Court of Appeal for Ontario

Date: 2017-06-26 Docket: C63045

Judges: Strathy C.J.O., Benotto and Miller JJ.A.

In the Matter of: Frank Shepherd

An Appeal Under Part XX.1 of the Code

Parties and Counsel

Appellant: Frank Shepherd, in person

Counsel for the Appellant: Ken J. Berger

Counsel for the Respondent, The Person in Charge of the Southwest Centre for Forensic Mental Health St. Joseph's Health Care London: Julie A. Zamprogna Ballès

Counsel for the Respondent, The Attorney General of Ontario: Alexander Hrybinsky

Heard: June 20, 2017

On appeal against: The disposition of the Ontario Review Board, dated September 9, 2016.

Reasons for Decision

[1] Mr. Shepherd appeals the disposition of the Ontario Review Board, which accepted the joint submission of his counsel and his doctor. The Board determined his care should continue to be managed pursuant to a detention order.

[2] On February 4, 2009, Mr. Shepherd was found not criminally responsible on account of mental disorder on charges of assault, forcible confinement and criminal harassment. The facts underlying the criminal harassment offence relate to an incident where Mr. Shepherd approached the victim in her car, cornered her and threatened her. In a separate incident, Mr. Shepherd's wife was the victim of the assault and forcible confinement offences.

[3] On September 8, 2016, the Board conducted a review with a five-member panel. Mr. Shepherd's counsel and his doctor jointly submitted that his care be managed pursuant to a detention order with passes for up to 72 hours, up to 12 times a year, to enter the community indirectly supervised. This latter condition represented an increase in Mr. Shepherd's privileges.

[4] Mr. Shepherd appeals on the basis that the Board erred in accepting the joint submission of the parties without properly discharging its inquisitorial duty at the hearing. We do not agree.

[5] Before the Board, Mr. Shepherd was represented by counsel who did not contest the issue of whether Mr. Shepherd continued to pose a significant threat to the safety of the public. There is no suggestion that counsel acted without authority, was under a misapprehension, or provided ineffective assistance: see Re Kelly, 2015 ONCA 95. This court has recognized that joint submissions play an important role in proceedings before the Board: see Re Osawe, 2015 ONCA 280. The Board was entitled to rely on the joint submission.

[6] The Board also conducted its own inquiry and concluded, based on the evidence of the physician and the hospital report, that Mr. Shepherd remains a significant threat to the safety of the public. The Board found, at p. 4 of its reasons, that he:

[P]resents a moderate-to-high risk of violent reoffending in the next 12 months … [and] could not be safely managed with a Conditional Discharge disposition at this time given his psychiatric symptoms, lack of insight, and potential for instability and treatment non-adherence.

[7] There was evidence before the Board about recent medication changes and a new residence. At Mr. Shepherd's next review, the Board will have the advantage of considering the impact of these changes.

[8] There is no basis for appellate intervention. The appeal is dismissed.

G.R. Strathy C.J.O.

M.L. Benotto J.A.

B.W. Miller J.A.