Court of Appeal for Ontario

Date: 2022-12-23 Docket: C70641

Judges: Lauwers, Huscroft and Miller JJ.A.

In the Matter of: Adam Sean Palmer

An Appeal Under Part XX.1 of the Code

Counsel: Jeff Marshman, for the appellant Dena Bonnet, for the respondent His Majesty the King Julia Lefebvre, for the respondent Person in Charge of Waypoint Centre for Mental Health Care

Heard: December 16, 2022

On appeal from the disposition of the Ontario Review Board, dated April 13, 2022, with reasons dated May 6, 2022.

Reasons for Decision

[1] The appellant has been under the jurisdiction of the Ontario Review Board since 2005. The index offence occurred in 2002, when the appellant killed his friend by stabbing him multiple times in the face, neck, and back area with a knife. The appellant has been diagnosed with anti-social personality disorder, substance abuse disorder, and a psychotic illness with paranoid and somatic delusions, likely best characterized as schizophrenia.

[2] The appellant was designated a dangerous offender in 2021 following conviction on two counts of aggravated assault and one count of assault. While detained at the Provincial Forensic Programs Division at Waypoint Centre for Mental Health Care, the appellant attacked a nurse and two staff members. He was sentenced to an indeterminate penitentiary term and is now detained at Millhaven. Upon receiving the court-imposed penitentiary sentence, the appellant became a dual status offender pursuant to s. 672.67(1) of the Criminal Code, R.S.C. 1985, c. C-46. As such, his custody in Millhaven takes precedence over his pre-existing Board disposition.

[3] Before the Board, the appellant expressed a desire to be placed in a maximum-secure forensic hospital rather than in a penitentiary. The Board declined to order a placement hearing and held that the appellant’s placement in the penitentiary was “not inappropriate to meet his mental health needs or to safeguard the well-being of others.”

[4] The appellant argues that the Board’s decision is unreasonable. He seeks an order requiring the Board to hold a placement hearing and remitting the matter to the Board for that purpose.

[5] We do not agree.

[6] The appellant poses an extreme risk to anyone around him. The Board found that if the appellant were not incarcerated in a penitentiary, there is a real risk that he would not adhere to antipsychotic medication, would experience increasing psychotic symptoms, exacerbated antisocial attitudes and behaviours, use alcohol or other non-prescribed intoxicating substances, and engage in seriously harmful and potentially “catastrophic” criminal offences against members of the public, similar to those he previously committed. The Board’s findings are supported by uncontradicted expert evidence in psychiatric reports as well as the reasons given by the Ontario Court of Justice in making the dangerous offender designation and ordering an indeterminate penitentiary sentence.

[7] The Board also found that the existing disposition – including detention at Waypoint with a recommended transfer to a forensic psychiatric hospital in British Columbia – remains necessary and appropriate, the least onerous and restrictive for the appellant, and should continue. Waypoint is the only high secure forensic hospital in Ontario, and the only realistic option for treatment in Ontario should his penitentiary incarceration come to an end.

[8] These findings were open to the Board on the record before it and are reasonable. The appellant has failed to establish any basis for this court to interfere with them on appeal. Plainly, the danger posed by the appellant is extreme and highly secure forensic custody is necessary.

[9] Section 672.67(1) of the Criminal Code makes clear that the court-imposed penitentiary sentence takes precedence over the Board’s prior custodial disposition. In the absence of a placement hearing warranted by a significant change of circumstances, the only relevant basis to alter the appellant’s placement is under s. 672.68(2) – if the Board finds that incarceration is inappropriate to meet his mental health needs or to safeguard the well-being of other persons.

[10] The Board acknowledged that the “correctional culture” in a penitentiary differs from that of a high secure forensic hospital and may affect the quality of the appellant’s treatment. However, the Board found that this concern was outweighed by its paramount responsibility to ensure the protection of public safety and well-being. Specifically, the Board found that it was “abundantly clear” from the appellant’s history that the risk of a severe or even catastrophic re-offence precluded his detention in a psychiatric hospital, which does not have a penitentiary’s level of protective security.

[11] The appellant has a lengthy history of extreme violence that cannot be managed outside the confines of a penitentiary. The Board’s decision is amply supported by the record and is reasonable. There is no basis for this court to intervene.

[12] The appeal is dismissed.

“P. Lauwers J.A.”

“Grant Huscroft J.A.”

“B.W. Miller J.A.”