Court of Appeal for Ontario

Date: 2025-07-09
Docket: COA-24-CR-1169
Before: Paciocco, George and Favreau JJ.A.

In the Matter of: Joseph R. Tobin

An Appeal under Part XX.1 of the Criminal Code

Appearances:
Anita Szigeti, for the appellant
Deepa Negandhi, for the respondent Attorney General of Ontario
No one appeared for the Person in Charge of St. Joseph’s Healthcare Hamilton.

Heard: 2025-06-27

On appeal from the disposition of the Ontario Review Board, dated October 18, 2024, with reasons dated November 5, 2024.

Reasons for Decision

Introduction

[1] The appellant, Joseph Tobin, was found not criminally responsible (NCR) for second degree murder on December 23, 2002. He appeals from the latest Ontario Review Board disposition. He submits that the Board erred in finding that he continues to represent a significant threat to the safety of the public requiring his continued detention. Alternatively, he submits that the Board erred in failing to add a condition to its disposition that would require St. Joseph’s Healthcare Hamilton (the “hospital”) to exercise all due diligence in pursuing housing for him.

[2] At the hearing before us, Ms. Szigeti advised that she relied on her factum in support of the grounds of appeal related to the issue of whether Mr. Tobin continues to represent a significant threat to the safety of the public requiring his continued detention. Her oral arguments focused primarily on the issue of the hospital’s obligation to pursue housing for Mr. Tobin.

[3] We are not persuaded that the Board erred in failing to grant Mr. Tobin an absolute or conditional discharge. However, we are persuaded that the Board erred in failing to add a term to the disposition that would require the hospital to exercise all due diligence in pursuing housing for Mr. Tobin. The appeal is therefore allowed in part.

Background

[4] Mr. Tobin is 44 years old. He has a diagnosis of schizophrenia, in partial remission; substance use disorder, in remission in a controlled setting; and antisocial personality disorder.

[5] Mr. Tobin started receiving psychiatric treatment in 1995. He committed the index offence on September 5, 2002, when he was 21 years old. On that date, a few hours after his release from hospital, he stabbed his father with a screwdriver. His father died the next day.

[6] Following the finding of NCR, Mr. Tobin was detained at different hospitals. He was eventually placed at the hospital where he is now detained. In January 2019, he was allowed to live in the community at Emmaus Place, which offers transitional housing with highly structured monitoring. Residents are usually expected to stay at Emmaus Place for two years before moving to permanent housing. Mr. Tobin’s tenancy at Emmaus House was extended for a few additional years.

[7] After he started living at Emmaus Place, Mr. Tobin was readmitted to the hospital seven times between February 2019 and May 2024, for periods of a few days up to five months. Most recently, Mr. Tobin was readmitted to the hospital on July 31, 2024 after his behaviour deteriorated. Shortly after his readmission, Emmaus Place terminated his tenancy. At the hearing before the Board, Mr. Tobin’s treating psychiatrist indicated that Mr. Tobin could have been discharged back to a community setting a few weeks after his readmission on July 31, 2024, but no suitable housing was available at that time.

[8] In the decision under appeal, the Board found that Mr. Tobin continues to represent a significant threat to the safety of the public and ordered his detention at the hospital. The Board’s disposition continues to include a provision permitting Mr. Tobin to live in the community in accommodation approved by the person in charge of the hospital. In its reasons, the Board further “urge[d] the hospital to exercise all due diligence in pursuing community housing for Mr. Tobin”.

Standard of Review

[9] Section 672.78(1) of the Criminal Code provides that this court may only allow an appeal from a disposition of the Board where (a) the disposition is unreasonable or cannot be supported by the evidence; (b) the disposition is based on a wrong decision on a question of law; or (c) there was a miscarriage of justice.

Issue 1: The Board did not err in finding that Mr. Tobin continues to represent a significant threat to the safety of the public requiring his continued detention

[10] Mr. Tobin challenges the Board’s finding that he continues to pose a significant threat to the safety of the public. He asks this court to grant him an absolute discharge or, in the alternative, a conditional discharge. We see no error in the Board’s determination on this point.

[11] Section 672.5401 of the Criminal Code defines “significant threat to the safety of the public” as “a risk of serious physical or psychological harm to members of the public … resulting from conduct that is criminal in nature but not necessarily violent.” Under s. 672.54 of the Criminal Code, the Board is required to make the least onerous and least restrictive disposition, including crafting a detention order with conditions that take account of the safety of the public, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused: Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20, para 3.

