



COURT OF APPEAL FOR ONTARIO

CITATION: Tompkins (Re), 2018 ONCA 654

DATE: 20180719

DOCKET: C64495

Strathy C.J.O., Watt and Epstein JJ.A.

IN THE MATTER OF: Douglas Tompkins

AN APPEAL UNDER PART XX.1 OF THE
CODE

Erin Dann, for the appellant

Andrew Cappell, for the Ministry of the Attorney General

Janice E. Blackburn, for the Person in Charge of Waypoint
    Centre for Mental Health Care

Heard: April 27, 2018

On appeal against the disposition of the Ontario Review
    Board dated September 19, 2017.

Epstein J.A.:


OVERVIEW

[1]

The appellant has a long history of serious psychiatric illness. He has
    been diagnosed with a constellation of psychiatric disorders including sexual
    sadism, pedophilia, anti-social personality disorder and mild mental
    retardation. The appellant also has a number of health issues. He suffers from
    Type II diabetes and a seizure disorder. His seizures appear to have increased
    in frequency in recent years.

[2]

He has resided in institutions since he was 7. He is now 62.

[3]

The index offence took place in 1976 on the grounds of the Huronia
    Regional Centre where the appellant and the victim both lived. The appellant,
    then 21, and the victim engaged in sexual intercourse, following which the
    appellant tied the victim to a chair, pulled her clothes off and pushed a stick
    into her vagina. He then kicked her and dropped a large rock on her head. The
    appellant tied a belt around the victims neck and stuffed a rag in her throat.
    The victim died of asphyxiation.

[4]

On a charge of murder, the appellant was found not guilty by reason of
    insanity  now referred to as Not Criminally Responsible (NCR). Since that
    finding, the appellant has been detained at the Waypoint Centre for Mental
    Health Care (Waypoint). With the exception of a 90-day period in 1994 when he
    was assessed, and of other trips to hospital for medical reasons, the appellant
    has not set foot off the Waypoint grounds in over 30 years. There is no dispute
    that other than for medical, legal or compassionate purposes, the appellant
    will never be able to enter the community, even escorted by staff, while
    detained at Waypoint.

[5]

At his most recent Board hearing in September 2017, the appellant
    conceded the issue of significant risk. He asked for a transfer from Waypoint
    to an all-male secure forensic unit at the Centre for Addiction and Mental
    Health (CAMH) or the Brockville Mental Health Centre (Brockville). He
    sought this transfer so he could take advantage of escorted privileges into the
    community, available at CAMH and Brockville but not at Waypoint.

[6]

A majority of the Board concluded that the necessary and appropriate
    disposition was an order continuing the appellants detention at Waypoint,
    citing the potential negative effect a move could have on the appellants
    quality of life. The alternate chair and a psychiatrist member of the Board
    dissented  the minority would have ordered that the appellant be transferred
    either to CAMH or to Brockville.

[7]

For the reasons that follow, I agree with the appellant that the majority
    erred in two ways: (i) the majority erred in law by failing to consider all
    relevant factors under s. 672.54 of the
Criminal
    Code
; and (ii)
    the majority further erred by failing to give sufficient weight in the
    circumstances to the appellants reasonable subjective preferences in favour of
    a transfer
. Together, these errors
    rendered the majoritys disposition unreasonable.
I would therefore
    allow the appeal, set aside the disposition under appeal and order a new
    hearing.

THE HEARING BEFORE THE BOARD

(1)

The Evidence

[8]

A detailed review of the hospital report reveals that the appellants
    clinical status has remained static for many years. In the past 32 years, he
    has not engaged in any assaultive behaviour. He has not demonstrated any seriously
    inappropriate or predatory sexual behaviour in several decades. For the past
    several decades, but for one minor altercation with another patient, there have
    been no incidents of serious physical, verbal or sexual aggression and no need
    for seclusion. However, because of his intellectual disabilities, inappropriate
    sexual activity preferences, and history of dyscontrolled behaviour, his
    treatment teams have consistently viewed detention in a highly supervised and
    structured setting as necessary to protect the public and as most beneficial to
    the appellant. The appellant does not contest this assessment.

