



COURT OF APPEAL FOR ONTARIO

CITATION: Magee (Re), 2020 ONCA 418

DATE: 20200626

DOCKET:
C67531

Fairburn, Nordheimer and
    Harvison Young JJ.A.

IN THE MATTER OF: Christian Magee

AN APPEAL UNDER PART XX.1 OF THE
CODE

Sarah Weinberger, as
amicus curiae
, for the appellant

Maura Jetté, for the respondent,
    Attorney General of Ontario

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

Heard: In writing

On appeal against the disposition of the
    Ontario Review Board dated August 8, 2019, with reasons dated September 5,
    2019.

Harvison Young J.A.:

[1]

Christian Magee appeals from a disposition of the Ontario Review Board
    (the Board), which ordered his continued detention at the Waypoint Centre for
    Mental Health Care (Waypoint). At the appellants annual review in 2019, there
    was a joint submission that the detention order include a condition that the
    appellant be transferred for a period of up to 90 days to the Forensic Unit at
    St. Josephs Healthcare Hamilton (St. Josephs) for the purpose of an independent
    psychiatric assessment
with a view to a possible transfer to a
    less secure facility.

The appellant would return
    to Waypoint after being assessed at St. Josephs.

[2]

The appellant and Waypoint have made a joint submission for an external
    assessment for three years in a row, from 2017 to 2019. At the 2019 annual review,
    the Attorney General of Ontario supported, for the first time, the appellant
    and Waypoints joint submission. The appellant has achieved maximum privileges
    at Waypoint and the evidence was that he can progress no further in that
    environment.

[3]

The Board rejected the joint submission. The sole issue on this appeal
    is whether the Boards decision to reject this joint submission was
    unreasonable. For the following reasons, I conclude that it was.

A.

Background Facts

[4]

In 1977, the appellant was found not guilty of murder by reason of
    insanity. In 1980, the appellant was found not guilty on two further charges of
    murder, one charge of rape, and one charge of indecent assault, by reason of
    insanity. He has been detained at Waypoint (and its predecessor) for
    approximately 42 years and is now 72 years old. The appellant is diagnosed as
    suffering from sexual sadism, transvestitic fetishism, and antisocial
    personality disorder. There is no dispute that he remains a significant threat
    to the public and must remain the subject of a detention order.

[5]

While a patient at Waypoint, the appellant has had several external
    assessments over the years, as follows:

·

In 1985 at the Clarke Institute of Psychiatry for 90 days;

·

In 1991 at the Royal Ottawa Hospital for 60 days;

·

In 2003 at the Centre for Addiction and Mental Health for 90
    days; and

·

In 2008 at the Brockville Mental Health Centre for 60 days.

[6]

The last assessment in 2008 occurred under Dr. Bradford, a leading
    psychiatrist on the use of medication for treating sex offenders. Since then, the
    appellant has taken Lupron, which has reduced his hormones to castrate levels.

[7]

The appellants attending psychiatrist, Dr. Danyluk, testified that the
    appellant is a model institutional citizen. She also noted that the appellant
    has several medical conditions  such as diabetes, heart issues, and obesity  that
    can affect his ability to reoffend. Dr. Marshall, PhD, is a registered psychotherapist
    at Waypoint. The Board commented that he is a highly recognized sexual
    offender specialist. He conducted weekly therapy with the appellant from
    approximately June to December 2018. In his report on the therapy, Dr. Marshall
    stated that the appellant was a good participant who had made significant
    improvements to his functioning since coming to Waypoint.

[8]

The appellants clinical team opined that he should continue to be
    detained at the all-male High Security Provincial Forensic Programs at
    Waypoint. It was also their unanimous opinion, however, that an assessment at St.
    Josephs would be appropriate for two reasons: first, to obtain a further risk
    assessment, as the last one was completed in 2008; and second, to obtain an independent
    second opinion as to whether or not the risk could be managed in a less secure facility.
    They were also of the view that, in order to conduct that assessment, [i]t
    would be necessary to recreate a maximum security umbrella in a medium secure
    setting such as restricting him to his room during the night and 1:1 [staff to
    patient supervision] during the night hours to reduce the risk to female co-patients.
    As the Waypoint clinical team noted, the appellants risk of reoffending in a
    less secure environment remains high with potential catastrophic consequences.

