



COURT OF APPEAL FOR ONTARIO

CITATION: Brownlee (Re), 2020 ONCA 723

DATE: 20201112

DOCKET: C67614

Pepall, Hourigan and
    Roberts JJ.A.

IN THE MATTER OF: Matthew
    Brownlee

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Michael Davies and Meaghan McMahon, for the appellant

Dena Bonnet, for the respondent, Attorney General of
    Ontario

Marie-Pierre T. Pilon, for the respondent, Person in
    Charge of the Royal Ottawa Mental Health Centre

Heard: June 2, 2020 by videoconference

On appeal from the disposition of
    the Ontario Review Board, dated October 18, 2019, with reasons dated October
    22, 2019, reported at [2019] O.R.B.D. No. 2431.

Roberts J.A.:

A.

Overview

[1]

Matthew Brownlee appeals from the most recent
    disposition of the Ontario Review Board (the Board). The Board continued Mr.
    Brownlees detention at the secure forensic unit of the Royal Ottawa Mental
    Health Centre (the hospital), with privileges up to and including living in
    the community in accommodation approved by the Person in Charge of the hospital
    (the Person in Charge).

[2]

Mr. Brownlee submits the Board erred in finding
    that he represented a significant risk to public safety and in ordering his
    continued detention. He seeks an absolute discharge. The Person in Charge and
    the Attorney General submit that the Boards disposition was reasonable and
    supported by the record.

[3]

This appeal also concerns the question of the
    procedure to be followed by the Person in Charge and the Board when there has
    been a change in an NCR (not criminally responsible on account of mental
    disorder) accused persons liberty. This common issue was also raised in
Tran
    (Re)
, 2020 ONCA 722, which was heard at the same time.

[4]

Mr. Brownlee maintains that the Person in Charge
    failed to give formal notice and that the Board erred in concluding that
    neither formal notice of the increased restrictions on his liberty nor a
    hearing was required. The Attorney General submits that the Board properly
    considered the restriction of liberty at the annual hearing and proposes a
    procedure for the Board to follow when provided notice of increased restrictions
    on the liberty of the accused. The Person in Charge opposes the imposition of
    any procedure, arguing that the development of any procedure should be left to
    the Board and the Person in Charge. With respect to the increased restrictions
    on Mr. Brownlees liberty, the Person in Charge takes the position that the
    issue is moot given he is no longer subject to the impugned restrictions.

[5]

For the following reasons, I would dismiss the
    appeal. There is no basis to interfere with the Boards disposition continuing
    Mr. Brownlees detention. The issue of the restrictions on Mr. Brownlees
    liberty is moot given that the increased restrictions have now been reversed. As
    was done in
Tran
, at paras. 75-81,

I would also decline to endorse
    Attorney Generals proposed notice and hearing procedure.

B.

Background

[6]

Mr. Brownlee has been under the Boards
    jurisdiction since being found NCR on charges of operating a motor vehicle
    while impaired, operation of a motor vehicle while disqualified, dangerous
    operation of a motor vehicle and failure to comply with a probation order in
    2006. While prohibited from driving for ten years, Mr. Brownlee operated his
    fathers pickup truck without his consent in an erratic manner and at a high
    rate of speed while impaired by alcohol and with a passenger in the vehicle.

[7]

Since his teens, Mr. Brownlee has abused alcohol
    and illicit drugs. He has sustained numerous driving infractions and amassed a
    criminal record, including convictions for theft, assault peace officer, assault
    with a weapon, spousal assault, and numerous breaches of probation and other
    court orders.

[8]

His most serious criminal convictions were in
    1997 for causing death by criminal negligence and causing bodily harm by criminal
    negligence while operating a motor vehicle. He was sentenced to six years on
    each charge concurrently and prohibited from driving for ten years.

[9]

As a result of this incident, Mr. Brownlee
    suffered a serious and permanent closed head injury and brain trauma that underlie
    his current psychiatric diagnosis. This diagnosis includes major neurocognitive
    disorder, psychotic disorder, with delusions, personality change, severe
    alcohol, cocaine and amphetamine use disorders, and antisocial personality
    traits. Mr. Brownlee also has significant physical and other health
    complications. While declared capable of managing his finances in 2018, he
    remains incapable of consenting to treatment. He has little insight into his
    condition or his need for medication, although he has been medication compliant.

[10]

In its reasons for its disposition, the Board
    reviewed the evidence of Mr. Brownlees history of substance abuse,
    problematic relationships with women, his father and other acquaintances,
    difficulties with employment, criminal and driving records, antisocial behaviours,
    ongoing antisocial personality traits and attitudes, psychiatric diagnosis,
    clinical risk factors, his proclivity for elopement, and actuarial violence
    risk assessment. The Board accepted the opinion of Mr. Brownlees treating
    psychiatrist, Dr. Selaman, as also expressed in the Hospital Report, that the
    appellant continues to pose a significant threat to the safety of the public.

