



COURT OF APPEAL FOR ONTARIO

CITATION: McFarlane (Re), 2018 ONCA 583

DATE: 20180626

DOCKET: C63808 and C64293

Sharpe, Roberts and Trotter JJ.A.

BETWEEN

IN
    THE MATTER OF:  Odean McFarlane

AN APPEAL UNDER PART
    XX.1 OF THE CODE

Anita Szigeti, for the appellant

Elena Middelkamp, for the respondent, the Attorney
    General of Ontario

Michele Warner, for the respondent, the Centre for
    Addiction and Mental Health

Heard: June 22, 2018

On appeal from the dispositions of the Ontario Review
    Board, dated May 23 and August 11, 2017, with reasons dated June 14, 2017 and
    September 1, 2017.

REASONS FOR DECISION


[1]

The
    appellant appeals from the May 23 and August 11, 2017 dispositions of the
    Ontario Review Board.

[2]

The
    appellant has been under the supervisory jurisdiction of the Board since
    December 13, 2007 when he was found not criminally responsible on account of
    mental disorder on a charge of assault that occurred in July 2005.  The
    appellant has a long history of mental illness from at least 2002 and his
    diagnoses include schizophrenia, substance use disorder, and antisocial
    personality traits. He has a substantial but dated criminal record starting in
    about 2001 to about 2010, including convictions for robbery and assault.

[3]

Since
    coming under the Boards supervision, the appellants mental state, compliance
    with medication use, insight into his mental health and addiction issues, and
    abstinence from illicit drugs, have greatly fluctuated. However, throughout the
    period from about February 2015 to May 2017, the appellant made enormous
    strides: he was gainfully employed; drug free; became engaged to be married;
    complied with his medication and reporting requirements; joined a church; and
    lived successfully in the community. As a result, following the annual review,
    on May 23, 2017, the Board changed the appellants disposition from a detention
    order in the General Forensic Unit of the Centre for Addiction and Mental
    Health (CAMH) to a conditional discharge with a number of conditions.

[4]

Sadly,
    the appellants father passed away unexpectedly in March 2017 and the appellant
    experienced other life stressors. Tragically, because of the enormous progress
    he had accomplished, within a couple of months, the appellants mental
    stability and conduct dramatically deteriorated: he relapsed into regular
    cocaine use; failed to report and receive his medication; broke up with his
    fiancée; was no longer employed; and put his apartment into jeopardy.  As a
    result, there was an early hearing for the appellant. On August 11, 2017, the
    Board ordered that the appellant again be detained at CAMH.

[5]

The
    appellant submits that both of the Boards dispositions are unreasonable and
    that the August 11, 2017 order should also be set aside because of procedural
    unfairness and reasonable apprehension of bias in relation to one of the Board
    members.

[6]

For
    the reasons that follow, the appellants appeals are dismissed.

[7]

We
    agree with the respondents that the appeal from the Boards May 23, 2017
    disposition is moot because the May 23, 2017 order has been overtaken by the
    August 11, 2017 disposition and there would be no practical utility in
    considering it. Accordingly, we dismiss the appeal from the May 23, 2017
    disposition.

[8]

Turning
    to the appeal from the Boards August 11, 2017 disposition, we are not
    persuaded by the appellants submissions.

[9]

The
    Boards finding that the appellant represented a significant threat to the
    safety of the public under s. 672.54 of the
Criminal Code
was reasonable and based
    on ample evidence. From May 31, 2017, when the appellant relapsed into daily
    cocaine use, until his re-admittance to CAMH on a Form 1 on August 11, 2017,
    the appellant exhibited aggressive and violent  harassing a tenant of his
    apartment building to pay a drug debt while holding a knife; stealing his
    superintendents camera; yelling at and threatening security personnel at CAMH
    and preventing them from leaving their office; and kicking open a mag-lock door
    at CAMH. This recent behavior was consistent with the appellants historical
    pattern of aggressive, threatening and sometimes violent behavior while
    relapsed into drug use and non-compliant with his medication.

[10]

The Boards determination
    that a detention order was the least onerous and restrictive disposition was
    also reasonable. The appellants recent violent, threatening and aggressive
    behavior, his relapse into drug use, his lack of compliance with his reporting
    requirements, drug screening, and medication use, as well as his absconding,
    fully supported the Boards conclusion that the appellants risk to the safety
    of the public could not be adequately managed on a conditional discharge order.

[11]

The appellant submits that
    the Boards refusal of an adjournment of his August 11
th
hearing
    because of his counsels concussion and consequent lack of preparedness for the
    hearing, as well as the appellants incapacity during the hearing, resulted in
    procedural unfairness and a miscarriage of justice. We do not accept this
    submission.

