Court of Appeal for Ontario

Date: 2018-06-22 Docket: C64618 Judges: Hourigan, Pardu and Nordheimer JJ.A.

In the Matter of: Duke Godfrey

An Appeal Under Part XX.1 of the Code

Counsel:

• Ken J. Berger, for the appellant
• Catherine Weiler, for the Attorney General in right of Ontario
• Gavin S. MacKenzie, for the person in Charge at the Centre for Addiction and Mental Health

Heard: June 21, 2018

On appeal from the disposition of the Ontario Review Board dated October 27, 2017.

Reasons for Decision

[1] Mr. Godfrey appeals from the disposition of the Ontario Review Board ("ORB" or "Board") dated October 27, 2017. The Board unanimously found a hybrid detention order was necessary and appropriate in the circumstances. It ordered that Mr. Godfrey be detained at the Secure Forensic Unit of the Centre for Addiction and Mental Health ("CAMH"), with discretion given to the person in charge to transfer him to the General Forensic Unit, or allow him to live in the community in approved accommodation.

[2] CAMH requested a hybrid detention order on the basis of Mr. Godfrey's current mental health condition, but acknowledged the possibility his condition could improve such that he could be transferred or discharged into the community. On behalf of Mr. Godfrey, his counsel advised that they supported the recommendation of CAMH. Although Mr. Godfrey and his counsel conceded at the hearing that he remained a significant threat to the safety of the public, and despite the fact that the Board proceeded on the basis of the joint submission, he now appeals on multiple grounds.

[3] He argues that the Board erred in finding that he remained a significant threat, and erred in concluding that the disposition agreed to was necessary and appropriate. He argues further that the hearing was procedurally unfair and that the disposition is unreasonable on the evidence. We do not agree.

Background Facts

[4] The index offences occurred in 2011. The appellant threatened others with a knife on several occasions. He suffers from paranoid schizophrenia, and was found not criminally responsible in 2012. Mr. Godfrey did well under the terms of a conditional discharge which allowed him to live in the community for many years, however in 2017 there was a pronounced deterioration in his condition, associated with failure to take his medication, and use of crack cocaine and marijuana. By letter, CAMH wrote to the Board requesting an early hearing and seeking a change in Mr. Godfrey's disposition from a conditional discharge to a detention order.

[5] His behavior in August and September 2017 was violent and threatening on several occasions. He had thrown a brick through the window of a community residence, and had broken a table on the porch of the same. He initially refused to attend at CAMH when asked to do so but voluntarily admitted himself to hospital in August for 23 days, and in September for 21 days.

[6] In October 2017, after learning of the date of his early ORB hearing, Mr. Godfrey went missing. He was twice placed on a Form 1 under the Mental Health Act, R.S.O. 1990, c. M.7 but when he was brought to other hospitals by police, these were canceled. When he attended at CAMH, he presented as disorganized and paranoid and acknowledged experiencing auditory hallucinations. He admitted to using marijuana daily, and indicated that he did not believe he was under the Board's jurisdiction and that he no longer required medication. He abruptly left the meeting before he could be apprehended.

[7] The day before his early ORB hearing, police brought him to the CAMH emergency department. He had followed a stranger off a streetcar and into a restaurant. The victim was so threatened by the appellant's behavior that he locked himself in the restaurant bathroom. The appellant was yelling and accusing the stranger of being a rapist, and over 10-15 minutes, repeatedly tried to break into the bathroom. The appellant was delusional and showed poor insight into his condition.

[8] Risk assessments suggest that Mr. Godfrey continues to represent a significant threat to the safety of the public. He has not since attended any further appointments with the clinical team at CAMH.

Clinical Assessment and Recommendations

[9] In their report to the Board, the clinical team noted the deterioration which had resulted in three admissions to hospital in the preceding three months, and concluded:

Given the pattern of decompensation, episodes of aggression in the community and Mr. Godfrey's decline in insight and willingness to take medication, the clinical team believes that the risk can no longer be managed under the terms of the current conditional discharge.

The clinical team recommends that the necessary and appropriate disposition would be a detention order with privileges up to and including residing in the community in approved accommodation.

[10] CAMH agreed, observing: "[i]t is clear that the current conditional discharge, which relies on the mechanisms under the Mental Health Act to return Mr. Godfrey to hospital is no longer adequate to manage the risk that he poses."

Appellant's Arguments and Court's Analysis

[11] The appellant argues that because he did so well for so long, the Board should not have made a detention order. He submits that although he has breached the conditions of his discharge in the past, the breaches were trivial and did not result in any risk to the public. Accordingly, he submits it cannot be said that he constitutes a significant threat, and that at the least, the conditional discharge should have been continued, perhaps with a condition that he take medication.

[12] The Board was entitled to rely on the position expressed by the appellant's counsel. (R. v. Kelly, 2015 ONCA 95). The Board reviewed the evidence and its conclusions were amply supported by the evidence. There is no basis to conclude that the decisions as to significant threat or disposition were unreasonable.

Decision

[13] The appeal is accordingly dismissed.

C.W. Hourigan J.A. G. Pardu J.A. I.V.B. Nordheimer J.A.