



COURT OF APPEAL FOR ONTARIO

CITATION: Palmer (Re), 2013
    ONCA 475

DATE: 20130711

DOCKET: C56301 and C56325

Rosenberg, Watt and Pepall JJ.A.

IN THE MATTER OF:  Adam Sean Palmer

AN APPEAL UNDER PART XX.1 OF THE
CODE

Adam Sean Palmer, in person

Michelle OBonsawin, for the Royal Ottawa Health Care
    Group, Brockville Mental Health Centre

Suzan E. Fraser, for Adam Sean Palmer

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

Suhail A. Q. Akhtar, for the Ministry of the Attorney
    General

Heard: April 25, 2013

On appeal from the disposition of the Ontario Review
    Board dated, October 16, 2012, with reasons dated October 29, 2012.

Rosenberg J.A.:

[1]

The appellant, Adam Sean Palmer, was found not criminally responsible on
    account of mental disorder on a charge of second degree murder in July 2005. He
    has been subject to dispositions of the Ontario Review Board since that time. The
    psychosis that was the basis for the NCR finding was soon brought under control,
    and Mr. Palmer was progressing well through the system, eventually moving to
    the General Forensic Unit at St. Josephs Health Centre in Hamilton. By October
    of 2010, he had achieved community living privileges, and had, in previous
    years, lived on a co-ed unit with no issues with female co-patients.

[2]

His progress through the system stalled, however, in November of 2010,
    when he was charged with the sexual assault of an 18 year old female patient. Mr.
    Palmer was held at the Hamilton Wentworth Detention Centre until his trial in
    2012. He was acquitted of the charge of sexual assault and transferred to
    Waypoint Centre for Mental Health Care (Waypoint). He remained there until
    his annual review hearing in September 20, 2012. Following this hearing, the
    Ontario Review Board ordered that he be transferred to a medium secure all-male
    unit at the Brockville Mental Health Centre (Brockville). Both he and
    Brockville appeal from this disposition.

[3]

The appellant Palmer argues that the Board misused the sexual assault
    allegation, and that there was no need for him to be transferred to an all-male
    unit. He submits that he should be transferred to Providence Care, Mental
    Health Services  Forensic Site in Kingston. The appellant Brockville submits
    that the Board did not make sufficient inquiries about the suitability of
    transferring the appellant to its all-male unit. For several reasons, it
    submits that that unit is inappropriate for the appellant and that a placement
    at the all-male unit is not the least onerous and least restrictive
    disposition. Brockville has filed fresh evidence in support of its position.

[4]

For the following reasons, I would dismiss both appeals.

THE FACTS

[5]

Some elaboration of the facts surrounding the 2010 sexual assault
    allegation is necessary to understand the grounds of appeal. The appellant
    claimed that his sexual activity with the 18 year old complainant was
    consensual. There was, however, little dispute about the surrounding facts. The
    appellant was complying with his medication regime and was not displaying any
    signs of psychosis. However, while on an unaccompanied day pass, he purchased
    alcohol and he and the complainant drank together. Drinking alcohol was a
    breach of a condition imposed by the Board. The appellant engaged in sexual
    acts with the complainant. According to the appellant, the complainant then
    fell down, striking her head, at which point he and another patient carried the
    complainant back to the hospital and left her outside the hospital security
    office. A medical examination showed that the complainant had haemorrhaging in
    the vagina, soreness in her anal area and lower back, and bruising to her right
    eye.

[6]

Following his acquittal and his transfer to Waypoint, the appellant did
    well, and there were no issues with his behaviour. The treatment team was of
    the view that the appellant did not require the maximum security setting at
    Waypoint. It recommended a cautious progression and a placement at the secure
    forensic programme at Brockville.

[7]

At the hearing, there was no dispute that the appellant remained a
    significant threat to the safety of the public given his history of violence,
    substance abuse, and breach of both court orders and orders of the Board. Dr.
    Jeff Van Impe, the appellants former treating psychiatrist, testified that the
    appellant could be managed in a medium secure setting, and that the best next
    step was admission to an all-male forensic unit. In his opinion, a medium
    security unit that also had female patients would not be adequate to control
    the risk posed by the appellant. This would make the Providence facility
    inappropriate at this time.

