Court of Appeal for Ontario

Date: 20221007 Docket: C70216

Judges: MacPherson, Paciocco and Thorburn JJ.A.

In the Matter of: Derek McPhee

An Appeal Under Part XX.1 of the Code

Counsel: Anita Szigeti, for the appellant Avnee Paranjape, for the respondent, Attorney General of Ontario Julie Zamprogna, for the respondent, the Person in Charge of Southwest Centre for Forensic Mental Health Care, St. Joseph’s Health Care London

Heard: September 29, 2022

On appeal against the disposition of the Ontario Review Board, dated December 10, 2021, with reasons dated January 10, 2022.

Reasons for Decision

[1] The appellant Derek McPhee is currently under the jurisdiction of the Ontario Review Board (“ORB”). He was found Not Criminally Responsible (“NCR”) on charges of assault, mischief and failure to comply with a probation order on October 9, 2014.

[2] The appellant has been diagnosed with schizophrenia and substance use disorder. He is detained at the Southwest Centre for Forensic Mental Health Care (“SCFMHC”).

[3] This appeal arises from the December 7, 2021 annual ORB hearing, after which the ORB ordered the appellant to continue to be detained at SCFMHC for the eighth consecutive time. The ORB concluded:

Having heard and considered all of the evidence and the submissions of the parties, we found that the threshold test for significant threat is met, and the current detention disposition remains necessary and appropriate in the circumstances.

[4] As it had done in its seven previous dispositions, the ORB included a provision allowing the appellant to “live in the community of Elgin and Middlesex in accommodation approved by the person in charge”.

[5] The appellant’s position is that the ORB erred in finding that he continued to pose a significant threat to the safety of the public. The appellant seeks an absolute discharge from the SCFMHC or, in the alternative, a conditional discharge or a new hearing before a differently constituted panel. [^1]

[6] We begin by noting that the standard of review for ORB decisions is reasonableness. A court should not interfere with an ORB decision unless it concludes that “the Board’s risk assessment and disposition order was unreasonable in the sense of not being supported by reasons that can bear even a somewhat probing examination”: R. v. Owen, 2003 SCC 33, at para. 33.

[7] The appellant advances two grounds of appeal.

[8] First, the appellant contends that the ORB erred by concluding that he posed a significant risk to public safety; hence its decision was unjustified and unreasonable.

[9] We do not accept this submission. The ORB carefully reviewed the whole record, and especially the testimony of Dr. Roopchand, the appellant’s treating psychiatrist. The ORB concluded:

We recognize that since coming under the jurisdiction of the Review Board, Mr. McPhee has not engaged in any assaultive behaviours. However, as indicated by Dr. Roopchand, there have been periods of escalation and hostility. When his symptoms (particularly the voices) are exacerbated, Mr. McPhee can present as guarded, preoccupied, intimidating and irritable, and he can become highly agitated and distressed to the point of becoming unpredictable and volatile. He often has angry outbursts.

[10] In our view, this analysis and conclusion are amply supported by the record. In any event, the conclusion is far removed from attracting the label “unreasonable” as that term has been described in cases like Owen.

[11] The appellant’s second ground of appeal is that the ORB failed to meaningfully consider a conditional discharge. He says that his risk to the safety of the public could be adequately managed by such an order.

[12] We are not persuaded by this submission. The ORB accepted that the appellant had not committed an assault recently because his escalations had been immediately and carefully managed by the staff who knew him well. The ORB also found that the appellant lacked the ability to manage his own distress. The appellant would not be able to recognize symptoms of his own decompensation and seek out help if were living in the community. As explained by the ORB:

On the issue of disposition, we accept Dr. Roopchand’s evidence that, at present, Mr. McPhee continues to require close professional support and supervision to manage the risk he poses to public safety. If consideration is to be given to returning Mr. McPhee to community living (and it is), the treatment team will have to be able to consider and approve any potential placement to make sure that Mr. McPhee has the right supports, and the necessary level of oversight and supervision, in any home in which he will live. As such, a detention disposition remains necessary.

[13] In our view, this analysis and conclusion are reasonable.

[14] In light of this conclusion, it is not necessary to consider the fresh evidence submitted by the respondent SCFMHC. This respondent can consider whether to submit this evidence at the next review hearing which is currently scheduled for the week of December 5, 2022.

[15] The appeal is dismissed.

“J.C. MacPherson J.A.” “David M. Paciocco J.A.” “J.A. Thorburn J.A.”

[^1]: We observe that the appellant’s next annual hearing is currently scheduled for the week of December 5, 2022.