



COURT OF APPEAL
    FOR ONTARIO

CITATION: Robertson (Re), 2019 ONCA 88

DATE: 20190208

DOCKET: C64673

Simmons, Lauwers and Trotter JJ.A.

IN THE MATTER OF: James Robertson

AN APPEAL UNDER PART XX.1 OF THE
CODE

James Robertson, in person

Christel E. Francis, as
Amicus Curiae


Linda Shin, for the Attorney General of Ontario

Janice E. Blackburn, for the person in charge of Waypoint
    Mental Health Care

Heard: January 17, 2019

On appeal from the disposition of the Ontario Review
    Board, dated October 20, 2017, with reasons reported at [2017] O.R.B.D. No.
    2453.

REASONS FOR DECISION

[1]

At the review of
    Mr. Robertsons disposition by the Ontario Review Board under appeal, he
    requested an absolute discharge on the basis that he was no longer a
    significant threat to public safety. He proposed, as an alternative, a transfer
    to another facility. In the further alternative, he requested the board to
    order an assessment for a period of up to six weeks in order to obtain a second
    opinion on his diagnosis. For the reasons that follow we dismiss the appeal.

Context

[2]

Mr. Robertson
    committed the index offences of criminal harassment and an invitation to sexual
    touching in 2001 and 2002, which resulted in a finding in 2007 that he was not
    criminally responsible by reason of a mental disorder. He had earlier been
    convicted of rape in 1978, and for a sexual assault in 1983 that occurred shortly
    after his release.

[3]

Mr. Robertson has
    been under a number of board dispositions made from June 2009 to the
    disposition under appeal. In each disposition, based on a finding that he posed
    a significant risk to the safety of the public, he was ordered to be detained
    at Waypoint.

The appellants psychiatric
    diagnoses

[4]

According to the
    hospital report and the addendum, Mr. Robertsons current diagnoses are
    Paraphilia, Not Otherwise Specified; Cannabis Abuse; Polysubstance Dependence,
    Prior History; Antisocial Personality Disorder; and Narcissistic Personality
    Disorder. The board noted that Mr. Robertson has extremely high scores on the
    PCL-R test, which confirms that he is a psychopath.

The standard of review

[5]

Part XX.1 of the
Criminal
    Code
prescribes the legislative scheme for addressing accused persons who
    have mental disorders and are found not to be criminally responsible: the
    primary purpose of the legislative scheme is to protect the public while
    minimizing any restrictions on the NCR accused's liberty interests:
Mazzei
    v. British Columbia (Director of Adult Forensic Psychiatric Services)
,
    2006 SCC 7, [2006] 1 S.C.R. 326, at para 32.

[6]

The board is
    responsible for determining Mr. Robertsons necessary and appropriate
    disposition, which contemplates the least onerous and least restrictive
    disposition necessary to protect the public:
R. v. Winko
, [1999] 2
    S.C.R. 625, at para. 47.

[7]

This court may only
    set aside an order of the board where it is of the opinion that: the decision
    is unreasonable or cannot be supported by the evidence; it is based on a wrong
    decision on a question of law; or there was a miscarriage of justice: s.
    672.78(1) of the
Criminal Code
;

and see
R. v. Owen
, 2003
    SCC 33, [2003] 1 S.C.R. 779, at paras. 31-37,
Re Hart
, 2016 ONCA 277,
    at para. 6. Appellate courts are not [to] be too quick to overturn a review
    boards expert opinion on how best to manage a patients risk to the public:
R. v. Conway
,
2010 SCC 22, [2010] 1 S.C.R. 765 at para. 95; see
    also,
R. v. Owen
, at para. 69.

Issues and analysis

[8]

The main issue on
    this appeal is whether the boards disposition falls within a range of
    reasonable outcomes. Mr. Robertson and
amicus
raise several other
    issues, which are stated in the headings below.

(1)

Does Mr. Robertson continue to pose a significant risk to public safety?

[9]

Mr. Robertson and
amicus
argue that there is no factual basis to support a finding that
    he presents a risk to public safety any longer, after many years of
    incarceration. They point out that there is no evidence of physical violence other
    than two incidents in which Mr. Robertson was responding to the aggressiveness
    of other patients. His treating psychiatrist, Dr. A. Danyluk, acknowledged that
    there have been no complaints about Mr. Robertsons behaviour from staff during
    the two years that she has been his psychiatrist, and no complaints about his
    behaviour from numerous interactions he has had with doctors, physiotherapists,
    the dentist and court staff while under her care.

[10]

The board referred
    to Dr. Danyluks testimony at para. 47:

Dr. Danyluk was asked whether the recent (seven months)
    behavioural improvement has changed her opinion on the issue of significant
    threat. Dr. Danyluk responded that it has not. In her opinion, Mr. Robertson
    remains a significant threat. She reaches that conclusion based on his lengthy
    criminal record for serious assaultive conduct, his substance abuse history,
    the results of the phallometric testing, his preference for coercive sexual
    activities, and his lack of programming such as anger management programs. She
    also noted his lack of insight and his refusal to accept responsibility for any
    of his past conduct.

