



COURT OF APPEAL FOR ONTARIO

CITATION: Everingham (Re), 2014 ONCA 743

DATE: 20141027

DOCKET: C58363

Cronk, LaForme and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brockville
    Mental Health Centre 

Royal
    Ottawa Health Care Group

Respondent

and

Donald Everingham

Appellant

Michael Davies, for the appellant

Maura Jetté, for the respondent, Her Majesty the Queen

Michelle OBonsawin, for the respondent Brockville
    Mental Health Centre  Royal Ottawa Health Care Group

Heard: October 20, 2014

On appeal from conditions imposed under the disposition
    of the Ontario Review Board, dated November 27, 2013, with reasons reported at
    [2013] O.R.B.D. No. 3236.

Cronk J.A.:

I.        Introduction

[1]

By disposition dated
    November 27, 2013, the Ontario Review Board (the Board) ordered the appellant,
    Donald Everingham, detained within the Secure Forensic Unit of the Brockville
    Mental Health Centre (the Hospital).  As part of its disposition, the Board
    also ordered that: 1) the appellant refrain from the use of computer devices,
    unless he gives permission to hospital staff to monitor their use for content
    and messaging (the Computer Condition); and 2) with the approval of the Person-in-Charge
    of the Hospital, the appellant be permitted to enter the community of
    Brockville, escorted by staff (the Community Access Condition).

[2]

The appellant does not
    challenge his continued detention at the Hospital or the Boards conclusion that
    he continues to represent a significant threat to the safety of the public. 
    Instead, he seeks to set aside the Computer and Community Access Conditions
    imposed by the Board.

II.       Background in Brief

[3]

The appellant is a
    dual-status offender.  He was found not criminally responsible (NCR) on
    October 1, 1975 on charges of assault and assault causing bodily harm.  He is
    also serving two life sentences imposed on May 5, 1975 for convictions for
    forcible seizure, rape and the attempted murder of an 8-year old girl.  He has
    been under the jurisdiction of the Board for approximately 37 years.

[4]

The appellant was detained
    at Waypoint Mental Health Centre (Waypoint) from 1975 to March 28, 2012, when
    he was transferred to the Hospital.  Both Waypoint and the Hospital are designated,
    secure forensic psychiatric facilities.

[5]

The appellants current
    diagnoses include various sexual-related disorders (paraphilia: sexual sadism;
    and pedophilia: heterosexual type), as well as antisocial personality disorder,
    polysubstance abuse and various diseases associated with aging (for example,
    coronary artery disease and degenerative disc disease).  The appellant is
    approximately 66 years old and, much of the time, uses a wheelchair.

[6]

Prior to his transfer to the
    Hospital in March 2012, the appellants actuarial risk assessment on the Sexual
    Offender Risk Assessment Guide (SORAG) was updated.  The appellant scored in
    the highest of nine ascending categories of actuarially measured risk on this
    test.

[7]

As a result of his index
    offences, described above, and his scores on the SORAG and other phallometric
    tests, the appellants treatment team considers that he continues to be a high
    risk for future sexual violence despite his advanced age.

[8]

While at Waypoint and
    continuing at the Hospital, the appellant has maintained contact with a person,
    described by him as an adult woman in New Mexico, named Patricia.  The
    evidence as to whether the appellant had access to the internet, and hence to
    email (online) communications with Patricia while at Waypoint is unclear. 
    Similarly, the record does not establish precisely when the appellants contact
    with Patricia commenced.

[9]

However, there is no dispute
    that the appellant had access to a computer in his living quarters at Waypoint
    and that he spent most of his free time on the ward occupied with the computer. 
    He acquired considerable computer-related knowledge in the process.

[10]

On
    the appellants transfer from Waypoint to the Hospital, his Waypoint treatment
    term identified computer use and internet access as a risk factor of concern,
    in light of the potential victims [that] could be accessed via this tool. 
    The Hospital report filed with the Board contains this warning from the
    appellants Waypoint treatment team regarding both computer and community
    access:

The Team does recommend a cautious progression and stresses
    [the appellant] will require escorted privileges in any less secure setting. 
    In addition, it is important that he not have access to vulnerable females or
    children.  Any internet access would also be a concern as [the appellant] is
    quite adept and knowledgeable with respect to computers and it is possible
    potential victims could be accessed via this tool.

