



COURT OF APPEAL FOR ONTARIO

CITATION: Robertson (Re), 2021 ONCA 737

DATE: 20211021

DOCKET: C69116

Paciocco, Nordheimer and Thorburn JJ.A.

IN THE MATTER OF: James Robertson

AN APPEAL UNDER PART XX.1 OF THE
CODE

James Robertson, acting in person

Mercedes Perez, appearing as
amicus curiae

Molly Flanagan, for the respondent, Attorney General of
    Ontario

James P. Thomson and Julia Lefebvre, for the respondent,
    Person in Charge of Waypoint Centre for Mental Health Care

Heard: October 15, 2021 by video conference

On appeal from the disposition of the Ontario Review
    Board, dated October 22, 2020, with reasons dated November 13, 2020.

REASONS FOR DECISION

[1]

Mr. Robertson appeals from the disposition of the Ontario Review Board
    that continued the detention order against him. The appellant submits that the
    Board erred in not awarding an absolute discharge. In the alternative, the
    appellant submits that the Board erred in not allowing him to transfer to a
    less secure psychiatric facility. For the following reasons, the appeal is
    dismissed.

[2]

The appellant has been under the auspices of the Board since October 2007
    when he was found not criminally responsible (NCR) with respect to offences
    of criminal harassment and invitation to sexual touching.

[3]

At this most recent review, the Board found that the appellant continues
    to pose a significant threat to the safety of the public. There was a solid
    evidentiary foundation for that conclusion. Indeed, all of the expert evidence
    before the Board supported that conclusion. Given this solid evidentiary
    foundation, it was reasonable for the Board to have concluded that the appellant
    remains a significant threat to the safety of the public. This is sufficient to
    dispose of the request for an absolute discharge.

[4]

The Board heard from the appellants attending physician. It is fair to
    say that, while the concerns regarding the conduct of the appellant were
    originally based in inappropriate sexual contact, those concerns have largely
    ameliorated as the appellant has grown older. The appellant is currently
    sixty-six years old. However, concerns regarding the appellants generally aggressive
    and threatening behaviour continue. The appellants psychiatrist testified
    before the Board that, as recently as the weekend before, the appellant had
    threatened staff.

[5]

The Board also heard from Dr. Phillip Klassen, who had been retained to
    provide an independent psychiatric assessment. Dr. Klassens assessment was
    limited, however, as the appellant refused to meet with him. Nevertheless,
    based on a review of the appellants history, Dr. Klassen agreed that the
    appellant continues to pose a significant threat. Dr. Klassen assessed the
    appellant as having a high risk of general/violent recidivism. Of importance to
    the appellants request to transfer to a less secure psychiatric facility, Dr.
    Klassen said that, given the appellants past conduct, especially his conduct
    towards females, it made sense for the appellant to remain on an all-male unit.
    That requirement restricts the psychiatric facilities to which the appellant
    could be transferred as not all such facilities have all-male units.

[6]

Dr. Klassen also noted that he was unable to determine to what degree
    the appellants ongoing aggressive conduct is related to his unhappiness with
    being at Waypoint, as opposed to his high score on the appraisal test for
    recidivism. The appellant views his continued detention at Waypoint as being an
    injustice.

[7]

The Board concluded that this was not the appropriate time to consider
    allowing the appellant to transfer to a less secure psychiatric facility. In
    particular, the Board declined to allow the appellant to transfer to the two
    facilities that he proposed because neither of those facilities has an all-male
    unit.

[8]

The Board acknowledged the positive strides that the appellant had made
    in the last year. However, the Board concluded that the appellant should remain
    at Waypoint to determine if those positive strides will continue. The Board
    appears to be alert to the concerns that arise from the appellants continued
    detention at Waypoint as a high security facility and also appears to be open
    to a transfer to a less secure facility, in the future, if the appellant
    continues to improve.

[9]

Given the evidence, and the ongoing conduct of the appellant, the
    Boards conclusion was a reasonable one. It is entitled to deference from this
    court. We have no basis to interfere with it, especially since the Board is alive
    to the concerns about the appellants continued detention at Waypoint and to
    the possibility of a transfer in the future. Also, the appellants increasing
    age will be a factor in determining whether his aggressive behaviour remains a
    concern.

[10]

Before
    concluding, we address two other points. One is the appellants reliance on the
Universal Declaration of Human Rights
, G.A. Res. 217 A (III), U.N.
    Doc. A/810, at 71 (1948), s. 5, s. 8 and the oath of Queen Elizabeth II. As
    important as these documents are, the principles they describe do not govern
    this appeal. The provisions of Part XX.1 of the
Criminal Code
set out
    the law that must be applied, and the Board decision properly applies those
    provisions. Nor has the appellant satisfied us that any provisions of the
Canadian
    Charter of Rights and Freedoms
have been violated.

[11]

The
    other is the attempt by the appellant to file what he called fresh evidence. While
    we have looked at the material that the appellant filed in this regard, we have
    not considered that material in coming to our conclusion. The will say
    statements set out in that material are not evidence. They are hearsay. The
    appellants last-minute request to have unidentified witnesses testify for the
    first time on appeal came too late. More importantly, the issue before us
    relates to the reasonableness of the Boards decision. The reasonableness of that
    decision must be judged based on the evidence that was before the Board at the
    time. Therefore, the material offered does not satisfy the well-established requirements
    for admission as fresh evidence:
Palmer v. The Queen
, [1980] 1 S.C.R.
    759.

[12]

The
    appeal is dismissed.

David M. Paciocco
    J.A.

I.V.B. Nordheimer
    J.A.

J.A. Thorburn J.A.


