Court of Appeal for Ontario

Date: 2019-02-08

Docket: C64673

Judges: Simmons, Lauwers and Trotter JJ.A.

In the Matter of: James Robertson

An Appeal Under Part XX.1 of the Criminal Code

Appellant: James Robertson, in person

Amicus Curiae: Christel E. Francis

Respondent (Attorney General of Ontario): Linda Shin

Respondent (Waypoint Mental Health Care): Janice E. Blackburn

Heard: January 17, 2019

On appeal from: The disposition of the Ontario Review Board, dated October 20, 2017, with reasons reported at [2017] O.R.B.D. No. 2453.

Reasons for Decision

[1] Introduction

[1] At the review of Mr. Robertson's disposition by the Ontario Review Board under appeal, he requested an absolute discharge on the basis that he was no longer a significant threat to public safety. He proposed, as an alternative, a transfer to another facility. In the further alternative, he requested the board to order an assessment for a period of up to six weeks in order to obtain a second opinion on his diagnosis. For the reasons that follow we dismiss the appeal.

Context

[2] Mr. Robertson committed the index offences of criminal harassment and an invitation to sexual touching in 2001 and 2002, which resulted in a finding in 2007 that he was not criminally responsible by reason of a mental disorder. He had earlier been convicted of rape in 1978, and for a sexual assault in 1983 that occurred shortly after his release.

[3] Mr. Robertson has been under a number of board dispositions made from June 2009 to the disposition under appeal. In each disposition, based on a finding that he posed a significant risk to the safety of the public, he was ordered to be detained at Waypoint.

The Appellant's Psychiatric Diagnoses

[4] According to the hospital report and the addendum, Mr. Robertson's current diagnoses are Paraphilia, Not Otherwise Specified; Cannabis Abuse; Polysubstance Dependence, Prior History; Antisocial Personality Disorder; and Narcissistic Personality Disorder. The board noted that Mr. Robertson has extremely high scores on the PCL-R test, which confirms that he is a psychopath.

The Standard of Review

[5] Part XX.1 of the Criminal Code prescribes the legislative scheme for addressing accused persons who have mental disorders and are found not to be criminally responsible: "the primary purpose of the legislative scheme is to protect the public while minimizing any restrictions on the NCR accused's liberty interests": Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326, at para 32.

[6] The board is responsible for determining Mr. Robertson's necessary and appropriate disposition, which contemplates the least onerous and least restrictive disposition necessary to protect the public: R. v. Winko, [1999] 2 S.C.R. 625, at para. 47.

[7] This court may only set aside an order of the board where it is of the opinion that: the decision is unreasonable or cannot be supported by the evidence; it is based on a wrong decision on a question of law; or there was a miscarriage of justice: s. 672.78(1) of the Criminal Code; and see R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at paras. 31-37, Re Hart, 2016 ONCA 277, at para. 6. Appellate courts are "'not [to] be too quick to overturn' a review board's 'expert opinion' on how best to manage a patient's risk to the public": R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765 at para. 95; see also, R. v. Owen, at para. 69.

Issues and Analysis

[8] The main issue on this appeal is whether the board's disposition falls within a range of reasonable outcomes. Mr. Robertson and amicus raise several other issues, which are stated in the headings below.

(1) Does Mr. Robertson Continue to Pose a Significant Risk to Public Safety?

[9] Mr. Robertson and amicus argue that there is no factual basis to support a finding that he presents a risk to public safety any longer, after many years of incarceration. They point out that there is no evidence of physical violence other than two incidents in which Mr. Robertson was responding to the aggressiveness of other patients. His treating psychiatrist, Dr. A. Danyluk, acknowledged that there have been no complaints about Mr. Robertson's behaviour from staff during the two years that she has been his psychiatrist, and no complaints about his behaviour from numerous interactions he has had with doctors, physiotherapists, the dentist and court staff while under her care.

[10] The board referred to Dr. Danyluk's testimony at para. 47:

Dr. Danyluk was asked whether the recent (seven months) behavioural improvement has changed her opinion on the issue of significant threat. Dr. Danyluk responded that it has not. In her opinion, Mr. Robertson remains a significant threat. She reaches that conclusion based on his lengthy criminal record for serious assaultive conduct, his substance abuse history, the results of the phallometric testing, his preference for coercive sexual activities, and his lack of programming such as anger management programs. She also noted his lack of insight and his refusal to accept responsibility for any of his past conduct.

[11] Mr. Robertson also challenged Dr. Danyluk's qualifications as an expert because she is not yet certified as a forensic psychiatrist. The board rejected the challenge and notes simply that she had been accepted as an expert witness in hundreds of hearings. We see no error in this determination.

