



COURT OF APPEAL FOR ONTARIO

CITATION: Rogers (Re), 2018 ONCA 602

DATE: 20180629

DOCKET: C64277

Sharpe, Brown and Paciocco JJ.A.

IN THE MATTER OF: Leornard A. Rogers

AN APPEAL UNDER PART XX.1 OF THE
CODE

R. Browne, for the appellant, Leonard A. Rogers

C. Elmasry, for the respondent, the Attorney General of
    Ontario

J. Blackburn, for the respondent, the Person in Charge
    of the Centre for Addiction and Mental Health

Heard: June 25, 2018

On appeal from the disposition of Ontario Review Board,
    dated August 9, 2017, with reasons dated August 28, 2017.

REASONS FOR DECISION

[1]

The appellant was found not criminally responsible on account of mental
    disorder in 2000 on two counts of assault and two counts of uttering threats to
    cause death and has been under the jurisdiction of the Ontario Review Board
    since that date. He appeals his current disposition of detention in a general
    forensic unit with community living privileges at the discretion of the
    hospital, arguing that it was unreasonable for the Board to find that he
    continues to pose a significant threat to public safety. In the alternative, he
    seeks a conditional discharge.

[2]

The index offences involved punching a pregnant woman in the face,
    punching the appellants former domestic partner in the face and chest, and
    then uttering death threats when arrested. These were serious assaults, and the
    appellant stated at the time that he wanted to kill his victims.

[3]

The appellant is in his mid-50s and has a lengthy psychiatric history.
    His condition worsened when suffered a serious head injury in a motor vehicle
    accident in 1983. His current diagnosis is neurocognitive disorder due to
    traumatic brain injury with behavioural disturbance, cannabis use disorder, and
    antisocial personality disorder. The appellant also suffers from a number of
    other serious illnesses including diabetes and coronary artery disease.

[4]

The appellants treating physician testified that he represents a significant
    threat to the safety of the public due to his impulsivity, his brain injury,
    deficits in his cognitive function, and his inability to control anger.

[5]

There have been no incidents of physical assault since 2000. However,
    during the reporting period, there were a large number of incidents involving
    verbal intimidation and threats of physical violence made by the appellant on
    co-patients and staff members. These incidents are conveniently set out at
    paragraph 28 of the Crowns factum.

a.

In October 2016, there were two incidents where the appellant was
    verbally intimidating, yelling and using profanities e.g. on October 4, the
    appellant was approached to see if he would do blood work and yelled, No, fuck
    off, I dont want to do it again today. There were also five instances where
    he was intimidating and/or he violated staffs personal space e.g. on October
    4, a nurse asked if he could obtain a CBG and he yelled, fuck off fuck off Im
    sick of this shit and put up his middle finger in the nurses face;

b.

In November 2016, there were two incidents where body language and words
    were used in a threatening manner e.g. on November 9, the appellant became
    frustrated with a co-patient who was speaking with a nurse when he approached
    the nurse requesting his medication. The co-patient would not disengage and the
    appellant stated, Excuse me. Once in the treatment room, the appellant
    expressed frustration with the co-patient, stating, Im fucking pissed the
    fuck offI want to fucking snap him, while punching his fist into his hand
    several times. He was able to stay calm;

c.

In December 2016, there were seven incidents where the appellant was
    verbally intimidating, yelling and using profanities and there were two
    incidents where using body language and words were threatening in nature and/or
    invading personal space e.g. on December 6, the appellant went to retrieve the
    TV remote, a co-patient questioned why he wanted it and he became upset, raised
    arms in a threatening manner, motioning to break something and said, I would
    love to snap him in half and the co-patient said lets go then. Staff
    intervened and escorted the appellant away. He settled down and apologized and
    went to bed;

d.

In January 2017, there were ten incidents where he was verbally
    intimidating, yelling and/or using profanities e.g. on January 20, when he was
    told his privileges were not reinstated for cannabis use, he said, Im fucking
    pissed the fuck off in a loud, irritated voice. There were three incidents
    where he used his body language and/or words in a threatening nature e.g. on
    January 9, the appellant accidently brushed up against a co-patient. When the
    appellant said sorry, the co-patient got upset and the appellant said, fuck
    you, you fucking bitch while aggressively holding up his middle finger;

e.

In February 2017, there were nine incidents where he was verbally
    intimidating, swearing and yelling e.g. on February 24, he was informed that
    his privileges were to be put on hold related to positive drug testing,
    initially he was calm but it quickly escalated to where he was punching his
    mattress, becoming agitated and verbally abusive and he eventually slammed his
    door in the staffs face to end the interaction. There were eight incidents
    where body language and words were threatening in nature. There were two
    incidents where no direct threat was uttered but physical contact was
    inappropriate. Three incidents where aggression was directed at property either
    personal or hospital e.g. on February 17, he became agitated when informed his
    privileges were suspended as he was late. He became agitated, yelling and
    swearing at nursing staff, I wanna fucking snap you and he grabbed his mug
    from the kitchen and charged towards nursing staff. He was redirected to settle
    in his room and he continued to swear, was intrusive and threatening so a code
    white was called and he was moved to seclusion for a few hours;

f.

