Court of Appeal for Ontario

Date: 2019-08-27 Docket: C66444

Judges: Watt, Huscroft and Jamal JJ.A.

In the Matter of: Steven Sparling

An Appeal Under Part XX.1 of the Code

Counsel:

• Suzan E. Fraser, for the appellant
• Craig Harper, for the Crown
• Janice Blackburn, for the Person in Charge of Waypoint Centre for Mental Health Care

Heard: August 22, 2019

On appeal against the disposition of the Ontario Review Board dated December 13, 2018.

Reasons for Decision

[1] The appellant appeals from the December 13, 2018 Ontario Review Board ("the Board") disposition ordering that he be detained on a General Forensic Unit at the Waypoint Centre for Mental Health Care – Brebeuf Program for Regional Forensics.

[2] The appellant was on a conditional discharge from December 15, 2017 until his Board hearing on December 10, 2018. The appellant did not attend this hearing. Counsel attended and relayed the appellant's request for an adjournment but provided no reasons for the request. Counsel informed the Board that he could not get meaningful instructions from the appellant prior to the hearing.

[3] The appellant argues that the Board denied him procedural fairness in rejecting his adjournment request and proceeding in his absence.

[4] We disagree.

[5] The decision whether to grant an adjournment was the Board's to make and the Board's decision is entitled to deference. We see no error in principle or unreasonable exercise of discretion that would allow this court to intervene: Re Conway, 2016 ONCA 918, at para. 23.

[6] The appellant was informed of his hearing date and was aware of the potential consequences of a failure to appear at the hearing but chose not to attend. He provided no explanation to either his counsel or the Board. Nor did he provide any time frame for his adjournment request. The appellant was decompensating as a result of his failure to take anti-psychotic medication and presented an enhanced risk to the public. In these circumstances, the Board was obligated to protect public safety and its decision to proceed with the hearing cannot be impugned.

[7] The Board was under no obligation to appoint amicus, contrary to the appellant's suggestion, and, in the circumstances of this case, its decision not to do so was reasonable.

[8] It is clear from the record that the Board properly exercised its inquisitorial function prior to reaching its decision. Dr. Rasmusen's evidence was that the appellant was non-compliant with his antipsychotic medication; was experiencing delusions about sexual assault; and had underdeveloped insight into his mental illness. He was increasingly difficult to manage and failed to attend scheduled appointments with Dr. Rasmusen, who testified that the appellant was at risk of suffering further decompensation.

[9] The Board's decision that the appellant poses a significant threat to the safety of the public is amply supported by the evidence of Dr. Rasmusen and is reasonable. So is the Board's conclusion that a detention order is the least onerous and least restrictive disposition, having regard to the Board's paramount obligation to protect public safety.

[10] The appeal is dismissed.

"David Watt J.A."

"Grant Huscroft J.A."

"M. Jamal J.A."