



COURT OF APPEAL FOR ONTARIO

CITATION: Ginn (Re), 2017 ONCA 921

DATE: 20171129

DOCKET: C63393

Rouleau, Pepall and Miller JJ.A.

IN THE MATTER OF: Kristopher Ginn

AN APPEAL UNDER PART XX.1
    OF THE
CODE

Anita Szigeti, for the appellant Kristopher Ginn

John Patton, for the Ministry of the Attorney General

Julie Zamprogna Balles, for Southwest Centre for
    Forensic Mental Health Care

Heard: November 15, 2017

On appeal against the disposition of the Ontario Review Board
    dated, November 14, 2016.

REASONS FOR DECISION

A.

Overview

[1]

The appellant appeals from the November 14, 2016 disposition issued by
    the Ontario Review Board. At the review hearing, the hospital filed a report
    detailing the appellants history at the facility. The report outlined his psychiatric
    evaluations, medication plans and rehabilitation efforts. It concluded with a
    recommendation for changes to the 2015 disposition as follows:

1.

a reduction in the appellants access to the community while indirectly
    supervised from an amount to be decided at the discretion of the hospital to a
    maximum of four hours with an approved itinerary; and

2.

a reduction in day passes to access the community from seven days
    indirectly supervised to three days directly supervised.

[2]

The hospital and the Crown jointly recommended these changes. In its
    decision, the Board accepted the recommendations and incorporated them in its disposition.

[3]

On appeal, the appellant submits that the Board committed several errors
    and urges this court to substitute a less restrictive disposition or order a
    new hearing. We dismiss the appeal for the reasons that follow.

B.

Analysis

(1)

Did the board issue the least onerous, least restrictive disposition?

[4]

The first submission is that the Board did not issue the least onerous,
    least restrictive disposition necessary to manage the appellants risk to the
    public. We disagree.

[5]

It was conceded at the hearing that the appellant posed a significant
    risk to the public. The Boards decision to place additional restrictions on his
    community access was reasonable and supported by several factors identified in
    the hospital report and by the treating psychiatrist. These included the
    appellants psycho-sexual assessment, lack of insight into his mental illness,
    criminal sexual history, difficulty with medication adherence, and lack of
    cooperation with hospital staff. As a result, the disposition can be reasonably
    considered as being the least onerous and least restrictive.

(2)

Did the Board carry out its inquisitorial mandate?

[6]

The appellant argues that the Board failed to carry out its
    inquisitorial duties and take into account his rehabilitation and other needs including,
    specifically, the need for reintegration into the community. He points to
    questions by a Board member indicating an awareness of potentially appropriate
    housing for the appellant.

[7]

In the appellants submission, the Board erred in rejecting the possibility
    of community living. It did not explore this possible housing option, contrary
    to its obligation to do so. It should have ordered that the hospital explore
    housing options and report its findings to the Board.

[8]

We reject this ground of appeal. From our review of the record, it is
    apparent that the panel members posed insightful questions to the appellants
    treating psychiatrist to determine the appropriate degree of access to the
    community that could be given without jeopardizing public safety. The Board
    heard and rejected the submission that a community living provision in a group
    home was possible and would fit the psychiatrists diagnosis.

[9]

The decision to exclude the possibility of community living is explained
    by the Boards observation that there has to be some reasonable foreseeability
    that the individual is going to utilize the provision you are asking [for],
    otherwise everything would go into every Disposition because, potentially, it
    doesnt get exercised.

[10]

Had it appeared reasonably foreseeable that the appellant would be an
    appropriate candidate for community living in the coming year or in the future,
    the Board may well have sought out evidence of housing options. However, having
    found that it was not reasonably foreseeable, the Board saw no need to carry
    out further inquiries. We see no basis to interfere.

(3)

Did the Board focus exclusively on public safety?

[11]

The third ground of appeal advanced is that the Board limited its focus
    to public safety when the record demonstrated that the appellant had not displayed
    any sexually inappropriate conduct nor had he acted out in violence in well
    over a decade.