[11]

Nonetheless,
    following his transfer to the Hospital and prior to the Boards November 2013 disposition,
    the appellant was permitted to use a Hospital computer, with internet access,
    in the Hospital library under very limited supervision.  The Hospital report
    states:

While on the ward, [the appellant] spends his time playing
    video games or speaking with some of the co-patients on the ward.  He has been
    actively involved with recreational activities to the extent he is able to with
    his current level of privileges.  This includes playing the organ once a week
    under the supervision of Recreational Therapist, Ken Rossetti,
and using
    the computer to surf the internet and email social contacts, once or twice a
    week, again under the supervision of Ken Rossetti.  Mr. Rossetti monitors, from
    a distance,  [the appellants] use of the internet and thus is able to see in
    a general sense what content he is viewing on the internet.  Although Mr.
    Rossetti is able to see that he is sending emails, he would not be aware of the
    content of the emails or who they are sent to.  [The appellant] himself said
    that he sends emails to an adult female in New Mexico named Patricia.  [The
    appellant] would not allow the treatment team to contact her for any collateral
    information.  He told the treatment team that she is aware of his index
    offences and the fact that he is residing in a psychiatric hospital.  He said
    the relationship is not the treatment teams business
.  [Emphasis added.]

[12]

Thus,
    Hospital staff have no information or knowledge about Patricia, including her
    age, save for the appellants self-report that Patricia is an adult woman who
    lives in New Mexico.

III.      Discussion

(a)

Computer Condition

[13]

In
    his factum, the appellant raised various complaints concerning the Computer Condition. 
    However, during oral argument, the focus of his complaints was narrowed significantly. 
    Through counsel, he clarified that he does not challenge the Hospitals
    authority to monitor his access to various websites available on the internet. 
    Rather, he objects to the restriction on his ability to communicate via email
    on a Hospital computer, without monitoring of the content of his emails by
    Hospital staff.  He submits that this restriction was neither anticipated nor
    sought by any party at the hearing.  He says that the Computer Condition is unreasonable
    and overbroad, and that it offends his rights under the
Mental Health Act
,
    R.S.O. 1990, c. M.7 (the Act) and s. 8 of the
Canadian Charter of Rights
    and Freedoms
.
[1]

[14]

I
    would not accede to these submissions.

(i)

Hearing fairness

[15]

I
    am not persuaded that any hearing unfairness arose as a result of the imposition
    of the Computer Condition.

[16]

The
    transcript of the Board hearing reveals that the issue of the appellants use
    of an internet-connected computer at the Hospital was the subject of
    questioning by Board members.  Both the legal member of the panel and the
    alternate chairperson of the Board questioned the appellants attending
    psychiatrist, Dr. J. Gray, about the appellants use of a Hospital computer,
    and any attendant risk to the public, during Dr. Grays testimony before the
    Board.  As a result of their questions, the prospect of a possible condition
    restricting the appellants computer use, including for the purpose of online exchanges
    over the internet, clearly emerged as a live issue.

[17]

Following
    the Boards questions, counsel for the parties were afforded an opportunity to
    ask further questions of Dr. Gray and to make submissions concerning the
    appellants access to a Hospital computer.  Crown counsel addressed this issue
    in further submissions, requesting that the Board restrict the appellants
    internet access in much the same terms as are reflected in the Computer
    Condition ultimately imposed by the Board.  The appellants counsel elected to
    make only minimal submissions.  No adjournment of the hearing was sought by any
    party.

[18]

In
    the light of the contents of the Hospital report and the nature and gravity of
    the appellants index offences, the question of his access to the internet via
    the use of a Hospital computer  for any purpose  was a highly relevant and
    proper consideration.  Further, the procedures employed by the Board in seeking
    further information from Dr. Gray on this issue, described above, ensured
    procedural fairness.