[11]

The Board concluded that the combination of
    these factors would inevitably result in Mr. Brownlee decompensating to the
    state he was in at the time of the index offences and that were he to
    abscond, discontinue taking medications, and begin using drugs
[
,
]
his potential for aggressive behavio
[
u
]
r is great. If
    this were the case, the Board determined that the
Mental Health Act
,
    R.S.O. 1990, c. M.7, might be insufficient in allowing for his quick
    apprehension. As a result, the Board was of the view that the jurisdictional
    threshold was met and that the least onerous and least restrictive and therefore
    necessary and appropriate [disposition] in all of the circumstances is
    maintenance of the current terms.

C.

Issues

[12]

This appeal raises three issues:

1.

Did the Board err in making a detention order?

2.

Did the Board err by failing to hold a restriction
    of liberty hearing?

3.

Should this court impose a restriction of
    liberty notice and hearing procedure on the Board?

D.

Analysis

(1)

Did the Board err in making a detention order?

[13]

Mr. Brownlee submits that the Boards conclusion
    that he represents a significant risk to the safety of the public is speculative
    and therefore unreasonable. Excepting one incident in the past reporting year,
    there have been no other incidents of physical aggression over the last 14
    years that Mr. Brownlee has been under the Boards jurisdiction nor has
    there been any demonstrable concern regarding a risk of his harassing others or
    driving. The evidence before the Board at its highest established that Mr.
    Brownlee posed a low, speculative risk of significant harm. He says the Board
    erred in law by conflating the risk of mental decompensation with the risk of
    danger to public safety without analyzing the risk of any harm occurring
    through Mr. Brownlees actions. Mr. Brownlee seeks an absolute discharge.

[14]

I do not agree.

[15]

In accordance with s. 672.54 of the
Criminal
    Code
, R.S.C. 1985, c. C-46, the role of the Board was to determine whether
    Mr. Brownlee represented a significant threat to the safety of the public and,
    if so, to determine the disposition that was necessary and appropriate, and the
    least restrictive and onerous, in his circumstances:
Mazzei v. British
    Columbia (Director of Adult Forensic Psychiatric Services)
, 2006 SCC 7,
    [2006] 1 S.C.R. 326, at para. 19;
Winko v. British Columbia (Forensic
    Psychiatric Institute)
, [1999] 2 S.C.R. 625, at para. 62. A significant
    threat to the safety of the public means a foreseeable risk of serious physical
    or psychological harm that goes beyond the merely trivial or annoying and the
    conduct giving rise to the harm must be criminal in nature:
Winko
, at
    para. 62.

[16]

This court may set aside an order of a review
    board where (1) the disposition is unreasonable or cannot be supported by the
    evidence; (2) the disposition is based on an error of law; or (3) there was a
    miscarriage of justice:
Criminal Code
, s. 672.78;
R. v. Owen
,
    2003 SCC 33, [2003] 1 S.C.R. 779 at para. 31;
Fotiou (Re)
, 2020 ONCA
    153, at para. 7. As these standards of review are prescribed by clear statutory
    language, the applicable standard of review has not changed following the decision
    in
Canada (Minister of Citizenship and Immigration) v. Vavilov
, 2019
    SCC 65, 441 D.L.R. (4th) 1, at para. 34.

[17]

There is no basis to interfere with the Boards
    disposition in this case. The evidentiary record supports the Boards
    conclusion that Mr. Brownlee meets the onerous significant threat threshold. The
    Board concluded that Mr. Brownlee remains a significant threat to the safety of
    the public on myriad factors. Those factors were not restricted to Mr.
    Brownlees risk of mental decompensation but included, as I earlier referenced,
    the entirety of his criminal, psychiatric, physical, employment, social,
    familial, and clinical history and records.

[18]

I note that even within a closely supervised,
    clinically controlled setting, Mr. Brownlee remains delusional and his
    delusions are quite complex and fixed. According to the evidence of his
    treating psychiatrist, Dr. Selaman, while Mr. Brownlees medication was
    not optimal, it assisted in controlling the intensity of Mr. Brownlees
    delusions as well as to control aggression. The risk caused by him stopping his
    medication would be a return of the intensity of his delusions and an increase
    in his aggression that led to the commission of the index and more serious
    violent offences on Mr. Brownlees criminal record.

