Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20240524 DOCKET: COA-23-CR-1124
MacPherson, Copeland and Gomery JJ.A.
IN THE MATTER OF: Perston McLeod AN APPEAL UNDER PART XX.1 OF THE CODE
Counsel: Anita Szigeti and Michael B. Schloss, for the appellant Vallery Bayly, for the respondent Attorney General of Ontario Julia L. Lefebvre, for the respondent Person in Charge of North Bay Regional Health Care
Heard: May 3, 2024
On appeal against the disposition of the Ontario Review Board dated, August 29, 2023, with reasons dated October 4, 2023.
Reasons for Decision
[1] The appellant was found not criminally responsible (“NCR”) on February 7, 2020, with respect to charges of failing to comply with a probation order, uttering threats to cause death or bodily harm, and mischief under $5000. His index offences occurred in September 2019 with several aggressive incidents in Sudbury, where he made threats and acted disruptively in public places. Amongst other things, he threatened clinic employees, behaved aggressively at a bank, and damaged a vehicle parked at the Elizabeth Fry Society.
[2] The appellant has been detained at the Forensic Programs of the North Bay Regional Health Centre (“North Bay”) since 2020. He is diagnosed with schizoaffective disorder, antisocial personality disorder, and substance use disorder.
[3] In its most recent Disposition dated August 29, 2023, the Ontario Review Board (“ORB”) continued the existing order that the appellant “be detained at [North Bay]” and permitted the “person in charge” of North Bay to allow the appellant to have “hospital and grounds privileges, indirectly supervised”.
[4] The appellant appeals the Disposition on two bases.
[5] First, the appellant submits that the ORB unreasonably focused on Fetal Alcohol Syndrome (“FAS”) as the origin of his problems, to the exclusion of the history of trauma and Gladue principles.
[6] We do not agree with the appellant’s submission. In its reasons, the ORB recorded: “The parties submitted a joint position which included a finding that Mr. McLeod remains a significant risk and that a continuation of the existing disposition is appropriate”. In its factum on this appeal, the appellant states: “The parties were effectively ad idem on a detention disposition. The main issue in dispute was whether Mr. McLeod should be permitted to smoke tobacco while detained at the hospital”. Based on these concessions, it would be inappropriate to consider whether there is any error in the Disposition.
[7] Second, the appellant contends that the ORB’s decision relating to smoking is unreasonable. The ORB dealt with this issue in five paragraphs:
The next issue addressed by Ms. Szigeti was why Mr. McLeod is not permitted to smoke. Dr. Alabi stated that the Hospital is a smoke-free zone and that smoking is permitted only outside hospital grounds. To smoke outside the smoke-free zone Mr. McLeod would require indirect supervised passes which Mr. McLeod has forfeited due to his unacceptable conduct when he did have them. Those incidents caused difficulties since Mr. McLeod was smoking in areas on hospital grounds.
On further questioning by the Board, Dr. Alabi stated that not being able to smoke frustrates Mr. McLeod and causes him to lash out at staff.
Dr. Alabi reiterated that the hospital is a smoke-free zone and allowing a staff member to accompany Mr. McLeod for a smoke would be disruptive and against Hospital policy. Mr. McLeod needs to reacquire indirect hospital privileges and once he does, he must comply and cooperate with staff. Unfortunately, Mr. McLeod does not comprehend that he must follow those rules.
Mr. McLeod’s smoking issues must be resolved since they cause him many frustrations which in turn create conflict with the staff. Smoking would go a long way toward minimizing those issues.
The Board wishes to point out that the smoking issue is not the only issue that prevents Mr. McLeod from receiving additional privileges. He is well aware of the Hospital policy and yet disregarded that policy when he had those privileges. He must understand that his temper and behaviour must be controlled. Were the Hospital to make an exception in his case and permit him to smoke wherever and whenever he wants, a precedent would be set. That precedent is contrary to Hospital policy. All kinds of difficulties would arise for the Hospital staff and Mr. McLeod.
[Emphasis added].
[8] We can find no fault with this balanced analysis. Smoking is not allowed on North Bay’s premises. This policy applies to everyone – staff, visitors and residents, one of whom is the appellant. The Disposition, as it is currently worded, gives North Bay the discretion to provide Mr. McLeod with indirect passes, which would allow him to smoke outside North Bay’s premises. Nonetheless, when the appellant was extended this privilege, he breached the rules by smoking on the hospital grounds.
[9] The scheme of the legislation requires “emphasis on providing opportunities to receive appropriate treatment”: Winko v. British Columbia (Forensic Psychiatric Institute), [1992] 2 S.C.R. 625, at para. 39. An NCR accused is to receive dispositions and conditions that are “the least onerous and least restrictive” ones compatible with their situation: Winko, at paras. 42-43; Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20, at paras. 3, 44-45, 51-52 (“Tulikorpi”). It is presumed until proven otherwise that North Bay will act consistently with the legislation and will therefore do what is possible to provide Mr. McLeod the indirect privileges he once had when that is compatible with his situation.
[10] The appeal is dismissed.
“J.C. MacPherson J.A.”
“J. Copeland J.A.”
“S. Gomery J.A.”