COURT OF APPEAL FOR ONTARIO

CITATION: Magee (Re), 2020 ONCA 418

DATE: 20200626

DOCKET: C67531

Fairburn, Nordheimer and Harvison Young JJ.A.

IN THE MATTER OF: Christian Magee

AN APPEAL UNDER PART XX.1 OF THE CODE

Sarah Weinberger, as amicus curiae, for the appellant

Maura Jetté, for the respondent, Attorney General of Ontario

Janice E. Blackburn, for the respondent, Person in Charge of Waypoint Centre for Mental Health Care

Heard: In writing

On appeal against the disposition of the Ontario Review Board dated August 8, 2019, with reasons dated September 5, 2019.

Harvison Young J.A.:

[1] Christian Magee appeals from a disposition of the Ontario Review Board (“the Board”), which ordered his continued detention at the Waypoint Centre for Mental Health Care (“Waypoint”). At the appellant’s annual review in 2019, there was a joint submission that the detention order include a condition that the appellant be transferred for a period of up to 90 days to the Forensic Unit at St. Joseph’s Healthcare Hamilton (“St. Joseph’s”) for the purpose of an independent psychiatric assessment with a view to a possible transfer to a less secure facility. The appellant would return to Waypoint after being assessed at St. Joseph’s.

[2] The appellant and Waypoint have made a joint submission for an external assessment for three years in a row, from 2017 to 2019. At the 2019 annual review, the Attorney General of Ontario supported, for the first time, the appellant and Waypoint’s joint submission. The appellant has achieved maximum privileges at Waypoint and the evidence was that he can progress no further in that environment.

[3] The Board rejected the joint submission. The sole issue on this appeal is whether the Board’s decision to reject this joint submission was unreasonable. For the following reasons, I conclude that it was.

A. Background Facts

[4] In 1977, the appellant was found not guilty of murder by reason of insanity. In 1980, the appellant was found not guilty on two further charges of murder, one charge of rape, and one charge of indecent assault, by reason of insanity. He has been detained at Waypoint (and its predecessor) for approximately 42 years and is now 72 years old. The appellant is diagnosed as suffering from sexual sadism, transvestitic fetishism, and antisocial personality disorder. There is no dispute that he remains a significant threat to the public and must remain the subject of a detention order.

[5] While a patient at Waypoint, the appellant has had several external assessments over the years, as follows:

• In 1985 at the Clarke Institute of Psychiatry for 90 days;
• In 1991 at the Royal Ottawa Hospital for 60 days;
• In 2003 at the Centre for Addiction and Mental Health for 90 days; and
• In 2008 at the Brockville Mental Health Centre for 60 days.

[6] The last assessment in 2008 occurred under Dr. Bradford, a leading psychiatrist on the use of medication for treating sex offenders. Since then, the appellant has taken Lupron, which has reduced his hormones to castrate levels.

[7] The appellant’s attending psychiatrist, Dr. Danyluk, testified that the appellant is a “model institutional citizen”. She also noted that the appellant has several medical conditions – such as diabetes, heart issues, and obesity – that can affect his ability to reoffend. Dr. Marshall, PhD, is a registered psychotherapist at Waypoint. The Board commented that he is a “highly recognized sexual offender specialist”. He conducted weekly therapy with the appellant from approximately June to December 2018. In his report on the therapy, Dr. Marshall stated that the appellant was a “good participant” who had made “significant improvements to his functioning since coming to Waypoint.”

[8] The appellant’s clinical team opined that he should continue to be detained at the all-male High Security Provincial