[19]

While during his residence in hospital he has
    not engaged in the kind of violent behaviours that have resulted in some of his
    more serious criminal convictions, Mr. Brownlees conduct remains unsettled and
    reflects his real potential for serious physical and psychological harm if he ceases
    to take his medications and abuses substances. This conduct includes making
    inappropriate remarks to women, frequently eloping from the hospital during
    which he consumed alcohol and marijuana, being verbally aggressive to staff and
    other residents, persistently demanding and causing those around him to feel
    somewhat harassed by his behaviour, and, within a year of the hearing,
    frightening another resident by grabbing onto his arm and refusing to let go
    until persuaded to do so.

[20]

In any event, the absence of offending behaviour
    alone is not determinative of whether Mr. Brownlee poses a significant threat
    to the safety of the public. This courts observations in
Mott (Re)
, 2019
    ONCA 560, at para. 10, are apposite:

Further, the absence of a significant
    or recent history of violence by itself is not determinative of whether an NCR
    accused
poses
a significant threat to the
    safety of the public: evidence of the potential for physical or psychological
    violence, such as a lack of insight into the index offence and mental illness,
    rule breaking and concerns over discontinuing
medication
and substance abuse, which could result in
    decompensation, psychosis and problematic conduct, like in the present case,
    may support such a finding. Moreover, as the appellant's treating psychiatrist
    testified, the respondent facility forestalled through immediate intervention
    in a structured environment the threat of violence the appellant posed by his
    aggressive conduct towards hospital staff. [Citations omitted.]

[21]

The numerous risk factors that the Board
    considered, including the seriousness of the index offence and Mr. Brownlees
    criminal and driving records, his lack of insight, his proclivity to abscond,
    his impulsivity and aggressiveness, all serve to support the Boards conclusion
    that Mr. Brownlee poses a significant risk to the safety of the public and that
    a detention order remains the necessary and appropriate disposition in his
    circumstances.

[22]

Accordingly, I would dismiss this ground of
    appeal.

(2)

Did the Board err in failing to hold a restriction
    on liberty hearing?

(a)

The Increase of the Restrictions on Mr.
    Brownlees Liberty

[23]

The increase of the restrictions on Mr.
    Brownlees liberty were imposed by the Person in Charge following his elopement
    on June 11, 2019. When he returned about 36 hours later, he was transferred to
    the Forensic Assessment Unit (FAU). The treatment team quickly determined that
    Mr. Brownlee was still at his baseline and by June 27, 2019, he was on the list
    to be transferred to the Forensic Rehabilitation Unit (FRU) where he had been
    residing before his elopement. However, he was not transferred back to the FRU
    until a bed became available to him there on August 29, 2019. While on the FAU,
    Mr. Brownlees indirectly supervised hospital grounds privileges, as well as his
    accompanied community passes, were suspended.

[24]

The Person in Charge did not give the Board
    formal notice of the change in Mr. Brownlees circumstances. When questioned
    about the lack of notice at the annual review hearing, Dr. Watts responded that
    it was the hospitals view that this did not constitute an increase of the restrictions
    on Mr. Brownlees liberty requiring formal notice because Mr. Brownlee remained
    hospitalized. Dr. Watts further explained the absence of notice: It wasnt a
    conscious decision
[
,
]
but it was borne out of our knowledge that
    its not a requirement. So, did I consciously think about whether we should be
    informing the Board? I did not because I know that
those kinds of transfers
dont require notice (emphasis added).

[25]

Counsel for Mr. Brownlee asked that the Board
    convene a hearing to review the increase of the restrictions on his liberty.
    The Board did not hold a hearing and did not determine the issue. At para. 8 of
    its reasons, the Board made the following observations:

What constitutes [a restriction on liberty
    (ROL)] must be at least in part a clinical decision. What constitutes an ROL
    for one individual [might] not for another. The change in the range of liberty
    enjoyed by an accused must be contextualized. While aspects of the
    contextualization process may appear to be determinable by an outside observer,
    a relevant part of the contextualization must also take into account the
    clinical condition of the accused. These are considerations that cannot be
    appropriately determined by the [Board] without psychiatric evidence. When the
    hospital is in doubt as to whether circumstances warrant notification of an ROL
    the Board should nevertheless be made aware of the event.

(b)

The Positions of the Parties

[26]

Mr. Brownlee submits that the Board erred in
    failing to address the restriction on liberty issue and to review the changes to
    his liberty imposed by the Person in Charge. He says the increase in restrictions
    was significant and triggered the mandatory notice and hearing requirements respectively
    under ss. 672.56(2) and 672.81(2.1) of the
Criminal Code
. Moreover,
    they were not the least onerous and least restrictive measures commensurate
    with public safety.

