Court of Appeal for Ontario

Date: 20231207 Docket: M54688 (COA-23-CR-1070)

Nordheimer J.A. (Motions Judge)

In the Matter of: Mark Roberts An Appeal Under Part XX.1 of the Code

Counsel: Kevin Gray, for the appellant Manasvin Goswami, for the respondent His Majesty the King Leisha Senko, for the respondent Person in charge of the Centre for Addiction and Mental Health James P. Thomson, for the respondent Person in charge of Waypoint Centre for Mental Health Care

Heard: December 6, 2023

Endorsement

[1] The appellant, Mark Roberts, moves for a stay of the order of the Ontario Review Board dated September 25, 2023 which, among other things, directed that the appellant be detained at the Waypoint Centre for Mental Health (“Waypoint”). Prior to this disposition, the appellant had been detained at the Centre for Addiction and Mental Health (“CAMH”). He objects to his transfer to Waypoint.

[2] The appellant has a long history of difficult behaviour at CAMH. In particular, he engages in harassing and stalking behaviour with respect to female staff. The appellant has had multiple transfers within units of CAMH but, in each instance, his behaviour continued. The result is that female staff feel threatened by the appellant’s behaviour. It also interferes with the ability of female staff to perform their duties, including treating other patients.

[3] In January of this year, CAMH sought to transfer the appellant to any one of four different facilities in Ontario but each of those facilities declined to accept the appellant. While the issues with the appellant have been ongoing for some time, the Board, at that time, declined to order that the appellant be transferred. However, the problems with the appellant continued, as did the impact on the female staff at CAMH. In August, the Board held an early and urgent hearing. By its decision in September, it determined that the appellant had to be transferred to another facility. The Board also determined, because of the problems that the conduct of the appellant creates, that he had to be transferred to a facility that has an all-male unit. The only secure facility, other than CAMH, that has an all-male unit is Waypoint. The Board therefore concluded that the appellant had to be transferred to Waypoint and it so ordered. The appellant has appealed the Board’s decision, but his transfer to Waypoint has taken place.

[4] While the appellant styles his relief as a motion for a stay of the Board’s order, his request actually falls under s. 672.76 of the Criminal Code which permits this court to suspend a decision of the Board pending an appeal.

[5] I begin by considering the test for such a suspension. The appellant suggests that it is the same test as for a stay, that is, the well-established test from RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. I do not agree. Section 672.76(2) of the Criminal Code says, in part: “On receipt of an application made pursuant to subsection (1) a judge of the court of appeal may, if satisfied that the mental condition of the accused justifies it”.

[6] Section 672.76(2) sets up a specific test, as previous decisions of this court establish. I refer to two. First is the decision in Conway v. Brockville Psychiatric Hospital (1994), 18 O.R. (3d) 27 (C.A.), a case very similar to the one here as it involved an attempt to prevent a transfer of a patient from one facility to another. In his reasons, Griffiths J.A. said, at para. 9 (QL):

I agree with Ms. Train, counsel for the respondent hospitals, that a judge should invoke this section only in extraordinary circumstances. Clearly, the onus is on the applicant under this section. In my view, that burden requires the applicant to demonstrate that there are compelling reasons to doubt the validity or soundness of the disposition made by the Review Board as it relates to the mental condition of the applicant on an application such as this.

[7] The other is R. v. Waypoint Centre for Mental Health Care, 2014 ONCA 182, 119 O.R. (3d) 243. This case is also similar to the one here as it involved an order by the Board transferring a patient to Waypoint. In that case, Waypoint objected to the transfer (which Waypoint also does here) and sought a suspension of that order while it appealed [1]. In his decision, Laskin J.A. said, at para. 20:

[T]hree decisions of judges of this court have considered the appropriate test on a motion under s. 672.76(2)(b) to suspend a disposition pending appeal. In all three cases, this court has said that the moving party has the onus to show compelling reason to doubt the soundness or validity of the board's decision. Only in exceptional circumstances should a disposition be suspended pending appeal.

