Court of Appeal for Ontario

CITATION: Robertson (Re), 2023 ONCA 795

DATE: 20231201

DOCKET: COA-23-CR-0553

Doherty, Trotter and Sossin JJ.A.

IN THE MATTER OF: James Robertson

AN APPEAL UNDER PART XX.1 OF THE CODE

James Robertson, acting in person (via video conference)

Akshay Aurora, for the respondent Attorney General of Ontario

Julia L. Lefebvre, for the respondent Person in Charge of Waypoint Centre for Mental Health Care

Russell W. Browne, appearing as amicus curiae (via video conference)

Heard: November 22, 2023

On appeal against the disposition of the Ontario Review Board dated January 5, 2023, with reasons dated February 1, 2023.

REASONS FOR DECISION

(1) Introduction

[1] The appellant, James Robertson, appeals from the January 5, 2023 disposition of the Ontario Review Board (the “Board”), ordering that he remain subject to a detention order, but that he be transferred from a maximum security hospital to a medium security hospital.

[2] For the following reasons, we dismiss the appeal.

[3] The appellant is 68 years old. He has been subject to the jurisdiction of the Board since 2007, after being found not criminally responsible for the offences of criminal harassment and invitation to sexual touching. Those offences occurred in 2001 and 2002. Previously, the appellant was convicted on a charge of rape in 1978, for which he received a sentence of eight years’ imprisonment. In 1984, he was convicted of sexual assault and sentenced to 10 years’ imprisonment.

[4] The appellant has been subject to a number of dispositions ordered by the Board. The Board has consistently found that he poses a significant threat to public safety and has ordered him to remain detained in a high security forensic unit at the Waypoint Centre for Mental Health Care (“Waypoint”).

[5] After the most recent hearing, in very lengthy reasons, the Board found that the appellant continues to pose a significant threat to the safety of the public. This was based on the appellant’s continued aggressive and threatening behaviour towards hospital staff and other patients. The Board ordered the appellant’s continued detention.

[6] However, based on the appellant’s expressed willingness to participate in sexual-related therapy and phallometric testing, the Board ordered that he be transferred to an all-male unit at a medium security psychiatric hospital, the Centre for Addiction and Mental Health (“CAMH”). As the Board concluded, at para. 268:

A transfer to CAMH is therefore both necessary and appropriate as it provides the hospital an opportunity to evaluate Mr. Robertson's stated commitment to engage in further diagnostic assessment and to participate in sexological-based treatment/programs to address his age-inappropriate sexual preference. [Emphasis in original.]

[7] Mr. Robertson represented himself at the hearing of the appeal. His submissions ranged over a variety of matters that, according to Mr. Robertson, have occurred during his confinement under the authority of the Board. Unfortunately, none of his submissions addressed issues that have any relevance to the appeal from this decision of the Board. However, amicus filed a factum that raised two points which we have considered, along with the responses from the Attorney General and Waypoint.

[8] Amicus submits that the Board erred by: (a) rejecting the evidence of Dr. Liam Marshall, a psychotherapist called by the appellant at his most recent hearing; and (b) in finding that the appellant remains a significant threat to the safety of the public. Both points are addressed together.

[9] Dr. Marshall was employed by Waypoint as a registered psychotherapist. The Board concluded that Dr. Marshall’s qualifications did not permit him to give opinion evidence relating to psychometric testing, placement recommendations, and risk assessment. It may be that the Board was unduly harsh in its appraisal of Dr. Marshall’s qualifications, and how they impacted on his ability to give opinion evidence in this case. Amicus drew our attention to Magee (Re), 2020 ONCA 418, in which the court observed that the Board, differently constituted, had referred to Dr. Marshall as a “highly recognized sexual offender specialist" (at para. 7).

[10] Nonetheless, it was open to the Board to prefer the considerable body of expert evidence from other witnesses who testified about the appellant’s mental health challenges, his threatening and aggressive conduct in the preceding year, and the risk that he currently poses to public safety. This evidence overwhelmingly supported the Board’s conclusion that a discharge, whether conditional or absolute, is not warranted at this time. The Board’s disposition, which is entitled to deference on appeal, was reasonable.

[11] The appeal is dismissed.

“Doherty J.A.”

“Gary Trotter J.A.”

“L. Sossin J.A.”