



COURT OF APPEAL FOR ONTARIO

CITATION: Flowers (Re), 2017 ONCA 710

DATE: 20170913

DOCKET: C63188

Watt, Huscroft and Trotter JJ.A.

IN THE MATTER OF:  Romeo Flowers

AN APPEAL UNDER PART XX.1 OF THE
CODE

Jonathan Fernandes, for the appellant

Barbara Walker-Renshaw, for the respondent the Person in
    Charge of Ontario Shores Centre for Mental Health Sciences

Jennifer Epstein, for the respondent Attorney General of
    Ontario

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

Heard: August 29, 2017

On appeal from the disposition of the Ontario Review
    Board dated November 24, 2016.

REASONS FOR
    DECISION


[1]

The appellant appeals from the Ontario Review Boards disposition
    ordering that he be detained at Waypoint Centre for Mental Health Care
    (Waypoint).

[2]

The appellant was found not criminally responsible in 2010. The index
    offence involved an assault on a 12 year-old boy and a failure to comply with a
    condition of a recognizance. The appellant was detained in the Secure Forensic
    Service of the Ontario Shores Centre for Mental Health Services (OSCMHS) pursuant
    to a disposition of the Board. His diagnoses include psychosis, antisocial
    personality disorder, a history of head injury, and schizophrenia. He has a
    significant criminal record, including many offences involving assaults.

[3]

In 2015, the appellant assaulted a nurse at OSCMHS. He was convicted of
    assault causing bodily harm and sentenced to a term of 12 months imprisonment
    and three years probation. This made the appellant a dual-status offender. His
    annual Board hearing occurred while he was incarcerated at the Central East
    Correctional Centre (CECC). The hearing combined his review hearing with the
    placement hearing that follows a sentence of imprisonment for a dual-status
    offender.

[4]

The Board determined that the appellant should serve the remainder of
    his sentence in a hospital and ordered his detention at Waypoint, a maximum security
    facility.

[5]

The appellant submits that the Board erred in several respects: (i) it
    failed to require testimony from the CECC psychiatrist; (ii) it failed to
    require testimony from the Minister of Community Safety and Correctional
    Services; (iii) it failed to hold a review hearing as soon as practicable; (iv)
    it presumed illness rather than wellness; (v) it made errors of fact; and (vi)
    it failed to explain why detention at Waypoint was the least restrictive
    disposition in the circumstances. At the hearing of the appeal, the respondent
    was called upon to address only the least restrictive disposition issue. The
    other grounds raised may be dealt with briefly.

[6]

The appellant is responsible for the absence of testimony from the CECC
    psychiatrist, Dr. Wesley. Although he consented to the release of his medical
    records from the CECC to Dr. Waisman, the appellant would not sign the
    necessary consents to allow Dr. Waisman to talk with Dr. Wesley. The appellant
    also refused to consent to the release of his medical records from CECC to the
    Board for use at the hearing. After discussion with the Board, the appellant
    recanted on this decision and the medical records were made available to the
    Board just prior to commencement of the hearing.

[7]

In our view the appellant was not prejudiced by the absence of evidence
    from Dr. Wesley in any event. We note that it was open to the appellant to
    bring a fresh evidence application on this appeal, but he chose not to do so.

[8]

Second, although the Minister is made a statutory party to proceedings
    relating to the placement of a dual-status offender by s. 672.69(4) of the
Code
,
    the Minister is not required to attend the hearing or to give evidence. The
    Minister has a right to be represented at the hearing, not a duty to attend.
    Counsel acknowledged at the hearing of this appeal that only a small marginal
    benefit might have accrued as a result of the Ministers participation in the Board
    hearing in any event.

[9]

Third, the Boards disposition was made within 30 days of the notice of
    hearing. We see no inappropriate delay in the proceedings or prejudice to the
    appellant.

[10]

Fourth,
    there was no uncertainty concerning the risk to public safety posed by the
    appellant. The default position in favour of liberty did not arise.

[11]

Fifth,
    alleged errors made by the Board concerning the appellants expression of remorse
    for the assault on the nurse and the timing of another assault on a sleeping
    co-resident are, in our view, inconsequential.

[12]

As
    the parties were in agreement that the appellant continued to present a
    significant threat to public safety, the Board was required to fashion the
    least onerous and restrictive disposition.

[13]

The
    Board considered that there was no basis in reality to the appellants request
    for a conditional discharge. There was ample evidence before the Board that a
    secure forensic hospital was required in order to provide the care the
    appellant needed. Moreover, it is clear from the record that there were few
    alternatives to Waypoint; other hospitals were either unresponsive, unable to
    accept the appellant, or had lengthy waiting lists. The appellants sentence and
    probation order prohibited him from having any contact with the victim nurse
    and from being within one kilometre of her, and so precluded his return to OSCMHS
    Shores.

[14]

In
    all of the circumstances, we are satisfied that the Boards disposition was
    reasonable. There is no basis for this court to interfere with it.

[15]

The
    appeal is dismissed.

David Watt J.A.

Grant Huscroft J.A.

G.T. Trotter J.A.