[12] Before this court, Mr. Robertson noted that he has been at Waypoint since 2008 and asserted that there has been no movement towards reintegrating him back into the community. Apart from his psychiatric treatment, he has not been provided with therapy. He has not shown signs of psychosis in a number of years and is not presently medicated. Dr. Danyluk testified that there were programs at Waypoint that could assist Mr. Robertson, including an anger management program, a substance abuse program, and a mindfulness program, but he had chosen not to engage. He has also avoided contact with the psychometrist, as a result of which his psychometric tests are dated.

[13] The board's decision relied on the unanimous opinion of Dr. Danyluk and the clinical team that "Mr. Robertson remains a significant threat to public safety": para. 31. The board's decision was plainly reasonable and is amply supported by the evidence. Mr. Robertson continues to pose a significant threat to the safety of the public as defined by s. 672.5401 of the Criminal Code. There is no evidentiary support for an absolute discharge. We do not give effect to this ground of appeal.

[14] Amicus asserted that the board erred in failing to find that there was a treatment impasse at Waypoint, to which the board is obliged to respond, relying particularly on Gonzalez (Re), 2017 ONCA 102, 136 O.R. (3d) 453, leave to appeal refused, 2017 CarswellOnt 9960 & 9961; 2018 CarswellOnt 2600 & 2601. This issue was not raised before the board and is not properly raised for the first time on appeal.

(2) Should the Board Have Ordered an Independent Assessment?

[15] Mr. Robertson sought an independent assessment, to be performed by Dr. Federoff, even though he was the psychiatrist who "supported Mr. Robertson being found not criminally responsible." The board also noted Mr. Robertson's testimony that he would be open to another assessor but he wanted "the assessor to be "open minded" and be prepared to consider whether Mr. Robertson was properly convicted of the rape charge and of the sexual assault charge": para. 71. He also wanted a second opinion on the appropriate diagnoses, whether or not he remains a significant threat to public safety, and whether the necessary and appropriate disposition is detention at Waypoint: para. 20.

[16] In the board's reasons, Mr. Robertson's request for an independent assessment was confusingly intertwined with his request for a transfer, but there was clarification in argument before this court.

[17] Waypoint did not oppose an assessment at another facility, but counsel argued before the board that the transfer for an assessment should only be to a facility where female co-patients would not be present and that certain conditions were required in the interest of safety: para. 68. Mr. Robertson indicated that he would not go for such an assessment unless he could take his computer with him.

[18] The board refused to order the assessment on the basis that "there is simply no reason for Mr. Robertson to be assessed elsewhere." The board referred to Dr. Danyluk's opinion: "that any independent psychiatric assessment would simply confirm Mr. Robertson's diagnoses, would confirm that he remains a significant threat to public safety and would confirm that the necessary and appropriate Disposition remains a Detention Order at the Provincial Forensic Program."

[19] It became clear in argument that Mr. Robertson would be amenable to an independent assessment conducted at Waypoint. Counsel for Waypoint agreed that this was acceptable, but that Dr. Federoff, Mr. Robertson's preferred assessor, would not be acceptable, since she saw him as a "defence expert" and therefore not independent. Mr. Robertson's assessment is dated and the evidence would be relevant to any board disposition. There is merit in this request.

[20] There is an issue about the scope of an independent assessment. The board took the view that Mr. Robertson is "hoping to find a doctor or psychiatric team that would be willing to entertain Mr. Robertson's submission that he was wrongfully convicted of the rape and/or sexual assault": para. 81. These issues are outside of the board's mandate under s. 672.54 and therefore of this court's scope of review under s. 672.72(1).

[21] Since Mr. Robertson's next review is scheduled for March, we direct the board to reconsider the request for an independent assessment.

(3) Did the Board Err in Refusing Mr. Robertson's Request for a Transfer?

[22] Mr. Robertson sought a transfer to a less secure facility. However, the record establishes that no other facilities are prepared to accept him on a transfer because he presents too great a risk on his current diagnoses. The panel noted that any necessary conditions around Mr. Robertson's disposition after a transfer would have the paradoxical result that Waypoint would actually be "clearly less onerous and less restrictive" than conditions that would be imposed at another facility on a transfer.

[23] Mr. Robertson has not shown that the board erred in declining to order his transfer.

(4) Did the Board Err in Refusing to Hear Mr. Robertson's Charter Application?

[24] Mr. Robertson brought a Charter application but the board refused to hear it.

