



COURT OF APPEAL FOR ONTARIO

CITATION:
Baumann (Re) 2015 ONCA 603

DATE: 20150909

DOCKET:
C58375

Strathy C.J.O., Tulloch
    and Hourigan JJ.A.

IN THE MATTER OF:  Tim Baumann

AN APPEAL UNDER PART XX.1 OF THE
CODE

Erin Dann, for the appellant

Alexander Alvaro, for the respondent, Her Majesty the
    Queen

Julie A. Zamprogna Balles, for the respondent, St.
    Joseph's Health Care London

Heard: December 5, 2014

On appeal against the disposition of the Ontario Review
    Board dated January 28, 2014.

Tulloch J.A.:

A.

OVERVIEW

[1]

The appellant appeals the disposition of the Ontario Review Board dated
    January 28, 2014 ordering his continued detention at the General Forensic Unit
    of the Southwest Centre for Forensic Mental Health Care, St. Josephs Health
    Care London.

[2]

The alleged index offence occurred on October 6, 2007, at approximately
    8:40 p.m. The appellant was accused of exposing himself to an 11-year-old boy
    in the change room of a public swimming pool in London, Ontario.

[3]

At the time, the appellant was 44 years old.  He was charged with
    willfully committing an indecent act.  On October 15, 2008, the appellant was
    found unfit to stand trial due to an intellectual disability.  As a result, he
    came under the jurisdiction of the Ontario Review Board.

[4]

Since 2009, the appellant has been considered a significant risk and has
    been subject to various detention orders made by the Board. These detention
    orders have allowed him the privilege of residing in the community with his
    mother.

[5]

At his most recent Review Board hearing on January 20, 2014, the Board
    found that the appellant remained a significant risk to the community and continued
    his detention, subject to the privileges of residing with his mother and maintaining
    his job in the community.

[6]

The appellant raises two main grounds of appeal.

[7]

First, he submits that the Review Board erred by finding that he remains
    a significant threat to the public and by refusing to recommend that the court
    hold an inquiry to determine if a stay of proceedings should be granted.  The
    appellant argues that the Board provided no reason for rejecting the
    uncontradicted evidence of the expert, and that its finding of significant risk
    is unsupported by the evidence and unreasonable in the context of this case.

[8]

Second, the appellant submits that the Board erred by failing to impose
    the least onerous and least restrictive disposition, which in this case should
    have been a conditional discharge.

[9]

The hospital supports the appellants submissions.  The Crown opposed on
    the basis that the appellant still poses a significant risk to the public.

[10]

For
    the reasons that follow, I find that the Board considered the totality of the
    evidence before it in deciding that the appellant continued to pose a
    significant threat to public safety. This decision was reasonable in the
    circumstances.

[11]

I
    agree with the appellant with respect to the second issue. The Board erred in
    failing to consider the least onerous and least restrictive disposition. I
    would therefore order that this matter be sent back to the Review Board to
    consider whether the imposition of a conditional discharge could ensure public
    safety.

B.

FACTS:

[12]

The
    appellants history of sexual incidents involving children dates back to 1972,
    when he was only nine years old.  In total, there are four separate reported
    incidents involving inappropriate sexual conduct prior to the commission of the
    index offence.  Two of these incidents resulted in criminal charges.  In 1994,
    the appellant exposed himself to his then five-year-old nephew.  This incident
    did not come to light until 1996, when the appellant again exposed himself to
    the same nephew.  The child told his parents and the Childrens Aid Society,
    and eventually the police became involved.  In statements given to the police,
    both the child and the appellant indicated that mutual kissing of the genitalia
    had also occurred.  As a result, the appellant was convicted of two counts of
    sexual assault.  He received a suspended sentence and two years probation. 
    According to the hospital reports, the appellant participated in counselling
    during those years, which appeared to provide him with the ability to exercise
    some degree of self-control over the sexual impulses that he reported were always
    there.

[13]

Since
    being found unfit, a number of psychological assessments have been conducted on
    the appellant.  All have concluded that while he seemed to understand that his
    actions are inappropriate and that it was wrong for adults to make sexual
    advances toward children, he did not appear to appreciate the potential
    negative impact on the child victims involved.  He suffers from mild
    retardation and scores below the 1
st
percentile relative to the
    general population on a standard vocabulary test.  In addition, the assessments
    concluded that the appellant would require significant support and supervision
    to ensure that he was able to meet his basic needs and function in the
    community.

[14]

The
    particulars of the main assessments are outlined below.

[15]

Dr.
    Milton Blake conducted a psychological assessment following the appellants
    conviction on the two counts of sexual assault.  Dr. Blake concluded that while
    the appellant seemed to understand that his actions were illegal, and that it
    was wrong for adults to make sexual advances towards children, he did not
    appear to appreciate the potential negative impact on the child involved. The
    doctor diagnosed the appellant as mildly mentally retarded.  He concluded that
    the appellant's history of sexual offences did not show a clear-cut escalating
    pattern that would qualify him as a dangerous or even potentially dangerous
    sexual offender.

