Court of Appeal for Ontario

Date: 2017-11-29

Docket: C63393

Judges: Rouleau, Pepall and Miller JJ.A.

In the Matter of: Kristopher Ginn

An Appeal Under Part XX.1 of the Code

Counsel:

• Anita Szigeti, for the appellant Kristopher Ginn
• John Patton, for the Ministry of the Attorney General
• Julie Zamprogna Balles, for Southwest Centre for Forensic Mental Health Care

Heard: November 15, 2017

On appeal against the disposition of the Ontario Review Board dated November 14, 2016.

Reasons for Decision

A. Overview

[1] The appellant appeals from the November 14, 2016 disposition issued by the Ontario Review Board. At the review hearing, the hospital filed a report detailing the appellant's history at the facility. The report outlined his psychiatric evaluations, medication plans and rehabilitation efforts. It concluded with a recommendation for changes to the 2015 disposition as follows:

1. a reduction in the appellant's access to the community while indirectly supervised from an amount to be decided at the discretion of the hospital to a maximum of four hours with an approved itinerary; and

2. a reduction in day passes to access the community from seven days indirectly supervised to three days directly supervised.

[2] The hospital and the Crown jointly recommended these changes. In its decision, the Board accepted the recommendations and incorporated them in its disposition.

[3] On appeal, the appellant submits that the Board committed several errors and urges this court to substitute a less restrictive disposition or order a new hearing. We dismiss the appeal for the reasons that follow.

B. Analysis

(1) Did the board issue the least onerous, least restrictive disposition?

[4] The first submission is that the Board did not issue the least onerous, least restrictive disposition necessary to manage the appellant's risk to the public. We disagree.

[5] It was conceded at the hearing that the appellant posed a significant risk to the public. The Board's decision to place additional restrictions on his community access was reasonable and supported by several factors identified in the hospital report and by the treating psychiatrist. These included the appellant's psycho-sexual assessment, lack of insight into his mental illness, criminal sexual history, difficulty with medication adherence, and lack of cooperation with hospital staff. As a result, the disposition can be reasonably considered as being the least onerous and least restrictive.

(2) Did the Board carry out its inquisitorial mandate?

[6] The appellant argues that the Board failed to carry out its inquisitorial duties and take into account his rehabilitation and other needs including, specifically, the need for reintegration into the community. He points to questions by a Board member indicating an awareness of potentially appropriate housing for the appellant.

[7] In the appellant's submission, the Board erred in rejecting the possibility of community living. It did not explore this possible housing option, contrary to its obligation to do so. It should have ordered that the hospital explore housing options and report its findings to the Board.

[8] We reject this ground of appeal. From our review of the record, it is apparent that the panel members posed insightful questions to the appellant's treating psychiatrist to determine the appropriate degree of access to the community that could be given without jeopardizing public safety. The Board heard and rejected the submission that a community living provision in a group home was possible and would fit the psychiatrist's diagnosis.

[9] The decision to exclude the possibility of community living is explained by the Board's observation that "there has to be some reasonable foreseeability that the individual is going to utilize the provision you are asking [for], otherwise everything would go into every Disposition because, potentially, it doesn't get exercised."

[10] Had it appeared reasonably foreseeable that the appellant would be an appropriate candidate for community living in the coming year or in the future, the Board may well have sought out evidence of housing options. However, having found that it was not reasonably foreseeable, the Board saw no need to carry out further inquiries. We see no basis to interfere.

(3) Did the Board focus exclusively on public safety?

[11] The third ground of appeal advanced is that the Board limited its focus to public safety when the record demonstrated that the appellant had not displayed any sexually inappropriate conduct nor had he acted out in violence in well over a decade.

[12] We dismiss this ground of appeal. As noted earlier, the appellant conceded at the hearing that he continued to pose a significant risk to the public. As noted by the Board, recent testing disclosed that he has "a positive pedophilic index for both male and female children, as well as a positive result for coercive and manipulative pedophilic themes with female children". In light of these results, the Board was properly concerned with the appellant's assertions that he had cured himself of pedophilia and intended to assist children who have experienced abuse.

[13] Contrary to the appellant's submission, the Board specifically stated that it considered his mental condition, the need to reintegrate him into society, and his other needs in coming to the determination that the hospital's recommended disposition was the appropriate one.

[14] The Board relied on its expertise to reasonably conclude that there was a need for tight conditions governing any interaction he may have in the community. This is consistent with the test results that showed the appellant to be at a high risk of reoffending. This is also consistent with the fact that the appellant displayed symptoms of mental health issues, in the form of auditory hallucinations. We are not satisfied that the Board's conclusion was in error.

(4) Is there a legal impasse?

[15] A further ground of appeal advanced is that a treatment impasse had been reached and the Board owed the appellant the duty to intervene to break that impasse.

[16] We disagree. By stating that an impasse had been reached, the treating psychiatrist was not suggesting that an impasse of the type referenced in Gonzalez (Re), 2017 ONCA 102, 136 O.R. (3d) 453, leave to appeal to SCC refused, 37517 (29 June 2017), had been encountered. There, the court said an impasse may exist where there has been a lengthy period of incarceration without treatment or progress, or where the accused is stubbornly refusing to engage with the treatment team. In such cases, a Board may be required to consider what conditions, if any, should be imposed in order to break that impasse.

[17] No such impasse exists in the present case. The appellant's treating psychiatrist provided evidence about the hospital's upcoming plans to address what they referred to as a treatment impasse. The Board accepted the evidence of the psychiatrist that there was a plan going forward to address this treatment impasse. Therefore, the Board was not obliged to take any further steps to intervene in the circumstances.

(5) Was there a need for the Board to consult the risk assessment report?

[18] The appellant raised a further concern. Dr. Federoff writes at the end of the risk assessment report that "the majority of sex offenders with scores as high as Mr. Ginn's are not known to reoffend". The appellant argues that it is therefore somewhat inconsistent that the Board relies on that report to conclude that he is at a high risk of reoffending. He states that the Board did not deal with this apparent contradiction nor does it appear that it requested or referred to the complete risk assessment report to ensure that it had the best available information available. In fact, the appellant suggests that the report does not appear to have been filed at the hearing. He also suggests that the Board only appears to have relied on a summary of the risk assessment report contained in the hospital's report.

[19] We do not share the appellant's concern. As pointed out by the treating psychiatrist, the reason sex offenders with high scores are not known to reoffend is because they are appropriately supervised. The appropriate supervision in the current circumstances is precisely what the Board was ensuring would occur by the disposition it made.

[20] As to whether the complete risk assessment report was available and reviewed by the Board, the record is at best unclear. It is apparent that the report was available to the appellant because his counsel referred the Board to the conclusion contained therein. Counsel would certainly have drawn any portions of the report favourable to the appellant to the Board's attention. It is also likely that the Board either had the report or had access to it to the extent necessary to properly decide the matter. There is no reason to interfere on that basis.

C. Conclusion

[21] For these reasons, the appeal is dismissed. In view of our disposition, we also dismiss the Southwest Centre for Forensic Mental Health Care's fresh evidence application.

Paul Rouleau J.A.

S.E. Pepall J.A.

B.W. Miller J.A.