Court of Appeal for Ontario

Date: 2018-06-29 Docket: C64277

Judges: Sharpe, Brown and Paciocco JJ.A.

In the Matter of: Leonard A. Rogers

An Appeal Under Part XX.1 of the Criminal Code

Counsel

For the appellant, Leonard A. Rogers: R. Browne

For the respondent, the Attorney General of Ontario: C. Elmasry

For the respondent, the Person in Charge of the Centre for Addiction and Mental Health: J. Blackburn

Heard: June 25, 2018

On appeal from: The disposition of Ontario Review Board, dated August 9, 2017, with reasons dated August 28, 2017.

Reasons for Decision

[1] The appellant was found not criminally responsible on account of mental disorder in 2000 on two counts of assault and two counts of uttering threats to cause death and has been under the jurisdiction of the Ontario Review Board since that date. He appeals his current disposition of detention in a general forensic unit with community living privileges at the discretion of the hospital, arguing that it was unreasonable for the Board to find that he continues to pose a significant threat to public safety. In the alternative, he seeks a conditional discharge.

[2] The index offences involved punching a pregnant woman in the face, punching the appellant's former domestic partner in the face and chest, and then uttering death threats when arrested. These were serious assaults, and the appellant stated at the time that he wanted to kill his victims.

[3] The appellant is in his mid-50s and has a lengthy psychiatric history. His condition worsened when he suffered a serious head injury in a motor vehicle accident in 1983. His current diagnosis is neurocognitive disorder due to traumatic brain injury with behavioural disturbance, cannabis use disorder, and antisocial personality disorder. The appellant also suffers from a number of other serious illnesses including diabetes and coronary artery disease.

[4] The appellant's treating physician testified that he represents a significant threat to the safety of the public due to his impulsivity, his brain injury, deficits in his cognitive function, and his inability to control anger.

[5] There have been no incidents of physical assault since 2000. However, during the reporting period, there were a large number of incidents involving verbal intimidation and threats of physical violence made by the appellant on co-patients and staff members. These incidents are conveniently set out at paragraph 28 of the Crown's factum.

Incidents of Threatening Behaviour

a. October 2016

In October 2016, there were two incidents where the appellant was verbally intimidating, yelling and using profanities. For example, on October 4, the appellant was approached to see if he would do blood work and yelled, "No, fuck off, I don't want to do it again today". There were also five instances where he was intimidating and/or he violated staff's personal space. For example, on October 4, a nurse asked if he could obtain a CBG and he yelled, "fuck off fuck off I'm sick of this shit" and put up his middle finger in the nurse's face.

b. November 2016

In November 2016, there were two incidents where body language and words were used in a threatening manner. For example, on November 9, the appellant became frustrated with a co-patient who was speaking with a nurse when he approached the nurse requesting his medication. The co-patient would not disengage and the appellant stated, "Excuse me". Once in the treatment room, the appellant expressed frustration with the co-patient, stating, "I'm fucking pissed the fuck off…I want to fucking snap him", while punching his fist into his hand several times. He was able to stay calm.

c. December 2016

In December 2016, there were seven incidents where the appellant was verbally intimidating, yelling and using profanities and there were two incidents where using body language and words were threatening in nature and/or invading personal space. For example, on December 6, the appellant went to retrieve the TV remote, a co-patient questioned why he wanted it and he became upset, raised arms in a threatening manner, motioning to break something and said, "I would love to snap him in half" and the co-patient said "let's go then". Staff intervened and escorted the appellant away. He settled down and apologized and went to bed.

d. January 2017

In January 2017, there were ten incidents where he was verbally intimidating, yelling and/or using profanities. For example, on January 20, when he was told his privileges were not reinstated for cannabis use, he said, "I'm fucking pissed the fuck off" in a loud, irritated voice. There were three incidents where he used his body language and/or words in a threatening nature. For example, on January 9, the appellant accidentally brushed up against a co-patient. When the appellant said sorry, the co-patient got upset and the appellant said, "fuck you, you fucking bitch" while aggressively holding up his middle finger.

e. February 2017

In February 2017, there were nine incidents where he was verbally intimidating, swearing and yelling. For example, on February 24, he was informed that his privileges were to be put on hold related to positive drug testing, initially he was calm but it quickly escalated to where he was punching his mattress, becoming agitated and verbally abusive and he eventually slammed his door in the staff's face to end the interaction. There were eight incidents where body language and words were threatening in nature. There were two incidents where no direct threat was uttered but physical contact was inappropriate. Three incidents where aggression was directed at property either personal or hospital. For example, on February 17, he became agitated when informed his privileges were suspended as he was late. He became agitated, yelling and swearing at nursing staff, "I wanna fucking snap you" and he grabbed his mug from the kitchen and charged towards nursing staff. He was redirected to settle in his room and he continued to swear, was intrusive and threatening so a code white was called and he was moved to seclusion for a few hours.