[9]

At the appellants annual hearing, Waypoint and the appellant submitted
    that the appellant should be assessed at St. Josephs. The Attorney General
    also supported this submission, stating that:

I join and support the suggestion
    of an assessmentto take place at [St. Josephs]the support is overwhelming,
    not only for the Disposition, but for the suggestion of assessment. And I dont
    feel that the Attorney General should take any other, or that there is any
    other responsible position, given the fact that this is the evidence.

[10]

St.
    Josephs was not consulted as to its willingness to take the appellant. It
    advised Waypoint by letter that transferring the appellant to St. Josephs was
    not appropriate for several reasons. First, the appellant had numerous external
    assessments over the years, so a further assessment at St. Josephs was
    unnecessary. Second, there was a concern about limited resources available to
    create the necessary maximum security umbrella in the medium secure setting.
    Third, the appellant posed a high risk to female co-patients and the public,
    particularly given the nature of his offences. Fourth, St. Josephs saw the
    request for an assessment to constitute an effort to obtain a springboard for
    a permanent transfer to a less secure facility. St. Josephs did not apply for
    party status and was not present at the annual review. The letter was admitted as
    evidence on consent.

B.

The Boards Reasons

[11]

The
    Board listed several reasons for rejecting the joint submission.

[12]

First,
    the Board was of the view that the need for the maximum secure umbrella in the
    less secure unit would defeat the likelihood of the assessment offering
    information about his ongoing security needs. The Board noted that a maximum secure
    umbrella at St. Josephs would be more restrictive than the appellants continued
    detention at Waypoint.

[13]

Second,
    the Board appeared to adopt St. Josephs conclusion that another assessment
    would be of little utility. This is because numerous external assessments had
    been done in the past and many of the risk factors involved in the
    standardized assessment of sexual offenders areunchanging in nature.

[14]

Third,
    the Board was of the view that the four diagnoses mean that Mr. Magee continues
    to be a significant threat to the safety of the public. Although he has been
    taking Lupron now for over 10 years, the Board stated that most of the index
    offences involve sadistic murder prior to the sexual rapes. In the Boards
    view, the assessment would mainly address the sexual deviancy part of the
    appellants diagnosis, and thus have limited value regarding the other
    diagnoses.

[15]

The Board concluded that given St. Josephs refusal to take on
    the proposed assessment, their concerns about safety, and its view that an
    assessment is unlikely to produce any valuable information, it would reject
    the joint submission for an assessment at St. Josephs. It ended by commending the
    appellant on his past year, noting that he had done everything asked of him
    and all reports had been very positive.

[16]

The appellant and Waypoint argue that the
    Boards decision was unreasonable, and that in reaching its decision, the Board
    failed to exercise its inquisitorial duty, failed to consider the appellants interests,
    and misapprehended the evidence with the result that it did not order the least
    onerous disposition.

[17]

The respondent Attorney General submits the
    Board carefully considered the assessment request and reasonably determined
    that it was not necessary or appropriate. It maintains that the Board applied
    the law correctly and discharged its inquisitorial duty. Given the appellant poses
    a high risk to public safety, and the fact that St. Josephs opposed the
    proposal for an assessment there, it was open to the Board to reject the joint
    submission.

C.

APPLICABLE LAW

(1)

Standard of Review

[18]

Section
    672.78 of the
Criminal Code
,

R.S.C., 1985, c. C-46,
provides
    that,

(1) The court of appeal may allow an appeal against a
    disposition or placement decision and set aside an order made by the court or
    Review Board, where the court of appeal is of the opinion that

(a) it is unreasonable or cannot be
    supported by the evidence;

(b) it is based on a wrong decision
    on a question of law; or

(c) there was a miscarriage of justice.

