Court of Appeal for Ontario

Date: 20240430 Docket: COA-23-CR-1070

Judges: Miller, Favreau and Copeland JJ.A.

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 Attorney General of Ontario Leisha Senko, for the respondent Person in Charge of the Centre for Addiction and Mental Health Julia Lefebvre, for the respondent Person in Charge of Waypoint Centre for Mental Health Care

Heard: April 2, 2024

On appeal against the disposition of the Ontario Review Board dated, September 25, 2023, with reasons dated October 11, 2023.

Reasons for Decision

[1] The appellant, Mark Roberts, appeals an order of the Ontario Review Board (the “Board”) requiring his transfer from the Centre for Addiction and Mental Health (“CAMH”) to Waypoint Centre for Mental Health Care (“Waypoint”).

[2] For the reasons that follow, the appeal is dismissed.

Background

[3] Mr. Roberts has a number of diagnoses, including schizophrenia and autism spectrum disorder without intellectual disability.

[4] Mr. Roberts was found not criminally responsible (“NCR”) on June 26, 2014, on a charge of criminal harassment. The index offence arose from Mr. Roberts’s harassment of his landlady’s daughter.

[5] Following the finding of NCR, Mr. Roberts was detained at the Ontario Shores Centre for Mental Health Sciences in Whitby and then at CAMH until 2015. In October 2015, he was discharged into the community. In 2020, he was arrested and charged for repeatedly harassing a cashier at a grocery store. Following the arrest in 2020, Mr. Roberts was detained at CAMH and remained there until 2023.

[6] At an annual review in January 2023, CAMH requested that Mr. Roberts be transferred to Waypoint, which is a more secure facility than CAMH. CAMH requested the transfer because Mr. Roberts had been persistently harassing and stalking many female employees at the hospital, including nurses and social workers. The Board found that Mr. Roberts continued to pose a significant risk to public safety and removed some of his privileges. However, the Board declined CAMH’s transfer request. Having heard and considered the evidence of Dr. Mishra, a psychiatrist at Waypoint, the Board concluded that a transfer was not necessary or appropriate. The Board held that, while Mr. Roberts’s behaviours were very challenging, they were “not the typical aggressive or violent behaviours that lead to patients being transferred to the high secure setting of Waypoint”. The Board found that Waypoint would not necessarily be better equipped to manage Mr. Roberts and that it was likely that his “harassing and oppositional” conduct would persist at Waypoint.

[7] The Board nevertheless acknowledged the challenges Mr. Roberts posed at CAMH, and left the door open for CAMH to request an early review and to ask for Mr. Roberts’s transfer on better evidence:

The panel wishes to acknowledge the real challenges Mr. Roberts’ conduct has posed for CAMH as they try to balance meeting Mr. Roberts’ treatment and safety needs with the safety of their staff. As the Crown noted in her submissions, it is clear that CAMH’s resources are nearing exhaustion. The panel did not believe it appropriate, given the history of this matter, to delay making a disposition so that we could receive more complete evidence regarding a lateral transfer, but we acknowledge that on a better record, a panel may well decide a lateral transfer is the necessary and appropriate disposition for Mr. Roberts. We invite CAMH to seek an early hearing if with the benefit of these reasons, they want to pursue a lateral transfer before the year is out. [Emphasis added.]

[8] In June 2023, CAMH requested an urgent hearing and renewed its request that Mr. Roberts be transferred from CAMH. Prior to the hearing, CAMH sent notices to four hospitals, not including Waypoint, advising that each hospital was identified as a potential location for Mr. Roberts’s transfer. Prior to the hearing, the four hospitals all responded that their facilities would not be suitable for Mr. Roberts.

[9] At the hearing, Mr. Roberts’s treating psychiatrist, Dr. Jones, testified that, over the past few years, Mr. Roberts had become infatuated with female members of the staff on his unit and engaged in staring, stalking and harassing behaviour. Mr. Roberts had multiple unit-to-unit transfers within CAMH, but had continued his stalking and harassing behaviour, which had a psychological impact on staff. In addition to his stalking and harassing behaviour, Mr. Roberts had repeatedly reported many CAMH staff to their professional regulators alleging misconduct. Dr. Jones also testified that “there had been a breakdown in the therapeutic relationship due to Mr. Roberts’s ongoing behaviour”, and that “CAMH has used all of the resources available to them and it is not possible to progress any further”.

[10] After hearing all the evidence, the Board requested evidence on the availability of male only units in the forensic system in Ontario. The Board was advised that there are no medium secure male-only units other than CAMH, and that the only available option is the maximum secure program at Waypoint where there are no female patients.

[11] In its decision, the Board concluded that Mr. Roberts continues to pose a serious risk to public safety and that he should be transferred to Waypoint. In concluding that Mr. Roberts should be transferred, the Board stated that CAMH had “totally exhausted” its resources available to deal with Mr. Roberts. The Board was satisfied that Mr. Roberts’s persistent stalking and harassing behaviour posed a threat to the safety of female employees and patients at CAMH:

The panel unanimously finds that to continue to order Mr. Roberts’ 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. More succinctly, the treatment team are out of options for Mr. Roberts. In his evidence, Dr. Jones testified that the usual course at CAMH would be to transfer an individual to a new unit and new treatment team when it became necessary to seek an improvement in behaviour. That is no longer a possibility at CAMH for Mr. Roberts.

[12] The Board concluded that Mr. Roberts should be transferred to Waypoint, because it was the only forensic facility with male only units other than CAMH.

[13] Mr. Roberts has since been transferred to Waypoint.

Issues and Analysis

[14] Mr. Roberts submits that (1) the conduct of the hearing led to a miscarriage of justice, (2) the composition of the panel gives rise to a reasonable apprehension of bias, and (3) the decision was unreasonable.