In March 2017, there were three incidents where he was verbally
    intimidating, swearing and yelling. There were two incidents where his body
    language and words were threatening in nature and one incident where aggression
    was directed at property e.g. on March 17, when the appellant was watching TV
    and a co-patient entered the room and sat to watch TV, the appellant became
    upset with no provocation and yelled and swore loudly before walking into his
    bedroom;

g.

In
    April 2017, there were three incidents where body language and words were
    threatening e.g. on April 9, the appellant was looking at a nurses chest and
    he began raising/wagging his eyebrows at the nurse. He was redirected and
    stated, I know, but I didnt. On April 11, the appellant was denied being off
    unit, although someone told him he could, he got verbally aggressive, yelling
    fuck you and invading staffs personal space. He was difficult to redirect
    and punched a wall and left a dent;

h.

In May 2017, there were eight incidents where he was verbally
    intimidating, yelling and swearing. There were six incidents where body
    language was intimidating and words were threatening. There were two incidents
    were his aggression was directed at property;

i.

In June 2017, there were nine incidents where the appellant was
    intimidating, yelling and swearing e.g. on June 12, during a code red with
    patients in the dining room for 30 minutes, he started to get irritable and
    swore at staff and gave staff the middle finger. He was asked to stay calm and
    try to relax. He tipped the chair over to the ground. And he moved to a
    co-patient and gestured at a nurse, Ill snap you. He was eventually moved to
    seclusion; and,

j.

In July
    2017, there were two incidents where he was verbally intimidating and used
    profanity. There was one incident where he was intimidating, threatening and
    personal space was violated e.g. on July 9, the Appellant was eating dinner in
    his room and a co-patient was staring at him. He walked briskly to the
    co-patient, invaded the co-patients personal space and said, wants to fucking
    snap him; next time I dont care, I am going to fucking snap him  one more
    time. He was told his behavior was inappropriate and he was re-directed.

[6]

A majority of three members of the Board concluded on the basis of the
    treating physicians evidence and the numerous incidents of intimidating and
    threatening behaviour disclosed in the Hospital Record that the appellant continues
    to pose a significant threat to the safety of the public. The Board found, at
    para. 20, that the only reason his behaviour did not escalate to physical
    aggression was due to the quick response by staff to manage the situation and
    the structured environment of the general forensic unit.

[7]

Two board members dissented on the basis that the appellant had not been
    physically assaultive since the index offense and that while he had threatened
    violence, he had never acted upon those threats. The minority concluded that
    the appellant was more a danger of compromising his own personal health than of
    harming others.

[8]

We are not persuaded that the majoritys conclusion that the appellant
    continues to pose a significant threat to the safety of the public was unreasonable
    or that the Board made any error of law in coming to that conclusion. In our
    view the number and nature of actual threats of violence uttered by the
    appellant distinguishes his case from that of
Wall
(Re) 2017 ONCA 713.
    In our view it was open to the majority to conclude that given his
    long-standing illness, his impulsivity and lack of ability to control his
    anger, and his persistent pattern of threatening behaviour and the strong
    likelihood that he will deteriorate if not in a controlled setting, the safety
    of the public justifies a finding that he poses a significant threat to public
    safety.

[9]

The evidence before the Board indicated that the treating physician and
    the institution were making efforts to move the appellant from the forensic
    unit to a less restrictive setting in the community where he would continue to
    receive 24 hour supervision and monitoring and that he is currently on a
    waiting list for such an institution. At the oral hearing of this appeal we
    were informed by counsel for the hospital that a placement of that nature has
    now been made.

[10]

Given
    the nature of threat posed by the appellant, the nature of his illness, and the
    difficulty he has in complying with conditions when not supervised, the
    majoritys order of a detention order with hospital approved community living
    privileges rather than a conditional discharge was not unreasonable. In our
    view, the majoritys reasons, at para. 22, demonstrate that this issue was
    fully and fairly considered and we do not agree that the Board failed in its
    duty to explore this issue:

We have considered whether a Conditional Discharge is the least
    onerous and least restrictive Disposition and we have concluded that it is not.
    Mr. Rogers requires a high level of supervision in order to manage his risk to
    public safety. He requires staff supervision that can address his medical needs
    and his activities of daily living. He also requires staff that can utilize
    strategies to de-escalade his behaviour. It would be very helpful if Mr. Rogers
    had his own room in his community housing so that he could retreat there if he
    is experiencing irritability or anger. In our view, the Hospital must be in a
    position to approve housing and have him readmitted to the hospital should his
    mental state deteriorate further.

[11]

Accordingly,
    the appeal is dismissed.

Robert J. Sharpe
    J.A.

David Brown J.A.

David M. Paciocco
    J.A.