[25] The record shows that 16 pre-hearing conferences were held, largely to deal with the appellant's ongoing requests and routine failures to meet filing deadlines. At the pre-hearing conference on February 22, 2017, Mr. Robertson raised the possibility that he would file a Charter application, and he raised it at the next 7 pre-hearing conferences. Mr. Robertson agreed to file his Charter materials by April 13, 2017, but this deadline was missed. The next six deadlines were also missed. Mr. Robertson had counsel or amicus for much of this time. The board imposed a final deadline of July 15, 2017, which it communicated to the appellant earlier. The board's concern was to ensure that the panel had sufficient time booked to deal with the disposition decision and with the Charter application.

[26] Mr. Robertson did file his Charter application materials on August 30, 2017 for the September 27 hearing, which came within the time limits set out in Rule 12. On September 8, 2017, the board advised Mr. Robertson that the panel would not hear his Charter application due to his non-compliance with its deadlines. Mr. Robertson and amicus argue that his application was timely under the board's Rules of Procedure and that the board's refusal to hear the Charter application was unreasonable.

[27] We disagree.

[28] The rules state that a party who intends to bring a constitutional application must give notice of their intention to do so no less than 15 days before the hearing. However, Rule 7.2 gives the chairperson of the board or the alternate chairperson authority to extend or abridge the deadlines (such as the 15-day deadline for filing Charter application materials), on such terms as are just.

[29] While Mr. Robertson's filing was within the 15-day notice period provided for in Rule 12, the alternate chair properly exercised his discretion under Rule 7.2 in declining to hear the application. Given the inordinate delays in scheduling the hearing, it was reasonable for the board to provide the appellant with a firm deadline and to refuse an additional extension in view of the board's obligation to ensure Mr. Robertson had his annual hearing in a timely fashion. There was nothing unfair or arbitrary about the board's handling of this issue. The board has control over its own processes.

[30] As it was, the annual review was conducted almost a year late. In our view, it was reasonable for the board to impose a final filing deadline in order to get on with the review. The board expressly noted that it was not denying the application for Charter relief, which Mr. Robertson can pursue at the next annual review.

(5) Did the Board Err in Refusing to Allow Mr. Robertson to Call Witnesses at the Hearing?

[31] As noted, there were 16 pre-hearing conferences conducted before the hearing itself. At the second, Mr. Robertson advised that he wished to call as witnesses Mike MacNeil, the program director of his ward; Chad Draper, the nurse manager; and another patient. According to the report of the conference, Mr. Robertson responded that he wished to put evidence of a brutal attack on the patient before the board. The conference chair pointed out that such evidence would be irrelevant to the issues before the board relating to Mr. Robertson's disposition.

[32] Amicus advised Mr. Robertson about the process by which he might subpoena witnesses, but he did not take the appropriate steps. He failed to explain how the witnesses he intended to call were related to the issues before the board. The board did not err in refusing to allow Mr. Robertson to call Mr. MacNeil and Mr. Draper as witnesses.

(6) Did the Board Err in Failing to Ensure Sufficient Disclosure?

[33] The disclosure provided to Mr. Robertson was voluminous and consisted of a 316-page hospital report, and a 43-page addendum. It included excerpts of his clinical records from various years. In July 2017, Mr. Robertson made a request for access to records of personal health information, and it eventually became clear that he was asking for his entire chart from the date of his admission in 2008. He explained that he needed these records in order to address the Charter application.

[34] Several days before the hearing, Waypoint provided Mr. Robertson with the disclosure he sought, but he declined to accept it on the basis that it was too late for the hearing.

[35] There is no suggestion that the late response to the request prejudiced Mr. Robertson's presentation at the hearing, since the Charter application was not in issue any longer.

[36] The board did not fail in its duty to ensure proper disclosure.

(7) Did the Board Err in Failing to Take Account of Mr. Robertson's Inadequate Computer Access?

[37] Mr. Robertson's complaint was that his ability to present his case was hampered by his limited access to his computer.

[38] Mr. Robertson's individual management plan relating to the use of his computer states: "The purpose of this plan is to afford Mr. Robertson access to his computer for the purposes of accessing and completing legal documents. A structured and consistent approach will be taken with Mr. Robertson's computer use as he has a recent history of misuse, including using his computer tower as a means to conceal contraband."

[39] The hospital record shows conclusively that Mr. Robertson has abused his computer privileges by using the computer for the storage of contraband and to compose a sexually explicit hip hop song about a staff member at Waypoint.

[40] This was not a matter on which the board made any comments. It is not this court's function to micromanage with the board or Waypoint.

Disposition

[41] The appeal is dismissed.

Janet Simmons J.A.

P. Lauwers J.A.

G.T. Trotter J.A.