[19]

In
    my view, therefore, there can be no sustainable complaint that the appellant
    was prejudiced by the fact that this issue emerged at the hearing or by the
    manner in which the Board addressed the issue during the hearing.

(ii)

The Computer Condition is reasonable

[20]

Nor
    am I persuaded that the Computer Condition is unreasonable on the facts of this
    case.  The Board reasoned as follows concerning the imposition of the Computer
    Condition:

It is also a concern of the Review Board that the accused has
    developed a relationship with a woman via internet and that the hospital has no
    information about the nature of that communication or whether this woman is
    potentially at risk of being influenced by the accused or whether the accused
    is communicating sexual fantasies or thoughts that the hospital should know
    about.  Accordingly, the board will require a condition that the accused should
    not have access to the hospital computer unless it can be monitored for content
    by hospital staff.

[21]

I
    agree with the concern expressed by the Board.  In my opinion, there is nothing
    unreasonable about this concern or the imposition by the Board of a condition
    limiting the basis on which the appellant may access an internet-connected
    computer owned by the Hospital.

[22]

The
    Board enjoys broad authority under s. 672.54 of the
Criminal Code
to
    craft conditions to a disposition that it regards as necessary or appropriate
    in the interests of protecting the public from dangerous offenders, while
    treating NCR patients fairly.  The Boards obligation to protect the liberty of
    an NCR accused by fashioning the least onerous and least restrictive
    disposition must be understood in the context of its companion and overarching
    obligation to protect public safety.

[23]

The
    appellants Hospital treatment team and the Board have no information
    concerning the appellants online activities, including the nature of his email
    communications with the person he describes as Patricia or, indeed, with
    anyone else.  Internet access affords a portal to worldwide communications,
    including communications with children and vulnerable adults.  Where an NCR
    offenders index offences and mental disorders are of a serious sexual nature,
    it is squarely within the Boards jurisdiction under s. 672.54 of the
Criminal
    Code
to craft a condition restricting access to the internet and online
    communications to ensure that public safety is protected.

[24]

In
    this case, the evidence of the appellants index offences, the nature of his
    mental illnesses, the concerns expressed by his former treatment team regarding
    his access to the internet, the appellants documented reluctance to disclose
    the nature of his email communications, and the Boards mandate to protect the
    public all strongly supported the imposition of a condition that defined the
    circumstances under which the appellant would be permitted to access the
    internet, for email or other purposes.  The imposition of such a condition, in
    my opinion, was eminently reasonable.  The Hospital cannot be expected to
    manage the appellants risk based solely on his self-reporting of the nature of
    his online communications.

[25]

It
    is also important to note that the Computer Condition does not deny the
    appellant access to a computer or the internet.  The Computer Condition, as
    framed, permits use of computer devices by the appellant, including
    internet-connected computer devices, so long as the appellant first consents to
    the monitoring of his use of such devices by Hospital staff.  It is apparent
    that the Computer Condition was crafted by the Board, quite properly, with a
    view to fashioning the least onerous and least restrictive condition to
    facilitate the appellants use of the internet while also ensuring that the
    public is not put at risk by such use.

[26]

I
    make these additional observations.  First, the Computer Condition does not
    restrict or seek to impose monitoring on all communications by the appellant
    with third parties.  Nothing in the Computer Condition constrains the
    appellants ability to communicate by mail or telephone as he wishes,
    including, for example, with his legal counsel.

[27]

Second,
    during oral argument, the appellants counsel acknowledged that the Board has
    the authority to deny the appellant access to internet-connected devices
    altogether.  The Board chose not to do so.  Instead, it fashioned a condition
    that permits continued computer and internet access by the appellant, subject
    to monitoring in the interests of public and patient safety.

[28]

Third,
    the appellant complains that the Computer Condition is overbroad.  He points
    out, for example, that the condition as framed is not restricted to
    internet-connected computer devices.  However, there is no evidence that any of
    the Hospital computers available to patients lack internet access.  Moreover,
    the appellant has made clear that his objection to the Computer Condition
    relates exclusively to the monitoring of the content of his outgoing and
    incoming emails.  Email communication, like text messaging, is possible only
    with the use of the internet.