[8] The test under s. 672.76 is not the same test as would be applied by this court in considering a request for a stay. It is not the RJR-MacDonald test. Rather, it is a much higher and more restrictive test. The moving party must establish that the impact of the Board’s disposition on their mental condition justifies a suspension of the Board’s order. The onus on the moving party is a high one. It requires that there be compelling reasons to doubt the validity or soundness of the disposition made by the Board and that there are exceptional circumstances.

[9] The appellant has not discharged that high burden. Unlike was the case in Conway, for example, the appellant has not provided an affidavit in support of his request for a suspension, nor has he provided an affidavit from a psychiatrist, attesting to any impact on his mental condition. What the appellant does point to is evidence that the Board heard in the January 2023 review where Dr. Mishra, the Medical Director of Forensic Programs at Waypoint, gave evidence. Dr. Mishra did not agree with the rationale offered by CAMH for a proposed transfer to Waypoint. The Board, in its reasons, sets out Dr. Mishra’s evidence, including that he anticipated that the transfer to Waypoint would be difficult for the appellant and could result in an escalation of his challenging behaviours “for a time”.

[10] The Board, in its September 2023 decision (which is the subject of the appeal), refers to Dr. Mishra’s evidence from the January hearing. The Board notes that, in that earlier decision, the Board had concluded that a transfer was not appropriate, at that time, but also said that “on a better record, a panel may well decide a lateral transfer is the necessary and appropriate disposition for Mr. Roberts”. In its September decision, the Board concluded that the resources at CAMH to deal with the appellant “are in fact totally exhausted”. The Board also found that to continue to order the appellant’s detention at CAMH “would be an abdication of the responsibility to protect the safety of the public, which includes all of the staff working at that hospital”.

[11] While it might have been preferable if the Board had more directly addressed the evidence of Dr. Mishra regarding the issues that might arise at Waypoint, it is clear from the Board’s reasons, read as a whole, that the Board concluded that the appellant could no longer remain at CAMH and that the only other alternative was a transfer to Waypoint because of the need to house the appellant on an all-male unit.

[12] The appellant raises procedural and natural justice issues in his challenge to the Board’s decision. However, those issues do not go directly to the question that I must determine on this motion, which is whether any effect on the mental condition of the appellant justifies a suspension of the Board’s order. There is an absence of evidence that would satisfy that requirement. While I accept that any interference with family contact is undesirable, on the record before me, the contact between the appellant and his family and friends has been very limited. Most of that contact has been by telephone. That contact can still be maintained with the appellant at Waypoint. While counsel says that telephone contact is more difficult and is time limited at Waypoint, it is still available. Those difficulties would not seem to be greatly problematic, in terms of their impact, given the very limited contact that the appellant has had with his family and friends at CAMH.

[13] In any event, there is no evidence of the effect, if any, of reduced contact on the mental condition of the appellant. To the extent that any effect can be assumed, it is significantly outweighed by the impact of the appellant’s conduct on the operations of CAMH, including its ability to provide care to other patients. Indeed, the Board described the effect of the appellant’s conduct on CAMH in the following terms, at para. 39:

The contents of the Hospital Report and the viva voce evidence of Dr. Jones clearly demonstrate that Mr. Roberts’ behaviour has adversely impacted not only the staff but other patients on every male only medium secure forensic unit at CAMH. The evidence is that some staff have safety plans, some are unable to enter the unit to conduct their duties and others have requested transfers to different units. Dr. Jones described MR’s behaviour as causing “severe distress” amongst staff.

[14] All efforts to solve the problems within CAMH have failed. The fact that Mr. Roberts, because of his behaviour, must be placed in an all-male unit, leaves Waypoint as the only available alternative.

[15] I repeat that s. 672.76(2) requires that the appellant show that his mental condition “justifies” a suspension of the Board’s order. In considering whether that justification is shown, the impact of the appellant’s conduct on CAMH, its staff, and other patients, is a relevant consideration. Given the absence of evidence of the effect on the appellant’s mental condition arising from the transfer, and the serious impact that a suspension of the Board’s order would have on the operations of CAMH, the appellant has failed to make out that required justification.

[16] The motion is dismissed. I would not make any order as to the costs of the motion.

“I.V.B. Nordheimer J.A.”

[1] Waypoint has also filed an appeal from the Board’s decision in this case.