



COURT OF APPEAL FOR ONTARIO

CITATION: Phillip (Re), 2019 ONCA 48

DATE: 20190125

DOCKET: C65754

Doherty, Miller and Trotter JJ.A.

IN THE MATTER OF: MICHAEL PHILLIP

AN APPEAL UNDER PART XX.1 OF THE
CODE

Daniel R. Medd, for the appellant

Jeremy Tatum, for the respondent Attorney General for
    Ontario

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

Heard and released orally: January 22, 2019

On appeal against the disposition of the Ontario Review
    Board dated June 26, 2018.

REASONS FOR DECISION

[1]

The appellant was found not criminally responsible on account of mental
    disorder on April 27, 2018, on charges of assault and breach of probation. In
    June 2018, a panel of the ORB ordered him detained at Waypoint Centre, a
    maximum security facility. This was Mr. Phillips first appearance before the
    ORB.

[2]

Mr. Phillips custodial history is complex. He is presently under the ORB
    detention order, which is the subject of this appeal. He is also serving a jail
    sentence on other charges. That sentence expires in March or April of this
    year. Mr. Phillip is also subject to an assessment order in another criminal
    proceeding.

[3]

Mr. Phillip appeals the detention order made by the ORB. He asks that
    this court set aside that order and direct a new hearing at which the ORB can
    properly inquire into the feasibility of the placement of Mr. Phillip at
    Ontario Shores, a medium security facility.

[4]

Before the ORB, Dr. Dickey, the appellants treating psychiatrist and a
    member of the Waypoint clinical team, testified that he believed that it may
    be that the appellant should be moved to Ontario Shores for at least a trial
    stay in a medium security facility. The clinical team had, however, recommended
    keeping the appellant at Waypoint. Dr. Dickey had initially agreed with the
    clinical team.

[5]

The ORB appreciated the difference in the opinion between Dr. Dickey and
    the clinical team. Certainly, the appellants conduct in the two months before
    the ORB hearing was positive. It gave cause to consider a less restrictive
    disposition than maximum security. As counsel for Mr. Phillip put it in his
    factum, the appellants behaviour was on an upward trajectory in the two
    months immediately preceding the hearing.

[6]

The ORB was, however, required to consider the entire picture and not
    just the most recent events. That entire picture included the following:

·

The very serious nature of the appellants mental illness;

·

The long history of the appellants mental disorder accompanied
    by serious criminal activity;

·

The appellants past history of non-compliance with his
    medication; and

·

The appellants demonstrated history of quick decompensation
    accompanied by acts of violence when he stopped taking his medication.

[7]

The Boards conclusion is found at para. 27 of its reasons. The Board
    describes a transfer to medium security as premature in the entirety of the
    circumstances. We cannot say that the Boards conclusion is unreasonable.

[8]

In oral argument, counsel for the appellant focused on the submission
    that the Board erred in law by failing to direct that inquiries be made of
    Ontario Shores concerning the feasibility of transfer to that facility from
    Waypoint. This issue arose as a result of Dr. Dickeys changed opinion
    concerning the appropriate treatment of the appellant.

[9]

Certainly, in appropriate cases, the Board can and sometimes must direct
    that the kind of inquiries described above be made. We cannot say, however,
    that the Board acted unreasonably in the circumstances of this case in not
    requiring those inquiries to be made. The factors identified by the Board, and
    summarized above, made out a formidable case for holding the appellant in
    maximum security at Waypoint. Dr. Dickeys evidence, which offered little more
    than a tentative opinion without any factual foundation, did not command
    further inquiry by the Board, having regard to the rest of the evidence.

[10]

The
    appeal is dismissed. We note that the appellant is subject to a review hearing
    before the Board in about two to three weeks time. No doubt the Board will
    give careful consideration to any changes in the appellants circumstances.

Doherty J.A.

B.W. Miller J.A.

G.T. Trotter J.A.