[16]

The
    doctor further concluded that due to the appellant's inability to understand
    the negative impact of his actions, together with his physiologically normal
    sexual drive, he could reoffend in the future if the opportunity presented
    itself.

[17]

Following
    the 1996 charges and conviction, the appellant's family increased their
    supervision of him to minimize the risk of him reoffending.  However, in
    October 2007, due to a small change in his routine, the appellant was in a
    public changing room at the same time as children when he allegedly committed the
    index offence. In discussing his actions with respect to the index offence, the
    appellant could offer no explanation for what occurred, and said that he did it
    because he had the chance.

[18]

During
    the legal proceedings related to the index offence, another psychological
    assessment was conducted in August 2008. The findings were consistent with the
    1996 assessment.  This assessment concluded that the appellant's cognitive
    abilities were well below average. He would require significant support and
    supervision to ensure he was able to meet his basic needs and in order to
    function in the community.

[19]

In
    October 2008, another doctor assessed the appellant and determined that he was
    not fit to stand trial due to a developmental disability with a mild to
    moderate retardation resulting from hypoxia at birth.  The doctor concluded
    that the appellants intellectual deficit would profoundly impair his ability
    to manipulate information and participate meaningfully in his defence.

[20]

In
    February 2009, the appellants treating physician, Dr. Ellis, concurred with
    earlier assessors that the appellant requires a structured, simple, and routine
    program. Dr. Ellis also noted that without appropriate supervision, the
    appellant would be at risk of reoffending again and acting on his sexual
    drives.

[21]

The
    appellant subsequently appeared before the Review Board and was ordered detained
    in the minimum security unit with conditions that allowed him to live in the
    community in approved accommodation.  That order has remained in place until
    now, with some changes in the accompanying conditions.  Since then, the
    appellant has consistently lived in the community with his mother, and has
    never been brought back into the hospital.  He is visited each month by
    hospital outreach members at his home and he has weekly visits with a case
    worker for socialization.

[22]

The
    appellant's mother is now elderly and as a result, his family has made contact
    with various social services agencies to facilitate the appellant's care,
    should his mother become unable to care for him.  While he has been placed on a
    waiting list for housing, any move is unlikely unless his mother is no longer
    able to care for him at her home.

[23]

The
    appellant and his family recognize that he presents a constant risk to the
    safety of children if left unsupervised.  As such, the family has indicated that
    they are taking all precautions to ensure that no further incidents occur.

[24]

According
    to the hospital report, it appears that the appellant will be permanently
    unfit, given the absence of a co-morbid psychiatric illness and the permanent
    nature of his intellectual disability.  The appellant's treatment team believes
    that his behaviours are shaped by his cognitive deficits and developmental
    delays and as such, are unlikely to change.  Accordingly, proper supervision is
    critical to manage the risk.  In this regard, the treatment team, in cooperation
    with the appellant's family, have put together the current safety protocol and have
    been effective in preventing the appellant from reoffending.

[25]

As
    a result of the implementation of the safety protocol, as of the end of 2013,
    the treatment team concluded that the appellant was not a significant threat to
    the safety of the public and, consequently, no longer met the criteria for
    continued involvement with the Review Board.

C.

The January 20, 2014 Review Board Hearing

[26]

The
    most recent Review Board hearing was held on January 20, 2014.  At the hearing,
    Dr. Ellis testified on behalf of the hospital and stated that while the
    appellant remained unfit and would be unfit permanently due to his intellectual
    disability, he no longer met the threshold of significant risk. He recommended
    that consideration be given to referring the appellant's case to a court to
    determine if a stay should be granted.

[27]

Dr.
    Ellis' evidence and opinion was based largely on the existence of the safety
    protocol and the commitment of the appellant's family, including the
    appellant's brother, to continue to provide the same level of supervision outside
    the authority of the Board as when he is under the Board's jurisdiction.  In
    addition, the appellant's brother has agreed that he will take over the
    supervision of the appellant should his mother become unable to do it. Dr.
    Ellis expressed confidence in the family's insight into the appellant's need
    for a high level of supervision. He also noted that in the event that the
    family's supervision was to break down, the appellant would be placed in
    supervised housing by social services.

[28]

Dr.
    Ellis also acknowledged during his testimony that in previous years he and the
    treatment team concluded that the appellant did present a significant risk, and
    that there had been no significant change or progress in the appellant's mental
    status or intellectual ability since the previous disposition was made
    detaining the appellant.  Dr. Ellis further acknowledged that without the
    safety protocol in place, the appellant would continue to present a significant
    risk. Furthermore, while the appellant's family has indicated a willingness and
    commitment to supervise the appellant, Dr. Ellis did not believe any member of
    his family had applied for guardianship of the appellant.

