



COURT OF APPEAL FOR ONTARIO

CITATION: Boehme (Re), 2016 ONCA 706

DATE: 20160928

DOCKET: C61654

Doherty, Pepall and Hourigan, JJ.A.

IN THE MATTER OF: RALPH BOEHME

AN APPEAL UNDER PART XX.1 OF THE
CRIMINAL

CODE

BETWEEN:

THE PERSON
    IN CHARGE OF ONTARIO SHORES CENTRE

FOR
    MENTAL HEALTH SCIENCES

HER
    MAJESTY THE QUEEN

-and-

RALPH
    BOEHME

Erin Dann and J. Shanmuganathan, for the appellant

P. Payne, for Ontario Shores Centre for Mental Health Sciences

Katherine Beaudoin, for the Ministry of the Attorney
    General

Heard: September 22, 2016

On appeal against the disposition of the Ontario Review
    Board dated, January 5, 2016.

ENDORSEMENT

[1]

The
appellant was found not criminally
    responsible (NCR) by reason of mental disorder in August 2011 for uttering
    threats to cause death or bodily harm and failing to comply with a probation
    order. He has been under the care of Ontario Shores Centre for Mental Health Sciences
    (Ontario Shores) since that time.

[2]

The complainant in the index offences, Maureen Barry, managed the
    property where the appellants mother lived up to her death. After his mothers
    death, the appellant got into an on-going dispute with Ms. Barry over his
    mothers belongings. The dispute resulted in multiple criminal charges, including
    harassment charges, and culminated with the index offences.

[3]

After he was found NCR, the appellant was diagnosed with delusional
    disorder and alcohol abuse/dependence disorder. While at Ontario Shores, the
    appellant has complied with his medication regime, taken supervised community
    outings without incident, and completed facility rehabilitative programs.
    However, the appellant contacted Ms. Barry at least twice during this time,
    including once in July 2015 when he sent a letter to the complainants lawyer.

[4]

At his latest Ontario Review Board (ORB) hearing in December 2015, the
    Attorney General and Ontario Shores jointly recommended a detention order with
    a community living privilege. Counsel for the appellant advised that his client
    was seeking a conditional discharge.

[5]

Consistent with the joint position of the parties, the ORB concluded the
    appellant continues to represent a significant threat to public safety, as he continues
    to have active delusions. It further found that the appellant has no insight
    into his illness and no appreciation for the psychological harm caused to the
    complainant by his conduct. The ORB concluded that the necessary and
    appropriate disposition is a detention order with community living privileges.

[6]

The appellant submits the ORB erred in law when it imposed a detention
    order because it applied the wrong legal test. According to the appellant, rather
    than assessing what the least onerous and restrictive disposition was in the
    circumstances, as they are required to do, the ORB started from the premise
    that the appellant had to earn a conditional discharge. It is submitted that
    the ORB further erred by imposing a detention order when a carefully crafted
    conditional discharge could adequately address the threat to public safety represented
    by the appellant.

[7]

We would not give effect to these arguments.

[8]

The ORB applied the correct legal test. It did not start from the
    premise that the appellant had to earn a conditional discharge. Rather, it
    provided clear and cogent reasons why a conditional discharge was not
    appropriate.

[9]

First, it accepted the evidence of the appellants treating psychiatrist
    that Ontario Shores needed to approve the appellants accommodations. The
    doctor had testified that the appellant would otherwise return to his apartment
    if discharged. The psychiatrist is of the view that the appellants risk to
    re-offend would rise if he were placed in the community with little or no
    supervision and that the preferred housing option is a group home.  Therefore,
    approved accommodation was an important risk management tool and supported a
    detention order:
R. v. Simpson
, 2010 ONCA 302.

[10]

Second,
    the ORB also found that Ontario Shores needed to be able to return the
    appellant to the hospital expeditiously in response to decompensation in his
    behaviour.  Given the appellants lack of insight into his mental state, this
    finding was reasonable. While the appellant could be returned upon arrest under
    a conditional discharge, this route is not as expeditious as under a detention
    order, where no police involvement is necessary. It is also in the appellants
    best interests because he would be returned to the hospital and not have to go
    through the court system.

[11]

Third,
    the appellants treating psychiatrist testified that he would expect to see a
    serious decompensation if the appellant stopped taking his medication and that
    this would lead to a greater likelihood of acting out against the victim of the
    index offences. He further testified that the appellant could not be trusted to
    take his medication as prescribed if he was on a conditional discharge. We
    agree that it is a reasonable conclusion that the risk of the appellant being
    non-compliant with his medication regime is reduced if he is subject to a
    detention order.

[12]

In
    our view, the Board acted reasonably in concluding that level of control of the
    appellant necessary in the circumstances could only be accomplished through a
    detention order. Thus the ORBs decision to order the appellants continued
    detention was reasonable, entirely borne out by the evidence, and should not be
    interfered with.

[13]

We
    were invited by counsel for the appellant to consider clarifying paragraph 4(d)
    of the ORBs disposition, which provides: refrain from contact or
    communication, direct or indirect, with Ms. Maureen Barry and Mr. Ron Alltree.
    Counsel suggested that we might amend the order to make clear that the
    prohibition would include contact or communication with Ms. Barrys and Mr.
    Alltrees employees, agents and legal counsel.  In our view, the clarification
    is unnecessary because the reference in the order to indirect contact or
    communication would include these proposed additional parties.

[14]

The
    appeal is dismissed.

Doherty
    J.A.

S.E.
    Pepall J.A.

C.W.
    Hourigan J.A.


