Court of Appeal for Ontario

CITATION: Benjamin (Re), 2016 ONCA 118

DATE: 20160212

DOCKET: C60616

Watt, Lauwers and Hourigan JJ.A.

IN THE MATTER OF: COLEBY BENJAMIN

AN APPEAL UNDER PART XX.1 OF THE CODE

R. Michael Rodé, for the appellant Coleby Benjamin

Hannah Freeman, for the respondent, Attorney General

Janice Blackburn, for the respondent, person in charge, Waypoint Centre for Mental Health Care

Heard: January 26, 2016

On appeal against the disposition of the Ontario Review Board dated, May 15, 2015.

Lauwers J.A.:

[1] This is an appeal from a disposition in which the Ontario Review Board did not follow the disposition recommendations in joint submissions put forward by the parties.

[2] The appeal raises one issue. In the wake of this court’s decision in Osawe (Re), 2015 ONCA 280, did the Board give the parties adequate notice of its intention not to accept the joint submission?[^1]

The Factual Context

[3] Mr. Benjamin has suffered from mental health problems and behavioural difficulties since childhood. His current diagnosis is Congenital Neurological Abnormality and Mild Mental Retardation.

[4] The appellant was found unfit to stand trial in February 2015 on charges of assault (x7), assault peace officer, utter a threat to cause death or bodily harm (x3) and failing to comply with a recognizance (x2). The index offences occurred in August and December 2014 and pertained to the appellant’s conduct while he was hospitalized at Providence Continuing Care Centre (Providence). On each occasion, the appellant became upset and aggressive towards hospital staff, guards, or police officers. During the August offences, the appellant struck and bit guards and staff members, spit in guards’ faces and at staff members, punched another sleeping patient in the face, kicked a nurse in the hands and wrist and told her he was going to “kill her” when he gets out of this, and kicked another nurse in the legs and punched her in the right breast. In December 2014, after police were dispatched to the appellant’s hospital, the appellant became violent and “took a swing” at a police officer. As he was being restrained, he bit the officer in the forearm hard enough to break the skin through layers of clothing. He also threatened to grab the officer’s gun and shoot him dead.

[5] After the December 2014 index offences, Providence concluded the appellant could no longer be managed at that facility and recommended he be transferred for further assessment at Waypoint Centre for Mental Health Care. The appellant was admitted to the Provincial Forensic Division of Waypoint on January 19, 2015 and placed in the dual diagnosis unit.

[6] The nursing team reported that the appellant had 22 “significant incidents” at Waypoint between January 24 and April 3, 2015, including verbally threatening to harm staff, spitting on staff, biting staff, hitting and kicking his door and walls, swinging items at staff, hitting a staff member with a closed fist in the face, throwing items at staff, and threatening and lunging at a co-patient. Dr. Bergstrome, the appellant’s treating psychiatrist, testified at the Board hearing that there were more incidents since the appellant’s admission to Waypoint that resulted in his seclusion, most recently on April 23, 2015.

The Disposition under Appeal

[7] After determining that the appellant was unfit to stand trial, Justice Letourneau of the Ontario Court of Justice on February 19, 2015 ordered the appellant to be detained at Waypoint, reserving for Waypoint the discretion to transfer him to another facility, including Providence. The detention order also allowed the person in charge of Waypoint to permit the appellant:

a. to attend within or outside of the hospital for necessary medical, dental, legal or compassionate purposes, escorted by staff or a person approved by the person in charge;

b. hospital ground privileges, escorted by staff or a person approved by the person in charge;

c. to enter the Province of Ontario, escorted by staff or a person approved by the person in charge; and,

d. to live in 24 hour supervised accommodation approved by the person in charge.

[8] This appeal concerns the appellant’s first Ontario Review Board hearing, which was conducted about two months later, on April 28, 2015. The parties presented a joint submission to continue the first disposition. Waypoint gave the opinion that the appellant did not require the intensive structure and security in its forensic program, and recommended his transfer to Brockville or Whitby. His mother did not want him to be transferred to Providence.

[9] Contrary to the joint submission, on May 15, 2015, the Board unanimously ordered the appellant to be detained at Waypoint, but removed the hospital’s authority to transfer him to another institution, and the permission for the appellant to live in 24 hour supervised accommodation approved by the person in charge. The Board changed the conditions to permit the appellant only:

a. to attend within or outside of the hospital for necessary medical, dental, legal or compassionate purposes; and

b. hospital ground privileges beyond the secure perimeter, escorted by staff.

[10] The Board based its disposition on the level of violence the appellant continues to manifest. The Board found, as agreed by the parties, “Mr. Benjamin is unfit to stand trial and that he poses a significant threat to the safety of the public.” The Board cited the serious incidents of violence against security guards and hospital staff shown by the index offences and the more recent “unpredictable, violent outbursts, which remain a concern.” The Board accepted Dr. Bergstrome’s evidence that it is unlikely, given the “recent history of violence in a community setting,” that the appellant “will be able to transition straight from Waypoint to community living.” This explains the deletion of the proposed community living prospect at this time.