[9]

It appears that notwithstanding his hard work in group sessions, the
    appellants intellectual disability prevents him from understanding,
    integrating or remembering much of the content of his rehabilitative programming
    for sexual offenders.

[10]

On
    the social side, the appellant has generally fared well at Waypoint. He is
    described as pleasant and cooperative. He interacts well with staff and fellow
    patients. The appellant has access to all programs and amenities within the secure
    perimeter at Waypoint and has enjoyed grounds privileges escorted by staff, all
    without incident. He takes advantage of all available educational, recreational
    and vocational services, and spends much of his day engaged in programming 
    most frequently, in Waypoints workshop. He also enjoys playing cards twice a
    month with an elderly female volunteer.

[11]

The
    unchallenged evidence is that the appellant could most definitely be managed
    in a less secure environment than Waypoint. However, he does continue to
    struggle with appropriate boundaries in his relationships with female staff and
    volunteers and is disposed towards inappropriate sexual activity preferences.
    These management concerns must be accounted for in his disposition.

[12]

As
    early as 1992, the clinical team recommended that, if an all-male facility with
    less security and more supervision were available, the appellant should be
    considered for such a placement.

[13]

In
    preparation for the hearing under appeal, the clinical team initially
    recommended that the appellant be transferred to a less secure environment at
    Providence Care in Kingston. The team believed, incorrectly, that there was a
    specialized program available at Providence for sex offenders with intellectual
    disabilities  a facility where the appellant could possibly achieve and
    sustain a greater quality of life than at Waypoint. The team recommended a
    transfer with conditions permitting the appellant to exercise hospital grounds
    privileges accompanied by staff and community privileges, escorted by staff. After
    learning that such a program was not in fact available, the team changed its
    opinion and recommended that the appellant remain at Waypoint.

(2)

The Parties Positions at the Hearing

[14]

It
    is against this background that the appellant sought a transfer to an all-male
    unit available at either CAMH or Brockville. As previously indicated, the
    appellant sought such a transfer so he could, albeit in a limited manner, enjoy
    some engagement with the community. He hoped to access the community through occasional
    escorted trips to locations such as a shopping mall or a hockey arena.

[15]

The
    Attorney General for Ontario supported the appellants transfer request. Counsel
    for the Attorney General noted that there was no safety or management need for
    the appellant to remain at Waypoint and also no treatment advantage to his
    remaining there. The Attorney General also agreed that there was no actual
    evidence adduced at the hearing demonstrating that he would not respond well to
    a transfer. In the light of these factors, the Attorney General submitted that
    the appellants preferences should determine the issue of the transfer and that
    it should be ordered by the Board.

[16]

Noting
    that he could be managed in a less secure environment, the appellants clinical
    team nonetheless concluded that a transfer would result in significant
    restrictions on the appellant. In support of its recommendation that the
    appellant remain at Waypoint, the team cited the fact that Waypoint is a
    familiar environment, that vocational services are a source of both pride and
    funds for the appellant, that he is able to engage in recreational activities
    at Waypoint and that he enjoys playing cards with his regular volunteer
    visitor.

[17]

The
    appellants attending psychiatrist, Dr. Danyluk, agreed with the conclusion,
    set out in the hospital report, that the appellant could be managed in a less
    secure environment on an all-male unit. However, Dr. Danyluk was concerned that
    transferring the appellant to another institution would negatively affect his quality
    of life, given the relationships he has formed over the decades he has been at
    Waypoint and the additional restrictions he would be subject to at either Brockville
    or CAMH. Notwithstanding this conclusion, under cross-examination the doctor
    did acknowledge that moving to CAMH or Brockville could provide the appellant
    with faster and better access to medical care for his serious medical
    conditions.

[18]

Waypoint
    recommended the appellants continued detention at its facility, arguing that
    even though his risk to the community could be safely managed at a less secure
    facility, his quality of life at such an institution would be diminished. At
    Waypoint patients have relatively free access within the secure areas of the hospital.
    Since the majority of the units at CAMH or Brockville are co-ed, in order to
    ensure the safety of female patients and other vulnerable patients, the
    appellants ability to access recreational and vocational opportunities would
    be severely limited.