[15] We disagree.

(1) The conduct of the hearing did not lead to a miscarriage of justice

[16] Mr. Roberts makes several arguments in support of his position that the conduct of the hearing led to a miscarriage of justice.

[17] First, Mr. Roberts argues that the decision was procedurally unfair because the Board failed to rely on its inquisitorial powers and to obtain and consider evidence from Waypoint. He argues that the Board improperly relied on Dr. Jones’s evidence regarding Waypoint’s ability to deal with Mr. Roberts and that it should have received evidence directly from Waypoint. In making this argument, Mr. Roberts points to the hearing in January 2023 where Dr. Mishra testified.

[18] We reject this submission. It is evident from the Board’s October 2023 reasons that the Board was aware of Dr. Mishra’s evidence regarding Waypoint’s ability to deal with Mr. Roberts. The Board quoted directly from the January 2023 decision’s description of Dr. Mishra’s evidence. While it would have been preferable for Waypoint to have been notified that the Board was once again considering transferring Mr. Roberts to its forensic facilities, there was no procedural unfairness to Mr. Roberts. Mr. Roberts was aware of the possibility that he may be transferred to Waypoint. The hearing in August 2023 was convened in response to CAMH’s request to transfer Mr. Roberts to a different forensic hospital. Mr. Roberts was in attendance at this hearing with his lawyer. Mr. Roberts was informed of the Board’s request for further submissions about the availability of male only forensic units in Ontario. He had an opportunity to make further written submissions. However, he chose not to do so. Instead, his submissions throughout the proceedings focused mainly on the issue of whether he should be transferred out of CAMH at all.

[19] As a related argument, Mr. Roberts submits that the Board’s October 2023 decision is inconsistent with the January 2023 decision because, in its earlier decision, the Board had specifically found that Waypoint would not offer any better care or services to Mr. Roberts than CAMH. We disagree that there were irreconcilable differences between the January 2023 and October 2023 decisions. As reviewed above, in the January 2023 decision, the Board specifically stated that it was not satisfied that CAMH had completely exhausted its resources in addressing Mr. Roberts, but left the door open to CAMH requesting an early review and providing better evidence. This is exactly what happened. Based on the evidence of Dr. Jones, the Board was satisfied that CAMH had exhausted all its resources. While the Board in its October 2023 decision acknowledged that placing Mr. Roberts at Waypoint was not ideal given that it was a maximum security facility, the move was necessary to address the ongoing risk to the safety of CAMH staff and patients and because CAMH had now fully exhausted its resources. There is no contradiction between the January 2023 and October 2023 decisions.

[20] Finally, Mr. Roberts submits that the Board’s decision was procedurally unfair because the Board relied on a statement by Dr. Jones that Mr. Roberts’s sister had only visited him once in the past year. Instead of relying on Dr. Jones’s evidence, Mr. Roberts argues the Board should have used its inquisitorial powers to review the log of visits he received.

[21] On appeal, Mr. Roberts seeks to introduce fresh evidence to establish that there were in fact more visits than Dr. Jones described from Mr. Roberts’s sister and a cousin, and that he also had a few pastoral visits. The respondents do not object to the fresh evidence and we admit it.

[22] In our view, even if this evidence had been available at the hearing, it would not have affected the outcome. The evidence does not establish that Mr. Roberts received frequent or even regular visits from his family and others while he was at CAMH. More importantly, the evidence does not undermine the Board’s conclusion that Mr. Roberts poses a significant risk to the safety of female staff and patients at CAMH and that CAMH has exhausted all resources at its disposal to address his needs. In other words, even if the Board had made further inquiries and required more extensive evidence regarding Mr. Roberts’s visitors, this would not have affected the outcome.

(2) There was no reasonable apprehension of bias

[23] As a second ground of appeal, the appellant alleges a reasonable apprehension of bias on the part of the Board because one of the Board members at the August 2023 hearing – Alternate Chair Beasley – had previously heard two matters involving Mr. Roberts, one before the Board and one before the Consent and Capacity Board.

[24] We note that Mr. Roberts did not raise this issue before the Board. In any event, Board members are presumed to be impartial, and “there is a high threshold to successfully challenge a decision based on bias or reasonable apprehension of bias”: Tolias (Re), 2016 ONCA 463, at para. 24. The Board member’s participation in prior proceedings involving Mr. Roberts does not raise a reasonable apprehension of bias on its own. The prior proceedings dealt with different issues, and Mr. Roberts has not pointed to any conduct or comments by the member or the panel that give rise to a reasonable apprehension of bias.

(3) The decision was reasonable

[25] Mr. Roberts does not challenge the reasonableness of the finding that he continues to pose a significant risk to the safety of the public. Rather, he only challenges the reasonableness of the Board’s decision that he should be transferred to Waypoint.

[26] A Board decision is reasonable if its risk assessment and disposition order are supported by reasons that can bear even a “somewhat probing” examination: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 33. The court must evaluate reasonableness by considering the reasons given by the Board and the context in which the decision was made to determine whether an acceptable and defensible outcome has been reached: Wall (Re), 2017 ONCA 713, 417 D.L.R. (4th) 124, at para. 22.

[27] In this case, we see no basis for finding that the Board’s decision to transfer Mr. Roberts was unreasonable. The Board’s conclusion that CAMH had exhausted its resources and that Waypoint was the most appropriate place for Mr. Roberts given the need for male only units was well supported by the record and the evidence.

Disposition

[28] The appeal is dismissed.

“B.W. Miller J.A.” “L. Favreau J.A.” “J. Copeland J.A.”