[11]

Mr. Robertson
    also challenged Dr. Danyluks qualifications as an expert because she is not
    yet certified as a forensic psychiatrist. The board rejected the challenge and
    notes simply that she had been accepted as an expert witness in hundreds of
    hearings. We see no error in this determination.

[12]

Before this
    court, Mr. Robertson noted that he has been at Waypoint since 2008 and asserted
    that there has been no movement towards reintegrating him back into the
    community. Apart from his psychiatric treatment, he has not been provided with
    therapy. He has not shown signs of psychosis in a number of years and is not
    presently medicated. Dr. Danyluk testified that there were programs at Waypoint
    that could assist Mr. Robertson, including an anger management program, a
    substance abuse program, and a mindfulness program, but he had chosen not to
    engage. He has also avoided contact with the psychometrist, as a result of
    which his psychometric tests are dated.

[13]

The boards
    decision relied on the unanimous opinion of Dr. Danyluk and the clinical team
    that Mr. Robertson remains a significant threat to public safety: para. 31. The
    board's decision was plainly reasonable and is amply supported by the evidence.
    Mr. Robertson continues to pose a significant threat to the safety of the
    public as defined by s. 672.5401 of the
Criminal Code
. There is no evidentiary
    support for an absolute discharge. We do not give effect to this ground of
    appeal.

[14]

Amicus
asserted that the board erred in
    failing to find that there was a treatment impasse at Waypoint, to which the
    board is obliged to respond, relying particularly on
Gonzalez (Re)
,
    2017 ONCA 102, 136 O.R. (3d) 453, leave to appeal refused, 2017 CarswellOnt 9960
    & 9961; 2018 CarswellOnt 2600 & 2601. This issue was not raised before
    the board and is not properly raised for the first time on appeal.

(2)

Should the board have ordered an
    independent assessment?

[15]

Mr. Robertson
    sought an independent assessment, to be performed by Dr. Federoff, even though
    he was the psychiatrist who supported Mr. Robertson being found not criminally
    responsible. The board also noted Mr. Robertsons testimony that he would be
    open to another assessor but he wanted the assessor to be "open
    minded" and be prepared to consider whether Mr. Robertson was properly
    convicted of the rape charge and of the sexual assault charge: para. 71. He
    also wanted a second opinion on the appropriate diagnoses, whether or not he
    remains a significant threat to public safety, and whether the necessary and
    appropriate disposition is detention at Waypoint: para. 20.

[16]

In the boards
    reasons, Mr. Robertsons request for an independent assessment was confusingly
    intertwined with his request for a transfer, but there was clarification in
    argument before this court.

[17]

Waypoint did not
    oppose an assessment at another facility, but counsel argued before the board
    that the transfer for an assessment should only be to a facility where female
    co-patients would not be present and that certain conditions were required in
    the interest of safety: para. 68. Mr. Robertson indicated that he would not go
    for such an assessment unless he could take his computer with him.

[18]

The board refused
    to order the assessment on the basis that there is simply no reason for Mr.
    Robertson to be assessed elsewhere. The board referred to Dr. Danyluks
    opinion: that any independent psychiatric assessment would simply confirm Mr.
    Robertson's diagnoses, would confirm that he remains a significant threat to
    public safety and would confirm that the necessary and appropriate Disposition
    remains a Detention Order at the Provincial Forensic Program.

[19]

It became clear
    in argument that Mr. Robertson would be amenable to an independent assessment
    conducted at Waypoint. Counsel for Waypoint agreed that this was acceptable,
    but that Dr. Federoff, Mr. Robertsons preferred assessor, would not be
    acceptable, since  she saw him as a defence expert and therefore not
    independent. Mr. Robertsons assessment is dated and the evidence would be
    relevant to any board disposition. There is merit in this request.

[20]

There is an issue
    about the scope of an independent assessment. The board took the view that Mr.
    Robertson is hoping to find a doctor or psychiatric team that would be willing
    to entertain Mr. Robertsons submission that he was wrongfully convicted of the
    rape and/or sexual assault: para. 81. These issues are outside of the boards
    mandate under s. 672.54 and therefore of this courts scope of review under s.
    672.72(1).

[21]

Since Mr.
    Robertsons next review is scheduled for March, we direct the board to reconsider
    the request for an independent assessment.

(3)

Did the board err in refusing Mr.
    Robertsons request for a transfer?

[22]

Mr. Robertson
    sought a transfer to a less secure facility. However, the record establishes
    that no other facilities are prepared to accept him on a transfer because he
    presents too great a risk on his current diagnoses. The panel noted that any
    necessary conditions around Mr. Robertsons disposition after a transfer would
    have the paradoxical result that Waypoint would actually be clearly less
    onerous and less restrictive than conditions that would be imposed at another
    facility on a transfer.

[23]

Mr. Robertson has
    not shown that the board erred in declining to order his transfer.

(4)

Did the board err in refusing to hear the Mr. Robertsons
Charter
application?

[24]

Mr. Robertson
    brought a
Charter
application but the board refused to hear it.

