Court of Appeal for Ontario

Date: 2018-06-28 Docket: C64499

Judges: Lauwers, Miller and Fairburn JJ.A.

In the Matter of: Frank Shepherd

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• Ken J. Berger, for the appellant
• Alexander Hrybinsky, for the respondent Attorney General of Ontario
• Julie Zambrogna Ballès, for the respondent Southwest Centre for Forensic Mental Health Care

Heard: June 8, 2018

On appeal against the disposition of the Ontario Review Board, dated September 27, 2017, with reasons, dated October 20, 2017.

Reasons for Decision

Background

[1] Mr. Shepherd was found not criminally responsible on account of mental disorder (NCR) in February 2009 on these charges: uttering threats, forcible confinement (x2), criminal harassment, and assault. He has bipolar disorder type 1.

(1) The Disposition under Appeal

[2] At the time of the Board's hearing, the appellant was the subject of a detention order under a September 9, 2016 disposition, which detained him at the Southwest Centre for Forensic Mental Health Care. He had the privilege of residing in southwestern Ontario in an accommodation approved by the Person in Charge of the hospital. The hospital recommended a continuation of the detention order. The Attorney General supported the hospital's position. The appellant sought an absolute discharge.

[3] The appellant's attending psychiatrist at the time of the Board hearing, Dr. N. Ugwunze, referred to the results from recent testing, which suggested that Mr. Shepherd presented a moderate risk of reoffending violently in the next 12 months. His opinion was that "Mr. Shepherd's lack of insight and potential for instability and treatment non-adherence could not be managed without a detention order." The Board noted that: "Dr. Ugwunze advised that ongoing therapeutic intervention to improve [the appellant's] insight, improve his stress tolerance and coping skills have not made a difference in this reporting year."

[4] The Board stated, based on the evidence, that it "is satisfied that Mr. Shepherd remains a significant threat to the safety of the public." The Board ordered the continuation of the detention order. The critical paragraph in the conclusion explains the decision:

The evidence supports that Mr. Shepherd benefits from residing at Clarke House in the community, a structured and supervised setting. The evidence supports that his level of insight into his index offence, illness and ongoing need for medication is poor. His symptoms are controlled by his medication. He has been compliant with his medication regimen throughout this reporting year but staff is not convinced that he would remain compliant without the structures and cues in his current living situation. His suggestion of a "medication break" and his expressing a wish to drink alcohol and use marijuana shows a lack of understanding of the potential harm to himself and members of the public arising from mixing substances and psychotropic medications. This is a clear indication that Mr. Shepherd requires the continuation of a structured and supervised setting.

(2) The Second Disposition

[5] The hospital brought a motion for fresh evidence, which we grant.

[6] On May 14, 2018, a restriction of liberty hearing was held by the Board, the context of which is set out in the affidavit of Dr. Ugwunze, filed as fresh evidence. The appellant was absent from his community residence (the Clarke Centre rehabilitation group home) without leave on two occasions, which led to re-admissions to the hospital.

[7] On October 10, 2017, the appellant was re-admitted to the hospital because he was absent without leave from October 4-9, 2017. Dr. Ugwunze's evidence is that the appellant told Clarke Centre staff that he was going to spend the night at his girlfriend's home, but he later admitted that he went to Ottawa, stayed in a hotel, attended the races, and smoked cannabis several times. He told the doctor that it was because he was frustrated with the outcome of the Board's decision that is under appeal. The appellant was returned to the Clarke Centre on October 17, 2017.

[8] However, the appellant was again re-admitted to the hospital on March 19, 2018 based on his absence from the Clarke Centre without leave from March 16-19, 2018. Dr. Ugwunze's evidence is that the appellant had been smoking cannabis, and he was worried that he was being investigated. He panicked and drove to Ottawa, where he stayed in a hotel, gambled at a casino, and smoked cannabis throughout, including while operating a motor vehicle. Dr. Ugwunze's restriction of liberty report noted that:

Upon admission to [the Southwest Centre], Mr. Shepherd presented as hypomanic. He was irritable during his admission interview and he also appeared agitated. His speech was pressured although interruptible. Initially, Mr. Shepherd was not granted privileges.

[9] The following week, Mr. Shepherd's privileges were largely restored. He was allowed to return to the Clarke Centre, but he was not allowed to leave overnight for a period of three months.

[10] Dr. Ugwunze's restriction of liberty report stated, under the heading "Opinion and Recommendation":

Mr. Shepherd continues to pose a significant risk to members of the public. Ongoing problems with supervision persist; hence, the need for Outreach to continue to closely monitor his mental state and manage his attendant risk. Mr. Shepherd should remain on a detention disposition order with no changes proposed to the specified terms and clauses therein.

[11] The Board's restriction of liberty decision, dated May 15, 2018, stated:

The Board has concluded that the decision of the hospital to significantly increase the restrictions on the liberty of the accused was warranted, and in the circumstances of this case represented the least onerous and least restrictive decision and finds that the existing Disposition remains appropriate.

[12] There is no appeal of the restriction of liberty disposition before this court.

(3) The Jurisdictional Argument

[13] The Crown and the hospital argue that the Board's May 15 decision raises a jurisdictional issue on this appeal. They submit that a decision made by the Board following a hearing under s. 672.81 is a "disposition" under s. 672.83 of the Criminal Code, R.S.C. 1985, c. C-46. They argue that the appellant can be subject to only one disposition at a time; thus, the May 15 decision effectively displaced the disposition under appeal, depriving this court of jurisdiction to hear the appeal.

[14] The Crown referred to two decisions of this court: Chaudry (Re), 2015 ONCA 317, 125 O.R. (3d) 641, at paras. 55-63; and Murray (Re), 2017 ONCA 731, at para. 10. Assuming without agreeing with the Crown and the hospital that this appeal is moot, we note that the disposition under appeal remains the effective disposition, because the May 15 decision found that "the existing Disposition remains appropriate." Accordingly, even if it is moot, we would exercise our discretion in favour of deciding the matter.

(4) Disposition

[15] Turning to the substantive appeal, the evidence of Dr. Ugwunze amply substantiated the Board's decision. The Board specifically considered the appellant's risk of violent reoffending, specifically in light of his offending history and his failure to appreciate the "risk of serious physical and psychological harm to members of the public" arising from his substance abuse. The Board relied upon a hospital report that showed, among other things, the appellant's lack of insight into his condition, and his need for medication and to abstain from substances, contrasted with his stated desire to stop taking his medication and his history of rapid decompensation. The unsuitability of an absolute or conditional discharge is exemplified by the appellant's behaviour as revealed in the fresh evidence. We see no error in the Board's conclusion that the disposition was the least onerous and least restrictive disposition in the circumstances.

[16] The appeal is dismissed.

"P. Lauwers J.A."

"B.W. Miller J.A."

"Fairburn J.A."