Court Information

COURT OF APPEAL FOR ONTARIO DATE: 20211021 DOCKET: C69116

Paciocco, Nordheimer and Thorburn JJ.A.

IN THE MATTER OF: James Robertson AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel: James Robertson, acting in person Mercedes Perez, appearing as amicus curiae Molly Flanagan, for the respondent, Attorney General of Ontario James P. Thomson and Julia Lefebvre, for the respondent, Person in Charge of Waypoint Centre for Mental Health Care

Heard: October 15, 2021 by video conference

On appeal from the disposition of the Ontario Review Board, dated October 22, 2020, with reasons dated November 13, 2020.

Reasons for Decision

[1] Mr. Robertson appeals from the disposition of the Ontario Review Board that continued the detention order against him. The appellant submits that the Board erred in not awarding an absolute discharge. In the alternative, the appellant submits that the Board erred in not allowing him to transfer to a less secure psychiatric facility. For the following reasons, the appeal is dismissed.

[2] The appellant has been under the auspices of the Board since October 2007 when he was found not criminally responsible (“NCR”) with respect to offences of criminal harassment and invitation to sexual touching.

[3] At this most recent review, the Board found that the appellant continues to pose a significant threat to the safety of the public. There was a solid evidentiary foundation for that conclusion. Indeed, all of the expert evidence before the Board supported that conclusion. Given this solid evidentiary foundation, it was reasonable for the Board to have concluded that the appellant remains a significant threat to the safety of the public. This is sufficient to dispose of the request for an absolute discharge.

[4] The Board heard from the appellant’s attending physician. It is fair to say that, while the concerns regarding the conduct of the appellant were originally based in inappropriate sexual contact, those concerns have largely ameliorated as the appellant has grown older. The appellant is currently sixty-six years old. However, concerns regarding the appellant’s generally aggressive and threatening behaviour continue. The appellant’s psychiatrist testified before the Board that, as recently as the weekend before, the appellant had threatened staff.

[5] The Board also heard from Dr. Phillip Klassen, who had been retained to provide an independent psychiatric assessment. Dr. Klassen’s assessment was limited, however, as the appellant refused to meet with him. Nevertheless, based on a review of the appellant’s history, Dr. Klassen agreed that the appellant continues to pose a significant threat. Dr. Klassen assessed the appellant as having a high risk of general/violent recidivism. Of importance to the appellant’s request to transfer to a less secure psychiatric facility, Dr. Klassen said that, given the appellant’s past conduct, especially his conduct towards females, it made sense for the appellant to remain on an all-male unit. That requirement restricts the psychiatric facilities to which the appellant could be transferred as not all such facilities have all-male units.

[6] Dr. Klassen also noted that he was unable to determine to what degree the appellant’s ongoing aggressive conduct is related to his unhappiness with being at Waypoint, as opposed to his high score on the appraisal test for recidivism. The appellant views his continued detention at Waypoint as being an injustice.

[7] The Board concluded that this was not the appropriate time to consider allowing the appellant to transfer to a less secure psychiatric facility. In particular, the Board declined to allow the appellant to transfer to the two facilities that he proposed because neither of those facilities has an all-male unit.

[8] The Board acknowledged the positive strides that the appellant had made in the last year. However, the Board concluded that the appellant should remain at Waypoint to determine if those positive strides will continue. The Board appears to be alert to the concerns that arise from the appellant’s continued detention at Waypoint as a high security facility and also appears to be open to a transfer to a less secure facility, in the future, if the appellant continues to improve.

[9] Given the evidence, and the ongoing conduct of the appellant, the Board’s conclusion was a reasonable one. It is entitled to deference from this court. We have no basis to interfere with it, especially since the Board is alive to the concerns about the appellant’s continued detention at Waypoint and to the possibility of a transfer in the future. Also, the appellant’s increasing age will be a factor in determining whether his aggressive behaviour remains a concern.

[10] Before concluding, we address two other points. One is the appellant’s reliance on the Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), s. 5, s. 8 and the oath of Queen Elizabeth II. As important as these documents are, the principles they describe do not govern this appeal. The provisions of Part XX.1 of the Criminal Code set out the law that must be applied, and the Board decision properly applies those provisions. Nor has the appellant satisfied us that any provisions of the Canadian Charter of Rights and Freedoms have been violated.

[11] The other is the attempt by the appellant to file what he called fresh evidence. While we have looked at the material that the appellant filed in this regard, we have not considered that material in coming to our conclusion. The “will say” statements set out in that material are not “evidence”. They are hearsay. The appellant’s last-minute request to have unidentified witnesses testify for the first time on appeal came too late. More importantly, the issue before us relates to the reasonableness of the Board’s decision. The reasonableness of that decision must be judged based on the evidence that was before the Board at the time. Therefore, the material offered does not satisfy the well-established requirements for admission as fresh evidence: Palmer v. The Queen, [1980] 1 S.C.R. 759.

[12] The appeal is dismissed.

“David M. Paciocco J.A.”

“I.V.B. Nordheimer J.A.”

“J.A. Thorburn J.A.”