Court of Appeal for Ontario

Date: 2017-09-29 Docket: C63546

Judges: Cronk, Juriansz and Paciocco JJ.A.

In the Matter of: Daniel A. Jones

An Appeal Under Part XX.1 of the Code

Counsel:

• Erin Dann and Janani Shanmuganathan, for the appellant
• Elizabeth Teed, for the Attorney General of Ontario
• Logan Crowell, for the Person in Charge of Ontario Shores Centre for Mental Health Sciences

Heard: September 26, 2017

On appeal against the disposition of the Ontario Review Board dated December 21, 2016.

Reasons for Decision

[1] The appellant appeals the disposition of the Ontario Review Board (the "Board") dated December 21, 2016, ordering the appellant's continued detention in maximum security at the Waypoint Centre for Mental Health Care ("Waypoint"). The previous disposition of the Board, dated May 18, 2016, detained him at the General Forensic Service of the Ontario Shores Centre for Mental Health Sciences ("Ontario Shores"), with privileges up to and including living in the community and accommodation approved by the person in charge.

[2] On October 22, 2016, the appellant was transferred to the Secure Forensic Service at Ontario Shores. On November 2, 2016, he was transferred into maximum security at Waypoint. The Board found these restrictions were warranted and ordered his continued detention at Waypoint.

[3] The appellant appeals only his continued detention at Waypoint, advancing two grounds of appeal.

[4] First, he argues that the Board misapprehended the evidence and erroneously found that he decompensated "as soon as" he was moved to the minimum-security unit. The appellant says the fact is the treatment team had no issues with managing him safely in the minimum-security unit until he decompensated on October 22, 2016, almost five months later. The appellant says this misapprehension of evidence played an essential part in the reasoning process that resulted in the Board's decision to keep the Appellant at Waypoint.

[5] Second, he argues that the Board failed to address in its analysis the fact that his change in behaviour was preceded by a change in his medication.

[6] The appellant, who is seeking a new hearing, already has a scheduled hearing on December 15, 2017 at Waypoint. He is aware that even if successful on this appeal, the new hearing may not happen much before that date. During the appeal, it became evident, however, that the appellant's real concern is the Board's disposition, if left undisturbed, would prevent him from leading medical evidence of the cause of his decompensation at the next hearing. This need not concern him. Counsel for the respondents both acknowledge the Board's disposition and the failure of this appeal would not restrict the expert medical evidence he could lead at the next hearing. He would not be precluded from leading medical evidence of the cause of his prior decompensation and of his clinical course at Waypoint.

[7] That said, we would not give effect to either argument advanced on the appeal. The Board's remark that the appellant decompensated "as soon as he was moved to the minimum-security unit" must be read in the context of its reasons as a whole. There was evidence before the Board that there were concerns with the appellant's behaviour as early as July 2016, and some concerns of decompensation in August 2016, well before his final decompensation in October 2016. We are not persuaded the Board's use of the phrase "as soon as" represents a misapprehension of evidence. The Board was well aware of the entire chronology of the appellant's condition, treatment and behaviour.

[8] Moreover, the Board was well aware of the change in the appellant's medication and the potential impact of the change on his behaviour. The Board noted Dr. DeFreitas's opinion was that this medication change was not the main factor in the appellant's decompensation, and that this opinion was shared by Drs. Coleman and Van Impe. There is no basis for a finding that the Board failed to consider this evidence in coming to the decision it did.

[9] The Board's finding that the appellant could not be managed on a medium-security unit was reasonable on the record before it. Counsel for the appellant properly acknowledged there is no fresh evidence before this court that the nature of the appellant's risk and the ability to manage it has changed since the date of the hearing.

[10] The appeal is dismissed.

E.A. Cronk J.A.

R.G. Juriansz J.A.

David M. Paciocco J.A.