[27]

The Person in Charge submits that it properly
    exercised its delegated authority and discretion when it increased the restrictions
    on Mr. Brownlees liberty following his elopement from the Person in Charge and
    that the Board did not err when it refused to grant a separate restriction of
    liberty hearing. In any event, the Person in Charge maintains this issue is
    moot because Mr. Brownlee has since been moved out of the FAU and any
    determination of this issue will have no bearing on his circumstances.

[28]

The Attorney General submits that the Boards
    reasons demonstrated its consideration of the issue of the increase of the restrictions
    on Mr. Brownlees liberty. The Board indicated to the Person in Charge that it
    should provide information to the Board when in doubt as to whether an increase
    in restrictions meets the statutory test for notice and advised the Person in
    Charge to consider disconnecting prospective housing from community access.

(c)

The Applicable Law

[29]

Section 672.56(2) provides that a person in
    charge of a hospital who increases the restrictions on the liberty of an NCR accused
significantly
must give notice of the increase as soon as is practicable
    to the NCR accused and, if the increased restriction remains in force for a
    period exceeding seven days, to the Board. Section 672.81(2.1) requires the
    Board to hold a hearing, as soon as practicable after receiving notice under s.
    672.56(2), to review the decision to significantly increase the restrictions on
    the liberty of the NCR accused.

[30]

Not every increase of the restrictions on an NCR
    accuseds liberty will rise to the level requiring notice. As this court stated
    in
Campbell (Re)
, 2018 ONCA 140, 139 O.R. (3d) 401, at para. 67, the person
    in charge of a hospital must give formal notice of the increase in restrictions
    to the Board under s. 672.56(2), triggering a hearing under s. 672.81(2.1), 
[
o
]
nly where the change in liberty status clearly deviates from the NCR
    accuseds liberty norm and [t]he change in liberty status must be so
    significant that a reasonable person, considering all of the circumstances,
    would think that the Board should be called on to consider whether the hospital
    properly applied the least onerous and least restrictive test ahead of the next
    annual review.

[31]

As this court further explained in
Campbell
,
    the question of notice must be approached on a case-by-case basis and will
    necessarily be a fact-specific analysis:
Campbell
, at para. 66. In
    consequence, rigid rules purporting to identify circumstances that will or will
    not result in the need for notice must be avoided in favour of an individual
    assessment of the particular circumstances of each case.

(d)

Mootness

[32]

We agree with Mr. Brownlee that the Person in
    Charge and that the Board erred in their treatment of this issue. While I also
    agree that the issue is moot as far as Mr. Brownlee is concerned, it is important
    to provide guidance.

[33]

The Person in Charge erred in its consideration
    of this issue because it engaged in an inappropriate, categorical approach to
    the giving of notice. While the Person in Charge must have the discretion to
    deal with urgent situations by exercising its delegated authority, that
    authority comes with the corresponding duty to notify of significant increases
    in restrictions on the liberty of the accused:
Criminal Code
, s.
    672.56(2). To determine whether this duty requires notice to the Board, the
    Person in Charge must carry out an individual assessment of the particular
    circumstances in issue:
Campbell
, at para. 42. It failed to do so in
    this case.

[34]

The Board erred by taking a categorical approach
    and failed to undertake any meaningful analysis of the issue.

[35]

However, as I earlier indicated, the impugned
    increase of the restrictions on Mr. Brownlees liberty no longer exists. The
    issues of whether the Person in Charge should have given formal notice of the
    increased restrictions to the Board and whether the increased restrictions were
    the least onerous and the least restrictive and therefore necessary and
    appropriate are therefore moot.

[36]

Unlike the situation in
Campbell
, the
    determination of these issues cannot serve any useful purpose either as far as
    Mr. Brownlee is concerned or for other cases before the Board. As a result, I
    would decline to determine them and dismiss these grounds of appeal.

(3)

Should a restriction of liberty notice and hearing
    procedure be imposed on the Board?

[37]

As this court determined in
Tran
, at
    paras. 75-81, it is not the role of this court on this appeal to define
    generally applicable procedural requirements. As was done in
Tran
, I
    decline to comment on or impose the Attorney Generals proposed procedure. Any
    such procedure beyond the mandatory provisions of the
Criminal Code
earlier
    noted in these reasons must be crafted by the competent legislator or the Board.

[38]

However, as also observed in
Tran
, at
    para. 80, procedural errors that may have bearing on the particular appeal may
    properly form the basis of an appeal from a disposition.

[39]

I would decline to impose any procedure on the
    Board.


E.

Disposition

[40]

Accordingly, I would dismiss the appeal.

Released: November 12, 2020 (S.E.P)

L.B. Roberts J.A.

I agree. S.E. Pepall
    J.A.

I agree. C.W. Hourigan
    J.A.


