



COURT OF APPEAL FOR ONTARIO

CITATION: Ellis (Re), 2018 ONCA 616

DATE: 20180709

DOCKET: C64598

Watt, Pepall and Fairburn JJ.A.

IN THE MATTER OF: Robert Ellis

AN APPEAL UNDER PART XX.1 OF THE
CODE

Frank Bernhardt, for the appellant, Robert Ellis

Luke Schwalm, for the respondent, the Attorney General
    of Ontario

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

Heard: June 15, 2018

On appeal from the disposition of the Ontario Review
    Board, dated September 19, 2017, with reasons dated October 26, 2017.

REASONS FOR DECISION

Overview

[1]

On March 11, 2009, the appellant was found not
    criminally responsible on account of mental disorder (NCRMD). He is currently
    detained at Waypoint Centre for Mental Health Care  Provincial Forensic
    Programs Division (Waypoint or the Hospital). The appellant wishes to transfer
    from Waypoint to a less secure hospital closer to the Guelph area where his
    parents reside. Although the parties agreed at the annual review hearing that a
    transfer to a less secure hospital was appropriate, a majority of the Board
    disagreed, ordering that the appellant remain detained at Waypoint.

[2]

The appellant claims that the Board erred in two
    ways: (1) in holding a procedurally unfair hearing by failing to give notice that
    it was considering rejecting a joint submission; and (2) by failing to grant
    the least onerous and least restrictive disposition available.
[1]
The appellant urges this court
    to set aside the disposition and order that he be transferred to the Centre for
    Addiction and Mental Health (CAMH) in Toronto or St. Josephs Healthcare (St.
    Josephs) in Hamilton, or order a new hearing.

[3]

The respondents maintain that the review hearing
    was procedurally fair. The respondent Attorney General for Ontario also contends
    that the Board imposed the least onerous and least restrictive disposition.
    Accordingly, the Attorney General says that the appeal should be dismissed.

[4]

In contrast to the Attorney General, although
    for different reasons than the appellant, the respondent Hospital contends that
    the Board failed to apply the least onerous and least restrictive disposition.
    In light of the uncertainty surrounding the appellants current diagnosis, the Hospital
    maintains that the Board erred by failing to address in its reasons whether an
    independent psychiatric assessment should be ordered.

[5]

For the reasons that follow, we agree with the Hospital.

Index Offence

[6]

On October 18, 2008, the appellant forced his
    way into his parents bedroom. He had a club in one hand and a sword in the
    other. He called his parents Satanists and yelled at them to leave the children
    alone (the appellant seems to have been referring to his parents grandchildren).
    The appellant then attacked his parents. Although his mother was able to escape
    the residence, the appellant came after her and continued the attack in the
    driveway. Both parents incurred injuries.

General History of Detention

[7]

Since March 2009 the appellant has been detained
    at several different hospitals. While detained at the Southwest Centre for
    Forensic Mental Health Care (Southwest) he threatened staff members and was found
    in possession of two knives. That behaviour resulted in a transfer to Oak Ridge
    Division of the Mental Health Centre in 2010. He was later transferred to
    Ontario Shores Centre for Mental Health Sciences (Ontario Shores). While at
    Ontario Shores, the appellant made various threats to hospital staff and was
    transferred to Waypoint in February 2014. In March 2015 the appellant stabbed
    one of his treating doctors with a pen. As of the date of his hearing, he had
    not engaged in any further physical violence.

[8]

As a result of his past conduct, the appellant
    is prohibited from contacting or communicating, directly or indirectly, with
    numerous health care professionals and all staff at Southwest and Ontario
    Shores. He has remained at Waypoint since February 2014.

[9]

There is general agreement that the appellants
    previous violent and verbally aggressive outbursts have resulted from
    situations where he feels challenged, including when it is suggested to him
    that he is suffering from a psychotic condition or that he is in need of
    medication.

The Appellants Changing Diagnosis

[10]

Dr. Bergstrome became the appellants treating
    psychiatrist a few months before his yearly review that resulted in the
    disposition appealed from. Dr. Bergstromes opinion is based upon his own
    observations, as well as those of the treatment team and the appellants
    previous psychiatrist, Dr. Bradford.