(3)

The Reasons

[19]

The
    majority of the Board accepted the unchallenged evidence that the appellants
    risk to public safety could be safely managed at CAMH or Brockville. However,
    it nonetheless refused to order the transfer. It concluded that the appellants
    lived reality in a less secure hospital would result in his having a diminished
    quality of life. The appellant would not be able to engage in the various
    activities that he enjoys at Waypoint, where he is able to move about the
    grounds with relative ease. The majority concluded that at the other hospitals
    the appellant would have access to fewer privileges or programming since it
    would be unlikely that he would be allowed off his unit without direct and
    close supervision. The majority was concerned that the appellant may not be
    able to appreciate the significant limits on his liberty that he would face in
    a less secure environment, or the impact those limits would have on his overall
    quality of life.

[20]

Relying
    on this courts decision in
Mental Health Centre Penetanguishene v. Magee
(2006), 208 C.C.C. (3d) 365 (Ont. C.A.), the majority concluded that, taking
    into account the appellants other needs under s. 672.54 of the
Code
,
    continued detention at Waypoint was the necessary and appropriate disposition.

[21]

A
    minority of the Board would have ordered the appellants transfer to a less
    secure environment. The minority recognized the potential negative impact of
    the appellants losing access to certain programs and opportunities at
    Waypoint, but noted that there was no evidence that he would be unable to enjoy
    his life in a new environment and engage with new hospital staff and patients
    as he had at Waypoint. Crucially, the minority emphasized that although the
    appellant may never be discharged to live in the community, his reintegration
    into society should not be overlooked as a goal and a transfer to a less secure
    hospital would broaden [his] access to society outside the confines of the
    restrictive boundaries at [Waypoint].

The Legal Framework and
    Standard of Review


[22]

Here,
    given the parties agree that the appellant remains a significant threat, the
    Board was required to impose a disposition that was necessary and
    appropriate. In determining the proper
disposition,
    the Board was required to consider the four factors set out in section 672.54
    of the
Code
:


i.

the safety of the public;


ii.

the mental condition of the accused;


iii.

the reintegration of the accused into society; and


iv.

the other needs of the accused.

[23]

The
    necessary and appropriate disposition is that which is the least onerous and
    least restrictive to the accused consistent with public safety:
Mazzei v.
    British Columbia (Director of Adult Forensic Psychiatric Services)
, [2006]
    1 S.C.R. 326
,
at para. 19. It is the entire package of
conditions that must be the least onerous and least
    restrictive:
Penetanguishene Mental Health Centre v. Ontario (Attorney
    General),
2004 SCC 20, [2004] 1 S.C.R. 498, (
Tulikorpi
), at para.
    71;
Re Conway,
2016 ONCA 918, at para. 38. In making this determination
    an NCR offender is to be treated with dignity and accorded the maximum liberty
    compatible with Part XX.1s goals of public protection and fairness to the NCR
    accused:
Winko v. Forensic Psychiatric Institute,
[1999] 2 S.C.R. 625,

at para. 43.

[24]

The
    Board is required to gather and review all available evidence pertaining to the
    four factors set out in s. 672.54:
Winko
,

at para. 55;
R. v.
    Aghdasi
, 2011 ONCA 57, at para. 19. Failure to consider all of the factors
    when determining the least onerous and least restrictive disposition is an
    error of law:
Magee
,

at paras. 59, 65.

[25]

Section
    672.78 of the
Criminal Code
provides that this court may set aside an
    order of a Review Board only where it is of the opinion that:

a.

it is unreasonable or cannot be supported by the evidence;

b.

it is based on a wrong decision on a question of law; or

c.

there was a
    miscarriage of justice.

[26]

The
    standard of review when applying the first branch of s. 672.78 is
    reasonableness, while the second branch is concerned with a question of law,
    and thus the standard is correctness:
Mazzei
, at para. 16.

