



COURT OF APPEAL FOR ONTARIO

CITATION: Shepherd (Re), 2017 ONCA 530

DATE: 20170626

DOCKET: C63045

Strathy C.J.O, Benotto and Miller JJ.A.

IN THE MATTER OF: FRANK SHEPHERD

AN APPEAL UNDER PART XX.1 OF THE
CODE

Frank Shepherd, in person

Ken J. Berger, for the appellant

Julie A. Zamprogna Ballès, for
    the respondent, The Person in Charge of the Southwest Centre for Forensic
    Mental Health St. Josephs Health Care London

Alexander Hrybinsky, for the respondent, The Attorney
    General of Ontario

Heard: June 20, 2017

On appeal against the disposition of the Ontario Review
    Board, dated September 9, 2016.

REASONS FOR DECISION

[1]

Mr. Shepherd appeals the disposition of the Ontario Review Board, which
    accepted the joint submission of his counsel and his doctor. The Board
    determined his care should continue to be managed pursuant to a detention
    order.

[2]

On February 4, 2009, Mr. Shepherd was found not criminally responsible
    on account of mental disorder on charges of assault, forcible confinement and
    criminal harassment. The facts underlying the criminal harassment offence
    relate to an incident where Mr. Shepherd approached the victim in her car,
    cornered her and threatened her. In a separate incident, Mr. Shepherds wife
    was the victim of the assault and forcible confinement offences.

[3]

On September 8, 2016, the Board conducted a review with a five-member
    panel. Mr. Shepherds counsel and his doctor jointly submitted that his care be
    managed pursuant to a detention order with passes for up to 72 hours, up to 12
    times a year, to enter the community indirectly supervised. This latter
    condition represented an increase in Mr. Shepherds privileges.

[4]

Mr. Shepherd appeals on the basis that the Board erred in accepting the
    joint submission of the parties without properly discharging its inquisitorial
    duty at the hearing.  We do not agree.

[5]

Before the Board, Mr. Shepherd was represented by counsel who did not
    contest the issue of whether Mr. Shepherd continued to pose a significant threat
    to the safety of the public. There is no suggestion that counsel acted without
    authority, was under a misapprehension, or provided ineffective assistance: see
Re Kelly
, 2015 ONCA 95. This court has recognized that joint
    submissions play an important role in proceedings before the Board: see
Re
    Osawe
, 2015 ONCA 280. The Board was entitled to rely on the joint
    submission.

[6]

The Board also conducted its own inquiry and concluded, based on the
    evidence of the physician and the hospital report, that Mr. Shepherd remains a
    significant threat to the safety of the public. The Board found, at p. 4 of its
    reasons, that he:

[P]resents a moderate-to-high risk of violent reoffending in
    the next 12 months  [and] could not be safely managed with a Conditional
    Discharge disposition at this time given his psychiatric symptoms, lack of
    insight, and potential for instability and treatment non-adherence.

[7]

There was evidence before the Board about recent medication changes and
    a new residence. At Mr. Shepherds next review, the Board will have the
    advantage of considering the impact of these changes.

[8]

There is no basis for appellate intervention. The appeal is dismissed.

G.R. Strathy C.J.O.

M.L. Benotto J.A.

B.W. Miller J.A.


