Court File and Parties

Court of Appeal for Ontario Date: 20210504 Docket: C68823

van Rensburg, Huscroft and Thorburn JJ.A.

In the Matter of: Benjamin Landrus An Appeal Under Part XX.1 of the Code

Counsel: Ken J. Berger, for the appellant Karen Papadopoulos, for the respondent, Attorney General of Ontario Jessica Szabo, for the respondent, the Person in Charge of Ontario Shores Centre for Mental Health Sciences

Heard: April 30, 2021 by videoconference

On appeal from the disposition of the Ontario Review Board, dated October 13, 2020, with reasons dated November 3, 2020.

Reasons for Decision

[1] This is an appeal from a disposition of the Ontario Review Board (the Board) on a restriction of liberty hearing. The appellant, who has schizophrenia, was found not criminally responsible on account of mental disorder (NCR) on a charge of aggravated assault in June 2013. Pursuant to the disposition of May 6, 2020 he has been detained at the Ontario Shores Centre for Mental Health Sciences (the Hospital) with privileges up to and including the ability to live in the community in accommodations approved by the person in charge.

[2] On August 28, 2020, the Board was informed, pursuant to s. 672.56(2)(b) of the Criminal Code, that the appellant’s liberty had been restricted. On August 17th, the appellant had been transferred from a general forensic unit at the Hospital to a more restrictive secure forensic unit. The appellant, who was deemed incapable of consenting to treatment, but was appealing that finding, had stopped taking his anti-psychotic medication. In the months leading up to the restriction of liberty, the appellant’s mental health had deteriorated and there were instances of verbal aggression and hostility to co-patients and staff.

[3] Following a restriction of liberty hearing, the Board found that the restriction of the appellant’s liberty was and remained necessary and appropriate and constituted the least onerous and restrictive measure. The Board accepted that the appellant’s mental health had deteriorated, and that he showed increased irritability and hypersensitivity to sound. His behaviour had deteriorated to the point where it was obvious that he required the higher level of structure, support and observation he could only receive on a secure forensic unit.

[4] The appellant asserts that the Board failed to take into consideration his liberty interests and “other needs”, as mandated by s. 672.54 of the Code. In particular, the Board did not properly assess his request for a lateral transfer to another unit. He asserts that the Board’s findings – that his mental status had deteriorated as a result of not taking his medication, and that the transfer to a more secure forensic unit was necessary – were not supported by evidence and were unreasonable. The appellant submits that it was unreasonable for the Board to find that the Hospital was justified in not transferring him to another minimum security unit to alleviate his sensitivity to noise and other environmental stressors, that were the cause of his conflict with other co-patients and staff. He contends that the Hospital transferred him to a more secure unit simply to “teach him a lesson” and to punish him for not taking his medication.

[5] We disagree.

[6] The Board considered all of the required factors, including the appellant’s request for an accommodation in his living conditions. There was evidence to support the need to transfer the appellant to a more secure unit. This included the testimony of his treating psychiatrist, Dr. Pytyck, that, among other things, the appellant was not manageable in the lower security unit; that his acting out posed a risk of harm to co-patients and staff; that the months leading up to the restriction of liberty were marked with increasingly rapid decompensation; that the appellant directly threatened three patients; and that he had little to no insight into his need for treatment.

[7] Contrary to the appellant’s submissions, there is no evidence that the Hospital was simply trying to teach the appellant a lesson about taking his medication, by refusing his request for a transfer to a different unit with less noise and environmental stimuli.

[8] The evidence that was accepted by the Board was that, in the months before the transfer to a more secure unit, the Hospital on several occasions had offered and the appellant had refused, a room change on the same unit in an attempt to accommodate his request for a quieter and darker environment. The Board reasonably accepted Dr. Pytyck’s evidence, supported by the Hospital’s report, that the appellant’s behaviour had deteriorated to the point where it was obvious that he required the higher level of structure, support and observation that he could only receive on a secure forensic unit and that the appellant’s behaviour resulted from the deterioration of his mental status after he had discontinued his medication. Since his transfer to a secure forensic unit, his presentation had remained much the same, with a further incident of threatening behaviour to a co‑patient. There is nothing to support the appellant’s contention that a lateral move to different minimum-security unit would have improved his mental state or behaviour.

[9] The Board’s conclusion that the restriction of liberty was and remained necessary is reasonable. For these reasons the appeal is dismissed.

“K. van Rensburg J.A.” “Grant Huscroft J.A.” “J.A. Thorburn J.A.”