[11] The record also shows that neither Brockville nor Whitby were prepared to receive the appellant for the same reason. The Board accepted Dr. Bergstrome’s evidence that “Brockville’s concerns are justified.” The Board expressed sympathy with the appellant’s mother’s involvement and her desire to have him closer to home, but concluded: “given the current situation the Board feels that a longer period of time at Waypoint, would allow for the medication changes, recently imposed, to have greater effect and would allow for a close staff ratio to direct and guide Mr. Benjamin's behaviour in an attempt to better understand and treat his condition(s).” This explains why the Board was not prepared to agree to leave the discretion to transfer the appellant in the hospital’s hands.

[12] Finally, the Board pointed out, based on Dr. Bergstrome’s evidence:

[t]here is reason to be hopeful that Mr. Benjamin is capable of becoming fit and that with the recent change in his medication and structured behavioural supervision he may become so within the next year. The Board notes, that should Mr. Benjamin's situation change within the next year, an early hearing can be requested.

[13] In short, the Board considered the proposed terms premature in the current cycle.

The Positions of the Parties

[14] The appellant submits “the Board breached a fundamental duty of procedural fairness by imposing a more restrictive disposition without allowing the parties the opportunity to address their concerns.”

[15] The Crown submits it was open to the Board to reject the joint submission, and its decision was “reasonably supported by the evidentiary record.” The Board “provided adequate notice that it was contemplating rejecting the joint submission through questions from the panel”. The appellant had “a meaningful opportunity to call relevant evidence”, and used the opportunity to call the appellant’s mother, who was also his substitute decision maker.

[16] Waypoint submits that given the appellant’s ongoing level of violent behaviour and the reluctance of Brockville and Whitby to accept his transfer, “it is difficult to characterize the Board’s decision as one which is outside the range of reasonable outcomes based on the evidence before it.”

The Issue

[17] As noted, there is only one issue on this appeal: Did the Board give the parties adequate notice of its intention not to accept the joint submission?

[18] I begin by setting out the governing principles and then address their application.

The Governing Principles

[19] Occasionally, the parties to a hearing before the Board agree on a joint submission. This is beneficial to the process, since joint submissions can narrow the issues, reduce the time and expense of hearings and minimize the inconvenience to physicians who can attend to their other tasks. Although the Board is inquisitorial in its approach, not adversarial, joint submissions can also temper any adversarial positions which arise, to the benefit especially of the person whose disposition is under consideration.

[20] The Board has, as Laskin J.A observed in Osawe (Re), at para. 33, “the undoubted authority, indeed the duty, to reject a joint submission if it is of the view that the joint submission does not meet the requirements of s. 672.54 of the Criminal Code.” He cited Hassan (Re), 2011 ONCA 561, 283 O.A.C. 154, at para. 25, and R. v. Lepage (1997), 1997 CanLII 2236 (ON CA), 152 D.L.R. (4th) 318 (Ont. C.A.), aff'd 1999 CanLII 697 (SCC), [1999] 2 S.C.R. 744, at para. 73. Automatic acceptance of a joint submission is inconsistent with the Board’s statutory mandate: Thurston (Re), 2015 ONCA 351, at para. 43; Osawe (Re), at paras. 33 and 57; Hassan (Re), at para. 25.

[21] When it considers that it might reject a joint submission, Osawe obliges the Board to provide procedural fairness to the parties, and particularly to the NCR or unfit accused, consistent with the Supreme Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 20; and this court’s decision in Kachkar (Re), 2014 ONCA 250, 309 C.C.C. (3d) 1, at paras. 42-44.

[22] In Osawe, Laskin J.A. noted, at para. 74, that the form of notice may vary, but the method “must satisfy the objective of allowing the accused a meaningful opportunity to present the evidence and argument relevant to the Board’s disposition.” Justice Laskin set out some of the acceptable methods in Osawe, at para. 73. These include:

• notice given by the presiding Chair expressing the Board's concerns about accepting a joint submission at the hearing itself, and asking the parties if they wish to lead more evidence, following an adjournment, if necessary;

• the questions asked by a number of the panel members during the hearing, where the questions are significantly probing about the core elements of the joint submission; and

• where concerns arise after the Board begins its deliberations, the Board may need to notify the parties and offer the opportunity for additional submissions or evidence.

[23] I would add that the context can also make it clear that the proposed disposition may not be easily accepted by the Board and will have to be amply demonstrated on the evidence. This was the Board’s first disposition, and it followed a disposition by a judge who, unlike the members of the panel, was not an expert on the issues to be determined.

The Principles Applied

[24] The appellant focuses on the deletion from the judge’s disposition of the hospital’s discretion to transfer him to another facility, or to move him into a group home, and to allow his mother to take him out of the hospital. All were excluded by the Board’s disposition.