(iii)

Charter
and statutory-rights complaints

[29]

I
    also do not accept the appellants complaint that the Computer Condition
    offends his constitutionally-protected rights under s. 8 of the
Charter
or his rights under the Act.  I say this for the following reasons.

[30]

First,
    the Supreme Court has recognized that the Board has the statutory tools under the
Criminal Code
to supervise the treatment and detention of dangerous
    NCR patients in a responsive,
Charter
-compliant fashion and that it
    has a broad power to attach flexible, individualized creative conditions to
    the discharge and detention orders it devises for dangerous NCR patients:
R.
    v. Conway
, 2010 SCC 22, [2010] 1 S.C.R. 765, at paras. 93-4.  It is in
    this context that the Computer Condition must be assessed for
Charter
and statutory compliance.

[31]

Second,
    and critically in my view, as an NCR detainee at a secure forensic psychiatric
    facility, the appellant cannot be said to have an objectively reasonable
    expectation of privacy in his online communications on a Hospital computer.

[32]

Any
    informational privacy concerns relating to the appellants online communications
    arise in a place and in a context governed by a statutory regime that requires
    the curtailing of liberty to the extent necessary to protect the public.

[33]

The
    curtailment of the appellants liberty at the Hospital is manifest in a number
    of respects.  As the Supreme Court held in
Weatherall v. Canada (Attorney
    General)
, [1993] 2 S.C.R. 872, the nature and extent of the
Charter
interests of an inmate of a correctional facility are necessarily informed by
    the inmates institutional setting.  The Supreme Court put it this way in
Weatherall
,
    at p. 877:

Imprisonment

necessarily
    entails surveillance, searching and scrutiny.  A prison cell is expected to be
    exposed and to require observation.  The frisk search, the count and the wind
    are all practices necessary in a penitentiary for the security of the
    institution, the public and indeed the prisoners themselves.  A substantially
    reduced level of privacy is present in this setting and a prisoner thus cannot
    hold a reasonable expectation of privacy with respect to these practices.

[34]

This
    reasoning is apposite here.  The appellant is detained at the Hospital as an
    NCR accused by operation of law.  Detention in a designated forensic
    psychiatric facility, as with detention in a correctional facility, necessarily
    entails surveillance, searching and scrutiny.  The Hospitals fresh evidence
    on appeal, filed on consent, confirms that patients at the Hospital are
    routinely subjected to room searches, visual searches and assessments and
    wanding by Hospital staff, for security and safety purposes.  Thus, as an NCR
    offender, the appellant has a significantly diminished expectation of privacy
    under Part XX.1 of the
Criminal Code
.  In these circumstances, his s.
    8
Charter
rights are not implicated.

[35]

The
    Board has found that the appellant poses a significant threat to public
    safety.  On this basis, his liberty is restricted under the statutory scheme
    for NCR accused codified in Part XX.1 of the
Criminal Code
.  In light
    of the significant limitations on the appellants access to the public by
    reason of his Board-ordered detention, the appellant cannot reasonably expect
    that he will have unsupervised access to the internet and online
    communications, without any oversight as to the contents of those
    communications.

[36]

In
    addition, as I have said, the Computer Condition is crafted so as to ensure
    that any monitoring of the appellants online communications occurs only with
    his consent.  The appellant is free to refrain from accessing internet-connected
    computer devices if he does not wish to consent to this monitoring.

[37]

Third,
    turning to the Act, patients admitted to hospital under the authority of the Act
    have a diminished expectation of privacy in the mail they send and receive by
    reason of s. 26(2) of the statute.  Under that section, hospital officials are
    empowered to open and examine the contents of a patients mail in defined
    circumstances.

[38]

In
    the past, the appellant unsuccessfully challenged the constitutional validity
    of s. 26 of the Act:
Everingham v. Ontario
(1993), D.L.R. (4th) 199
    (Ont. C.J.).  In that case, when upholding the constitutionality of s. 26, the
    court observed, at p. 8: [w]hat is a reasonable expectation of privacy depends
    on the context.  In a context where random searches to ensure safety and security
    are commonplace, the reasonable expectation of privacy is low.