[19]

A
    reasonable decision is one that, having regard to the reasoning process and the
    outcome of the decision, properly reflects an internally coherent and rational
    chain of analysis:
Canada (Minister of Citizenship and
    Immigration) v. Vavilov,
2019 SCC 65, 441 D.L.R. (4th) 1, at paras.
    102-104. In addition, a reasonable decision must be justified in relation to
    the constellation of law and facts that are relevant to the decision. For
    instance, the governing statutory scheme and the evidentiary matrix can
    constrain how and what an administrative decision-maker can lawfully decide. Further,
    [w]here the impact of the decision on an individuals rights and interests is
    severe, the reasons provided to that individual must reflect the stakes:
Vavilov
, at para. 133. The principle of responsive
    justification means that especially in such high-stakes cases, the decision
    maker must meaningfully explain why its decision best reflects the
    legislatures intention.

[20]

A Boards disposition will be unreasonable if
    the underlying reasons cannot bear even a somewhat probing examination:
R.
    v. Owen,
2003 SCC 33, [2003] 1 S.C.R. 779, at para. 33.

(2)

The Statutory Framework

[21]

Section
    672.54 of the
Criminal Code

lists
    the factors that the Board shall consider in making its disposition:

·

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.

[22]

Under s. 672.54, the Board must make a
    disposition that is necessary and appropriate. This has been interpreted to
    mean the disposition that is the least onerous and least restrictive:
McAnuff
    (Re)
, 2016 ONCA 280, 130 O.R. (3d) 440, at para. 22.

Moreover, it
    is not simply the choice among three potential dispositions  absolute
    discharge, conditional discharge, or continued detention  that must be the
    least onerous and least restrictive. Conditions attached to a disposition must
    also be the least onerous and least restrictive option:
Penetanguishene
    Mental Health Centre
, at paras. 24, 67-71
.
    Put another way, a finding that a person poses a significant threat to the
    public and must therefore remain detained does not mean that the Board is
    excused from seriously considering the least onerous and restrictive options
    available.

D.

analysis

[23]

In this case, it was common ground that the appellant remained a
    significant threat to public safety and a detention order was required. At the
    same time, all the parties at the annual hearing supported the recommendation
    for an external assessment at St. Josephs as the least onerous and least
    restrictive disposition available.

[24]

The
    central problem with the Boards decision is that it fails to engage with the
    requirement that it make the least onerous disposition, with regard to the
    factors in s. 672.54. This is evident in the reasons it gives for rejecting the
    joint recommendation of all the parties that the appellant be transferred to
    St. Josephs for an assessment.

[25]

While it is open to the Board to reject a joint submission, it
    must explain why it does so in light of the supporting evidence. As noted in
Vavilov
, at para. 127, the principles of justification
    and transparency require that an administrative decision makers reasons
meaningfully account

for the central issues and concerns raised by the parties
    (emphasis added).

(1)

The Need for a Maximum Security Umbrella

[26]

The
    Boards first reason for rejecting the joint submission focused on the need for
    a maximum security umbrella while in the less secure unit. The Boards view was
    that this would defeat the likelihood of the assessment providing information
    about the appellants ongoing security needs and create greater restrictions on
    his liberty than those which he was subject to at the time.

[27]

I
    agree with the appellant and Waypoint that the Boards conclusion was not
    supported by the evidence.

[28]

The
    proposed assessment was to explore whether the appellant could ultimately move
    to a less secure environment, despite the fact that the assessment would occur
    in a more restrictive environment for the appellant in the short term. Dr.
    Danyluk gave evidence that the appellant was already doing everything he can
    to advance himself at Waypoint. The appellant had proactively sought therapy
    with Dr. Marshall and made notable progress. The appellant has also maintained
    the highest level of privileges at Waypoint for many years. The appellant has
    essentially exhausted all treatment options at Waypoint.

[29]

The
    evidence was that the only way to explore the possibility of a less onerous
    disposition was through the proposed external assessment. Dr. Danyluk testified
    that without such an assessment, she could not foresee other ways to assess the
    change in the appellants dynamic risk variables, which were factors relevant
    to whether the appellant could transition to a less secure environment. The
    assessment would provide a good test run of the appellants ability to interact
    with a different group of co-patients and to handle the frustration arising
    from a more restrictive environment during the assessment. Dr. Marshall testified
    that the opportunity to observe the appellant over a longer period, under new circumstances,
    would be very valuable.

