Court of Appeal for Ontario

Date: 2021-03-25 Docket: C68601

Rouleau, Pepall and Roberts JJ.A.

In the Matter of: Errol Kay

An Appeal Under Part XX.1 of the Code

Counsel: Stephen F. Gehl, for the appellant Samuel Greene, for the respondent, Attorney General of Ontario James P. Thomson, for the respondent, Person in Charge of Waypoint Centre for Mental Health Care

Heard: March 17, 2021 by video conference

On appeal from the disposition of the Ontario Review Board dated July 10, 2020, with reasons dated August 12, 2020.

Reasons for Decision

[1] The appellant was found not criminally responsible on a charge of sexual assault on June 9, 2004. He appeals the Ontario Review Board’s July 10, 2020 disposition which ordered his continued detention at Waypoint Centre for Mental Health Care. At the hearing, the parties agreed that the appellant continued to pose a significant threat to public safety and that a detention order was necessary. The only issue was whether the appellant should be transferred to the less secure facility at Southwest Centre for Forensic Mental Health. A majority of the Board considered the transfer to be premature, while a minority would have ordered the transfer.

[2] The appellant appeals the Board’s refusal to transfer him from Waypoint to Southwest on two bases. First, he argues that such refusal was premised on an error of law because the Board acknowledged that the appellant’s risk could be managed at a less secure facility but failed to impose the least onerous and least restrictive disposition.

[3] We disagree. The majority applied the correct legal standard. In its reasons, the majority specifically referenced the requirement that the disposition be “necessary and appropriate” which is equivalent to the “least onerous and least restrictive” standard referenced in the case law: McAnuff (Re), 2016 ONCA 280, at para 22.

[4] The second ground of appeal is that the decision is unreasonable. Here the appellant says that the opinion of Dr. Hudson, the appellant’s treating psychiatrist, was that, as a result of a change in medication, the appellant no longer required maximum-secure detention at Waypoint and that his risk could be managed at a less secure facility. The appellant argues that the majority of the Board erred in finding that the record supported continued detention at Waypoint.

[5] In our view, Dr. Hudson did not clearly express the opinion that the appellant’s risk could be managed at a less secure facility. We agree that portions of Dr. Hudson’s evidence suggest that he did not see the appellant as constituting a significant risk to the public in the context of a medium-secure environment such as Southwest and that, as a result, he supported a transfer to Southwest. However, in other parts of his evidence, Dr. Hudson explained that the appellant was not ready for the transfer and that the appellant’s risk could not be safely managed if he were to be transferred to Southwest. He testified that “we haven’t seen a long enough period of stability for the [appellant] to be managed safely at [Southwest]”.

[6] It was up to the Board to assess Dr. Hudson’s evidence and it was open to the Board to interpret his testimony as it did. It is apparent from the majority’s reasons that, when considered as a whole, it viewed Dr. Hudson’s evidence as advocating a cautious approach to the evidence of progress shown by the appellant such that a transfer may well be premature. This was consistent with the recommendation of the majority of the treatment team to the effect that a transfer was premature.

[7] We also reject the appellant’s suggestion that, in reaching its decision, the Board relied on the hospital’s willingness to call for an early review if the appellant progressed over the following months. The Board simply referred to and supported the hospital’s willingness to call for an early hearing in appropriate circumstances. It did not rely on that fact in its analysis of the necessary and appropriate disposition in this case.

[8] We therefore see no basis to interfere with the Board’s conclusion that the weight of the evidence indicated that a transfer to Southwest was premature and that continued detention at Waypoint was necessary and appropriate until the appellant’s recent gains are consolidated.

[9] For these reasons the appeal is dismissed.

“Paul Rouleau J.A.” “S.E. Pepall J.A.” “L.B. Roberts J.A.”