[39]

These
    comments apply, in my view, with equal force to a patients online
    communications in a forensic psychiatric facility.  In the context of the
    living conditions in these secure facilities and in the light of the fresh
    evidence in this case, the appellant has a significantly reduced expectation of
    privacy at the Hospital.  Moreover, I see no evidence of non-compliance by the
    Hospital with the Act.

[40]

Accordingly,
    I would reject the appellants attack on the Computer Condition.

(b)

Community Access Condition

[41]

At
    the Board hearing, the appellant sought a condition permitting him indirectly
    supervised access privileges in the Hospital and grounds, and in the community,
    on an accompanied 1:4 staff to patient ratio.  The Hospital and the Crown
    supported this request.  However, the Board declined this request, instead
    ordering that the appellant be permitted: 1) hospital and grounds privileges,
    escorted by staff; 2) hospital and grounds privileges, on a 1:4 staff-patient
    ratio, accompanied by staff; and 3) access to the community of Brockville,
    escorted by staff (the Community Access Condition), all as the Person-in-Charge
    of the Hospital might approve.

[42]

The
    appellant submits that the Community Access Condition is unreasonable for the
    following reasons: 1) the Board gave no reasons for its rejection of the
    appellants community access request; 2) the evidence indicated that the
    appellants request, if granted, would not add to the risk to the community;
    and 3) since the appellant is confined to a wheelchair, community access on the
    basis proposed by the appellant would not add to the appellants elopement
    risk.

[43]

I
    disagree.

[44]

Contrary
    to the appellants contention, the board rejected his community access proposal
    for numerous cogent reasons.  These included: 1) the significant risk to the
    safety of the public posed by the appellant; 2) the appellants recent
    commitment to take an antiandrogen medication, the effects of which were not yet
    measurable; 3) the appellants elevated risk measurements on phallometric
    testing, which confirmed that he still experiences significant arousal to rape
    scenarios and pre-pubescent situations despite his denial of same; 4) the
    appellants historical high risk conduct for members of the public,
    particularly children and younger people; 5) the appellants lack of personal
    support mechanisms outside the Hospital and of a realistic and feasible
    community access plan; 6) the severity of the appellants index offences; 7) a
    documented incident of violence towards a co-patient in December 2012; and 8)
    the fact that, at the time of the hearing, the appellant had no community
    access privileges at all.

[45]

Based
    on these factors (referred to by the Board as observations), the Board
    concluded that the least onerous and restrictive disposition for the
    [appellant] is a continuation of his detention order with 1:4 hospital and
    hospital grounds supervision and passes into the community, but escorted by
    staff.

[46]

The
    Boards imposition of the Community Access Condition was amply supported by the
    evidence.  It is also consistent with the recommendation of his long-standing
    treatment team at Waypoint, quoted above, that a cautious progression, with
    escorted privileges, be adopted with respect to the appellants reintegration
    into the community.  Finally, there was no clear evidence before the Board
    regarding the extent of the appellants mobility without the use of a
    wheelchair.

[47]

In
    all these circumstances, in my view, the Community Access Condition is
    reasonable.  I see no basis for appellate interference.

IV.     Disposition

[48]

For
    the reasons given, I conclude that the appellants challenges to the Computer
    and Community Access Conditions fail.  I would dismiss the appeal.

[49]

I
    note that the appellants next annual review hearing is scheduled for November
    4, 2014.  It will be for the Board to determine at that hearing whether any
    changes to the conditions of the appellants detention are appropriate or
    necessary, based on the evidence adduced before the Board at the new hearing.

Released:

OCT 27 2014                                   E.A. Cronk
    J.A.

EAC                                                I
    agree H.S. LaForme J.A.

I
    agree C.W. Hourigan J.A.





[1]
Although the appellant argued in his factum that the Board had no jurisdiction
    to impose the Computer Condition, he did not pursue this claim in oral
    argument.


