the Board erred by failing to even consider the imposition of a conditional discharge. Given that the primary risk factor here was unsupervised interactions with children, it was incumbent on the Board to consider whether there were conditions that could attach to a discharge that would address that issue to ensure public safety.

[48] Furthermore, having heard and considered the evidence of Dr. Ellis on the effectiveness of the safety protocol in managing the behaviour of the appellant through structured supervision, the Board should have considered whether it was appropriate to impose the safety protocol as a condition of a conditional discharge.

[49] The Board also posed its own question to Dr. Ellis as to whether or not any family member had applied for legal guardianship of the appellant, and indicated that should that occur, it was possible that the significant risk posed by the appellant could be diminished. Again, they could easily have considered the implications, if any, of requiring the imposition of a guardianship as a condition to a disposition of a conditional discharge.

[50] In all the circumstances, I agree with the appellant that the Board erred in not considering the imposition of a conditional discharge.

E. Disposition

[51] For the reasons above, I would order that this matter go back to the Review Board to consider whether a conditional discharge should be imposed in the circumstances.

Released: “GS” Sep 9, 2015

“M. Tulloch J.A.”

“I agree. G.R. Strathy C.J.O.”

“I agree. C.W. Hourigan J.A.”