



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)     In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to in
    subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.



COURT OF APPEAL FOR ONTARIO

CITATION: Flowers (Re), 2018 ONCA 936

DATE: 20181123

DOCKET: C65388

Sharpe, Hourigan and Trotter JJ.A.

IN THE MATTER OF: Delroy Allen Flowers

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant Delroy Allen Flowers

Nicole Rivers, for the Attorney General of Ontario

Gavin Mackenzie, for the Centre for Addiction and Mental
    Health

Heard: November 20, 2018

On appeal against the disposition of the Ontario Review
    Board dated, December 21, 2017.

REASONS FOR DECISION

[1]

In 2011, the appellant, Delroy Flowers,
    sexually assaulted a co-resident of a group home for the mentally challenged.
    He was charged with aggravated sexual assault and found not criminally
    responsible on account of mental disorder on October 4, 2013.  He has remained
    subject to the jurisdiction of the Ontario Review Board (ORB) since that
    date. Mr. Flowers is HIV positive and suffers from schizophrenia, stimulant use
    disorder (cocaine type), intellectual disability (mild), and antisocial
    personality disorder.

[2]

In November 2017, while detained in the
    general unit at the Centre for Addiction and Mental Health (CAMH), Mr.
    Flowers went AWOL. When he was returned to the hospital by police he was placed
    in the secure unit. This incident resulted in a combined restriction of
    liberties hearing and annual review conducted on December 13, 2017. The ORB subsequently
    issued a Disposition Order that requires Mr. Flowers be detained in the secure
    unit at CAMH, with privileges up to and including indirectly supervised access
    to hospital grounds and accompanied community access.

[3]

Mr. Flowers appeals the Disposition Order,
    submitting that it is unreasonable and an attempt to detain him without
    providing rehabilitation. Further, he submits that the ORB should have
    intervened to break an impasse in his treatment. We decline to give effect to
    these submissions for the following reasons.

[4]

Counsel for Mr. Flowers conceded that her
    client poses a significant threat to public safety. It is clear from the record
    that he has a history of going AWOL, having eloped from the hospital in each of
    the previous three years.  In the most recent incident, he used cocaine and
    sought out sexual activity while not taking his HIV medication. Mr. Flowers did
    not consider this behaviour to be problematic and the evidence suggests that he
    has a limited understanding of the concept of sexual consent. The ORB accepted
    evidence that the team in the general unit has maximized the process to manage
    his risk in that unit.  It is clear that the appellants risk can no longer be
    managed in a general unit and, accordingly, detention in a secure unit is the
    least onerous and least restrictive disposition. In these circumstances, the
    ORBs decision was entirely reasonable.

[5]

We are also satisfied that Mr. Flowers
    rehabilitative needs can be met in the secure unit, which has better staffing
    ratios than the general unit. Further, the evidence before the ORB was that
    programming that may benefit Mr. Flowers is more readily available in the
    secure unit than in the general unit.

[6]

Mr. Flowers submits that the ORB was required
    to intervene to break a treatment impasse. We are not satisfied that a
    treatment impasse has been reached in this case. Mr. Flowers continues to
    receive treatment and his team is considering further treatment options. There
    have been recent setbacks in Mr. Flowers treatment, but those are the result
    of his own misconduct. There was no evidence in the record that further
    treatment progress cannot be achieved over time.

[7]

The appeal is dismissed.

Robert
    J. Sharpe J.A.

C.W.
    Hourigan J.A.

G.T.
    Trotter J.A.


