COURT OF APPEAL FOR ONTARIO DATE: 20240117 DOCKET: COA-23-CR-0633

Doherty, MacPherson and Gillese JJ.A.

IN THE MATTER OF Daniel Denis Labelle AN APPEAL UNDER PART XX.1 OF THE CODE

Daniel Denis Labelle, acting in person Jacob Millns, for the respondent Attorney General of Ontario Michael Davies, appearing as amicus curiae

Heard: January 12, 2024

On appeal against the disposition of the Ontario Review Board dated April 17, 2023, with reasons dated April 27, 2023.

REASONS FOR DECISION

Overview

[1] Daniel Denis Labelle, the appellant, is currently detained at Waypoint Centre for Mental Health Care (“Waypoint”) by order of the Ontario Review Board (the “ORB”) dated April 17, 2023 (the “Disposition”). He was represented by experienced counsel at the hearing before the ORB that resulted in the Disposition.

[2] The appellant, St. Joseph’s Healthcare Hamilton (“St. Joseph’s” or the “hospital”) where the appellant was then detained, and the Crown, made a joint submission to the ORB in which they agreed that the appellant should be transferred to Waypoint. While at St. Joseph’s, the appellant was held in seclusion following his unprovoked attack on a vulnerable patient. The restrictions of his liberty were also considered at the ORB hearing.

[3] The appellant now appeals the Disposition.

[4] Amicus submits that the ORB, in ordering the appellant’s detention at Waypoint, too readily relied on the joint submission and failed to comply with its statutory duty to impose the least onerous, restrictive means of protecting the public. At the oral hearing of the appeal, amicus confirmed that he was not challenging the ORB’s finding that the restrictions on the appellant’s liberty were necessary and appropriate.

[5] At the end of the hearing, we dismissed the appeal with reasons to follow. These are the promised reasons.

Background

[6] The appellant has been under ORB jurisdiction since being found not criminally responsible in 2004. He has a history of extreme violence. The index offence was attempted murder resulting from his having slit his mother’s throat while on a temporary pass from the psychiatric unit at Cornwall General Hospital. While awaiting trial on the attempted murder charge, the appellant killed his cellmate. He has since committed violent assaults against co-patients.

[7] The appellant was detained at Waypoint (and its predecessor, Oak Ridge Mental Health Centre) for more than a decade. In 2016, the appellant was transferred to St. Joseph’s in Hamilton, Ontario. He did well while at St. Joseph’s and the hospital made plans to discharge him to the community. However, the appellant refused to be discharged because he wanted to be transferred to a facility in British Columbia or Alberta.

[8] On March 11, 2023, while at St. Joseph’s, the appellant made an unprovoked attack on a vulnerable co-patient, knocking him to the floor and continuing to kick and strike the co-patient while he was on the floor. At the ORB hearing, the appellant testified that he committed the attack so that he would be transferred to Waypoint quickly because he was concerned for his safety in Hamilton, where he had recently reported a crime that took place years earlier. Following the attack, the appellant was held in seclusion at St. Joseph’s.

[9] The hospital notified the ORB that the appellant was being held in seclusion since the attack. It asked for an urgent early review of the appellant’s disposition and requested a transfer to Waypoint. It also asked that a review of the restriction of liberties be held at that time. At the hearing on April 11, 2023, the ORB considered both matters.

[10] The ORB found the restrictions imposed on the appellant following the March 11, 2023 attack were necessary and their continuation was necessary to manage the risk of harm to others. It further found that the appellant “clearly remains a significant threat to the safety of the public” and that the necessary and appropriate disposition was a detention order to Waypoint.

The Adjournment Request

[11] After the appellant addressed the panel, and before any other submissions were made, the appellant indicated that he was seeking an adjournment of his appeal so that he could get a second legal opinion to that provided by amicus. The panel explained that if the appeal were to be adjourned, it would not be heard before the appellant’s next scheduled annual review in April 2024. At the end of that discussion, the appellant said that he would like to continue with his appeal.

[12] After hearing the submissions of the appellant, amicus, and the Crown, the appellant again asked that the hearing be adjourned so he could get a second legal opinion because, he said, there were errors in the Crown factum. The court refused to grant the adjournment because the appeal would be unable to be heard before the appellant’s scheduled annual review in April 2024.

Analysis

[13] We see no basis for interfering with the Disposition.

[14] The ORB did not simply rely on the joint submission in making the Disposition. It carefully reviewed the evidence before finding that the appellant’s risk could no longer safely be managed at St. Joseph’s and his transfer to Waypoint was necessary and appropriate. At para. 22 of its reasons, the ORB recited the evidence of Dr. Prat – the appellant’s treating psychiatrist – that “staff remained scared” about the appellant’s “potential for violence” and that St. Joseph’s was “not capable of managing” the appellant’s current risk. The ORB also noted that the appellant had “engaged in the most extreme levels of violence” in respect of the index offence and his killing of his cell mate in 2003. It expressed concern that the appellant’s March 11, 2023 attack on a vulnerable co-patient took place at a time when he was not heavily influenced by the symptoms of his illness and was apparently adequately medicated, whereas the appellant’s violent acts towards his mother and former cell mate had been tied to the untreated nature of his condition.

[15] It was brought to the court’s attention that, in accordance with the Disposition, the appellant had been transferred to Waypoint on May 18, 2023, and on August 15, 2023, he committed another unprovoked attack on a vulnerable co‑patient. The appellant acknowledged this matter but declined to comment on it further.

Disposition

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

“Doherty J.A.”

“J.C. MacPherson J.A.”

“E.E. Gillese J.A.”