[29]

The
    Board accepted Dr. Ellis' evidence on the issue of the appellant's fitness, and
    found that the appellant continues to be unfit, and is likely to remain unfit
    permanently.

[30]

On
    the issue of risk, the Board found that the appellant continued to pose a
    significant threat to public safety, despite the evidence of Dr. Ellis.  The
    Board relied on Dr. Ellis' evidence at both the appellant's 2012 hearing as
    well as at the 2014 hearing when he testified that there was no significant
    change in the appellants mental status or intellectual ability and that if he
    was to be left unsupervised with a child, he would still pose a significant
    threat and likely reoffend.

[31]

While
    the Board acknowledged that the structured safety protocol and family support
    appeared to be working, they concluded that these did not "reach the level
    of diminishing the significant threat" posed by the appellant.

[32]

The
    Board also suggested that if a family member were to obtain legal guardianship
    of the appellant, entitling them to make decisions on his behalf, such a
    safeguard might mean the significant threat threshold would not be met.

D.

ANALYSIS:

(1)

Standard of Review

[33]

This
    court can only interfere with the Boards decision, per s. 672.78(1) of the
Criminal
    Code
, R.S.C., 1985, c. C-46, if we are of the opinion that:

1.

the
    decision is unreasonable or cannot be supported by the evidence;

2.

the
    decision is based on an error of law; or

3.

there was a
    miscarriage of justice.

[34]

The
    appellants argument is based on the reasonableness of the Review Boards
    decision.  The appellant submits that the Boards finding that he continues to
    pose a significant risk, in light of the evidence of Dr. Ellis, is unreasonable
    in the circumstances.  Furthermore, he submits the Boards findings are
    unsupported by the evidence.  I disagree.

(2)

Was the Boards decision that the appellant remains a significant threat
    to the public unreasonable or unsupported by the evidence?

[35]

There
    is no issue that the appellant remains unfit to stand trial, and that he is
    likely permanently unfit as found by the Board. At issue is whether or not he
    still poses a danger to the safety of the public.

[36]

With
    respect to the issue of significant risk, the Review Board made the following
    findings:

[A]lthough there was evidence from Dr. Ellis that there were
    various protocols and structures put in place by family members, in the opinion
    of the Board, Mr. Baumann remains a significant threat to public safety.  We
    make this finding based on the evidence of Dr. Ellis from the previous hearing,
    at which time he advised the Board that in his opinion, Mr. Baumann remained a
    significant threat.  There has been no change with respect to Mr. Baumans
    mental state since that time, and while the Board acknowledges that the
    protocols and family support seem to be working in a positive manner, they do
    not reach the level of diminishing the significant threat posed by Mr.
    Baumann.  Dr. Ellis acknowledged his previous statement as quoted above to
    still be true (as qualified by him with respect to protective measures in
    place).

[37]

It
    is clear from the reasons that the Review Board considered the evidence of Dr.
    Ellis in its totality, and disagreed with his opinion as to the issue of
    significant threat.

[38]

The finding of whether or not the appellant posed a significant
    threat is within the purview of the Board to make.  The Board, as an expert tribunal,
    was entitled to reject the evidence of Dr. Ellis and arrive at its own
    conclusion based on all the evidence which was before it: see
R. v. Starson,
2009 ONCA 826, at para. 6.

[39]

The
    Board considered the totality of the evidence which was before it. Dr. Ellis
    evidence was that, in light of the safety protocol now in place, the appellant
    no longer met the threshold of being a significant risk. The Board was also entitled
    to consider and rely on Dr. Ellis evidence that there was no significant
    change in the appellants mental status or his intellectual ability from 2012
    to the date of the Review hearing.  At the time, Dr. Ellis was of the view that
    the appellant posed a significant risk of physical or psychological harm to the
    safety of the public and, in particular, to children.  He agreed that the
    appellants sexually inappropriate behaviour is generally impulsive and
    opportunistic and that there is a risk of a higher level of harm should the
    appellant be unsupervised in the presence of children.

[40]

Considering
    the fact that the root cause of the appellants criminal conduct was attributed
    to his intellectual deficit or disability, coupled with sexually impulsive and
    opportunistic behaviour when left alone in the presence of children, the
    Boards reliance on this aspect of Dr. Ellis evidence was reasonable in the
    circumstances.

