COURT OF APPEAL FOR ONTARIO

CITATION: Keizer (Re), 2016 ONCA 483

DATE: 20160616

DOCKET: C61774/C61899

MacFarland, van Rensburg and Huscroft JJ.A.

IN THE MATTER OF: Timothy Keizer

AN APPEAL UNDER PART XX.1 OF THE CODE

Suzan E. Fraser and Cate Martell, for the appellant Timothy Keizer

Barbara Walker-Renshaw, for the appellant the Person-in-Charge, St. Joseph’s Healthcare Hamilton

Amy Rose, for the respondent Her Majesty the Queen

Janice Blackburn, for the respondent the Person-in-Charge, Waypoint Centre for Mental Health Care

Heard: June 1, 2016

On appeal from the disposition of the Ontario Review Board, dated January 7, 2016.

ENDORSEMENT

[1] The appellants, Timothy Keizer (“Keizer”) and the Person-in-Charge, St. Joseph’s Healthcare Hamilton (“St. Joseph’s”), appeal from a disposition of the Ontario Review Board, denying Keizer’s request for an absolute discharge and ordering that he be transferred from Waypoint Centre for Mental Health Care (“Waypoint”) to St. Joseph’s pursuant to a hybrid disposition.

[2] The index offence was a failure to comply with a recognizance following a charge of threatening death in 2012. Keizer was found not criminally responsible for breaching his recognizance and held at St. Joseph’s. (He was subsequently acquitted of the threatening death charge.) He was diagnosed with delusional disorder, persecutory type and assessed as incapable of consenting to treatment. This assessment was upheld by the Consent and Capacity Board and an appeal to the Superior Court was dismissed.

[3] Keizer argues that the Board erred in concluding that he poses a significant threat to public safety. St. Joseph’s argues that the Board’s decision is unreasonable because it failed to consider the threat to public safety. In addition, St. Joseph’s argues that the Board breached the duty of fairness it owed to St. Joseph’s and that, as a result, its decision should be quashed.

[4] We will address the procedural fairness argument before considering the Board’s decision.

Did the Board breach the duty of fairness?

[5] St. Joseph’s argues that the Board breached the duty of fairness by failing to give notice of its intention to override St. Joseph’s objection to Keizer’s transfer and failing to provide an opportunity to St. Joseph’s to make further submissions or file further evidence opposing the transfer.

[6] This argument must be rejected.

[7] It is clear that St. Joseph’s knew and understood what was at stake in the Board proceedings. By letter dated September 25, 2015, Keizer informed the Crown, the Board, Waypoint, Ontario Shores Centre for Mental Health Services, and St. Joseph’s that he would be requesting a transfer from Waypoint to a less secure facility, and that one of his choices was St Joseph’s. This notice was provided pursuant to rule 13 of the Ontario Review Board’s Rules of Procedure.

[8] On October 22, 2015, St. Joseph’s replied, informing the parties that it did not agree that Keizer could be managed in a less secure environment and that he continued to pose a threat that requires the greater level of security provided at Waypoint. But St. Joseph’s took no further action. It made no submissions and did not seek to participate in the Board’s review process.

[9] It is not obvious that St. Joseph’s – a public institution – was owed a common law duty of fairness by the Board in the context of Keizer’s request for an absolute discharge. But even assuming that it was, in our view the duty would extend no further than the notice it received pursuant to rule 13. Having chosen not to take any further steps to participate in the review process, St. Joseph’s cannot be heard to assert that the Board acted unfairly in determining Keizer’s request on the basis of the submissions that were made before it.

Is the Board’s decision unreasonable?

[10] The Board’s decision is reviewable on a reasonableness standard, as prescribed by s. 672.78 of the Criminal Code. The court is required to review the decision of the Board pursuant to administrative law principles: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 34. The Board was required to exercise its expert judgment based on its evaluation of the relevant evidence, and the reasonableness of its decision must be evaluated by considering the reasons given by the Board in the context in which its decision was made.

[11] Keizer argues that the Board’s decision is unreasonable because the Board did not accept the evidence of Dr. Bergstrome, the only witness with recent clinical experience with him. Dr. Bergstrome found Keizer capable of consenting to treatment and discontinued his anti-psychotic medication. He testified that Keizer does not have a delusional disorder, persecutory type. Keizer has never been physically violent and, according to Dr. Bergstrome, poses no significant risk to public safety.

[12] St. Joseph’s argues that the Board failed to consider the safety of those who had been psychologically harmed by Keizer’s threats and would be exposed to him if he were returned to St. Joseph’s. It submits that the Board considered only the needs of Keizer and his proximity to friends and family in the Hamilton area.

[13] These arguments must be rejected.

[14] The Board found that Keizer suffers from a delusional disorder, persecutory type, which he neither acknowledges nor accepts treatment for. This finding was open to the Board on the evidence that was before it, which included Keizer’s history documented in the Hospital Report. Keizer was diagnosed with delusional disorder in 2002 and with delusional disorder, persecutory type in 2007. Several attending psychiatrists made the same diagnosis since that time.

[15] The Board was under no obligation to accept Dr. Bergstrome’s opinion, in whole or in part. The Board is an expert tribunal whose membership includes two psychiatrists, and it is entitled to form its own opinion and make its own finding on the matter. Given Keizer’s extensive history, it cannot be said that the Board’s finding about his diagnosis is unreasonable.

[16] The Board also rejected Dr. Bergstrome’s opinion in finding that Keizer continues to pose a significant threat to the safety of the public. The Board was entitled to conclude, as it did, that a reasonable person would feel threatened by Keizer’s threats, despite the absence of violent behaviour – which the threat recipients might not be aware of in any event.

[17] Finally, the Board was entitled to consider Keizer’s proximity to family and friends in crafting its disposition order. The Board noted Keizer’s maintenance of security privileges at Waypoint and his progress, and quite properly factored these into its disposition. The Board acknowledged St. Joseph’s opposition to the Keizer’s transfer from Waypoint, but concluded that the least onerous and least restrictive disposition was a hybrid disposition, detaining him in the Secure Forensic Service and General Forensic Service at St. Joseph’s with privileges up to entering the community of Hamilton, accompanied by staff.

[18] In all of the circumstances, we are satisfied that the Board’s decision is reasonable and must be upheld.

[19] The appeal is dismissed.

“J. MacFarland J.A.”

“K. van Rensburg J.A.”

“Grant Huscroft J.A.”