[25]

The record shows
    that 16 pre-hearing conferences were held, largely to deal with the appellants
    ongoing requests and routine failures to meet filing deadlines. At the
    pre-hearing conference on February 22, 2017, Mr. Robertson raised the
    possibility that he would file a
Charter

application,
    and he raised it at the next 7 pre-hearing conferences. Mr. Robertson agreed to
    file his
Charter

materials by April 13, 2017, but this deadline was
    missed. The next six deadlines were also missed. Mr. Robertson had counsel or
amicus
for much of this time. The board
    imposed a final deadline of July 15, 2017, which it communicated to the
    appellant earlier. The boards concern was to ensure that the panel had
    sufficient time booked to deal with the disposition decision and with the
Charter
application.

[26]

Mr. Robertson did
    file his
Charter
application materials on August 30,
    2017 for the September 27 hearing, which came within the time limits set out in
    Rule 12
.
On September 8, 2017, the board advised Mr. Robertson that the
    panel would not hear his
Charter

application due to his non-compliance
    with its deadlines.

Mr. Robertson and
amicus
argue that his application was timely under the boards
Rules of Procedure
and that the boards refusal to hear
    the
Charter
application was unreasonable.

[27]

We disagree.

[28]

The rules state
    that a party who intends to bring a constitutional application must give notice
    of their intention to do so no less than 15 days before the hearing. However,
    Rule 7.2 gives the chairperson of the board or the alternate chairperson
    authority to extend or abridge the deadlines (such as the 15day deadline for
    filing
Charter

application materials), on such terms as are just.

[29]

While Mr.
    Robertsons filing was within the 15-day notice period provided for in Rule 12,
    the alternate chair properly exercised his discretion under Rule 7.2 in
    declining to hear the application. Given the inordinate delays in scheduling
    the hearing, it was reasonable for the board to provide the appellant with a
    firm deadline and to refuse an additional extension in view of the boards
    obligation to ensure Mr. Robertson had his annual hearing in a timely fashion. There
    was nothing unfair or arbitrary about the boards handling of this issue. The
    board has control over its own processes.

[30]

As it was, the
    annual review was conducted almost a year late. In our view, it was reasonable
    for the board to impose a final filing deadline in order to get on with the
    review. The board expressly noted that it was not denying the application for
Charter
relief, which Mr. Robertson can pursue at the next annual review.

(5)

Did the board err in refusing to allow Mr. Robertson to call witnesses
    at the hearing?

[31]

As noted, there
    were 16 pre-hearing conferences conducted before the hearing itself. At the
    second, Mr. Robertson advised that he wished to call as witnesses Mike MacNeil,
    the program director of his ward; Chad Draper, the nurse manager; and another
    patient. According to the report of the conference, Mr. Robertson responded
    that he wished to put evidence of a brutal attack on the patient before the
    board. The conference chair pointed out that such evidence would be irrelevant to
    the issues before the board relating to Mr. Robertsons disposition.

[32]

Amicus
advised Mr. Robertson about the
    process by which he might subpoena witnesses, but he did not take the
    appropriate steps. He failed to explain how the witnesses he intended to call
    were related to the issues before the board. The board did not err in refusing
    to allow Mr. Robertson to call Mr. MacNeil and Mr. Draper as witnesses.

(6)

Did the board err in failing to
    ensure sufficient disclosure?

[33]

The disclosure
    provided to Mr. Robertson was voluminous and consisted of a 316-page hospital report,
    and a 43-page addendum. It included excerpts of his clinical records from
    various years. In July 2017, Mr. Robertson made a request for access to records
    of personal health information, and it eventually became clear that he was
    asking for his entire chart from the date of his admission in 2008. He
    explained that he needed these records in order to address the
Charter
application.

[34]

Several days
    before the hearing, Waypoint provided Mr. Robertson with the disclosure he
    sought, but he declined to accept it on the basis that it was too late for the
    hearing.

[35]

There is no
    suggestion that the late response to the request prejudiced Mr. Robertsons
    presentation at the hearing, since the
Charter
application was not in issue any longer.

[36]

The board did not
    fail in its duty to ensure proper disclosure.

(7)

Did the board err in failing to take account of Mr. Robertsons
    inadequate computer access?

[37]

Mr. Robertsons
    complaint was that his ability to present his case was hampered by his limited
    access to his computer.

[38]

Mr. Robertsons individual
    management plan relating to the use of his computer states: The purpose of
    this plan is to afford Mr. Robertson access to his computer for the purposes of
    accessing and completing legal documents. A structured and consistent approach
    will be taken with Mr. Robertsons computer use as he has a recent history of
    misuse, including using his computer tower as a means to conceal contraband.

[39]

The hospital
    record shows conclusively that Mr. Robertson has abused his computer privileges
    by using the computer for the storage of contraband and to compose a sexually
    explicit hip hop song about a staff member at Waypoint.

[40]

This was not a
    matter on which the board made any comments. It is not this courts function to
    micromanage with the board or Waypoint.

Disposition

[41]

The appeal is
    dismissed.

Janet Simmons J.A.

P. Lauwers J.A.

G.T. Trotter J.A.