[8]

The evidence before the Board was that there are two medium security
    all-male units in Ontario, one at the Centre for Addiction and Mental Health
    (CAMH) in Toronto and one at Brockville. Dr. Van Impe noted that CAMH would
    not be appropriate for the appellant. As he explained:

[M]y preference would be for Brockville  Mr. Palmer has been
    candid with me that there may be some  in centers such as Toronto there may be
    some influences, you know, some bad influences on him and he actually discussed
    that with me this morning, so I believe he  I dont know for sure, but I
    believe hed probably prefer Brockville to CAMH as well.

The Notice Issue

[9]

As required by Rule 13 of the Board's Rules of Procedure, Waypoint
    advised Brockville of its intention to recommend to the Board that the
    appellant be transferred to, and detained in, the Secure Forensic Program at
    Brockville. Brockville had recently established an all-male unit in its medium
    secure forensic programme. The notice did not specify detention at the all-male
    unit. The notice included copies of Waypoints Hospital Report to the Board as
    well as copies of the most recent Disposition and Reasons for Disposition. The
    Hospital Report clearly set out the allegations surrounding the sexual assault
    charge. On August 13, 2012, Brockville responded to the Notice by letter, which
    included the following: we have limited bed availability for forensic
    rehabilitation in the near future while we provide care for longer stay
    patients. Our waiting list has grown to over one year. The letter then
    continued as follows:

We are unable to comment whether we can take the individual as
    his mental status would not be known at the time a bed becomes available. We
    would be pleased to reconsider in the future if this individual is referred at
    that time.

[10]

It
    went on to recommend that the appellant explore options in North Bay or
    Kingston due to its limited bed availability in the near future. Brockville did
    not seek party status at the appellants up-coming hearing.

[11]

Dr.
    Van Impe was asked about the letter from Brockville. He testified that it was
    the first time he had seen a letter like that from Brockville. As he said:

Im a little confused by the  []we are unable to comment
    whether we can take this individual as his mental status would not be known at
    the time[]  well you could say that about any person here. No one -- no one
    can predict the future of what theyre going to be like tomorrow let alone six
    months from now so,  that seems to be unusual wording to me. I would suggest
    that perhaps [they] are attempting to avoid giving a definitive yes or no with
    regards to Mr. Palmer.  I dont know what theyre saying.

[12]

On
    September 5, 2012, Waypoint gave Rule 13 notice to the all-male secure unit at
    CAMH. CAMH responded that its waiting list was well in excess of a year. It
    also noted that Brockville had recently established an all-male unit that
    specialized in treatment of people with primary Axis II pathology. The letter
    continued as follows:

The hospital report indicates that much of Mr. Palmers risk
    arises from his antisocial personality disorder.  It is striking that he has
    had to be detained at Waypoint on 2 occasions, most recently following an
    allegation of sexual assault at Hamilton while he was detained on a general
    forensic unit.  The hospital report is clear that, particularly when less
    structure and entertainment is provided, Mr. Palmer engages in a number of
    antisocial activities and makes management extremely difficult.

[13]

The
    appellant, through his then counsel, provided Rule 13 notice to three other
    medium secure facilities including Providence. Providence responded that it
    would accept the appellants transfer to its facilities.  The two other
    facilities, North Bay Regional Health Centre and Ontario Shores Centre for
    Mental Health Services were unwilling to accept the transfer because they did
    not have secure all-male units. They were concerned about the risk to
    vulnerable female patients.

The Fresh Evidence

[14]

Brockville
    applied to adduce fresh evidence in the form of an affidavit from Dr. A.G.
    Ahmed, the Associate Chief of Psychiatry at the Integrated Forensic Program of
    the Royal Ottawa Health Care Group, which manages Brockville. The affidavit and
    accompanying exhibit describes the All-Male Unit. The unit was officially
    created in May 2012. It contains 15 beds for patients detained under the Board.
    A patient is first admitted to the Assessment and Stabilization Unit.  Once
    stabilized, the patient is transferred to the All Male Unit. Most of the
    patients detained on the All Male Unit remain there for at least two years. Due
    to the existing waiting list, it is unlikely that an accused will be admitted
    in one years time. The greatest liberty granted to patients on the all-male
    unit is escorted privileges.

The Reasons of the Board

[15]

In
    its review of the facts, the Board referred to the facts of the 2010 sexual
    assault allegation but also noted that the appellant had been acquitted of this
    charge. The Board summarized the appellants position at the hearing as being
    that he believed he should be returned to a minimum secure unit with all of the
    privileges that he had before the incident, including living in the community.

