



COURT OF APPEAL FOR ONTARIO

CITATION: Latouche (Re) 2015 ONCA 675

DATE: 20151006

DOCKET: C59750

Strathy C.J.O., MacPherson J.A. and Speyer J. (
Ad
    Hoc
)

IN THE MATTER OF:  Cameron Latouche

AN APPEAL UNDER PART XX.1 OF THE
CODE

Gavin S. MacKenzie, for the appellant Person in charge
    of Centre for Addiction and Mental Health

Maureen Addie, for the respondent Cameron Latouche

Stacey D. Young, for the respondent Crown

Heard: October 2, 2015

On appeal against the disposition of the Ontario Review
    Board dated November 21, 2014.

ENDORSEMENT

[1]

In a Disposition dated November 21, 2014, the Ontario Review Board
    (ORB) ordered that the respondent Cameron Latouche be absolutely discharged.
    In its reasons supporting the Disposition, the ORB said:

Having considered all of the evidence, we are not satisfied
    that the evidence supports a finding that Mr. Latouche remains a significant
    threat to public safety. Under these circumstances we are obliged to grant Mr.
    Latouche an Absolute Discharge.

[2]

On December 16, 2014, the appellant hospital appealed the ORBs
    Disposition. The appeal is an unusual one, as reflected in these paragraphs in
    the Notice of Appeal:

5.      The appellant does not allege the Boards decision
    to absolutely discharge the Appellant was unreasonable or tainted by legal
    error.

6.      There have been significant developments with
    respect to Mr. Latouche since he was absolutely discharged.

7.      The appellant takes the position that in light of
    these developments Mr. Latouche currently meets the threshold for significant
    threat to public safety.

8.      The appellant will bring a motion for fresh
    evidence pursuant to s. 672.73 of
Criminal Code
in support of this appeal.

[3]

The hospital made an application to this court to stay the ORBs
    Disposition of absolute discharge pending the hearing of this appeal. In an
    Order dated February 4, 2015, Hoy A.C.J.O. granted the application and
    reinstated the ORBs previous Disposition dated December 19, 2013 which
    detained the appellant in the General Forensic Unit of CAMH, with privileges up
    to living in the community in approved accommodation. In her reasons, Hoy
    A.C.J.O. stated:

Admissible fresh evidence establishes that promptly after being
    discharged, the Respondent resumed marijuana use and engaged in threatening
    behaviour. The respondent has been arrested three times since his discharge. He
    has been charged twice with threatening death and has been charged once with
    assault of a peace officer and failure to comply with a recognizance.

[4]

On March 25, 2015, the ORB reviewed the appellants restriction of
    liberty pursuant to s. 672.81(2.1) of the
Criminal Code
. On March 30,
    2015, the ORB ruled that the restriction of the appellants liberty was
    warranted and in the circumstances of this case represented the least onerous
    and least restrictive decision.

[5]

The appellant has remained at CAMH since February 4, 2015.

[6]

On this appeal, the hospital relies entirely on fresh evidence relating
    to the appellants conduct during the six weeks he lived in the community after
    his absolute discharge and his conduct at CAMH since the resumption of his
    detention there. As mentioned above, the appellant does not challenge the
    merits of the November 21, 2014 Disposition of the ORB.

[7]

Section 672.73 of the
Criminal Code
provides that an appeal
    against a disposition order shall be based on a transcript of the proceedings
    and any other evidence that the court of appeal finds necessary to admit in the
    interests of justice. In
R. v. Owens
, 2003 SCC 33, the court
    indicated that fresh evidence concerning events that postdate the disposition
    order may be admitted where the evidence is trustworthy and touches on the
    issue of risk to public safety (paras. 48-61 and 71). The fresh evidence is
    not limited to the appellant. All parties may proffer fresh evidence: see
R.
    v. Furlan
, 2014 ONCA 740, at paras. 8-10.

[8]

In this appeal, the hospital tendered fresh evidence through affidavits
    by Dr. Padraig Darby, a psychiatrist and the Person in Charge of CAMH, and Dr.
    Virginia Duff, one of the appellants treating psychiatrists. The respondent
    filed fresh evidence through Veronica Yuen, the appellants counsels legal
    assistant.

[9]

The import of the fresh evidence tendered by the hospital is
    overwhelming. Sadly, the appellants good behaviour at CAMH which led to the
    absolute discharge in November 2014 disintegrated very soon after his release.

[10]

The
    fresh evidence documents the following. Since his absolute discharge, the
    respondent has engaged in conduct that has led to three different sets of
    criminal charges, including five counts of threatening death (involving at
    least two incidents), assaulting a court officer, and breach of recognizance.
    He faces three trials on these charges. In addition, the appellant has
    regularly acted in an aggressive and intimidating manner towards CAMH staff and
    co-patients since his return to the hospital. He has been placed in locked
    seclusion for numerous periods in recent months.

[11]

The
    respondent has also tendered fresh evidence consisting of, essentially,
    doctors and staff reports about the respondents condition and behaviour in
    the period from June 1 to September 11, 2015. Although these updates are useful
    and include material that might be relevant to CAMHs treatment of the
    respondent going forward, they do not reduce by much the respondents very
    troubling behaviour and actions since December 2014.

[12]

In
    the end, we accept the conclusion reached by Dr. Darby in his affidavit:

Absent the supervision and oversight of an ORB disposition, I
    believe there is a foreseeable and substantial risk that Mr. Latouche would
    commit a criminal offence that causes serious physical or psychological harm to
    a member of the public.



At this time, I believe that Mr. Latouches risk to public
    safety can only be managed on an in-patient basis.

[13]

We
    note that Dr. Duff, the respondents treating psychiatrist whose highly
    favourable report anchored the ORBs reasons for granting an absolute discharge
    in November 2014, now shares Dr. Darbys opinion.

[14]

The
    appeal is allowed. It is ordered that the ORB conduct a new and expedited hearing
    within 60 days and make a new disposition order. Until that order is made, the
    ORB disposition order dated March 30, 2015 remains in effect.

G.
    R. Strathy C.J.O.

J.C.
    MacPherson J.A.

C.M.
    Speyer J. (
Ad Hoc
)


