COURT OF APPEAL FOR ONTARIO

CITATION: Jenner (Re), 2020 ONCA 701

DATE: 20201103

DOCKET: C67892

Doherty, Hourigan and Pardu JJ.A.

IN THE MATTER OF: Barron Jenner

AN APPEAL UNDER PART XX.1 OF THE CODE

Stephen F. Gehl, for the appellant

Nicholas Hay, for the respondent, Attorney General of Ontario

James P. Thomson and Julia L. Lefebvre, for the respondent, Person in Charge of Waypoint Centre for Mental Health Care

Heard: October 30, 2020 by video conference

On appeal from the disposition of the Ontario Review Board, dated December 5, 2019, with reasons dated December 31, 2019.

REASONS FOR DECISION

[1] The appellant submits that the Board’s conclusion that he continues to constitute a significant threat to the safety of the public was unreasonable.

[2] The appellant suffers from a severe form of obsessive-compulsive disorder. He has a very significant history of making graphic threats of death and serious injury to staff and of physical outbursts of self-harm and violence to others, although these have lessened since his transfer to a more secure unit in June 2019. He has required lengthy periods of seclusion.

[3] Dr. Hudson, his treating psychiatrist, testified at the hearing. In his opinion the appellant was “100% certain” to respond aggressively if the wishes driven by his obsessive-compulsive disorder were not gratified, whether inside the hospital or in the community. He disagreed with the suggestion that the outbursts were caused only by the strictures of the hospital system.

[4] The treatment team thought that the appellant’s behaviour had only improved because he had been transferred to a more secure unit with higher staffing levels. Even in this newer environment, the appellant still engaged in some threatening and aggressive behaviours.

[5] The Board accepted this evidence and concluded that “absent the structure provided by Mr. Jenner’s current placement where staff trained in dealing with patients suffering from mental illnesses such as Mr. Jenner, he would act out both physically and verbally in ways resulting in significant harm to members of the public.”

[6] The Board’s decision to accept Dr. Hudson’s evidence and conclude that the appellant continues to pose a significant threat to public safety was reasonable and was supported by other evidence, particularly the appellant’s history of violence in hospital.

[7] The appellant argues in the alternative that the Board erred in refusing to order his transfer to a less secure hospital in Southwestern Ontario, where he could be closer to family.

[8] The hospital risk assessment noted that the appellant had not done well in less secure environments, that better control of the symptoms of his obsessive-compulsive disorder had to be achieved before a transfer could be considered, and that it was too soon to predict the degree of possible progress. A hospital report indicated that it was unlikely the appellant could be managed in a less secure environment.

[9] Under these circumstances, the Board’s refusal to order a transfer at this time was reasonable. The appellant seems to be finally making some progress after years of intractable violence and threatening behaviour in less secure and less supportive environments.

[10] There is no basis to interfere with the Board’s conclusions and the appeal is dismissed.

“Doherty J.A.”

“C.W. Hourigan J.A.”

“G. Pardu J.A.”