COURT OF APPEAL FOR ONTARIO DATE: 20220321 DOCKET: C69801

Rouleau, Huscroft and Trotter JJ.A.

IN THE MATTER OF: Michael B. Alexander

AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel: Andrew Menchynski, for the appellant Dena Bonnet, for the Attorney General Julia L. Lefebvre, for Waypoint Centre for Mental Health Care

Heard: March 11, 2022 by video conference

On appeal from the disposition of the Ontario Review Board, dated April 7, 2021, with reasons dated April 23, 2021.

REASONS FOR DECISION

(1) Introduction

[1] On January 31, 2020, the appellant was found not criminally responsible on account of mental disorder (NCRMD) in relation to the offences of threatening death and robbery. On July 13, 2020, the Ontario Review Board (“the Board”) ordered that the appellant be detained at the Waypoint Centre for Mental Health (“Waypoint”), a secure facility. [1]

[2] The appellant appeared before the Board on March 31, 2021 for his annual review under s. 672.81(1) of the Criminal Code, R.S.C. 1985, c. C-46. The issues before the Board were whether the appellant continued to pose a significant threat to the safety of the public and, if so, what was the necessary and appropriate disposition. All parties agreed that the appellant was a significant threat to the safety of the public. They also agreed that he should be transferred to the Secure Forensic Unit at Providence Care in Kingston (“Providence Care”), a less secure facility than Waypoint.

[3] The Board found that the appellant was a significant threat to the safety of the public, but rejected the joint submission for a transfer from Waypoint to Providence Care.

[4] The appellant appeals the placement decision only. He submits that the Board’s decision was unreasonable. Moreover, he contends that the hearing before the Board was procedurally unfair because the Board failed to provide adequate notice that it was considering the rejection of the joint submission.

[5] The respondents submit that there was no unfairness in the manner in which the Board handled the joint submission. On the transfer issue, both respondents support the Board’s decision despite the fact that it is contrary to the joint submission they made at the hearing. The Crown grounds this position on appellate deference to the Board’s decision; Waypoint also relies on deference, but also alludes to fresh evidence that is not before us.

[6] We conclude that the manner in which the Board dealt with the joint submission was less than ideal; however, but it did not amount to procedural unfairness. Moreover, the Board’s decision was a reasonable exercise of its discretion.

(2) Background

[7] The appellant is 41 years old. In May of 2019, he received a conditional discharge for uttering a death threat. He was placed on probation for 12 months. The following month, he attended a bank in downtown Toronto. He went into one of the employee’s offices and started yelling and screaming in an incoherent manner. When asked to leave, he threatened to cut off the employee’s head and put it in a potato sack he was carrying. He eventually left the bank. He was subsequently arrested a month later, but released on bail.

[8] In September of 2019, the appellant grabbed a purse from a restaurant patio table. The victim attempted to retrieve her purse, and in the ensuing struggle, her wallet dropped to the ground. The appellant ran off with the wallet. The victim caught up to him. With the assistance of bystanders, the wallet was recovered. A passing police car was flagged down and the appellant was arrested.

[9] The appellant’s current diagnoses are: schizoaffective disorder, bipolar type; substance use disorder; and antisocial personality traits. Prior to these events, the appellant had admissions to psychiatric facilities. At the time of his arrest, the appellant was essentially homeless, supported by the Ontario Disability Support Program.

[10] In the months between his arrest and his NCRMD finding, the appellant was placed at CAMH. However, because of the inability of staff to control him, there were a number of admissions to Waypoint, where the appellant spent much of his time in seclusion.

[11] In the days leading up to the hearing, the appellant engaged in erratic behaviour. He threatened suicide and attempted to suffocate himself. His treatment team believed this was an attention-getting reaction to the Hospital Report and his anxiety about his upcoming ORB hearing.

(3) The Hearing

[12] At the outset of the hearing, a representative for Waypoint advised the Board that the hospital recommended the appellant’s transfer to Providence Care. The appellant supported this recommendation. The Crown indicated that it would state its position after hearing the evidence.

[13] When the parties set out their positions, they were aware that Providence Care objected to the proposed transfer. Dr. Tariq Hassan, Clinical Director of Forensic Mental Health at Providence Care, had sent a letter setting out its reasons for its objection. [2] Having reviewed the Hospital Report, Dr. Hassan expressed concerns about the appellant’s “significant periods of very acute presentations of unwell behaviour and serious threats of violence.” He provided other reasons, including the relative recency of the appellant’s clinical progress. Being open to the possibility of a future transfer, Dr. Hassan said, “[t]his is the rare occasion where I would disagree with my colleagues at Waypoint and do not accept to have this gentleman transferred to Providence Care at this time.” The letter was also before the Board and entered as an exhibit. It became a focal point at the hearing.

