



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Heinekamp, 2015 ONCA 124

DATE: 20150224

DOCKET: C58957

Laskin, Feldman and Simmons JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Anthony Heinekamp

Appellant

Lucy Saunders, for the appellant

Christine Tier, for the Attorney General of Ontario

James Gibson, for Ontario Shores Centre for Mental
    Health Services

Heard: February 4, 2015

On appeal from the disposition of the Ontario Review
    Board dated May 12, 2014.

By the Court:

[1]

The appellant appeals
    from a disposition of the Ontario Review Board ordering that he be detained in
    a medium secure unit at
Ontario Shores Centre for Mental Health Services
rather than in the minimum secure unit
    where he was detained prior to the disposition under appeal.

[2]

In making its
    decision, the Board relied on the appellant's recent alcohol use, which involved
    two incidents of intoxication; his antisocial activities and attitude; and his
    recent elopement and resulting elopement risk.

[3]

We do not accept the
    appellant's submissions that the Board erred in relying on these factors or
    that it failed to impose the least onerous and least restrictive alternative.

[4]

The appellant suffers
    from paranoid schizophrenia, substance abuse disorder, and antisocial
    personality disorder. He committed the index offences and a prior manslaughter
    while intoxicated. Although his schizophrenia is currently controlled by
    medication, he pleaded guilty to the prior manslaughter and there is no
    evidence it was related to schizophrenia as opposed to anti-social personality
    disorder combined with drinking.

[5]

At the hearing, the
    appellants treating psychiatrist gave evidence that the appellant is at a very
    high risk of acting violently when intoxicated; that he has minimal insight
    into his alcohol problem; that there was a significant risk he would access
    alcohol if he had indirectly supervised privileges on the minimum secure unit;
    and that even if he did not have indirectly supervised privileges on the
    minimum secure unit, the appellant could obtain alcohol from other patients on
    the unit.

[6]

Taking account of these
    factors, it was open to the Board to find as it did that alcohol use makes the
    appellant a much more dangerous individual; that the appellant does not
    appreciate the risk that alcohol poses for him and for members of the public; and
    that there is a greater chance that the appellant will access alcohol if he is
    detained in the minimum secure unit rather than in the medium secure unit.

[7]

Moreover, it was open
    to the Board to take account of the appellants continued alcohol use and the
    risk it creates when determining the least onerous, least restrictive
    disposition.  The fact that the appellant had been using alcohol in the time
    frame leading up to the previous disposition ordering that he be detained in a
    minimum secure unit did not preclude the Board from relying on his recent
    alcohol use when arriving at the disposition under appeal. A prior decision to
    attempt to manage the appellant in the minimum secure unit despite his alcohol
    use does not preclude the Board from taking account of his continuing alcohol
    use and the risk that it created in determining the least onerous, least
    restrictive disposition.

[8]

As for the appellants
    antisocial activities and attitude, the Board did not rely solely on the
    appellants refusal to discontinue his business activities with other patients.
    The Board noted as well that the appellants current disposition included a
    prohibition against alcohol use and that he minimized the seriousness of the
    index offences and has indicated that he would engage in the same conduct again

[9]

In any event, the
    appellant's refusal to discontinue his business activities with other patients
    was a proper factor to consider in relation to managing the appellants risk.
    Based on the appellants history, the prospect that his business activities
    would bring him into conflict with other patients was real. Moreover, there was
    evidence that he had threatened another patient who owed him money arising from
    his business activities.

[10]

The appellants
    elopement risk made him an unsuitable candidate for the indirect supervision
    privileges that are customary on the minimum secure unit.  If granted
    indirect supervision privileges
on the minimum secure unit
, his elopement risk
heightened the risk that he would access alcohol.

[11]

At the hearing, the
    appellants treating psychiatrist testified that he did not believe that the
    appellant could be managed on a minimum secure unit at that time. The appellant
    did not testify or call evidence. In all the circumstances, the Board's
    conclusion that detaining the appellant in the medium secure unit was the least
    onerous, least restrictive disposition was not unreasonable.

[12]

Before the Board,
    the appellant sought a hybrid order in the alternative. On appeal he maintains,
    in the alternative, that a hybrid order would have been the least onerous and
    least restrictive disposition.

[13]

We do not accept that
    submission. The Board noted that it was open to the appellant to demonstrate
    improved stability and conduct, in which case, Ontario Shores could seek an
    early review. In our view, particularly in the light of the appellants treating
    psychiatrists evidence that a straight disposition would give the appellant
    a better opportunity to focus on addressing his risk factors, the Boards
    decision not to make a hybrid disposition was not unreasonable.

[14]

Finally, in our view,
    read as a whole, the Boards decision reflects proper consideration of all the
    factors in s. 672.54 of the
Criminal Code
.

[15]

In the result, we see
    no basis on which to interfere with the Board's disposition.

Released:

FEB 24 2015                                    John Laskin
    J.A.

JL                                                    K.
    Feldman J.A.

Janet
    Simmons J.A.