[27]

As
    I explain below, I am of the view that the majority erred in two respects.
    First, the majority erred in law in failing to meaningfully consider all
    relevant factors under s. 672.54. Specifically, it failed to consider the relevance
    of a transfer to CAMH or Brockville in relation to the appellants
    reintegration into the community. Second, the majority also erred by failing to
    assign appropriate weight to the appellants reasonable perception of his own
    needs, as well as the objective benefits of a transfer, in considering his
    other needs as required under s. 672.54 of the
Code
. The disposition
    reached was accordingly unreasonable and must be overturned.

ANALYSIS

(1)

The Board failed to consider the appellants reintegration into society

[28]

As
    previously indicated, it was incumbent on the Board to specifically address all
    of the factors in s. 672.54 that could be relevant to granting or refusing the
    appellants transfer request.

[29]

The
    reasons do not indicate that the majority specifically or meaningfully considered
    the impact of the appellants requested transfer on his reintegration into
    society. It only addressed rehabilitation by reciting that it had considered
    all of the factors under s. 672.54, and then later setting them out in full. As
    this court concluded in
Magee,
a conclusory statement purporting to take
    into account all the criteria from s. 672.54 is not sufficient for the Board to
    discharge its responsibility under this section.

[30]

The
    only reasonable inference is that the majoritys failure to take reintegration
    into account was the result of the uncontested evidence that it is unlikely the
    appellant will
ever
be discharged into the community  he may require
    institutionalization for the remainder of his life. In my view, this failure is
    rooted in the majoritys unduly narrow interpretation of reintegration in the
    context of this legislative scheme.

[31]

Reintegration
    is a process, not a destination. It need not be regarded as an all or nothing
    proposition. Although the appellants potential opportunity to participate in
    the community on escorted passes may be regarded as minimal reintegration, it
    is, nonetheless, a relevant component of reintegration, in that it constitutes connection
    with society outside the boundaries of an institution. Such an opportunity should
    not be trivialized. Through escorted passes the appellant would be able to
    achieve a level of engagement with the community that he has been denied for 30
    years.

[32]

It
    follows that I agree with the minoritys view that, on this record, even though
    the appellant may never be discharged into the community, his reintegration
    into society nonetheless remained a relevant factor to be considered under s.
    672.54. If anything, the Boards failure to consider this factor is even more
    significant
because
supervised access into the community may be the
    most significant level of reintegration the appellant could ever realistically
    achieve. In my view, the Board erred in law in failing to specifically address this
    factor. Accordingly, its disposition should be set aside under s. 672.78(b).

(2)

The Board unreasonably ignored the preferences of the appellant and the
    benefits to the appellant of a transfer

[33]

I
    am also of the view that the Board erred in its consideration of the appellants
    other needs by failing to put appropriate emphasis on the appellants
    reasonable perception of his own needs as well as the objective benefits of a
    transfer on his wellbeing.

[34]

The
    majority correctly recognized that management and containment of the appellants
    risk is not the only relevant consideration to be addressed in drafting a
    disposition. The analysis of the necessary and appropriate disposition must
    include consideration of privileges or amenities that the individual will be
    able to access depending on where he is detained. The Board correctly cited
Magee
for the proposition that the fact that an NCR patient wishes to be
    transferred to a less secure facility, knowing that the consequences of a
    requested transfer may cause him difficulty, is not dispositive of whether the
    proposed transfer would meet the individuals other needs: see para. 88. While
    the least onerous and least restrictive disposition requirement usually
    translates into the most minimally secure environment able to contain the accuseds
    risk, this is not always the case:
Tulikorpi
, at para 34.

[35]

However,
    in my view the majoritys perception of the appellants quality of life
    unduly minimized and disregarded his subjective preferences and ignored the evidence
    of concrete benefits associated with the requested transfer. As the minority
    noted, the majoritys analysis [gave] little weight to the possibility that
    [the appellant] might ultimately obtain and enjoy escorted access to the
    greater community. Moreover, there is nothing in the reasons that indicates
    that the majority took into consideration the evidence that the transfer would
    lead to the appellants improved access to specialized health care given his
    seizures and advancing age.

[36]

These
    failures will not always constitute a reversible error, given the significant
    deference owed to the Board in its crafting of dispositions:
R. v. Owen,
2003
    SCC 33, [2003] 1 S.C.R. 779, at para. 69. However, in these circumstances, they
    do.

