



COURT OF APPEAL FOR ONTARIO

CITATION: LePage (Re), 2019 ONCA 363

DATE: 20190506

DOCKET: C65796

Brown, Roberts and Zarnett JJ.A.

IN THE MATTER OF: DENIS LUCIEN LEPAGE

AN APPEAL UNDER PART XX.1 OF THE
CODE

Michael Davies, for the appellant

Christine Tier, for the respondent Attorney General of
    Ontario

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

Heard: April 24, 2019

On appeal against the disposition of the Ontario Review
    Board dated July 10, 2018.

REASONS FOR DECISION

[1]

The appellant, Denis Lucien LePage, has been under the jurisdiction of
    the Ontario Review Board (the Board) since 1978, following a finding of not
    guilty by reason of insanity to the charge of possession of a weapon for a
    purpose dangerous to the public peace. For the vast majority of that time he
    has been at the Waypoint Centre for Mental Health Care or its predecessor
    (Waypoint). Mr. LePage has been diagnosed as suffering from Query Aspergers
    Disorder and Mixed Personality Disorder with Obsessive-Compulsive, Schizoid and
    Antisocial features.

[2]

On June 21, 2018 the Board convened a review hearing. The evidence
    before the Board indicated, and the parties jointly submitted, that Mr. LePage
    remained a significant threat to public safety and that his continued detention
    at Waypoint was justified. The evidence also revealed a treatment impasse in
    that Mr. LePage does not engage constructively with the clinical team at Waypoint,
    and refuses Waypoint's attempts at therapy, but that he does, however, have
    faith in the psychiatrists and staff at Royal Ottawa Mental Health Centre (ROH).

[3]

This led the parties to jointly submit to the Board that the appellant should
    continue to be detained at Waypoint with no change to the then current terms
    and conditions of his disposition. They also requested that there should be an
    in-patient assessment of the appellant at ROH. They disagreed on whether the
    terms of the in-patient assessment should include there being additional
    security present if a female patient was admitted to the Secure Assessment Unit
    at ROH where the appellant was expected to be during his assessment. The appellant
    objected to such a term as unnecessary. After the hearing before the Board, but
    before it made its disposition, ROH advised that it could not accommodate the
    appellant as an in-patient for an assessment. It indicated that an assessment
    could be done via Telemedicine Video Technology (OTN), an approach rejected by
    the appellant.

[4]

The Board accepted the parties joint submission and found that the
    appellant remained a significant threat to public safety and that he should
    continue to be detained at Waypoint on the terms previously in place and so
    provided in the disposition. The Board also accepted their joint request for an
    independent assessment but stated that it could not dictate to ROH how to
    manage the appellant during an assessment or whether the assessment should be
    done on an in-patient basis or OTN. It therefore included in its disposition the
    following term:

[3] AND IT IS FURTHER ORDERED that the person in charge of Waypoint
    Centre for Mental Health Care;

(b) arrange for an independent assessment of the appellant.

In its reasons for disposition, it stated that the
    details of the assessment would have to be worked out between the hospitals and
    the parties.

[5]

The appellant appeals from para. 3(b) of the disposition. He asks that
    that paragraph be quashed and substituted with an appropriate disposition for
    his transfer to ROH for an independent psychiatric assessment.

[6]

All parties before us agree that para. 3(b) of the Board's disposition
    reflects an error by the Board justifying appellate intervention. We agree. It
    was the Board's responsibility to determine whether an assessment should take
    place, where, and under what conditions in order to address the treatment
    impasse at Waypoint.  It ought not to have transferred that responsibility to
    the parties to work out: see
Gonzales (Re)
, 2017 ONCA 102. To be sure,
    the Board could take into account the extent to which the parties were agreed
    on terms for an assessment and if satisfied with the terms, order them or
    determine any points that were not agreed. But that is not what occurred, leaving
    the parties effectively without an order for an independent assessment that
    could be implemented.

[7]

ROH has now advised that it could accommodate Mr. LePage for an
    in-patient assessment. Instead of simply setting aside para. 3(b) and sending
    the matter back to the Board, we set aside para. 3(b) of the Boards
    disposition and pursuant to ss. 672.78(3)(a) and (c) of the
Code
, replace
    it with the terms for an in-patient assessment at ROH attached to these reasons
    as Schedule A. Those terms are substantially the product of agreement that has
    been arrived at by the parties. We were informed during the hearing that the
    terms have been provided to ROH and are acceptable to it. We are satisfied the
    terms are reasonable.