[12]

We dismiss this ground of appeal. As noted earlier, the appellant
    conceded at the hearing that he continued to pose a significant risk to the
    public. As noted by the Board, recent testing disclosed that he has a positive
    pedophilic index for both male and female children, as well as a positive
    result for coercive and manipulative pedophilic themes with female children.
    In light of these results, the Board was properly concerned with the
    appellants assertions that he had cured himself of pedophilia and intended to
    assist children who have experienced abuse.

[13]

Contrary to the appellants submission, the Board specifically stated
    that it considered his mental condition, the need to reintegrate him into
    society, and his other needs in coming to the determination that the hospitals
    recommended disposition was the appropriate one.

[14]

The Board relied on its expertise to reasonably conclude that there was
    a need for tight conditions governing any interaction he may have in the
    community. This is consistent with the test results that showed the appellant
    to be at a high risk of reoffending. This is also consistent with the fact that
    the appellant displayed symptoms of mental health issues, in the form of
    auditory hallucinations. We are not satisfied that the Boards conclusion was
    in error.

(4)

Is there a legal impasse?

[15]

A further ground of appeal advanced is that a treatment impasse had been
    reached and the Board owed the appellant the duty to intervene to break that
    impasse.

[16]

We disagree. By stating that an impasse had been reached, the treating
    psychiatrist was not suggesting that an impasse of the type referenced in
Gonzalez
    (Re)
, 2017 ONCA 102, 136 O.R. (3d) 453, leave to appeal to SCC refused,
    37517 (29 June 2017), had been encountered. There, the court said an impasse
    may exist where there has been a lengthy period of incarceration without
    treatment or progress, or where the accused is stubbornly refusing to engage
    with the treatment team. In such cases, a Board may be required to consider
    what conditions, if any, should be imposed in order to break that impasse.

[17]

No such impasse exists in the present case. The appellants treating
    psychiatrist provided evidence about the hospitals upcoming plans to address
    what they referred to as a treatment impasse. The Board accepted the evidence
    of the psychiatrist that there was a plan going forward to address this
    treatment impasse. Therefore, the Board was not obliged to take any further
    steps to intervene in the circumstances.

(5)

Was there a need for the Board to consult the risk assessment report?

[18]

The appellant raised a further concern. Dr. Federoff writes at the end
    of the risk assessment report that the majority of sex offenders with scores
    as high as Mr. Ginns are not known to reoffend. The appellant argues that it
    is therefore somewhat inconsistent that the Board relies on that report to
    conclude that he is at a high risk of reoffending. He states that the Board did
    not deal with this apparent contradiction nor does it appear that it requested or
    referred to the complete risk assessment report to ensure that it had the best
    available information available. In fact, the appellant suggests that the report
    does not appear to have been filed at the hearing. He also suggests that the Board
    only appears to have relied on a summary of the risk assessment report
    contained in the hospitals report.

[19]

We do not share the appellants concern. As pointed out by the treating
    psychiatrist, the reason sex offenders with high scores are not known to
    reoffend is because they are appropriately supervised. The appropriate
    supervision in the current circumstances is precisely what the Board was
    ensuring would occur by the disposition it made.

[20]

As to whether the complete risk assessment report was available and
    reviewed by the Board, the record is at best unclear. It is apparent that the
    report was available to the appellant because his counsel referred the Board to
    the conclusion contained therein. Counsel would certainly have drawn any
    portions of the report favourable to the appellant to the Boards attention. It
    is also likely that the Board either had the report or had access to it to the
    extent necessary to properly decide the matter. There is no reason to interfere
    on that basis.

C.

Conclusion

[21]

For these reasons, the appeal is dismissed. In view of our disposition,
    we also dismiss the Southwest Centre for Forensic Mental Health Cares fresh
    evidence application.

Paul
    Rouleau J.A.

S.E. Pepall J.A.

B.W. Miller J.A.