[37]

The
    appellant requested a transfer expressly for the legitimate goal of being able
    to participate in supervised trips into the community. The majority appears to
    have given no weight to this goal or to the additional benefits that a transfer
    would yield. This case was not like
Magee
or
R. v. Maclean
, 2012
    ONCA 909, where the potential benefits of a move to a less secure unit were
    speculative or based on a questionable motive of the NCR accused. Here, the
    transfer would unquestionably provide concrete benefits  benefits that the
    appellant had long desired. The requested transfer would give the appellant a
    chance to step off hospital grounds. It is difficult for anyone other than the
    appellant to measure the subjective value of taking such a step after spending
    many decades inside Waypoint, or the impact of so doing so on his quality of
    life.

[38]

This
    takes me to the complex issue of determining and assigning weight to the
    appellants needs. This case involved a trade-off between subjective
    preferences. It required the Board to determine whether the accused needed the
    privilege of community visits  that he has sought for years  more than he
    needed to continue to participate in programs potentially available only at
    Waypoint. There was no evidence that the requested transfer would impact his
    risk to the public, lead to his decompensation, or lead to a deterioration in
    his mental state. It was simply a matter of which option would better meet the
    appellants needs.

[39]

As
    the minority held, the majoritys findings concerning the appellants quality
    of life presuppose that the appellant will be unable to enjoy a new environment
    and engage with new and different hospital staff. There was no evidence that he
    could not do so. As the Attorney General acknowledged before the Board, there
    was no treatment advantage to the appellants continued detention at Waypoint.
    Further, there was no evidence adduced demonstrating that the appellant would
    not respond well

to a transfer, that he will not get along with new
    patients or in fact enjoy meeting new patients and staff, or that he will be
    unable to begin a relationship with a new volunteer visitor.

[40]

In
Tulikorpi
, at para. 58, the Supreme Court identified the twin goals of
    Part XX.1 as the protection of the public and the safeguarding of the NCR
    accuseds liberty interests. The Board must give consideration to the liberty
    interests of the NCR accused at every stage of the evaluation process:
Tulikorpi
,
    at paras. 53-56. These liberty interests are an important component of the
    other needs of the accused. In my view, the values of self-determination and
    autonomy are relevant aspects of an NCR accuseds liberty, and should be
    considered where relevant.

[41]

In
    the unique

circumstances of this case, where the appellants transfer
    request creates no safety or management risk, treatment trade-offs or risk of
    decompensation, and where there are benefits to such a transfer on the evidence
    that are material and objectively reasonable, the Board, in its balancing of
    the factors under s. 672.54, was required to give serious consideration to the
    appellants subjective wishes.

[42]

The
    Board did not do so in this case. The appellant reasonably came to the
    conclusion that his personal needs would be better met by a transfer to CAMH or
    Brockville rather than continuing with the current circumstances at Waypoint.

[43]

In
    the circumstances I am of the view that the Board erred in its assessment of
    the appellants other needs by failing to assign adequate weight to the
    appellants own perception of his needs and preferences, or the evidence of the
    objective benefits of a transfer. This failure rendered the decision
    unreasonable.

CONCLUSION

[44]

In
    my view, the appellant is entitled to a transfer to an all-male medium secure
    unit at either CAMH or Brockville.

DISPOSITION

[45]

I
    would allow the appeal, set aside the Boards order and, subject to the
    following paragraph, order that the appellant be transferred to either CAMH or
    Brockville.

[46]

I
    am of the view it would not be appropriate for this court to resolve and order the
    particulars of the transfer. The record contains no indication of whether CAMH
    or Brockville is in a position to accept the appellant at the present time, or
    the appropriate conditions to impose on the appellants residing at either
    location. I would accordingly refer the matter back to the Board on an
    expedited basis to determine the terms under which the appellant can be
    transferred to another suitable facility.

Released: DW JUL 19 2018

Gloria Epstein J.A.

I agree. G.R.
    Strathy C.J.O.

I agree. David Watt
    J.A.