[14] The Board heard the evidence of one witness, Dr. J. Van Impe, the appellant’s attending psychiatrist. Dr. Van Impe adopted the contents of the Hospital Report and provided the opinion that the appellant remains a significant risk to the safety of the public. He referred to the appellant’s periods of extreme agitation, extreme threats of violence, and the requirement for seclusion.

[15] Dr. Van Impe testified that the unanimous opinion of the treatment team was that the appellant could be managed at Providence Care. However, he said the decision was a “difficult one”, a “guarded recommendation”, and not an “easy decision.” Dr. Van Impe testified that, if the appellant maintained compliance with his medication, as he had over the previous five months, he would be manageable in the less-secure setting of Providence Care.

[16] Responding to the objection of Providence Care, Dr. Van Impe said, “[t]heir concerns are valid. This isn’t a cut and dry…recommendation.” However, pointing to the appellant’s intense dislike of Waypoint, Dr. Van Impe believed that fear of being returned to Waypoint would act as a positive incentive at Providence Care.

[17] At the conclusion of the evidence, Waypoint maintained its recommendation for a transfer, but with conditions designed to address the appellant’s risk factors and the possibility of elopement. The Crown said it “is cautiously in support of the cautious position by the hospital.”

(4) The Board’s Decision

[18] The Board accepted the joint submission that the appellant was a significant threat to the safety of the public. It declined to accede to the joint submission concerning the transfer to Providence Care. As the Board said, at para. 29:

The Board appreciates the fact that the parties put forward a joint submission that Mr. Alexander be transferred to a less secure facility. The panel does not reject this joint submission lightly. As the Court of Appeal stated in Hassan (Re), 2011 ONCA 561, [2011] O.J. No. 3800 at para. 24, the Board “ought to tread cautiously” before making an order that the restricts the accused’s liberty beyond that which the hospital and the Crown thinks necessary. However, the court went on to say this at para. 25:

However, the Board does not necessarily err because it declines to follow a hospital’s or Crown’s recommendation. Automatically adhering to the position of a hospital or Crown would mean abdicating its own role. A review board is composed of medical and legal experts with specialized knowledge and experience in mental health and in risk assessment and management. Parliament has vested these boards with authority to make their own independent and often difficult determinations after weighing the package of factors in s. 672.54 of the Code.

[19] As discussed below, the Board outlined the factors that caused it to give effect to Dr. Hassan’s objections to the proposed transfer to Waypoint.

(5) Discussion

[20] It is well-established in this court’s jurisprudence that the Ontario Review Board is not bound by joint submissions. However, the Board owes a duty of procedural fairness to those individuals over which it exercises jurisdiction, which includes a duty to give notice when it considers rejecting a joint submission. Notice gives the parties an opportunity to address the Board’s concerns, by adducing (further) evidence, making responsive submissions, or both: Re Osawe, 2015 ONCA 280, 125 O.R. (3d) 428, at paras. 33, 42-43; Re Kachkar, 2014 ONCA 250, 119 O.R. (3d) 641, at paras. 42-44; and Re Elman, 2021 ONCA 783, 407 C.C.C. (3d) 481, at paras. 31-32.

[21] Notice may take different forms. It may be direct or indirect. Notice may be given by Board members asking questions that “are significantly probing about the core elements of the joint submission”: see Re Benjamin, 2016 ONCA 118, at para. 22. See also Osawe, at para. 22 and Elman, at paras. 43-44. Whether questioning is a sufficient substitute for explicit notice involves a contextual inquiry: Re Nguyen, 2020 ONCA 247, 387 C.C.C. (3d) 13, at para. 20.

[22] There was clearly a joint submission concerning the transfer request. As noted in para. 18 above, the Board acknowledged this reality. The Crown places significance on the fact that the joint submission was only reached at the end of the evidentiary phase of the hearing. But this did not detract from the essential nature of a joint submission. A joint submission may be formed at any time up until the decision-maker commences deliberations.

[23] There was no explicit mention by any Board member that the joint submission might not be accepted. It would have been preferrable if this had been done. This is a matter that should not be left to guesswork. However, the manner in which the hearing was conducted ought to have signalled that the requested transfer was not a “done deal”.

[24] The letter of Dr. Hassan was before the Board and made an exhibit. The issue was squarely in play. The questioning of Dr. Van Impe by Justice Lipson revealed some concern with the proposed transfer in the face of Dr. Hassan’s resistance.

[25] The Crown relies on the questioning of the Alternative Chairperson as notice that the joint proposal was on infirm ground. In the lead up to a question concerning the possibility of moving the appellant to a less secure setting within Waypoint, he made the following parenthetical comment – “I have no idea where I’m going as far as a decision let alone my colleagues.” Later, he commented that, “I’m trying to come to grips with this decision.”

[26] It would have been preferrable had the Board advised counsel of its concern during the submissions stage of the hearing. But there were no questions of counsel. Nonetheless, the aspects of the hearing mentioned in the preceding paragraphs collectively provided adequate notice that the joint submission might not be accepted. There was no procedural unfairness.