[11]

Dr. Bergstrome testified about the fact that the
    appellant is currently doing well. He is involved in programs, ongoing
    education and off-unit activities. Although the appellants past diagnoses have
    included paranoid schizophrenia, requiring antipsychotic medication, at the
    time of the hearing, Dr. Bergstrome testified that he has doubts about whether
    the appellant has or has ever had a psychotic disorder. In his limited time
    dealing with the appellant, and based upon his review of Dr. Bradfords notes,
    Dr. Bergstrome testified that he has seen no evidence to support a diagnosis of
    schizophrenia, no bizarre delusions or hallucinations, no social withdrawal or
    lack of motivation.

[12]

Dr. Bergstrome testified that paranoid
    schizophrenia does not tend to resolve on its own. If the appellant suffered
    from this condition, he should have decompensated without antipsychotic
    medication. Instead, the appellants condition appears to have improved without
    any medication. This progress left Dr. Bergstrome somewhat skeptical about
    the previous diagnoses related to psychotic disorders.

The Decision Appealed From

[13]

Everyone agreed that the appellant was an
    ongoing significant threat to the safety of the public. The question was
    whether the appellant should be transferred to a less secure facility. The
    Board split on the answer to that question, with the majority refusing to grant
    the transfer.

[14]

Although the majority found that the appellant
    had not demonstrated any signs of a psychotic disorder for over a year, it was
    certain that in the past he had demonstrated signs of that type of disorder.
    Indeed, the Board emphasized that as recently as August 2016, the appellants
    then treating psychiatrist (Dr. Danyluk) was certain that there was some form
    of psychotic process at play in Mr. Ellis presentation, specifically,
    schizophrenia.  Dr. Bradford agreed with that diagnosis when he first dealt
    with the appellant, only later changing his diagnosis to a non-psychotic
    condition.

[15]

The majority found that the appellants history
    demonstrated that there is more at play than what his current condition
    presents as and that it is difficult to attribute all of Mr. Ellis
    behaviour over the years to grandiosity or narcissism. The majority viewed the
    appellants fear of treatment and medication as a potential symptom of
    paranoia. The majority found that Waypoints approach to managing the appellant
    has been to avoid confrontation by not discussing his mental health issues with
    him. The majority reasoned that these kinds of avoidance strategy may not be
    available in a less secure environment.

[16]

The majority concluded that it is almost
    inconceivable that the appellant would not be confronted in a less secure
    hospital setting and react with intimidating behaviour. Returning him to a less
    secure environment would be a serious mistake as such institutions are less
    equipped to manage the appellants risk factors. Accordingly, the majority
    found that the appellant should remain at Waypoint until his risk factors and
    behaviour are addressed.

[17]

The minority noted that over the course of the
    two years preceding the hearing, and despite not receiving any antipsychotic
    medication, the appellant had not displayed any clear evidence of psychosis or
    decompensation, thus putting the diagnosis of schizophrenia in question. In the
    minoritys opinion, the appellant could be adequately and appropriately managed
    in a less secure facility than Waypoint.

Analysis

Joint Position and Procedural Fairness

[18]

The appellant maintains that he was denied
    procedural fairness when the Board rejected a joint submission without giving
    advance notice to the parties. We disagree.

[19]

Board hearings must be procedurally fair. Where
    the Board is considering rejecting a joint position, it must provide notice to
    the parties so that they are in a position to address the relevant concerns:
Osawe
    (Re)
,
2015 ONCA 280, 323 C.C.C. (3d) 405, at para. 71.

[20]

Notice can be achieved in a variety of ways,
    including by the Board making the parties aware of the operative concerns.
    Notice may also be given on a more informal basis, such as where the Boards
    questions or comments make it clear that at least some of the Board members are
    having difficulty with the joint submission. Ultimately, the question is
    whether the NCR accused had a meaningful opportunity to present the evidence
    and argument relevant to the Boards disposition:
Osawe (Re)
,
at para. 74.

[21]

The appellants procedural fairness argument fails
    for two reasons: (1) this matter did not proceed on the basis of a joint
    position; and (2) the parties were squarely on notice that at least some
    members of the Board were having trouble with the suggestion that the appellant
    be transferred to a less secure environment.

[22]

This matter did not proceed on the basis of a
    joint submission. It commenced with Crown counsel specifically stating that he
    was reserving his position until after he had heard Dr. Bergstromes evidence
    and formed a view about the appellants level of risk. It was only at the conclusion
    of Dr. Bergstromes evidence that Crown counsel expressed his view that the
    appellant was capable of being managed in a less secure environment: I would
    suggest that the evidence, as presented, supports a transfer notwithstanding
    some very serious concerns about Mr. Elliss risk to others around him. Accordingly,
    the hearing itself was not conducted on the basis of a joint submission and the
    parties proceeded with full knowledge of that fact.