[30]

The
    Board does not give any reason for reaching a conclusion contrary to this
    evidence. There was no evidence of any other alternative before the Board.

[31]

In addition, the reasons do not address the fact that

it had previously ordered an independent assessment of the
    appellant under very similar security arrangements (that is, under a high
    security umbrella within a less secure, co-ed environment). The specific
    conditions at Brockville in 2008 required that the appellant be locked in his
    room for eight hours overnight and subject to direct staff observation should a
    female co-patient enter the unit. The independent assessment
proceeded
    without incident, as did all the other assessments that have taken place over
    the last 42 years.

[32]

The Board did not explain why leaving the appellant detained in a
    high security unit is less onerous and restrictive than placing him in a more
    restrictive setting briefly, given the evidence that the period of restriction
    could result in an assessment supporting his long-term reintegration and
    liberty interests, at least through a move to a less secure environment.
It is not clear that the Board appreciated that the temporary
    increase in security during the proposed assessment was necessary to explore a
    less onerous disposition in the long run.

(2)

The Utility of a Further Assessment

[33]

The Board found that there would be little
    utility in another assessment because the appellant had already undergone a
    number of assessments in the past. The Board states at para. 25 of its reasons:

St. Joseph's
    letter refers to the number of external assessments that have been done while
    Mr. Magee has been at Waypoint and suggests that little would be gained from a
    further assessment given that many of the risk factors involved in the standardized
    assessment of sexual offenders are static and therefore unchanging in nature.

[34]

It is unclear why the Board chose to treat the
    letter as authoritative on the utility of an additional assessment, particularly
    given that the reasons do not address the fact that the hospital report, as
    well as Dr. Danyluks and Dr. Marshalls evidence, thoroughly explain why
    another assessment should take place at St. Josephs. As already indicated, the
    Board heard that observing the appellant over an extended period in a new
    environment would allow an assessment of dynamic risk variables, which would
    otherwise be unavailable.

[35]

Further, another assessment would provide more
    current information, as the last assessment was completed in 2008, some 12
    years ago. Notably, Dr. Bradfords main concern after the 2008 assessment was
    that the appellant had a distinct lack of insight into his offences. This led
    Dr. Bradford to recommend continued detention in a maximum security setting.

[36]

There was evidence at the annual review before
    the Board that the appellant has made significant progress on his insight. In
    the hospital report, Dr. Marshall noted that:

[The appellant]
    worked hard prior to and during the current therapy sessions to improve his
    sense of self-worth and was able to describe how this deficit had impacted him
    at the time of his offending. He demonstrated appropriate empathy for both the
    victims of his offending and their families. He was also able to describe the
    impact his offending had on his own family and how much he regretted the harm
    he had caused to many people through his offending. At no point in the therapy
    did Mr. Magee ever try to blame anyone else for his offending. Although he
    worked hard to understand the precipitating factors, he did not use them as
    excuses for his offending.

[37]

Dr. Marshall also testified that the appellant
    gained a much more realistic view of relationships. In particular, the
    appellant understood the importance of staying alone if a relationship was not
    conducive to his rehabilitation.

[38]

Dr. Danyluk called the appellants insight
    limited in that he struggle[s] to understand sexual sadism as a construct.
    However, she did state that the appellant was aware of the risk factors for
    offending, such as frustration or his mood. Moreover, a number of dynamic risk
    variables seem to have changed, such as the appellants view on relationships.
    As such, another assessment would be useful in providing further, independent
    input on how these variables may affect the appellants placement in a less
    secure environment. More generally, Dr. Marshall indicated that a second
    opinion would be useful to combat any bias or gaps in assessment that may have
    arisen from the appellants extremely long institutionalization at Waypoint.

[39]

Finally, there was evidence that the assessment
    would be especially useful if Dr. Bradford conducted it. He has niche expertise
    in medication to treat sex offenders. Waypoint does not have a resident
    psychiatrist expert on sex offenders. At the annual review, counsel for
    Waypoint also submitted that since Dr. Bradford had assessed the appellant
    before, he would be able to provide a particularly useful opinion on the
    appellants progress.