[27] We dismiss this ground of appeal.

[28] The appellant submits that the Board’s decision to refuse the transfer was unreasonable. He submits that the Board should not have given effect to Dr. Hassan’s objections because they reflected more of a concern about the appellant being a nuisance in the institution. He submits that the Board could have approved the transfer along with an appropriate envelope of conditions to assuage Dr. Hassan’s concerns by giving Providence Care the proper tools to manage the appellant.

[29] Both respondents submit that the Board’s refusal to order the appellant’s transfer was reasonable. As noted above, counsel for Waypoint alludes to more recent events that might justify the denial of the transfer. This was not a proper submission. If counsel wish to update the court about the progress or decompensation of an NCRMD detainee, the appropriate procedure is an application to introduce fresh evidence. That was not done in this case. In reaching our decision on this issue, we rely exclusively on the formal record, and nothing more.

[30] Notwithstanding Mr. Menchynski’s able submissions, our evaluation of the Board’s reasons leads us to conclude that its decision was reasonable.

[31] In reaching this conclusion, we must give the deference that is typically afforded to the Board’s decisions on appeal. Moreover, the Board provided thorough reasons for giving effect to Dr. Hassan’s objection to the Hospital’s proposal. We do not accept the appellant’s submissions that Providence Care resisted the transfer because the appellant was merely a nuisance and engaging in attention-seeking behavior. The problems he posed at the time were more serious. As the Board said, at paras. 25-28:

Since the time of Mr. Alexander’s latest disposition in July 2020, Mr. Alexander required three periods of seclusion as a result of aggressive and bizarre behaviours and are described in great detail in the hospital report. He has been threatening to staff, sexually inappropriate towards female staff. He has also engaged in feces smearing when frustrated and angry. There were incidents when he was kicking and punching his door and on one occasion, he broke the fire sprinkler in his room causing the room to flood. It should also be said that Mr. Alexander did not physically assault any staff or co-patients during this review period.

The evidence is that Mr. Alexander has demonstrated significant improvement since December 2020 after being started on Abilify Maintena, an injectable antipsychotic medication. To his credit, Mr. Alexander achieved the most privileged security level available in early January 2021. He has participated in an anger management program and cognitive behavioural therapy. He sought out counselling with a psychologist and a substance abuse counsellor. He was a ward worker on his unit. His mental status has improved, and obvious psychotic symptoms have been minimal. In the opinion of his treatment team, Mr. Alexander is now ready for a transfer to a less secure facility.

Unfortunately, Mr. Alexander’s positive trajectory was interrupted by the very concerning events of March 22, 2021 when he engaged in acts of self-harm, including trying to suffocate himself with a laundry bag, submerging his head into a toilet and wrapping a “safe gown” around his head. He required 4-point restraints and placement in a padded room for his own safety. Dr. Van Impe described these attempts at self-harm as an impulsive reaction to reading what Mr. Alexander viewed as unfavourable comments in the hospital report in combination with his overall anxiety about his upcoming Board hearing.

Mr. Alexander’s progress is relatively recent and his self-harming behaviour on March 22, 2021 raises significant concerns about his current mental status. The Board agrees with the opinion expressed by Dr. Hassan that while Mr. Alexander has made some gains in recent months, his recovery is still in its infancy. The Board notes that Mr. Alexander has yet to reside on the least structured and highest privileged unit of Waypoint. Upon a consideration of all the evidence, the Board is of the view that a further period of stabilization at Waypoint is necessary before Mr. Alexander can be transferred to and safely managed in a less secure hospital. In arriving at this decision, the Board attached significant weight to the well supported and clearly stated reasons of Dr. Hassan in exhibit 3 explaining why he did not consider Mr. Alexander to be an appropriate candidate for transfer to Providence. [Emphasis added].

[32] In the light of these cogent reasons, based on a proper appreciation of the evidence, it cannot be said that the Board’s decision was unreasonable.

Disposition

[33] The appeal is dismissed.

“Paul Rouleau J.A.” “Grant Huscroft J.A.” “Gary Trotter J.A.”

Footnotes

[1] An appeal (C68650) from that disposition was launched but never reached the hearing stage. By way of a separate order, and on the consent of the parties, that appeal is dismissed as a moot appeal.

[2] Pursuant to r. 13 of the Ontario Review Board’s Rules of Procedure, when any party at a hearing requests that the accused should be transferred to another institution, that party shall provide notice to all other parties “as well as the person in charge of the prospective receiving hospital”. See the discussion about how this rule operates in practice in Michael Davies, Anita Szigeti, Meaghan McMahon and Jill R. Presser, A Guide to Mental Disorder in the Canadian Criminal Justice System (Toronto: LexisNexis Canada Inc., 2020), at pp. 230-232.