[23]

The record also demonstrates that many of the
    Board members had a strong discomfort with the proposal to transfer the
    appellant. The majority reasons for disposition specifically refer to the fact
    that at the hearing, Dr. Bergstrome was challenged with respect to his opinion
    that Mr. Ellis does not suffer from schizophrenia or a major mental disorder. One
    Board member expressed the view that it was almost mind boggling that a
    diagnosis of schizophrenia wasnt contemplated. Accordingly, the parties were
    squarely on notice that at least some members of the Board were having
    difficulty with the idea of transferring the appellant to a less secure
    environment.

[24]

In these circumstances, the appellant was
    afforded procedural fairness.

Least Onerous and Least Restrictive Disposition

[25]

The appellant maintains that the majority erred
    by preferring historical findings about the appellants diagnosis to his
    present one. He argues that the emphasis on the historical diagnosis led to an
    unreasonable decision to keep him at Waypoint. We do not agree with the
    appellants characterization of the majoritys decision.

[26]

The majority reasons do not prefer a historical
    diagnosis over a present one. Rather, the reasons demonstrate the majoritys
    concern about what diagnosis should be attributed to the appellant. There was
    evidence upon which the majority could find that the inability to pin down the
    appellants diagnosis meant that it was too risky to transfer him to a less
    secure environment. This was a decision that was open to the Board to make. It
    fell within the range of reasonable outcomes. We see no error in the Boards
    approach in that regard.

[27]

This leaves for consideration the Hospitals
    position that the Board erred by failing to order an independent psychiatric
    assessment.

[28]

The issue of an independent assessment was
    raised at the hearing. The presiding chair stated that a main issue for him
    was the possibility that the appellants good behaviour in the past year was a
    result of the treatment staff skirt[ing] discussions with the appellant about
    whether he had a major mental disorder. The presiding chair specifically asked
    Dr. Bergstrome about whether an outside assessment might be of some assistance.
    Dr. Bergstrome stated that he would find it [r]efreshing to have a new
    opinion.

[29]

Although the majority concluded that the
    appellants adverse reaction to discussions about his potential condition and
    medication should be explored as a symptom of paranoia, it did not follow up
    and order as part of the disposition that an independent assessment occur. Nor
    did it mention the possibility of ordering one. The Hospital argues that, in
    the circumstances of this case, by failing to order an independent psychiatric
    assessment, the Board failed to impose the least onerous and least restrictive
    disposition.

[30]

The appellant contends that there is no need to
    consider the appellants actual diagnosis, as only his current behaviour should
    govern where he is detained. We do not agree. It was open to the majority to
    conclude that pinning down his current diagnosis is an essential first step
    toward better predicting any reaction he may or may not have in a less secure
    environment, particularly when confronted with conversations about diagnosis
    and treatment.

[31]

Accordingly, we agree with the Hospital that, in
    the unusual circumstances of this case, the Board should have considered
    ordering an independent psychiatric review. In fairness to the Board, closing submissions
    were very brief and no one made submissions on this particular point. Even so,
    the matter was raised by the Board; Dr. Bergstrome expressed his view that it
    would be refreshing to have another opinion; and the majority found that more
    exploration of the appellants psychiatric condition is required, particularly
    his condition that appears to be triggered by discussions about diagnosis and
    medication.

[32]

Right now the appellants condition lacks a
    clear diagnosis. Without a diagnosis, his risk in a less secure environment
    remains elusive. The lack of diagnosis is a serious impediment toward advancing
    the appellant closer to the ultimate goal of reintegration into the community:
R.
    v. Conway
,
2010 SCC 22, [2010] 1 S.C.R. 765, at paras.
    89.

Conclusion

[33]

The appeal is allowed and the matter is remitted
    to the Board for a hearing as soon as practicable so that the issue regarding
    an independent assessment may be addressed prior to the next annual review,
    scheduled for September 10, 2018.

David
    Watt J.A.

S.E.
    Pepall J.A.

Fairburn
    J.A.





[1]
Although the wording of s. 672.54 has been modified to use a
necessary
    and appropriate test, this court has interpreted that test as requiring that
    the Board impose the least onerous and least restrictive disposition available:
Osawe (Re)
,

2015 ONCA 280, 125 O.R. (3d) 428, at para. 45; and
Ranieri
    (Re)
, 2015 ONCA 444, 336 O.A.C. 88, at paras. 19-21. As the parties use
    least onerous and lease restrictive language, these reasons will do the same.


