



COURT OF APPEAL FOR ONTARIO

CITATION: Jeffrey (Re), 2017 ONCA 464

DATE: 20170605

DOCKET: C62563

Cronk, Blair and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

and

The Person in Charge of Providence Care

Mental Health Services

Respondents

and

James Beau Jeffrey

Appellant

Michael Davies, for the Appellant

Michael Medeiros, for the respondent, Her Majesty the
    Queen

No one appearing for the respondent, The Person in
    Charge of Providence Care Mental Health Services

Heard: May 30, 2017

On appeal from the disposition of the Ontario Review
    Board dated June 7, 2016.


[1]

On April 24, 2011, Mr. Jeffrey stabbed his mother to death after an
    argument.  On April 30, 2014, he was found not criminally responsible by reason
    of a mental disorder (NCR) on a charge of second degree murder.  Since that
    time he has been under the jurisdiction of the Ontario Review Board and
    detained at Providence Care Mental Health Services in Kingston.

[2]

Mr. Jeffreys last annual review took place on June 1, 2016.  His next
    disposition review hearing is scheduled for June 12, 2017, less than two weeks
    from today.

[3]

At the June, 2016, hearing everyone agreed that Mr. Jeffrey remained a
    significant threat to public safety and that he should remain on a detention
    order at Providence Care.  The sole issue was whether the conditions of his
    detention order should be modified, as proposed at the time by the Hospital
    (supported by him), to provide for broader community access privileges.  In
    spite of the Hospitals recommendation  but after considering the record,
    including the responses of the hospital psychiatrist, Dr. Chan, during his oral
    testimony  the Board declined to vary the terms of the order.  It was of the
    view that several issues needed to be addressed before Mr. Jeffreys community
    privileges could be extended in the manner proposed.

[4]

Mr. Jeffrey appeals from that disposition, which was released on June 7,
    2016.  In his written materials he raised two issues.  First, he submitted that
    the Board failed in its obligation to consider other readily available and
    relevant information, which had not been placed before it, in arriving at its
    decision.  Secondly, he submitted that the disposition is unreasonable.

[5]

Although no one appeared for the Hospital on the argument of the appeal,
    the Hospital filed a factum in which it agreed with the position of the Crown
    on the appeal and did not seek to have the disposition set aside.

[6]

At the outset of his oral submissions, Mr. Davies reasonably advised
    that he would not be pursuing the second argument that the Boards decision was
    unreasonable, in view of the pending disposition hearing in two weeks time.  He
    acknowledged that the issue of how Mr. Jeffreys risk is to be managed is
    better determined at this stage at the upcoming hearing.  However, Mr. Davies
    continued to advance Mr. Jeffreys first ground of appeal.

The NCR Hearing
    Information

[7]

In making this submission, Mr. Davies focussed primarily on the fact
    that the Board did not obtain and consider the reasons for judgment given by
    Scott J. at the time of Mr. Jeffreys NCR finding, together with the various
    medical reports and evidence contained in the trial record.  He argues that, in
    the exercise of its inquisitorial role, the Board should have ensured that it,
    and the Hospital, had this information to consider in order to be able to
    appreciate fully Mr. Jeffreys background and conduct and the nature and
    history of his mental illness: see
Winko v. Forensic Psychiatric Institute
    (BC)
, [1999] SCJ No. 31, at para. 55.

[8]

We reject this ground of appeal for two reasons.

[9]

First, having reasonably accepted that there is little point, for
    practical purposes, in challenging the reasonableness of the Boards June, 2016,
    decision in view of the pending disposition hearing, Mr. Davies is faced with
    the similar considerations regarding his NCR-hearing-information argument.   As
    a practical matter, an order setting aside the Boards decision would not
    result in Mr. Jeffreys release into the community on different terms during
    the past year.  And, to the extent that the information addressed by Mr. Davies
    may be pertinent to the upcoming hearing, efforts can be made by Mr. Jeffrey,
    his counsel, or the Hospital  or ultimately, if so advised, by the Board  to
    obtain it for consideration at that hearing.

[10]

Secondly,
    we would not set aside the Boards June, 2016, decision on the basis of its
    failure to seek out the NCR hearing information in any event.

[11]

While
    the foregoing materials may have provided the Board with some more information
    bearing on Mr. Jeffreys difficulties in the past, it was conceded at the
    hearing that he remains a significant threat to public safety and the
    community, and that his continued detention at Providence Care is required. 
    The narrow issue before the Board was whether that risk could be managed safely
    through modified terms of his detention order that would permit him to have
    more liberal access to the community.

[12]

There
    may be cases where part or all of the record at an NCR hearing will be relevant
    at an ORB disposition hearing.  But we see nothing in these circumstances to
    indicate that the NCR hearing information would bear in any significant way on
    the outcome of the hearing before the Board.  The most pertinent evidence was
    contained in the Hospitals report and in the testimony of Dr. Chan concerning
    Mr. Jeffreys current situation and his response to treatment during the period
    of his detention.

[13]

Mr.
    Jeffrey was represented by counsel at the hearing and no effort was made to
    attempt to obtain the reasons of Scott J. or any of the medical evidence that
    formed part of the record at the NCR hearing; nor was Dr. Chan  the Hospitals
    witness  asked any questions relating to that information, or the lack of it. 
    This provides at least some measure of how important Mr. Jeffreys counsel felt
    the NCR hearing information to be.

The Decision was not
    Unreasonable

[14]

Although
    Mr. Davies no longer pursues this issue, we are satisfied that the Boards
    decision was reasonable in any event.  The Board had ample information before
    it to determine the single issue it was asked to decide, and it gave four
    reasons for declining to grant Mr. Jeffrey more liberal terms of access to the
    community: (i) Mr. Jeffrey had recently suffered a minor relapse; (ii) his
    emotional issues still needed to be addressed; (iii) substance abuse
    programming was required; and (iv) a full risk assessment addressing potential
    personality disorder issues was required before further modifications to the
    detention order could be considered.

[15]

We
    agree with the Crown that these were all reasonable concerns that properly arose
    out of the evidence at the hearing.  Indeed, Dr. Chans responses to a number
    of questions from various Board members provided support for the Boards
    concerns.  This included Dr. Chans agreement  in response to a specific
    question posed by the Alternate Chair  that a full risk assessment should be
    done before there is any indirect access to the community.

[16]

The
    Board is a tribunal that possesses specialized expertise in its area.  Its
    decisions are entitled to considerable deference.  In our view, its decision
    not to extend more liberal terms of access to Mr. Jeffrey as part of his
    detention order was well within the range of reasonable outcomes informed by
    that expertise.  We see no basis for interfering with that decision.

Disposition

[17]

The
    appeal is therefore dismissed.

E.A. Cronk J.A.

R.A. Blair J.A.

R. van Rensburg J.A.