[16]

The
    Board found that the appellant continued to constitute a significant threat to
    the safety of the public, and observed that this was not disputed. The Board
    noted the appellant's history of violence, his antisocial personality and substance
    abuse disorder, and that he had shown no remorse for the incident involving a
    vulnerable young female which resulted in the sex assault charges.

[17]

The
    Board went on to find as follows:

The Board, however, unanimously agrees with Mr. Palmers treatment
    team that in view of his behaviour since he has arrived at this facility about
    five months ago, his risk can be contained in a medium secure all male unit. He
    will therefore be ordered transferred to a medium secure all male unit at the
    Brockville Mental Health Centre

[18]

The
    Board set out a number of conditions, such as abstaining from alcohol. It went
    on to provide, in anticipation of a waiting period before the transfer to
    Brockville, that Waypoint detain the appellant with certain privileges and conditions.

ANALYSIS

Standard of Review

[19]

A
    reviewing court may only set aside an order of the review board where it is of
    the opinion that the decision is unreasonable or unsupported by the evidence;
    the decision is based on a wrong decision on a question of law, unless no
    substantial wrong or miscarriage of justice occurred; or there was a
    miscarriage of justice: see
Criminal Code
, R.S.C. 1985, c. C-46, s.
    672.78;
R. v. Owen
, [2003] 1 S.C.R. 779, at para. 31.

Brockvilles Appeal

[20]

Brockville
    submits that the Board failed to properly exercise its inquisitorial role. It
    submits that the Board had a positive duty to seek out further evidence
    concerning the suitability of Brockville as a placement. In particular, it
    submits that the Board had a duty to seek out a further explanation of
    Brockvilles August 13 letter, especially in light of the apparent confusion as
    to what the letter meant, as testified to by Dr. Van Impe. It submits that the
    Board should have adjourned the hearing to subpoena a witness from Brockville
    to clarify its position. Such a witness would have been able to evaluate the
    appellant's suitability for the All Male Unit.

[21]

Brockville
    also submits that the Boards disposition is unsupported by the evidence and
    that the Board did not provide sufficient explanation for its disposition. In
    particular, the Board did not explain why the appellant could not be
    transferred to the CAMH all-male unit.

[22]

I
    would not give effect to Brockvilles submissions. Brockville received notice
    that complied with the Boards rules. It had the opportunity to respond. It did
    not suggest that the appellant was not a suitable patient for its facility,
    only that it had limited bed availability and a waiting list that had grown to
    over one year. I have considered the fresh evidence. That evidence does not
    undermine the Boards disposition. There is nothing in the affidavit that shows
    that the appellant would be an unsuitable candidate for the All-Male Unit. The
    fact that there is a waiting list cannot give Brockville a veto over dispositions
    the Board can make. As counsel for Waypoint pointed out, it is the Board that
    must decide on the appropriate disposition applying the criteria set out in s.
    627.54 of the
Criminal Code
.

[23]

In
    my view, the Board did not fail to exercise its duty to inquire. The Boards duty
    to inquire arises when additional information is necessary, in the Boards view:
    see
Winko v. British Columbia (Forensic Psychiatric Institute)
, [1999] 2
    S.C.R. 625, at para. 62.

[24]

Here,
    the Board had sufficient information upon which to make its disposition. It had
    the information about Brockvilles waiting list. But, it also had information
    from other medium secure forensic units. The information from CAMH was
    particularly helpful since it not only disclosed the waiting list for its all-male
    unit but explained that Brockville, in any event, was the more suitable
    placement for this appellant. Other information at the hearing and from the
    other facilities supported the view that if the appellant were to be
    transferred to a medium secure unit, it would have to be to an all-male unit.
    That narrowed the possible dispositions to either CAMH or Brockville. Given the
    evidence, Brockville was obviously the more suitable placement, despite the
    waiting list. There is no merit to Brockvilles suggestion that the Board
    should have provided reasons for not ordering the appellants placement at
    CAMH. The reasons are apparent from the record: in CAMHs response to the Rule
    12 notice, the submissions, and Dr. Van Impes testimony.

