Court of Appeal for Ontario

Date: 2017-06-05 Docket: C62563

Judges: Cronk, Blair and van Rensburg JJ.A.

Between

Her Majesty the Queen and The Person in Charge of Providence Care Mental Health Services

Respondents

and

James Beau Jeffrey

Appellant

Counsel

Michael Davies, for the Appellant

Michael Medeiros, for the respondent, Her Majesty the Queen

No one appearing for the respondent, The Person in Charge of Providence Care Mental Health Services

Heard: May 30, 2017

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

Decision

[1] On April 24, 2011, Mr. Jeffrey stabbed his mother to death after an argument. On April 30, 2014, he was found not criminally responsible by reason of a mental disorder ("NCR") on a charge of second degree murder. Since that time he has been under the jurisdiction of the Ontario Review Board and detained at Providence Care Mental Health Services in Kingston.

[2] Mr. Jeffrey's last annual review took place on June 1, 2016. His next disposition review hearing is scheduled for June 12, 2017, less than two weeks from today.

[3] At the June, 2016, hearing everyone agreed that Mr. Jeffrey remained a significant threat to public safety and that he should remain on a detention order at Providence Care. The sole issue was whether the conditions of his detention order should be modified, as proposed at the time by the Hospital (supported by him), to provide for broader community access privileges. In spite of the Hospital's recommendation – but after considering the record, including the responses of the hospital psychiatrist, Dr. Chan, during his oral testimony – the Board declined to vary the terms of the order. It was of the view that several issues needed to be addressed before Mr. Jeffrey's community privileges could be extended in the manner proposed.

[4] Mr. Jeffrey appeals from that disposition, which was released on June 7, 2016. In his written materials he raised two issues. First, he submitted that the Board failed in its obligation to consider other readily available and relevant information, which had not been placed before it, in arriving at its decision. Secondly, he submitted that the disposition is unreasonable.

[5] Although no one appeared for the Hospital on the argument of the appeal, the Hospital filed a factum in which it agreed with the position of the Crown on the appeal and did not seek to have the disposition set aside.

[6] At the outset of his oral submissions, Mr. Davies reasonably advised that he would not be pursuing the second argument that the Board's decision was unreasonable, in view of the pending disposition hearing in two weeks' time. He acknowledged that the issue of how Mr. Jeffrey's risk is to be managed is better determined at this stage at the upcoming hearing. However, Mr. Davies continued to advance Mr. Jeffrey's first ground of appeal.

The NCR Hearing Information

[7] In making this submission, Mr. Davies focussed primarily on the fact that the Board did not obtain and consider the reasons for judgment given by Scott J. at the time of Mr. Jeffrey's NCR finding, together with the various medical reports and evidence contained in the trial record. He argues that, in the exercise of its inquisitorial role, the Board should have ensured that it, and the Hospital, had this information to consider in order to be able to appreciate fully Mr. Jeffrey's background and conduct and the nature and history of his mental illness: see Winko v. Forensic Psychiatric Institute (BC), [1999] SCJ No. 31, at para. 55.

[8] We reject this ground of appeal for two reasons.

[9] First, having reasonably accepted that there is little point, for practical purposes, in challenging the reasonableness of the Board's June, 2016, decision in view of the pending disposition hearing, Mr. Davies is faced with the similar considerations regarding his NCR-hearing-information argument. As a practical matter, an order setting aside the Board's decision would not result in Mr. Jeffrey's release into the community on different terms during the past year. And, to the extent that the information addressed by Mr. Davies may be pertinent to the upcoming hearing, efforts can be made by Mr. Jeffrey, his counsel, or the Hospital – or ultimately, if so advised, by the Board – to obtain it for consideration at that hearing.

[10] Secondly, we would not set aside the Board's June, 2016, decision on the basis of its failure to seek out the NCR hearing information in any event.

[11] While the foregoing materials may have provided the Board with some more information bearing on Mr. Jeffrey's difficulties in the past, it was conceded at the hearing that he remains a significant threat to public safety and the community, and that his continued detention at Providence Care is required. The narrow issue before the Board was whether that risk could be managed safely through modified terms of his detention order that would permit him to have more liberal access to the community.

[12] There may be cases where part or all of the record at an NCR hearing will be relevant at an ORB disposition hearing. But we see nothing in these circumstances to indicate that the NCR hearing information would bear in any significant way on the outcome of the hearing before the Board. The most pertinent evidence was contained in the Hospital's report and in the testimony of Dr. Chan concerning Mr. Jeffrey's current situation and his response to treatment during the period of his detention.

[13] Mr. Jeffrey was represented by counsel at the hearing and no effort was made to attempt to obtain the reasons of Scott J. or any of the medical evidence that formed part of the record at the NCR hearing; nor was Dr. Chan – the Hospital's witness – asked any questions relating to that information, or the lack of it. This provides at least some measure of how important Mr. Jeffrey's counsel felt the NCR hearing information to be.

The Decision was not Unreasonable

[14] Although Mr. Davies no longer pursues this issue, we are satisfied that the Board's decision was reasonable in any event. The Board had ample information before it to determine the single issue it was asked to decide, and it gave four reasons for declining to grant Mr. Jeffrey more liberal terms of access to the community: (i) Mr. Jeffrey had recently suffered a minor relapse; (ii) his emotional issues still needed to be addressed; (iii) substance abuse programming was required; and (iv) a full risk assessment addressing potential personality disorder issues was required before further modifications to the detention order could be considered.

[15] We agree with the Crown that these were all reasonable concerns that properly arose out of the evidence at the hearing. Indeed, Dr. Chan's responses to a number of questions from various Board members provided support for the Board's concerns. This included Dr. Chan's agreement – in response to a specific question posed by the Alternate Chair – that a full risk assessment should be done before there is any indirect access to the community.

[16] The Board is a tribunal that possesses specialized expertise in its area. Its decisions are entitled to considerable deference. In our view, its decision not to extend more liberal terms of access to Mr. Jeffrey as part of his detention order was well within the range of reasonable outcomes informed by that expertise. We see no basis for interfering with that decision.

Disposition

[17] The appeal is therefore dismissed.

"E.A. Cronk J.A."

"R.A. Blair J.A."

"R. van Rensburg J.A."