Court of Appeal for Ontario

Date: 20211108 Docket: C69207

Tulloch, Hourigan and Harvison Young JJ.A.

In the Matter of: Luke Armstrong

An Appeal Under Part XX.1 of the Code

Counsel: Suzan E. Fraser, for the appellant Nicolas de Montigny, for the respondent Attorney General of Ontario Gavin S. Mackenzie, for the respondent Ontario Shores Centre for Mental Health

Heard: November 5, 2021 by video conference

On appeal against the disposition of the Ontario Review Board dated, January 26, 2021, with reasons dated February 12, 2021.

Reasons for Decision

[1] On November 26, 2010, the appellant was found not criminally responsible on account of mental disorder for the murder of his mother. He appeals his continued Detention Order dated January 26, 2021.

[2] The facts surrounding the most recent disposition by the Board are as follows.

[3] In September 2019, the appellant discontinued anti-psychotic medication, and did not experience any re-emergence of psychosis.

[4] In December 2019, the appellant found full-time employment. However, his working privileges were suspended by the hospital on April 5, 2020, on the grounds that he did not adhere to measures to prevent the spread of COVID-19.

[5] The hospital returned the appellant from a general unit to a secure unit on July 20, 2020, citing evidence of his general deterioration in 2020, and his use and distribution of tea with psychoactive properties to co-patients. There were also incidents of physical aggression and verbally abusive and intimidating behaviour.

[6] At the start of the hearing before the Board, the parties were informed that the hearing would last one and a half hours and that the parties would each have 15 to 20 minutes to give evidence and testimony before moving on to submissions. The appellant was permitted to ask questions in excess of his allotted time, but the Chairperson ultimately ended his questioning before the appellant was finished, in the interest of time.

[7] During the appellant’s testimony, he raised concerns regarding discrepancies in the hospital’s report and the revocation of his work privileges. His testimony was stopped by the Chairperson due to time constraints. The appellant attempted to raise further points, but the Chairperson instructed him to deal with them during his submissions. He was allowed two minutes for submissions and was cut off by the Chairperson at the expiry of that time. The hearing ultimately lasted just over 1.5 hours. At times, the Board interrupted the appellant during his questioning and when he gave his evidence.

[8] In light of two incidents of physical aggression against co-patients along with behavioural difficulties with staff and co-patients during the reporting year, the Board found that the appellant continued to present a significant threat to public safety. It found that his use of kratom tea, a substance with the potential to cause psychosis, demonstrated an ongoing lack of insight into the potentially negative impact of substance abuse on his mental state.

[9] The Board held that a continued Detention Order was necessary and appropriate to allow for a high level of support and staff supervision both in the hospital and when he transitioned to the community. It also found that the Mental Health Act, R.S.O. 1990, c. M.7, would not be sufficient to manage his risk, as the appellant would likely not cooperate with a voluntary readmission if requested.

[10] Two grounds of appeal are raised:

1. The Board breached its duty of procedural fairness by restricting the time limit of the hearing to 1.5 hours; and
2. The Board erred in denying the appellant a conditional discharge.

[11] We do not give effect to these submissions.

[12] On the procedural fairness ground, we agree with the appellant that he was entitled to a high degree of fairness. In our view, that fairness requirement was met in this case.

[13] The Board explained to the appellant at the outset of the hearing that he would be able to cross-examine, give testimony, and make submissions, and he was permitted to do so. The Board’s interruptions were primarily intended to focus the appellant in each of these roles to maximize the meaningfulness of his participation. The appellant also had the benefit of amicus to consult with and to raise further issues through his questioning and submissions.

[14] We see no error in the Board’s exercise of its discretion to control its process. All the parties were given an opportunity to present their cases on the relatively straightforward issues before it. There is nothing in the submissions of the appellant that suggests that there was evidence or submissions on an important area that were not adequately covered. Indeed, it is unclear what would have been materially different had the hearing been further extended. Accordingly, there is no basis for this court to interfere in the Board’s reasonable exercise of its discretion.

[15] On the matter of the disposition, there was considerable evidence to support the Detention Order and the finding of the likely ineffectiveness of a conditional discharge. Considering the appellant’s lack of insight into the potential effect of substance use on his mental state, his behavioural issues with staff and co-patients that included physical aggression, and his difficulty cooperating with his team, we are not of the view that a Detention Order was an unreasonable disposition.

[16] Further, we agree with the Board’s conclusion that there was a clear risk to public safety stemming from the appellant’s interactions with his co-patients and hospital staff that could not be sufficiently managed with a conditional discharge.

[17] The appeal is dismissed.

“M. Tulloch J.A.” “C.W. Hourigan J.A.” “Harvison Young J.A.”