[25]

I
    am also satisfied that Dr. Van Impes alleged confusion about Brockvilles
    response did not require further inquiry. It was open to the Board to accept
    Dr. Van Impes opinion that Brockville was simply attempting to avoid giving a
    yes or no answer. Regrettably, as the evidence in this case shows, waiting
    lists are a feature of many of the forensic units in Ontario, especially two as
    specialized as the all-male units at CAMH and Brockville. The alleged
    uncertainty about the appellants mental status when a bed finally became available
    cannot, on its own, be a reason not to order the transfer in the appellants
    case. The fact was that, aside from the 2010 incident, the appellant had been
    remarkably stable; his psychosis was under control with medication, he had
    performed well in the structured setting at Waypoint, and could likewise be
    expected to do well in a medium secure unit.

[26]

Finally,
    I would note that Brockvilles counsel concedes that if this court were to set
    aside the Board decision and order a new hearing, the appellant would lose his
    place on the Brockville waiting list.

[27]

I
    would dismiss Brockvilles appeal.

The Appellant Palmers Appeal

[28]

This appellant submits that the Board misapprehended the evidence, failed
    to give adequate reasons, and erred in its treatment of the sexual assault
    allegation. He submits that the appeal should be allowed and that there should
    be a new disposition with a placement at Providence or, in the alternative,
    that there should be a new hearing.

[29]

The
    submission concerning misapprehension of evidence is based on the Boards summary
    of the appellants position in its reasons. The Board described the appellants
    position as being that he should be returned to a minimum security facility
    with all of his privileges restored. In my view, the Boards statement
    concerning the appellants position was not significant. The source of this
    alleged misapprehension is in the report from the hospital to the Board and in statements
    the appellant made to Dr. Van Impe. By the time of the hearing, the appellants
    counsel had stated the appellants position to be his desire to go to
    Providence, a medium secure placement. However, it was open to the Board to
    take into account that the appellants real desire was a fast cascade through
    the system back to where he had been in 2010.

[30]

The
    Boards reasons are extremely sparse. But, as in other types of cases, the
    court must take a functional, substantive approach and have regard to the
    evidentiary record when it is reviewing the adequacy of the Boards reasons:
R.
    v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 16 and 35. A reading
    of the record, including the Hospital report, Dr. Van Impes testimony and the
    submissions, shows that the issues facing the Board were very narrow. First,
    there was no dispute that the appellant continued to represent a significant
    threat to the safety of the public. There was also no dispute that the
    appellant no longer required the maximum secure setting at Waypoint. Further,
    despite the appellants wish, as recorded in the hospital report to the Board,
    that he be returned to minimum security with all of the privileges he had
    before 2010, all parties agreed at the hearing that he should be transferred to
    a medium secure facility. The only real issue at the hearing, therefore, was
    which medium secure facility was appropriate. While it would have been
    preferable for the Board to have expressly dealt with the appellants
    submission that he be transferred to Providence, an examination of the
    evidentiary record clearly demonstrates why that placement was inappropriate.
    Providence does not have an all-male unit.

[31]

The
    more serious concern is the Boards failure to expressly explain why transfer
    to an all-male unit was required and whether, in reaching that conclusion, the
    Board misused the sexual assault allegation.

[32]

The
    Board was entitled to use the facts surrounding the sexual assault allegation
    in deciding on the least onerous and least restrictive disposition compatible
    with the appellant Palmers situation, despite his acquittal of the criminal
    charge. There was no formal bar to the Board making use of the underlying facts:
R. v. Mahalingan
, [2008] 3 S.C.R. 316, at para. 56 and
Toronto
    (City) v. C.U.P.E., Local 79
, [2003] 3 S.C.R. 77, 2003 SCC 63.

[33]

In
    this case, the Board noted the appellants acquittal of the criminal charge.
    That acquittal did not prevent it from using the undisputed information that
    the appellant purchased and used alcohol to excess in violation of his
    conditions and engaged in several sexual acts with a vulnerable 18 year old
    patient. Given those facts, the Board was justified in moving cautiously before
    returning the appellant to a setting where he would once more be in contact
    with female patients. The statement that the appellant showed no remorse for
    this incident was simply one factor justifying the finding that there remained
    a significant threat to the safety of the public. The statement was based on
    the record. Dr. Van Impe testified to his concern that the appellant believed
    that since he was acquitted everything should go back to the way it was. The
    appellant didnt really take into account much the alcohol, the vulnerability
    of the  female, that sort of thing.

[34]

I
    would not give effect to the appellants grounds of appeal.

DISPOSITION

[35]

Accordingly,
    I would dismiss both appeals.

Released:

MR                                                  M.
    Rosengerg J.A.

JUL 11 2013                                    I agree
    David Watt J.A.

I
    agree S.E Pepall J.A.