[41]

The
    Board was evidently also concerned with the familys legal status to provide
    the requisite structured supervision of the appellant on a 24 hour basis, in
    light of the fact that no family members had applied for legal guardianship of
    the appellant.  This was a reasonable concern in light of the appellants past
    history in which he has been involved in at least five sexually inappropriate
    incidents involving children.  The Board did recognize the potential safeguards
    provided by the safety protocol that has been in place, but felt that it was
    not foolproof should the appellant be outside the control of the hospital
    without a family member having legal guardianship over the appellant, with
    authority to intervene if necessary.

[42]

The
    determination of the risk presented by the appellant is reviewable on a
    reasonableness standard. Having found that the Boards decision on the issue of
    significant threat is reasonable in the circumstances, a stay of proceedings is
    not available.

(3)

Did the Review Board err in not considering the least onerous and least
    restrictive disposition?

[43]

The
    second issue raised by the appellant is that the Review Board erred in not
    imposing the least onerous and least restrictive disposition, which in this
    case should have been a conditional discharge. Having found that the appellant
    still posed a significant risk to the safety of the public, the Board was then
    obliged to make a determination on the appropriate disposition, considering the
    criteria set out in s. 672.54 of the
Criminal Code
.

672.54
When a court or Review Board makes a
    disposition under subsection 672.45(2), section 672.47, subsection 672.64(3) or
    section 672.83 or 672.84, it shall, taking into account the safety of the
    public, which is the paramount consideration, the mental condition of the accused,
    the reintegration of the accused into society and the other needs of the
    accused, make one of the following dispositions that is necessary and
    appropriate in the circumstances:

(a) where a verdict of not criminally responsible
    on account of mental disorder has been rendered in respect of the accused and,
    in the opinion of the court or Review Board, the accused is not a significant
    threat to the safety of the public, by order, direct that the accused be
    discharged absolutely;

(b) by order, direct that the accused be
    discharged subject to such conditions as the court or Review Board considers
    appropriate; or

(c) by order, direct that the accused be detained
    in custody in a hospital, subject to such conditions as the court or Review
    Board considers appropriate.

[44]

In
    determining the proper disposition in cases of unfit accused, the Board must
    choose between imposing a detention order and a conditional discharge. The
    criteria for an order of absolute discharge under s. 672.54(a) are: (i) a
    verdict of not criminally responsible (NCR) on account of mental disorder has
    been rendered in respect of the accused; and (ii) in the opinion of the court
    or Review Board, the accused is not a significant threat to the safety of the
    public. The appellant has not been found to be NCR on account of mental
    disorder. The Review Board held that he continues to be unfit to stand trial
    and remains a significant threat to public safety. He does not meet either of
    the requirements for an order of absolute discharge under s. 672.54(a). The
    only two dispositions available are discharge subject to conditions and
    detention in custody in a hospital, as per ss. 672.54(b) and (c).

[45]

Section
    672.54 also provides that the following factors should be considered by the
    Board in making their disposition:

·

the need to protect the public from dangerous persons;

·

the mental condition of the accused;

·

the reintegration of the accused into society; and

·

the other needs of the accused.

The Board must arrive at a disposition which is the
    least onerous and least restrictive to the accused.  It is the entire
    package of conditions that is to be the least onerous and least restrictive: see
Penetanguishene Mental Health Centre v. Ontario (Attorney General)
, 2004
    SCC 20, [2004] 1 S.C.R. 498, at para. 71.

[46]

In
    this case, nowhere in the reasons is there any indication that the Board
    considered the appropriateness of a conditional discharge, which would have
    been the least onerous and least restrictive disposition in the circumstances.

[47]

I
    agree with the submissions by counsel on behalf of the appellant that the Board
    erred by failing to even consider the imposition of a conditional discharge.  Given
    that the primary risk factor here was unsupervised interactions with children,
    it was incumbent on the Board to consider whether there were conditions that
    could attach to a discharge that would address that issue to ensure public
    safety.

[48]

Furthermore,
    having heard and considered the evidence of Dr. Ellis on the effectiveness of
    the safety protocol in managing the behaviour of the appellant through
    structured supervision, the Board should have considered whether it was
    appropriate to impose the safety protocol as a condition of a conditional
    discharge.

[49]

The
    Board also posed its own question to Dr. Ellis as to whether or not any family
    member had applied for legal guardianship of the appellant, and indicated that
    should that occur, it was possible that the significant risk posed by the
    appellant could be diminished.  Again, they could easily have considered the
    implications, if any, of requiring the imposition of a guardianship as a
    condition to a disposition of a conditional discharge.

[50]

In
    all the circumstances, I agree with the appellant that the Board erred in not
    considering the imposition of a conditional discharge.

E.

Disposition

[51]

For
    the reasons above, I would order that this matter go back to the Review Board to
    consider whether a conditional discharge should be imposed in the
    circumstances.

Released: GS Sep 9, 2015

M. Tulloch J.A.

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

I agree. C.W.
    Hourigan J.A.