[25] Probing questions from the panel communicated its unwillingness to leave discretion in the hands of the hospital to transfer the appellant to another facility. The unwillingness of Whitby and Brockville to take the appellant in his current state, and the appellant’s mother’s refusal to accede to a transfer to Providence, left the Board in some difficulty. This concern is, for example, reflected in the following exchange between Dr. Lightfoot, the psychologist member of the panel, and Dr. Bergstrome:

Q. [Dr. Lightfoot]: So in terms of what your – you would request the Board to do in terms of a disposition for next year, you’re, I think, saying you’d like it structured in the same way this one is [Justice Letourneau’s disposition], am I understanding you? It’s just…

A. Similar, yes, I believe this one I’m not sure if this specifically indicates that we would – I guess under 2(d) that could be – that could grant us permission to transfer him to a less secure forensic facility such as Brockville.

Ms. Murphy: I think 2(d) would be more for the group home (inaudible).

Dr. Bergstrome: Would that be only group home, though?

Ms. Murphy: No, not necessarily.

Dr. Bergstrome: That’s what I’m saying, would that not also cover a lower secure forensic facility such as Brockville or Whitby?

By Dr. Lightfoot:

Q. Yeah, The way this is worded it says, “To another facility”, which we generally are unable to do, we have to specify a facility and if Kingston is off the list and at the present time it doesn’t appear these two are on, you know, anywhere near ready, I’m not sure…

A. Okay.

Q. … what position that puts us in?

A. Yeah. It’s a difficult position because I – I don’t anticipate seeing a transfer from our facility to a group home setting. That would, I think, a too big of a transition. So it may be that we would have to look at a – calling an – possibly calling an early Board if he responded well over the next six months.

Q. And then canvassing the potential receiving hospitals again based on the improvement?

A. Yes.

Q. Is that what you see?

A. Yes.

Q. Yeah. Okay. I think – yeah, the other issue I have has been addressed already. Thank you, doctor.

[26] This exchange shows Dr. Bergstrome effectively resiling from the request for authority to transfer the appellant to another facility, in the face of the problem Dr. Lightfoot identifies, and accepting the alternative of an earlier board if the appellant responded well over the next six months.

[27] The appellant’s mother was seeking the prospect of a transfer to a group home, but the appellant’s counsel’s cross-examination of Dr. Bergstrome showed it was not a workable option:

Q. And what’s your feeling then about transitioning him to a supervised accommodation in the community -- 24 hour supervised?

A. I feel that would be premature at this point.

Q. And do you think he’s working towards that, or not?

A. Well, that is certainly the plan, that is what we are working toward. And that was part of the plan when he was transferred to this facility that he would eventually go back and eventually to the community.

Q. And that’s still a possibility?

A. That is our hope and our plan, yes.

Q. And do you have any opinion with respect to timeline for that?

A. I can’t really say. It’ll depend on response to treatment here, both behavioural and medication.

[28] The following exchange between Dr. Lightfoot and Dr. Bergstrome is most telling:

Q. [Dr. Lightfoot] And from your evidence you just presented, you don’t believe at this point in time he’s ready for a transfer to a group home kind of setting?

A. That’s correct.

[29] As the hearing progressed, the appellant’s counsel appears to have noticed the drift of the questions and the implications of the answers, and decided to call the appellant’s mother to respond to the evidence. No questions were addressed to her about her ability to control the appellant if she were to take him out of the hospital, or whether she had exercised that privilege after the initial disposition. The Board showed Ms. Draper great respect and sympathy.

[30] On the appeal, appellant’s counsel did not identify any other evidence that he would have called in support of the appellant’s position.

[31] To some extent, the situation was clouded by the medication issue. There were improvements in the appellant with new medication, but it was not yet at a therapeutic level, owing to his mother’s request to hold off. This issue was also explored in the Board’s questioning, and led it to express the hope that the “the recent change in his medication and structured behavioural supervision” would lead to the appellant becoming fit for trial. The Board noted as well the prospect of an early hearing should things improve.

[32] In short, the Board clearly saw the joint submission as premature in the circumstances.

Disposition

[33] To summarize, I must consider this case on the basis that it involved a joint submission that attracts the application of Osawe (Re). The members of the panel asked questions that unmistakably showed they considered the initial Ontario Court Judge’s dispositions to have been too permissive in the appellant’s current circumstances, and were not prepared to continue it, specifically to permit the transfer of the appellant to another facility or a group home, or to allow him to leave the hospital premises unaccompanied by staff.

[34] While it would have been preferable for the Chair to have expressed clearly the panel’s reservations about the joint submission at the outset, in my view the notice provided by the questions was adequate and procedurally fair, within the principles of Osawe (Re). The appellant had and took the opportunity to call the appellant’s mother in response. Finally, the Board gave reasons for its disposition that were amply supported by the record.

[35] The appellant has not demonstrated that the Board made a reviewable error in its disposition. I would dismiss the appeal.

Released: February 12, 2016 “DW”

“P. Lauwers J.A.”

“I agree David Watt J.A.”

“I agree C.W. Hourigan J.A.”

[^1]: This court’s reasons in Osawe (Re) were issued on April 22, 2015, six days before the Board hearing in this case. The Board’s decision was released on June 1, 2015.