




COURT OF APPEAL FOR ONTARIO

CITATION: Le Feuvre (Re), 2018 ONCA 712

DATE: 20180831

DOCKET: C64874

Watt, Huscroft and Fairburn JJ.A.

IN THE MATTER OF: Geoffrey Le Feuvre

AN APPEAL UNDER PART XX.1 OF THE
CODE

Joe Hanna, for the respondent

Anita Szigeti, for the appellant

Kathryn Hunt, for the Person in Charge of the Centre for
    Addiction and Mental Health

Heard: August 21, 2018

On appeal from the disposition of the Ontario Review
    Board, dated December 18, 2017.


REASONS FOR
    DECISION

[1]

Geoffrey Le Feuvre appeals from the December 18, 2017 disposition of the
    Ontario Review Board, pursuant to which he remains detained at the Centre for
    Addiction and Mental Health (CAMH).

[2]

Before the Board, the parties agreed that the appellant continues to
    pose a significant threat to the safety of the public. The only issue on the
    review concerned the appropriate disposition. The Board continued the
    appellants hybrid order, requiring that he be detained within the Secure
    Forensic Unit, with discretion to transfer him to the General Forensic Unit. If
    and when detained within the General Forensic Unit, the Board granted the
    Person in Charge the discretion to permit the appellant to live in the
    community in 24-hour a day supervised accommodation.

[3]

The appellant argued that the appeal should be allowed and that he
    should be granted an order detaining him in the General Forensic Unit of CAMH,
    with the discretionary privilege of residing in the community in supervised
    accommodation on the approval of the Person in Charge. In the alternative, he
    asked that the matter be remitted to the Board for a new hearing before a
    differently constituted panel of the Board. Despite the position taken by
    counsel for the appellant (not appeal counsel) before the Board  that a
    detention order was appropriate  the appellant also submitted to this court that
    an absolute or conditional discharge should be ordered. In the further
    alternative, the appellant requested that this court order CAMH to retain
    independent professional services to break what he described as a treatment
    impasse.

[4]

The Crown and the Person in Charge seek to uphold the Boards
    disposition, arguing that the Boards decision is reasonable and that there is
    a reasonable treatment plan in place.

[5]

For the reasons that follow, we have concluded that the Boards
    disposition is not reasonable. The appeal is allowed and the Board is directed
    to take action in accordance with this decision.

Background

[6]

The appellant is a 67-year-old man with a lengthy psychiatric history. Among
    other things, he has been diagnosed with bipolar disorder, polysubstance
    dependence, personality disorder (with marked antisocial, narcissistic, and
    psychopathic traits), and a differential diagnosis of schizoaffective disorder.
    He lacks insight into his mental health.

[7]

He has a number of complex and serious medical conditions, including
    Hepatitis C, reflux disease, and diabetes. He has a lengthy history of alcohol
    abuse, a history of marijuana and cocaine use, and has also engaged in glue-sniffing,
    the use of prescription opiates, and the consumption of methamphetamine.

[8]

The index offence occurred in 2007. The appellant was found not
    criminally responsible on account of mental disorder after having carried out a
    series of attacks on strangers and having caused damage to property.

[9]

The appellant was detained on the General Forensic Unit of CAMH for
    seven years, with privileges including indirectly supervised passes and the
    possibility of community living in approved accommodation. However, in 2015, he
    was transferred from the General Forensic Unit to the Secure Forensic Unit, in
    order to have access to more effective and suitable rehabilitative programs.

The Evidence

[10]

From
    the perspective of his treating psychiatrist, Dr. Liu, and the CAMH report, the
    difficulty in returning the appellant to the community is his inability to follow
    the rules. The appellants indirectly supervised passes have been suspended
    since August 2017 because of rule violations and an incident in which he went
    AWOL in order to obtain cigarettes, which are forbidden in CAMH buildings.

[11]

Dr.
    Liu gave evidence that a plan then under consideration was to transfer the
    appellant not to the General Forensic Unit but to the LGUD, a more secure and highly
    supportive general unit, while providing behavioural programs to address these
    concerns. The transfer was to occur within the following three months.

[12]

Under
    questioning from the Board, Dr. Liu said that transferring the appellant to a
    secure home in the community was premature in light of his constant rule-breaking,
    and it was necessary to see how he fared in the general unit before making such
    a transfer. The Board found that [t]he hope appears to be that the creation of
    a specialized behavioural program for Mr. Le Feuvre on the LGUD will pave the
    way for his re-entry into the community.

Discussion

[13]

We
    start from the position that the Board properly found that the appellant
    remains a significant threat to the safety of the public, a matter not in
    dispute at the hearing. The question is whether the Boards disposition is
    reasonable in light of all of the circumstances.

[14]

The
    Board notes that the efficacy of rehabilitative programs in the secure unit
    has been exhausted, and refers to an apparent impasse in Mr. Le Feuvres
    rehabilitation process. Following that finding, the Boards decision is replete
    with a sense of urgency. The Board notes:

a.

the need to
    transfer Mr. Le Feuvre into a General Forensic Unit
without delay

in order to
    facilitate his future entry into the community;

b.

that [i]t is
    abundantly clear that, if Mr. Le Feuvre
is ever to get out of Hospital and
    into the community
in supervised accommodation, the general cascading
    principle does not apply to him;

c.

that 
[t]he time is now
for Dr. Liu and the
    treatment team to work toward Mr. Le Feuvres transfer to the LGUD in the
near future
, with a more immediate
    view to a resumption of his indirectly supervised passes;

d.

that [i]t may
    not be reasonably expected that Mr. Le Feuvre will be living in the community
    in the
next reporting year
,
    however, the Board expects the Hospital to
work
    toward that goal
by focusing on a transition from the LGUD into
    the community;

e.

that [t]here
    may be a maximum level of compliance which [Mr. Le Feuvre] can achieve within
    the Hospital setting and a
transition to a high security, structured
    facility in the community may be the best option
; and that

f.


active steps need to be taken
to look
    for the correct fit, and efforts made to facilitate Mr. Le Feuvres placement [in
    a high security, structured community facility] in a
timely fashion
.
    [Emphasis added.]

[15]

Plainly,
    the Board recognized the pressing need to take meaningful steps toward the
    ultimate goal of returning the appellant to the community. He is 67 years old
    and in poor health. The Board also noted that the appellants treatment 
    suspension of his indirectly supervised passes for mere rule violations
    (typically involving the appellants smoking addiction) that did not rise to
    the level of a significant threat  was bordering on punitive.

[16]

Having
    identified a treatment impasse and recognized the urgency of the situation, it
    was unreasonable for the Board simply to continue the hybrid order and make
    suggestions about what CAMH should do  suggestions that do not appear to have
    been acted upon, at least in a timely way. Given the appellants advancing age
    and declining health, the length of his detention, and in particular the lack
    of progress that has been made in improving his situation, the Boards
suggestions
to CAMH are inadequate.

[17]

Accordingly,
    we allow the appeal to this extent: the Person in Charge is directed to obtain
    an independent assessment of the appellant and to have a report prepared, in
    consultation with the appellants current treatment team, reviewing the
    appellants history and establishing a plan to advance the appellant toward the
    ultimate goal of reintegration into the community. The report should be
    prepared within three months of the date of this decision.

[18]

The
    matter is referred back to a differently constituted panel of the Board for
    rehearing as soon as possible after the report has been prepared and, in any
    event, not later than the date of the appellants next annual review.

David
    Watt J.A.

Grant
    Huscroft J.A.

Fairburn
    J.A


