



COURT OF APPEAL FOR ONTARIO

CITATION: Labelle (RE), 2012 ONCA 618

DATE: 20120920

DOCKET: C55368

Doherty, Hoy and Pepall JJ.A.

IN THE MATTER OF:  DANIEL LABELLE

AN APPEAL UNDER PART XX.1 OF THE
CODE

Suzan E. Fraser as
amicus curiae

Daniel Labelle, appearing in person

Molly Flanagan, for the respondent, Ministry of the
    Attorney General

Janice E. Blackburn, for the respondent, Person in
    Charge of Waypoint Centre for Mental Health Care

Heard:  September 17, 2012

On appeal against the disposition of the Ontario Review
    Board dated, February 8, 2012.

ENDORSEMENT

[1]

The appellant was found NCR some eight years ago.  He was for several
    years held as a dual offender having been convicted of manslaughter in an
    unrelated proceeding.

[2]

The appellant is held in detention under an order of the Ontario Review
    Board (the Board) at the maximum security facility at Oak Ridges.

[3]

The appellant does not challenge the order detaining him at Oak Ridges,
    but does argue that the Board erred in its refusal to order, as a term of the
    detention order, that the appellant be transferred to the psychiatric facility
    at Brockville for the purposes of obtaining an independent assessment of the
    appellants psychiatric condition.

[4]

The appellant seeks an independent
    assessment primarily on the basis that his psychiatric diagnosis has changed
    significantly.  His treating psychiatrist at the time of the hearing before the
    Board does not accept the diagnosis that had led to the NCR finding some eight
    years earlier.

[5]

The Board reached the following
    conclusions:

·

the appellant posed a
    significant threat to the safety of the public;

·

Oak Ridges provided a secure and orderly environment for the
    appellant.  That environment was important to the maintenance of the
    appellants stability;

·

the level of management of the appellant provided at Oak Ridges
    was necessary to contain the risk;

·

there was no present need for a further assessment as a
    precondition to the Boards exercise of its jurisdiction under s. 672.54.

·

a treatment course for the appellants suspected attention
    deficit hyperactivity disorder (ADHD) was available at Oak Ridges and there
    was some reason to believe that the appellant would be amenable to that
    treatment; and

·

if warranted, at some point in the future, an independent
    psychiatric assessment could be carried out at Oak Ridges.

[6]

Each of the findings outlined above is supported in the record.

[7]

The Board accepted that it had the authority to make the assessment
    order requested.  There is some debate as to when the Board can make an
    assessment order apart from its power under s. 672.121:  see
Mazzei v.
    British Columbia
2006 SCC 7.  We need not address that controversy on this
    appeal as the respondents are prepared to accept, for the purposes of this
    appeal, that the Board had the power to make an assessment order even though
    there was no suggestion that a treatment impasse had arisen.

[8]

We see no error in the Boards exercise of its discretion to refuse the
    requested assessment order.  We cannot agree with the submission of
amicus
that the Boards refusal to order an assessment constitutes a failure in its
    duty to seek out and consider evidence relevant to the determination of an
    appropriate disposition.  The Board considered the evidence put before it that
    was relevant to the suggested transfer to Brockville for the purposes of an
    independent assessment.  There were real difficulties associated with that
    proposed transfer from a security point of view.  There was nothing to be
    gained from a risk assessment point of view.  There was also good reason to
    conclude that the course of treatment proposed at Oak Ridges could proceed and
    could potentially assist the appellant and clarify the diagnosis.  An
    independent assessment at Oak Ridges remained an available option, if deemed
    appropriate.

[9]

The Board did conduct the appropriate inquiry.  That inquiry led it to
    conclude that transfer to Brockville for assessment purposes was not necessary
    for the Board to arrive at the appropriate disposition under s. 672.54.  In our
    view, that conclusion was a reasonable one.  As the Board exercised its
    discretion in a reasonable manner, the court should not interfere.

[10]

The
    appeal is dismissed.

Doherty J.A.

Alexandra Hoy J.A.

S.E. Pepall J.A.


