



COURT OF APPEAL FOR ONTARIO

CITATION: Errol Kay (Re), 2021 ONCA 182

DATE: 20210325

DOCKET: C68601

Rouleau, Pepall and Roberts JJ.A.

IN THE MATTER OF: Errol Kay

AN APPEAL UNDER PART XX.1 OF THE
CODE

Stephen F. Gehl, for the appellant

Samuel Greene, for the respondent,
    Attorney General of Ontario

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

Heard: March 17, 2021 by video
    conference

On appeal from the disposition of the
    Ontario Review Board dated July 10, 2020, with reasons dated August 12, 2020.

REASONS FOR DECISION

[1]

The appellant was found not criminally
    responsible on a charge of sexual assault on June 9, 2004. He appeals the Ontario
    Review Boards July 10, 2020 disposition which ordered his continued detention
    at Waypoint Centre for Mental Health Care. At the hearing, the parties agreed
    that the appellant continued to pose a significant threat to public safety and
    that a detention order was necessary. The only issue was whether the appellant
    should be transferred to the less secure facility at Southwest Centre for Forensic
    Mental Health. A majority of the Board considered the transfer to be premature,
    while a minority would have ordered the transfer.

[2]

The appellant appeals the Boards refusal to
    transfer him from Waypoint to Southwest on two bases. First, he argues that
    such refusal was premised on an error of law because the Board acknowledged
    that the appellants risk could be managed at a less secure facility but failed
    to impose the least onerous and least restrictive disposition.

[3]

We disagree. The majority applied the correct
    legal standard. In its reasons, the majority specifically referenced the
    requirement that the disposition be necessary and appropriate which is
    equivalent to the least onerous and least restrictive standard referenced in
    the case law:
McAnuff (Re)
, 2016 ONCA 280, at para 22.

[4]

The second ground of appeal is that the decision
    is unreasonable. Here the appellant says that the opinion of Dr. Hudson, the
    appellants treating psychiatrist, was that, as a result of a change in
    medication, the appellant no longer required maximum-secure detention at
    Waypoint and that his risk could be managed at a less secure facility. The
    appellant argues that the majority of the Board erred in finding that the
    record supported continued detention at Waypoint.

[5]

In our view, Dr. Hudson did not clearly express
    the opinion that the appellants risk could be managed at a less secure
    facility. We agree that portions of Dr. Hudsons evidence suggest that he did
    not see the appellant as constituting a significant risk to the public in the
    context of a medium-secure environment such as Southwest and that, as a result,
    he supported a transfer to Southwest. However, in other parts of his evidence,
    Dr. Hudson explained that the appellant was not ready for the transfer and that
    the appellants risk could not be safely managed if he were to be transferred
    to Southwest. He testified that we havent seen a long enough period of
    stability for the [appellant] to be managed safely at [Southwest].

[6]

It was up to the Board to assess Dr. Hudsons
    evidence and it was open to the Board to interpret his testimony as it did. It
    is apparent from the majoritys reasons that, when considered as a whole, it
    viewed Dr. Hudsons evidence as advocating a cautious approach to the evidence
    of progress shown by the appellant such that a transfer may well be premature.
    This was consistent with the recommendation of the majority of the treatment
    team to the effect that a transfer was premature.

[7]

We also reject the appellants suggestion that,
    in reaching its decision, the Board relied on the hospitals willingness to
    call for an early review if the appellant progressed over the following months.
    The Board simply referred to and supported the hospitals willingness to call
    for an early hearing in appropriate circumstances. It did not rely on that fact
    in its analysis of the necessary and appropriate disposition in this case.

[8]

We therefore see no basis to interfere with the Boards
    conclusion that the weight of the evidence indicated that a transfer to
    Southwest was premature and that continued detention at Waypoint was necessary
    and appropriate until the appellants recent gains are consolidated.

[9]

For these reasons the appeal is dismissed.

Paul
    Rouleau J.A.

S.E.
    Pepall J.A.

L.B.
    Roberts J.A.