[12] At the hearing before the Board, Mr. Tobin sought an absolute discharge or a conditional discharge on the basis that he no longer poses a threat to the public. The Board rejected this position, reasoning that Mr. Tobin’s history of violence and recent behaviour showed that a detention order was necessary to ensure that he has the proper level of supervision:

The circumstances surrounding his readmission this past July demonstrate a tendency toward aggressive violent behaviour, as illustrated by his interaction with the police. He refused to attend the hospital for an assessment, he wouldn’t answer his door for his case manager, and he responded to his case manager by stating, “fuck you, bitch.”

The evidence indicates that Mr. Tobin relapses very quickly, and that it is difficult to discern from observing him that he is relapsing at the time. The deterioration can be spontaneous for no known reason.

The panel has no hesitation in accepting that Mr. Tobin requires housing that is approved by the hospital. His mental condition fluctuates, and when unwell, he experiences disorganized thought and paranoia. He becomes agitated, and without the supervision of his treatment, and ensuring compliance with his medication regimen, he would most likely become violent and put the safety of the public at a significant risk. It is essential that his behaviour and his clinical presentation be monitored for changes that suggest Mr. Tobin is destabilizing.

[13] The Board’s finding that Mr. Tobin continues to pose a significant threat to the public and that his ongoing detention is required is reasonable and well supported by the record. We see no basis for allowing this ground of appeal.

Issue 2: The Board erred in failing to impose a condition in its disposition requiring the hospital to exercise due diligence in pursuing community housing for Mr. Tobin

[14] Mr. Tobin submits that the Board erred in not including an order in the disposition requiring the hospital to exercise all due diligence in pursuing community housing for Mr. Tobin. We agree.

[15] In its reasons, the Board admonished the hospital for letting Mr. Tobin’s housing at Emmaus Place lapse without a plan for suitable permanent housing. The Board expressed its concerns as follows:

Dr. Nagari testified that [Mr. Tobin’s] condition settled quickly once he was readmitted, and Mr. Tobin could have been transitioned to discharge planning to the community after 2 weeks or so, but for the fact that there is no suitable housing available for him at this time. He currently exercises indirectly supervised passes into the community without issue. The hospital now has him on 4 wait-lists for permanent housing. The panel finds it very concerning that arrangements were not made for Mr. Tobin to transition to permanent housing from Emmaus Place long before his tenancy at Emmaus Place was terminated. The hospital was aware that Emmaus Place is a transitional housing facility, intended to house individuals for approximately 2 years while they are being transitioned to permanent housing. The hospital was aware that his tenancy was extended by Emmaus Place a few years ago. The hospital was also aware that there is a waiting list of many months to years to secure the supervised permanent housing. It was incumbent on the hospital to understand Mr. Tobin’s tenancy situation with Emmaus Place, and to take the necessary steps to have Mr. Tobin placed on a waiting list in a timely manner to prevent the current situation where Mr. Tobin is hospitalized only to await the availability of suitable housing. [Emphasis added.]

[16] The Board went on to state that a detention order was necessary as a result of this situation because Mr. Tobin cannot live independently in the community. The Board further urged “the hospital to exercise all due diligence in pursuing community housing for Mr. Tobin”. However, the Board’s disposition, which sets out all the terms of its order, does not include a direction to the hospital requiring that it exercise all due diligence in pursuing housing for Mr. Tobin. As it stands, this is merely a strong suggestion in the reasons.

[17] In Re Le Feuvre, 2020 ONCA 822, para 12, this court found that “it was an error for the Board to issue a disposition that fails to reflect its reasons.” We find that the Board made a similar error in this case. The fact that Mr. Tobin is obligated to reside at the hospital when his current condition would allow him to live in some form of supervised community housing is at least in part due to the hospital’s error. The hospital’s obligation to remedy this situation should be reflected in the Board’s disposition rather than simply a strong suggestion to act with due diligence in the reasons. Accordingly, we would amend the disposition to include the following term: “The hospital is to exercise all due diligence in pursuing community housing for Mr. Tobin”.

[18] This term is broad enough to give the hospital the necessary flexibility to manage the priority needs of other patients under its care. It is also broad enough to ensure the hospital takes necessary steps to determine Mr. Tobin’s needs and the available options to meet them. However, making this a term of the order ensures that the hospital will treat Mr. Tobin’s need for housing as an obligation rather than a suggestion.

Disposition

[19] The appeal is allowed to the limited extent that the disposition of the Board is amended to add a term that “The hospital is to exercise all due diligence in pursuing community housing for Mr. Tobin”. The appeal is otherwise dismissed.

“David M. Paciocco J.A.”
“J. George J.A.”
“L. Favreau J.A.”