



COURT OF APPEAL FOR ONTARIO

CITATION:
MacLean
    (Re), 2012 ONCA 909

DATE: 20121221

DOCKET: C55624

Doherty, MacPherson and Blair JJ.A.

IN THE MATTER OF: GREGORY MacLEAN

AN APPEAL UNDER PART XX.1 OF THE
CODE

Gregory MacLean in person

Joseph Di Luca, as
amicus
    curiae

Jennifer Mannen, for the Attorney
    General of Ontario

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

Heard and released orally: December 19, 2012

On appeal against the disposition of the Ontario Review
    Board dated, May 22, 2012.

ENDORSEMENT

[1]

Mr MacLean seeks to set aside the disposition of the Ontario Review
    Board dated May 22, 2012, finding that he posed a significant threat to the
    safety of the public and ordering him detained on the Secure Forensic Service
    at Ontario Shores Centre for Mental Health Sciences (Ontario Shores).

[2]

In August, 2011, Mr. MacLean was found Not Criminally Responsible in
    relation to two counts of assaulting a peace officer, two counts of mischief to
    property and two counts of failing to comply with a recognizance. Just prior to
    the hearing leading to this appeal, he had been detained in the General
    Forensic Service at Ontario Shores. The hospital requested an earlier review
    hearing before the Board on the basis that the General Forensic Unit was not
    able to manage Mr. MacLeans increasingly difficult and threatening behaviour,
    and asked that he be transferred to the Secure Forensic Service.

[3]

The Board found that Mr. MacLean continued to pose a significant threat
    to the safety of the public and granted the hospitals request that he be
    transferred to the Secure Forensic Service. In doing so the Board relied upon a
    number of factors, including: (i) a review of the index offences; (ii) the
    severity of Mr. MacLeans illness (schizophrenia, paranoid type, as well as
    what are known as
Capgras
delusions, which are themselves considered to
    be very dangerous types of delusions): (ii) the fact that Mr. MacLeans illness
    was untreated (because he refused treatment): (iv) his complete lack of insight
    into his illness or need for treatment; and (v) his aggressive behaviour in
    hospital. All of these considerations were open to the Board based on the hospital
    and other records filed and, in particularly, the evidence of Mr. MacLeans
    treating psychiatrist, Dr. Bottas.

[4]

In his Notice of Appeal, Mr. MacLean raises a number of grounds
    attacking the reliability and truthfulness of the evidence of Dr. Bottas and
    the manner in which she infringed his religious rights and freedoms in arriving
    at her diagnosis.  He argues today that he has not really received any
    additional benefits from his transfer. He asks for an absolute discharge.

[5]

Mr. Di Luca, as
amicus curiae
, focused on one ground of appeal:
    he submitted the Board erred in applying the test for determining the least
    onerous and least restrictive disposition and, in particular, erred by engaging
    in circular reasoning in finding that detention in the Secure Forensic Service
    was appropriate because in the event the appellant becomes violent everyone
    will be safer.

[6]

We do not accept these submissions.

[7]

We see no error in the Boards assessment of the evidence of Dr. Bottas,
    which the Board was entitled to accept, as it did.  There was ample basis in
    the record for the Boards findings, as outlined above, leading to the finding
    that Mr. MacLean continued to pose a significant risk to the safety of the
    public.  Given that finding, the Board was correct in holding that Mr. MacLean
    is not a candidate for an absolute discharge.

[8]

Nor was the Boards conclusion that the least onerous and least
    restrictive disposition was a detention order featuring Mr. MacLeans transfer
    to the Secure Service unit unreasonable.

[9]

At the time as the Board held, Mr. MacLean was not a suitable candidate
    for community living  and, therefore, for a conditional discharge  given his
    potential for threatening behaviour, his untreated illness, his lack of insight
    into his illness and his determination to keep his body free of medication and
    to be self-sufficient.  The evidence of Dr. Bottas was that, in such
    circumstances, Mr. MacLean would be very unlikely to abide by the
    restrictions or conditions imposed upon him and that it would be completely
    unrealistic that he could function well in the community.

[10]

This
    leaves the Boards determination that the least onerous and least restrictive
    disposition was for Mr. MacLean to be detained in hospital and, in particular,
    on the Secure Service unit at Ontario Shores. We observe that, in arriving at
    its determination of what is the least onerous and least restrictive
    determination, the Board is required to take into consideration: (i) the need
    to protect the public from dangerous persons, (ii) the mental condition of the
    accused, (iii) the reintegration of the accused into society, and (iv) the
    other needs of the accused:
Criminal Code
, s. 672.45(2)

[11]

Here
     as the Board acknowledged  Dr. Bottas recommendation that Mr. MacLean would
    have more freedom on the Secure Forensic Service appears, at first blush,
    paradoxical. However, the Boards acceptance of that view was reasonable in the
    circumstances, in our opinion. The evidence was that Mr. MacLean would, in
    fact, enjoy greater liberties and freedom on the Secure Forensic Service than
    he then enjoyed on the General Forensic Service because of the more favourable
    staff-to-patient ratio on the former and because his aggressiveness and
    threatening behaviour to staff required him to be on close observation on the
    General Forensic Service. Close observation means that he must be directly
    observed by a nurse every 15 minutes and that he is not permitted to enjoy
    off-ward privileges except for emergency or compassionate reasons. On the
    Secure Forensic Service, on the other hand, Mr. MacLean would be given greater
    freedom, should he choose to enjoy it, to access the hospitals grounds and the
    community (because of the higher staff-to-patient ratio, patients on the Secure
    Service are permitted, under supervision, to go onto the hospital grounds daily
    and into the community twice a week). It follows that Mr. MacLeans detention
    under the terms ordered by the Board is actually less onerous and less
    restrictive than would be the case had he been ordered to be detained on the
    General Forensic Service.

[12]

Finally,
    we do not agree that the Board engaged in circular reasoning based on
    speculative evidence to conclude that, because Mr. MacLean may in the future
    refuse to consent to treatment and act out violently as a result of incapacity
    proceedings, thus potentially endangering staff and others in the event that
    happened, that he should be placed on the Secure Service. The Boards conce
rn in this regard was simply an additional incidental
    benefit flowing from the decision already made to place Mr. MacLean on the
    Secure Forensic Service and in any event, given Dr. Bottas opinion, we are not
    able to say that the concern was unreasonable in the circumstances.

[13]

For
    all of the foregoing reasons, we dismiss the appeal.

D. Doherty J.A.

J.C. MacPherson J.A.

R.A. Blair J.A.


