WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Date: 2018-11-23

Docket: C65388

Judges: Sharpe, Hourigan and Trotter JJ.A.

In the Matter of: Delroy Allen Flowers

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• Anita Szigeti, for the appellant Delroy Allen Flowers
• Nicole Rivers, for the Attorney General of Ontario
• Gavin Mackenzie, for the Centre for Addiction and Mental Health

Heard: November 20, 2018

On appeal against the disposition of the Ontario Review Board dated December 21, 2017.

Reasons for Decision

[1] In 2011, the appellant, Delroy Flowers, sexually assaulted a co-resident of a group home for the mentally challenged. He was charged with aggravated sexual assault and found not criminally responsible on account of mental disorder on October 4, 2013. He has remained subject to the jurisdiction of the Ontario Review Board ("ORB") since that date. Mr. Flowers is HIV positive and suffers from schizophrenia, stimulant use disorder (cocaine type), intellectual disability (mild), and antisocial personality disorder.

[2] In November 2017, while detained in the general unit at the Centre for Addiction and Mental Health ("CAMH"), Mr. Flowers went AWOL. When he was returned to the hospital by police he was placed in the secure unit. This incident resulted in a combined restriction of liberties hearing and annual review conducted on December 13, 2017. The ORB subsequently issued a Disposition Order that requires Mr. Flowers be detained in the secure unit at CAMH, with privileges up to and including indirectly supervised access to hospital grounds and accompanied community access.

[3] Mr. Flowers appeals the Disposition Order, submitting that it is unreasonable and an attempt to detain him without providing rehabilitation. Further, he submits that the ORB should have intervened to break an impasse in his treatment. We decline to give effect to these submissions for the following reasons.

[4] Counsel for Mr. Flowers conceded that her client poses a significant threat to public safety. It is clear from the record that he has a history of going AWOL, having eloped from the hospital in each of the previous three years. In the most recent incident, he used cocaine and sought out sexual activity while not taking his HIV medication. Mr. Flowers did not consider this behaviour to be problematic and the evidence suggests that he has a limited understanding of the concept of sexual consent. The ORB accepted evidence that the team in the general unit has maximized the process to manage his risk in that unit. It is clear that the appellant's risk can no longer be managed in a general unit and, accordingly, detention in a secure unit is the least onerous and least restrictive disposition. In these circumstances, the ORB's decision was entirely reasonable.

[5] We are also satisfied that Mr. Flowers' rehabilitative needs can be met in the secure unit, which has better staffing ratios than the general unit. Further, the evidence before the ORB was that programming that may benefit Mr. Flowers is more readily available in the secure unit than in the general unit.

[6] Mr. Flowers submits that the ORB was required to intervene to break a treatment impasse. We are not satisfied that a treatment impasse has been reached in this case. Mr. Flowers continues to receive treatment and his team is considering further treatment options. There have been recent setbacks in Mr. Flower's treatment, but those are the result of his own misconduct. There was no evidence in the record that further treatment progress cannot be achieved over time.

[7] The appeal is dismissed.

"Robert J. Sharpe J.A."

"C.W. Hourigan J.A."

"G.T. Trotter J.A."