f. March 2017

In March 2017, there were three incidents where he was verbally intimidating, swearing and yelling. There were two incidents where his body language and words were threatening in nature and one incident where aggression was directed at property. For example, on March 17, when the appellant was watching TV and a co-patient entered the room and sat to watch TV, the appellant became upset with no provocation and yelled and swore loudly before walking into his bedroom.

g. April 2017

In April 2017, there were three incidents where body language and words were threatening. For example, on April 9, the appellant was looking at a nurse's chest and he began raising/wagging his eyebrows at the nurse. He was redirected and stated, "I know, but I didn't". On April 11, the appellant was denied being off unit, although someone told him he could, he got verbally aggressive, yelling "fuck you" and invading staff's personal space. He was difficult to redirect and punched a wall and left a dent.

h. May 2017

In May 2017, there were eight incidents where he was verbally intimidating, yelling and swearing. There were six incidents where body language was intimidating and words were threatening. There were two incidents where his aggression was directed at property.

i. June 2017

In June 2017, there were nine incidents where the appellant was intimidating, yelling and swearing. For example, on June 12, during a code red with patients in the dining room for 30 minutes, he started to get irritable and swore at staff and gave staff the middle finger. He was asked to stay calm and try to relax. He tipped the chair over to the ground. And he moved to a co-patient and gestured at a nurse, "I'll snap you". He was eventually moved to seclusion.

j. July 2017

In July 2017, there were two incidents where he was verbally intimidating and used profanity. There was one incident where he was intimidating, threatening and personal space was violated. For example, on July 9, the appellant was eating dinner in his room and a co-patient was staring at him. He walked briskly to the co-patient, invaded the co-patient's personal space and said, "wants to fucking snap him"; "next time I don't care, I am going to fucking snap him – one more time". He was told his behavior was inappropriate and he was re-directed.

Board's Decision

[6] A majority of three members of the Board concluded on the basis of the treating physician's evidence and the numerous incidents of intimidating and threatening behaviour disclosed in the Hospital Record that the appellant continues to pose a significant threat to the safety of the public. The Board found, at para. 20, that "the only reason his behaviour did not escalate to physical aggression was due to the quick response by staff to manage the situation and the structured environment of the general forensic unit."

[7] Two board members dissented on the basis that the appellant had not been physically assaultive since the index offense and that while he had threatened violence, he had never acted upon those threats. The minority concluded that the appellant was more a danger of compromising his own personal health than of harming others.

Court of Appeal's Analysis

[8] We are not persuaded that the majority's conclusion that the appellant continues to pose a significant threat to the safety of the public was unreasonable or that the Board made any error of law in coming to that conclusion. In our view the number and nature of actual threats of violence uttered by the appellant distinguishes his case from that of Re Wall, 2017 ONCA 713. In our view it was open to the majority to conclude that given his long-standing illness, his impulsivity and lack of ability to control his anger, and his persistent pattern of threatening behaviour and the strong likelihood that he will deteriorate if not in a controlled setting, the safety of the public justifies a finding that he poses a significant threat to public safety.

[9] The evidence before the Board indicated that the treating physician and the institution were making efforts to move the appellant from the forensic unit to a less restrictive setting in the community where he would continue to receive 24 hour supervision and monitoring and that he is currently on a waiting list for such an institution. At the oral hearing of this appeal we were informed by counsel for the hospital that a placement of that nature has now been made.

[10] Given the nature of threat posed by the appellant, the nature of his illness, and the difficulty he has in complying with conditions when not supervised, the majority's order of a detention order with hospital approved community living privileges rather than a conditional discharge was not unreasonable. In our view, the majority's reasons, at para. 22, demonstrate that this issue was fully and fairly considered and we do not agree that the Board failed in its duty to explore this issue:

We have considered whether a Conditional Discharge is the least onerous and least restrictive Disposition and we have concluded that it is not. Mr. Rogers requires a high level of supervision in order to manage his risk to public safety. He requires staff supervision that can address his medical needs and his activities of daily living. He also requires staff that can utilize strategies to de-escalate his behaviour. It would be very helpful if Mr. Rogers had his own room in his community housing so that he could retreat there if he is experiencing irritability or anger. In our view, the Hospital must be in a position to approve housing and have him readmitted to the hospital should his mental state deteriorate further.

Disposition

[11] Accordingly, the appeal is dismissed.

Robert J. Sharpe J.A. David Brown J.A. David M. Paciocco J.A.