[8]

We were asked by the respondents to consider whether an additional term
    ought to be included mandating additional security at ROH if a female patient
    is admitted to the Secure Assessment Unit. We are satisfied that the
    combination of the balance of the terms, and the general responsibility of ROH
    to observe the appellant, keep all concerned safe and to take such steps as it
    deems appropriate to achieve that, makes a specific provision in this regard
    unnecessary.

[9]

Waypoint asked that we admit fresh evidence on the topic of the amount
    and responsibility to pay the cost of the assessment, and that we direct that
    the cost of the independent assessment at ROH be borne by the Board. No party
    objected to the fresh evidence and we agree it should be admitted. We also
    agree that the cost of the assessment should be borne by the Board:
Ontario
    (Attorney General) v. Taylor
, 2010 ONCA 35, at paras. 3, 14, 15 and 21.
    That provision is included in the terms in Schedule A. We were advised that
    counsel for the Board was present in court while that issue was discussed. The
    Board made no objection to the inclusion of this provision in the terms we
    ordered.

[10]

Accordingly
    the appeal is allowed to the extent that para. 3(b) of the Boards disposition
    is set aside and replaced with the terms set out in Schedule A to these
    reasons. The balance of the Boards disposition shall continue in force.

David Brown J.A.

L.B. Roberts J.A.

B. Zarnett J.A.




Schedule A

The disposition of the Board dated July 10, 2018 is
    amended by deleting para. 3(b) thereof and replacing it with the following
    terms:

[1]      The person in charge of Waypoint Centre for
    Mental Health Care shall:


(i)

safely and securely transport the accused to the Secure Assessment Unit
    of the Ottawa Site of Royal Ottawa Mental Health Centre for a comprehensive
    inpatient assessment for a period not exceeding 60 days as soon as practicable;


(ii)

ensure the transfer of the accused from Waypoint Centre for Mental
    Health Care to Royal Ottawa Mental Health Centre for the independent assessment
    shall only be with the cooperation of the accused. Physical force is not
    authorized to implement the Order. The security details of the transfer shall
    be as directed by the person in charge or his or her designate; and


(iii)

detain the accused on readmission from Royal Ottawa Mental Health Centre
    in accordance with paras. 1 and 2 of the Boards disposition dated July 10,
    2018.

[2]      The person in charge of Royal Ottawa Mental
    Health Centre shall detain the accused in custody on the Secure Assessment Unit
    in which the person in charge shall conduct an inpatient assessment, with all
    security or supervisory measures that the person in charge deems appropriate,
    including that the person in charge:


(i)

shall secure the accused in his room between 11:00 p.m. and 7:00 a.m.;


(ii)

may permit the accused to have access to a secure yard or gymnasium in
    the hospital, escorted by staff;


(iii)

may permit the accused to attend outside the hospital for necessary
    medical, dental, legal or compassionate purposes, escorted by a minimum of two
    staff;


(iv)

shall safely and securely transport the accused to Waypoint Centre for
    Mental Health Care Provincial Forensic Programs at the earliest of the
    completion of the assessment or the expiry of 60 days from admission;


(v)

notwithstanding clause (iv) above, may safely and securely transport the
    accused to Waypoint Centre for Mental Health Care Provincial Forensic Programs
    at any time should his behaviour warrant it in the opinion of the person in
    charge of Royal Ottawa Mental Health Centre;


(vi)

shall report in writing to the Ontario Review Board and the person in
    charge of Waypoint Centre for Mental Health Care as to the outcome of the
    assessment as soon as practicable after the accuseds readmission to Waypoint
    Centre for Mental Health Care Provincial Forensic Programs; and


(vii)

shall notify the local police at such times as he or she exercises his
    or her discretion to permit the accused to enter the community and to advise
    the local police of the terms and conditions under which he or she permitted
    the accused to do so pursuant to this clause.

[3]      The cost of the assessment shall be borne by
    the Ontario Review Board.


