Court of Appeal for Ontario

Date: 2019-01-25 Docket: C65754

Judges: Doherty, Miller and Trotter JJ.A.

In the Matter of: Michael Phillip

An Appeal Under Part XX.1 of the Code

Counsel:

• Daniel R. Medd, for the appellant
• Jeremy Tatum, for the respondent Attorney General for Ontario
• Janice E. Blackburn, for the respondent Person in Charge of Waypoint Centre for Mental Health Care

Heard and released orally: January 22, 2019

On appeal against the disposition of the Ontario Review Board dated June 26, 2018.

Reasons for Decision

[1] The appellant was found not criminally responsible on account of mental disorder on April 27, 2018, on charges of assault and breach of probation. In June 2018, a panel of the ORB ordered him detained at Waypoint Centre, a maximum security facility. This was Mr. Phillip's first appearance before the ORB.

[2] Mr. Phillip's custodial history is complex. He is presently under the ORB detention order, which is the subject of this appeal. He is also serving a jail sentence on other charges. That sentence expires in March or April of this year. Mr. Phillip is also subject to an assessment order in another criminal proceeding.

[3] Mr. Phillip appeals the detention order made by the ORB. He asks that this court set aside that order and direct a new hearing at which the ORB can properly inquire into the feasibility of the placement of Mr. Phillip at Ontario Shores, a medium security facility.

[4] Before the ORB, Dr. Dickey, the appellant's treating psychiatrist and a member of the Waypoint clinical team, testified that he believed that it "may be" that the appellant should be moved to Ontario Shores for at least a trial stay in a medium security facility. The clinical team had, however, recommended keeping the appellant at Waypoint. Dr. Dickey had initially agreed with the clinical team.

[5] The ORB appreciated the difference in the opinion between Dr. Dickey and the clinical team. Certainly, the appellant's conduct in the two months before the ORB hearing was positive. It gave cause to consider a less restrictive disposition than maximum security. As counsel for Mr. Phillip put it in his factum, the appellant's behaviour was on an "upward trajectory" in the two months immediately preceding the hearing.

[6] The ORB was, however, required to consider the entire picture and not just the most recent events. That entire picture included the following:

• The very serious nature of the appellant's mental illness;
• The long history of the appellant's mental disorder accompanied by serious criminal activity;
• The appellant's past history of non-compliance with his medication; and
• The appellant's demonstrated history of quick decompensation accompanied by acts of violence when he stopped taking his medication.

[7] The Board's conclusion is found at para. 27 of its reasons. The Board describes a transfer to medium security as "premature" in the entirety of the circumstances. We cannot say that the Board's conclusion is unreasonable.

[8] In oral argument, counsel for the appellant focused on the submission that the Board erred in law by failing to direct that inquiries be made of Ontario Shores concerning the feasibility of transfer to that facility from Waypoint. This issue arose as a result of Dr. Dickey's changed opinion concerning the appropriate treatment of the appellant.

[9] Certainly, in appropriate cases, the Board can and sometimes must direct that the kind of inquiries described above be made. We cannot say, however, that the Board acted unreasonably in the circumstances of this case in not requiring those inquiries to be made. The factors identified by the Board, and summarized above, made out a formidable case for holding the appellant in maximum security at Waypoint. Dr. Dickey's evidence, which offered little more than a tentative opinion without any factual foundation, did not command further inquiry by the Board, having regard to the rest of the evidence.

[10] The appeal is dismissed. We note that the appellant is subject to a review hearing before the Board in about two to three weeks' time. No doubt the Board will give careful consideration to any changes in the appellant's circumstances.

Doherty J.A.

B.W. Miller J.A.

G.T. Trotter J.A.