Court of Appeal for Ontario

Date: 2017-09-13

Docket: C63188

Judges: Watt, Huscroft and Trotter JJ.A.

In the Matter of: Romeo Flowers

An Appeal Under Part XX.1 of the Code

Counsel:

• Jonathan Fernandes, for the appellant
• Barbara Walker-Renshaw, for the respondent the Person in Charge of Ontario Shores Centre for Mental Health Sciences
• Jennifer Epstein, for the respondent Attorney General of Ontario
• Janice Blackburn, for the respondent the Person in Charge of Waypoint Centre for Mental Health Care

Heard: August 29, 2017

On appeal from: the disposition of the Ontario Review Board dated November 24, 2016.

Reasons for Decision

[1] The appellant appeals from the Ontario Review Board's disposition ordering that he be detained at Waypoint Centre for Mental Health Care ("Waypoint").

[2] The appellant was found not criminally responsible in 2010. The index offence involved an assault on a 12 year-old boy and a failure to comply with a condition of a recognizance. The appellant was detained in the Secure Forensic Service of the Ontario Shores Centre for Mental Health Services (OSCMHS) pursuant to a disposition of the Board. His diagnoses include psychosis, antisocial personality disorder, a history of head injury, and schizophrenia. He has a significant criminal record, including many offences involving assaults.

[3] In 2015, the appellant assaulted a nurse at OSCMHS. He was convicted of assault causing bodily harm and sentenced to a term of 12 months' imprisonment and three years' probation. This made the appellant a dual-status offender. His annual Board hearing occurred while he was incarcerated at the Central East Correctional Centre (CECC). The hearing combined his review hearing with the placement hearing that follows a sentence of imprisonment for a dual-status offender.

[4] The Board determined that the appellant should serve the remainder of his sentence in a hospital and ordered his detention at Waypoint, a maximum security facility.

[5] The appellant submits that the Board erred in several respects: (i) it failed to require testimony from the CECC psychiatrist; (ii) it failed to require testimony from the Minister of Community Safety and Correctional Services; (iii) it failed to hold a review hearing as soon as practicable; (iv) it presumed illness rather than wellness; (v) it made errors of fact; and (vi) it failed to explain why detention at Waypoint was the least restrictive disposition in the circumstances. At the hearing of the appeal, the respondent was called upon to address only the least restrictive disposition issue. The other grounds raised may be dealt with briefly.

Absence of CECC Psychiatrist Testimony

[6] The appellant is responsible for the absence of testimony from the CECC psychiatrist, Dr. Wesley. Although he consented to the release of his medical records from the CECC to Dr. Waisman, the appellant would not sign the necessary consents to allow Dr. Waisman to talk with Dr. Wesley. The appellant also refused to consent to the release of his medical records from CECC to the Board for use at the hearing. After discussion with the Board, the appellant recanted on this decision and the medical records were made available to the Board just prior to commencement of the hearing.

[7] In our view the appellant was not prejudiced by the absence of evidence from Dr. Wesley in any event. We note that it was open to the appellant to bring a fresh evidence application on this appeal, but he chose not to do so.

Minister's Participation

[8] Second, although the Minister is made a statutory party to proceedings relating to the placement of a dual-status offender by s. 672.69(4) of the Code, the Minister is not required to attend the hearing or to give evidence. The Minister has a right to be represented at the hearing, not a duty to attend. Counsel acknowledged at the hearing of this appeal that only a small marginal benefit might have accrued as a result of the Minister's participation in the Board hearing in any event.

Timing of Review Hearing

[9] Third, the Board's disposition was made within 30 days of the notice of hearing. We see no inappropriate delay in the proceedings or prejudice to the appellant.

Presumption of Illness vs. Wellness

[10] Fourth, there was no uncertainty concerning the risk to public safety posed by the appellant. The default position in favour of liberty did not arise.

Errors of Fact

[11] Fifth, alleged errors made by the Board concerning the appellant's expression of remorse for the assault on the nurse and the timing of another assault on a sleeping co-resident are, in our view, inconsequential.

Least Restrictive Disposition

[12] As the parties were in agreement that the appellant continued to present a significant threat to public safety, the Board was required to fashion the least onerous and restrictive disposition.

[13] The Board considered that there was no basis in reality to the appellant's request for a conditional discharge. There was ample evidence before the Board that a secure forensic hospital was required in order to provide the care the appellant needed. Moreover, it is clear from the record that there were few alternatives to Waypoint; other hospitals were either unresponsive, unable to accept the appellant, or had lengthy waiting lists. The appellant's sentence and probation order prohibited him from having any contact with the victim nurse and from being within one kilometre of her, and so precluded his return to OSCMHS Shores.

Conclusion

[14] In all of the circumstances, we are satisfied that the Board's disposition was reasonable. There is no basis for this court to interfere with it.

[15] The appeal is dismissed.

"David Watt J.A."

"Grant Huscroft J.A."

"G.T. Trotter J.A."