[12]

The well-established
    factors that the Board was required to take into account in determining whether
    to grant an adjournment and the standard of appellate review of the Boards
    determination are set out by this court in
Conway (Re)
, 2016 ONCA 918, at para.
    23:

In deciding whether to grant or refuse a request for an
    adjournment, the Board must take into account the interests of the not
    criminally responsible (NCR) accused, the interests of the hospital, and its
    own statutory mandate to hold timely hearings. Because its decision is
    discretionary, it attracts significant deference from an appellate court. But
    an appellate court may justifiably interfere if the Board errs in principle, or
    exercises its discretion unreasonably. So, for example, an appellate court may
    intervene if the Boards denial of an adjournment deprives an NCR accused of a
    fair hearing and thus is contrary to the interests of justice:  see
Khimji
    v. Dhanani
(2004), 69 O.R. (3d) 790 (C.A.), at para. 14.

[13]

We see no error in the
    Boards refusal of the appellants adjournment request that would permit
    appellate intervention.

[14]

Given the appellants
    severe deterioration, there was urgency in proceeding with the review hearing,
    which the appellants Form 1 admission did not ameliorate. A short adjournment
    was not possible because appellants counsel would not be available. His
    counsel did not indicate that she was physically unable to proceed. There is no
    suggestion of ineffective assistance of counsel. Indeed, the Board complimented
    counsel on her skill and ability.

[15]

The Board was faced with a
    difficult balance to strike in determining whether to grant the appellants request
    to adjourn the hearing. The Boards reasons demonstrate to our satisfaction
    that it took into account the competing interests and exercised its discretion
    to deny the adjournment in a reasonable fashion.

[16]

The Hospitals request for
    an early hearing was well supported. The appellants condition had deteriorated
    and dealing with him on the basis of the conditional discharge or under the
Mental Health Act
, R.S.O. 1990, c. M.7, had
    proven problematic. There was evidence of a significant risk to public safety
    and the Board did not err in finding on this record that an early hearing was
    required.

[17]

The Board also took into
    account the appellants right to procedural fairness and to have proper legal
    representation. The Board considered the appellants counsels accident a few
    days earlier and her ability to represent the appellant and to adequately
    prepare for the hearing on short notice.

[18]

There was no perfect
    solution to this procedural dilemma but, in our view, the Boards decision to
    carry on with the hearing was entirely reasonable. The Board did its best to
    accommodate the appellant and his counsel within the short time-frame
    available. It granted a short adjournment to allow counsel to review the case
    with the appellant and to prepare for the hearing. Counsel was very familiar with
    the appellants situation having represented him in the very recent past and
    the only new material to emerge since counsels last representation was a
    relatively brief seven-page report. The appellant has not advanced before this
    court any fresh evidence that might have been produced had an adjournment been
    granted.

[19]

While we sympathize with
    the difficulty faced by the appellant and his counsel in having to proceed on
    relatively short notice, we are not persuaded that there was a denial of his
    right to procedural fairness or any miscarriage of justice.  The conditions of
    the hearing may not have been perfect; however, the challenges encountered by
    the appellant and his counsel did not rise to the level of procedural
    unfairness. There is nothing in the transcript that supports the suggestion
    that the appellant did not obtain a fair hearing. We see no error in the
    exercise of the Boards discretion in these circumstances.

[20]

Finally, the appellant
    submits that the Board erred in allowing Dr. Ben-Aron to remain as a Board
    member because he had previously treated the appellant.  We do not accept that
    the presence of Dr. Ben-Aron gave rise to a reasonable apprehension of bias.

[21]

There is a legal
    presumption that Board members are impartial; as a result, 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.

[22]

Dr. Ben-Aron had seen the
    appellant on seven brief and discrete occasions, once in 2003, four times in
    2004, and once in 2007, over ten years prior to the Board hearing. He had no
    notes of his treatment and opinion concerning the appellant and no recollection
    of his case. Unlike the rules governing Consent and Capacity Board hearings,
    there is no absolute prohibition against a treating physician sitting as a
    Board member during a hearing for a former patient.

[23]

In these circumstances, an
    informed reasonable person viewing the matter realistically and practically
    would not conclude that Dr. Ben-Aron would be consciously or unconsciously
    influenced in an improper manner:  see
Wewaykum Indian Band v. Canada
, [2003] 2 S.C.R. 259, at
    para. 74. We see no error in the exercise of the Boards discretion to proceed
    with the hearing with Dr. Ben-Aron as a Board member.

[24]

As a result, the appeal
    from the August 11, 2017 disposition is also dismissed.

Robert J. Sharpe J.A.

L.B. Roberts J.A.

G.T. Trotter J.A.


