COURT OF APPEAL FOR ONTARIO
CITATION: Latouche (Re) 2015 ONCA 675
DATE: 20151006
DOCKET: C59750
Strathy C.J.O., MacPherson J.A. and Speyer J. (Ad Hoc)
IN THE MATTER OF: Cameron Latouche
AN APPEAL UNDER PART XX.1 OF THE CODE
Gavin S. MacKenzie, for the appellant Person in charge of Centre for Addiction and Mental Health
Maureen Addie, for the respondent Cameron Latouche
Stacey D. Young, for the respondent Crown
Heard: October 2, 2015
On appeal against the disposition of the Ontario Review Board dated November 21, 2014.
ENDORSEMENT
[1] In a Disposition dated November 21, 2014, the Ontario Review Board (“ORB”) ordered that the respondent Cameron Latouche be absolutely discharged. In its reasons supporting the Disposition, the ORB said:
Having considered all of the evidence, we are not satisfied that the evidence supports a finding that Mr. Latouche remains a significant threat to public safety. Under these circumstances we are obliged to grant Mr. Latouche an Absolute Discharge.
[2] On December 16, 2014, the appellant hospital appealed the ORB’s Disposition. The appeal is an unusual one, as reflected in these paragraphs in the Notice of Appeal:
The appellant does not allege the Board’s decision to absolutely discharge the Appellant was unreasonable or tainted by legal error.
There have been significant developments with respect to Mr. Latouche since he was absolutely discharged.
The appellant takes the position that in light of these developments Mr. Latouche currently meets the threshold for significant threat to public safety.
The appellant will bring a motion for fresh evidence pursuant to s. 672.73 of Criminal Code in support of this appeal.
[3] The hospital made an application to this court to stay the ORB’s Disposition of absolute discharge pending the hearing of this appeal. In an Order dated February 4, 2015, Hoy A.C.J.O. granted the application and reinstated the ORB’s previous Disposition dated December 19, 2013 which detained the appellant in the General Forensic Unit of CAMH, with privileges up to living in the community in approved accommodation. In her reasons, Hoy A.C.J.O. stated:
Admissible fresh evidence establishes that promptly after being discharged, the Respondent resumed marijuana use and engaged in threatening behaviour. The respondent has been arrested three times since his discharge. He has been charged twice with threatening death and has been charged once with assault of a peace officer and failure to comply with a recognizance.
[4] On March 25, 2015, the ORB reviewed the appellant’s restriction of liberty pursuant to s. 672.81(2.1) of the Criminal Code. On March 30, 2015, the ORB ruled that the restriction of the appellant’s liberty was “warranted and in the circumstances of this case represented the least onerous and least restrictive decision.”
[5] The appellant has remained at CAMH since February 4, 2015.
[6] On this appeal, the hospital relies entirely on fresh evidence relating to the appellant’s conduct during the six weeks he lived in the community after his absolute discharge and his conduct at CAMH since the resumption of his detention there. As mentioned above, the appellant does not challenge the merits of the November 21, 2014 Disposition of the ORB.
[7] Section 672.73 of the Criminal Code provides that an appeal against a disposition order shall be “based on a transcript of the proceedings and any other evidence that the court of appeal finds necessary to admit in the interests of justice.” In R. v. Owens, 2003 SCC 33, the court indicated that fresh evidence concerning events that postdate the disposition order may be admitted “where the evidence is trustworthy and touches on the issue of risk to public safety” (paras. 48-61 and 71). The fresh evidence is not limited to the appellant. All parties may proffer fresh evidence: see R. v. Furlan, 2014 ONCA 740, at paras. 8-10.
[8] In this appeal, the hospital tendered fresh evidence through affidavits by Dr. Padraig Darby, a psychiatrist and the Person in Charge of CAMH, and Dr. Virginia Duff, one of the appellant’s treating psychiatrists. The respondent filed fresh evidence through Veronica Yuen, the appellant’s counsel’s legal assistant.
[9] The import of the fresh evidence tendered by the hospital is overwhelming. Sadly, the appellant’s good behaviour at CAMH which led to the absolute discharge in November 2014 disintegrated very soon after his release.
[10] The fresh evidence documents the following. Since his absolute discharge, the respondent has engaged in conduct that has led to three different sets of criminal charges, including five counts of threatening death (involving at least two incidents), assaulting a court officer, and breach of recognizance. He faces three trials on these charges. In addition, the appellant has regularly acted in an aggressive and intimidating manner towards CAMH staff and co-patients since his return to the hospital. He has been placed in locked seclusion for numerous periods in recent months.
[11] The respondent has also tendered fresh evidence consisting of, essentially, doctors’ and staff reports about the respondent’s condition and behaviour in the period from June 1 to September 11, 2015. Although these updates are useful and include material that might be relevant to CAMH’s treatment of the respondent going forward, they do not reduce by much the respondent’s very troubling behaviour and actions since December 2014.
[12] In the end, we accept the conclusion reached by Dr. Darby in his affidavit:
Absent the supervision and oversight of an ORB disposition, I believe there is a foreseeable and substantial risk that Mr. Latouche would commit a criminal offence that causes serious physical or psychological harm to a member of the public.
At this time, I believe that Mr. Latouche’s risk to public safety can only be managed on an in-patient basis.
[13] We note that Dr. Duff, the respondent’s treating psychiatrist whose highly favourable report anchored the ORB’s reasons for granting an absolute discharge in November 2014, now shares Dr. Darby’s opinion.
[14] The appeal is allowed. It is ordered that the ORB conduct a new and expedited hearing within 60 days and make a new disposition order. Until that order is made, the ORB disposition order dated March 30, 2015 remains in effect.
“G. R. Strathy C.J.O.”
“J.C. MacPherson J.A.”
“C.M. Speyer J. (Ad Hoc)”