[40]

Given the evidence in support of the joint
    submissions, the requirement in s. 672.54 that the Board take account of the
    appellants interests, and the requirement of responsive justification as
    recently articulated in
Vavilov
,

at para.

133, the
    reasons should have addressed the significant evidence in support of an
    external assessment at this time. Instead, the Board favoured St. Josephs
    conclusion on a narrow point, as articulated in a letter, without explaining
    why.


[41]

In addition, the Board appears to have misconstrued the purpose
    of the proposed assessment, which was to explore the possibility of a less
    onerous disposition.
The assessment would achieve this goal by
    temporarily placing the appellant under a maximum secure umbrella, to allow for
    an updated, independent opinion on the appellants dynamic risk variables.
The
    security umbrella may have increased restrictions on the appellant in the
    short-term. However, if the assessment provided information to support the
    appellants transfer to a less secure environment, then the long-term result
    would have been a less restrictive and less onerous disposition.

[42]

I am not satisfied that the Boards reasons
    reflect adequate appreciation of these aspects, or the assessments long-term
    goal.

(3)

The Boards Responsibilities as an Inquisitorial
    Body

[43]

There
    is a final general difficulty with the Boards reasons. In closing, it stated:

If in the future the Clinical Team
    at Waypoint is able to recommend an assessment that would address a combination
    of the sexual and sadistic features of Mr. Magees diagnoses and the safety
    issues, another panel of the Board may consider a future request for such an
    assessment.

[44]

The
    appellant and Waypoint say
that even if it was reasonable to
    reject the joint submission, it was incumbent on the Board to consider what
    else could be done for the appellant. I agree. This duty arises partly from the
    Boards mandate to consider the appellants interests under s. 672.54 of the
Criminal
    Code
and partly from its inquisitorial role.
Notably, in
Winko v. British Columbia (Forensic Psychiatric Institute),
[1999]
    2 S.C.R. 625, the Supreme Court of Canada made it clear that the Board has a
    duty to search out evidence that favours the accuseds liberty interest. It
    stated at paras. 54-55:

TheReview Board has a duty not only to search out and consider
    evidence favouring restricting NCR accused, but also to search out and consider
    evidence favouring his or her absolute discharge or release subject to the
    minimal necessary restraints, regardless of whether the NCR accused is even
    present.



As a practical matter, it is up to
    the court or Review Board to gather and review all available evidence
    pertaining to the four factors set out in s. 672.54The court and the Review
    Board have the ability to do this. They can cause records and witnesses to be
    subpoenaed, including experts to study the case and provide the information
    they require.

[45]

Here,
    there is no indication that the Board considered any dispositions other than
    accepting or rejecting the joint submission. The Boards concluding comment
    implies that an assessment addressing both the sexual and sadistic features of
    the appellants diagnosis could be of value. Given
this
    conclusion, and the fact that the appellant had reached his maximum privileges
    at Waypoint, the Board should have, at a minimum, explored other potential
    options with counsel, including inquiring whether Waypoint had considered other
    hospitals that might be more prepared to have the appellant
.

[46]

The
    Boards inquisitorial duties required it to do more than maintain the status
    quo. This is especially given that for three years in a row, the appellant and
    Waypoint have made a joint proposal for a temporary external assessment. The appellant
    has been at a standstill for a number of years. He has progressed as much as he
    can at Waypoint.

[47]

As
    an inquisitorial body, the Board is not to wait until it receives a
    recommendation that is framed in a fashion that is acceptable to the Board. The
    Board erred by failing to proactively consider how the appellant could progress
    further, such as, for example exploring with counsel whether another hospital
    or ways of addressing St. Josephs concerns. Again, the fact that very similar
    arrangements had been put in place for the Brockville assessment in 2008 suggest
    that the proposed assessment is possible.

E.

Disposition

[48]

For these reasons, I would allow the appeal and return the matter
    to the Board for a new hearing.

Released: June 26, 2020

JMF

A.
    Harvison Young J.A.

I
    agree Fairburn J.A.

I
    agree I.V.B. Nordheimer J.A.


