WARNING THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO: 110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. (2) Subsection (1) does not apply (a) in a case where the information relates to a young person who has received an adult sentence; (b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and (c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community. (3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication. 111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. 138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (b) is guilty of an offence punishable on summary conviction.

COURT OF APPEAL FOR ONTARIO DATE: 20221103 DOCKET: C70446

Miller, Zarnett and Coroza JJ.A.

IN THE MATTER OF: A.B.

AN APPEAL UNDER PART XX.1 OF THE CODE

Anita Szigeti, for the appellant Natalya Odorico, for the respondent His Majesty the King

Heard: October 21, 2022

On appeal against the disposition of the Ontario Review Board dated February 2, 2022, with reasons dated March 9, 2022.

Reasons for Decision

Background

[1] The appellant was found not criminally responsible in 2006 on charges of robbery with a firearm and has been subject to the jurisdiction of the Ontario Review Board (“Board”) since that time. He is currently detained at the Forensic Psychiatry Program, St. Joseph's Healthcare, in Hamilton, Ontario (the “Hospital”).

[2] In December 2021, the appellant was convicted and sentenced for the possession of child pornography. The appellant had used the Hospital’s Wi-Fi to find the images and was sentenced to a one-year conditional sentence order followed by three years of probation.

[3] On January 28, 2022, the Board convened a hearing pursuant to s. 672.81(1) of the Criminal Code, R.S.C. 1985, c. C-46, to review the appellant’s disposition. The issues before the Board were whether the appellant continued to represent a significant threat to the safety of the public and, if so, the necessary and appropriate disposition having regard to the factors set out in s. 672.54 of the Criminal Code. The Board received documentary evidence in the form of a Hospital Report, and the Reasons for Sentencing for the child pornography offence. The Board also heard viva voce testimony from Dr. Prat, the appellant’s treating psychiatrist and the appellant.

[4] Before the Board, the Hospital argued that there should be no change to the appellant’s disposition, except that any indirectly supervised community privileges should be removed.

[5] For his part, the appellant opposed any change to his disposition including his indirectly supervised community privileges. However, the appellant asked the Board to transfer him either to the Brockville Mental Health Centre (“Brockville”) or to Nova Scotia because of the enormous stress he was experiencing due to his conviction for the child pornography offence and the press coverage regarding his charges.

[6] The Board found that the appellant continued to represent a significant threat to the safety of the public and held that there should be no change to the appellant’s disposition. The Board also removed the appellant’s indirectly supervised community privileges. Finally, the Board refused the transfer request because it saw no clinical merit in ordering his transfer.

Analysis

[7] The appellant argues the Board erred in two ways. First, it erred by unreasonably denying his transfer to Brockville. [1] Second, it did not craft a disposition that was the least onerous or restrictive because it removed the appellant’s community access passes which effectively removed any hope for the appellant to work in the community.

Issue 1: Did the Board err in refusing the transfer request to Brockville?

[8] The appellant contends that the Board dismissed his request for a transfer out of hand and that its refusal to transfer him to Brockville was unreasonable. The appellant argues that the Board disregarded the benefit of change in hospital settings in the face of the enormous stress he was experiencing. Since the Hospital was not opposed to the transfer, and the appellant was making no progress at the Hospital, the appellant submits that a balanced approach would have been transferring the appellant out of the Hospital.

[9] We disagree. We start by observing that we owe considerable deference to the Board’s dispositions when they are reviewed for reasonableness: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 37.

[10] Contrary to the appellant’s submission, this request was not dismissed out of hand. The decision to dismiss the request for a transfer was based on the evidence of Dr. Prat who testified that he saw no clinical merit in ordering the appellant’s transfer. The Board recognized that the transfer may lead to an immediate reduction in the appellant’s level of stress, given the public nature of his offences in Hamilton and the press coverage regarding them. However, the Board simply preferred the evidence of Dr. Prat that the appellant was unlikely to engage any better at treatment programs at Brockville than he had thus far at the Hospital.

[11] In our view, the Board’s comments that it would take time for the appellant to develop any kind of rapport with a new treatment team and that this would delay his progress and access to the community were observations that were well within the Board’s expertise to make.

[12] Before leaving this issue, we disagree with the Board’s comments that the appellant’s request for transfer was impulsive and had no consideration for therapeutic opportunities. It is not disputed that the appellant faces enormous stress because of his conviction and the publicity surrounding the nature of the charge. While the comments of the Board about the appellant’s impulsivity do not make the ultimate disposition it rendered unreasonable, since the appellant has expressed a settled intention to transfer from the Hospital, it is our view that serious consideration should be given to that request at his next hearing. [2]

Issue 2: Did the Board err in removing the appellant’s ability to be in the community indirectly supervised?

[13] The appellant argues that by removing the appellant’s passes to access the community the Board interfered with the appellant’s progress and diminished his prospects of community reintegration. He submits that removing his access to the community was not the least restrictive or least onerous disposition, because whether the appellant could exercise such privileges would always remain within the discretion of the Person in Charge of the Hospital. Further, he argues that the public’s safety would not be compromised by permitting a possibility for community access passes for the purposes of work because the Hospital could supervise the appellant going to and from work, for example, if needed. The appellant submits that the disposition as it stands removes any hope that the appellant can work in the community which he has done in the past.

[14] The appellant’s conviction for child pornography was serious and according to Dr. Prat the appellant lacked insight into his offence. Given this evidence, it is not surprising that the Board concluded that the appellant continues to represent a significant threat to the safety of the public. In our view, the Board’s findings – that the appellant lacked engagement in therapeutic programming, that he was unable to control his impulsivity, and that he posed an ongoing risk for sexual offending – supported its ultimate finding that the appellant’s risk could not be safely managed in the community.

[15] Although the appellant argues that the conditional sentence of imprisonment imposed by the sentencing judge permitted the possibility of community access in the second half of the year, and therefore the ability to work in the community, the Board had evidence before it that it was highly unlikely that the appellant would be clinically ready to be indirectly supervised in the community by such time. This evidence, along with the fact that the appellant’s risk could not be managed provided ample support in the record for the Board’s decision to remove the appellant’s community access passes. We see no basis to interfere.

Disposition

[16] For these reasons, the appeal is dismissed.

“B.W. Miller J.A.”

“B. Zarnett J.A.”

“S. Coroza J.A.”

[1] In his written materials, the appellant initially raised the contention that the Board erred in failing to recommend a transfer to Nova Scotia. During oral argument however, the appellant withdrew this argument.

[2] The parties have advised us that the next hearing will take place on November 23, 2022.