



COURT OF APPEAL FOR ONTARIO

CITATION: Alexander (Re), 2022 ONCA 237

DATE: 20220321

DOCKET: C69801

Rouleau, Huscroft and Trotter
    JJ.A.

IN THE MATTER OF: Michael B. Alexander

AN APPEAL UNDER PART XX.1 OF THE
CODE

Andrew Menchynski, for the appellant

Dena Bonnet, for the Attorney General

Julia L. Lefebvre, for Waypoint Centre
    for Mental Health Care

Heard: March 11, 2022 by video conference

On appeal from the disposition of the
    Ontario Review Board, dated April 7, 2021, with reasons dated April 23, 2021.

REASONS
    FOR DECISION

(1)

Introduction

[1]

On January 31, 2020, the appellant was found not
    criminally responsible on account of mental disorder (NCRMD) in relation to the
    offences of threatening death and robbery. On July 13, 2020, the Ontario Review
    Board (the Board) ordered that the appellant be detained at the Waypoint
    Centre for Mental Health (Waypoint), a secure facility.
[1]

[2]

The appellant appeared before the Board on March
    31, 2021 for his annual review under s. 672.81(1) of the
Criminal Code
,
    R.S.C. 1985, c. C-46. The issues before the Board were whether the appellant
    continued to pose a significant threat to the safety of the public and, if so,
    what was the necessary and appropriate disposition. All parties agreed that the
    appellant was a significant threat to the safety of the public. They also
    agreed that he should be transferred to the Secure Forensic Unit at Providence
    Care in Kingston (Providence Care), a less secure facility than Waypoint.

[3]

The Board found that the appellant was a
    significant threat to the safety of the public, but rejected the joint
    submission for a transfer from Waypoint to Providence Care.

[4]

The appellant appeals the placement decision
    only. He submits that the Boards decision was unreasonable. Moreover, he
    contends that the hearing before the Board was procedurally unfair because the
    Board failed to provide adequate notice that it was considering the rejection of
    the joint submission.

[5]

The respondents submit that there was no
    unfairness in the manner in which the Board handled the joint submission. On
    the transfer issue, both respondents support the Boards decision despite the
    fact that it is contrary to the joint submission they made at the hearing. The
    Crown grounds this position on appellate deference to the Boards decision; Waypoint
    also relies on deference, but also alludes to fresh evidence that is not before
    us.

[6]

We conclude that the manner in which the Board
    dealt with the joint submission was less than ideal; however, but it did not
    amount to procedural unfairness. Moreover, the Boards decision was a
    reasonable exercise of its discretion.

(2)

Background

[7]

The appellant is 41 years old. In May of 2019,
    he received a conditional discharge for uttering a death threat. He was placed
    on probation for 12 months. The following month, he attended a bank in downtown
    Toronto. He went into one of the employees offices and started yelling and screaming
    in an incoherent manner. When asked to leave, he threatened to cut off the
    employees head and put it in a potato sack he was carrying. He eventually left
    the bank. He was subsequently arrested a month later, but released on bail.

[8]

In September of 2019, the appellant grabbed a
    purse from a restaurant patio table. The victim attempted to retrieve her purse,
    and in the ensuing struggle, her wallet dropped to the ground. The appellant
    ran off with the wallet. The victim caught up to him. With the assistance of
    bystanders, the wallet was recovered. A passing police car was flagged down and
    the appellant was arrested.

[9]

The appellants current diagnoses are:
    schizoaffective disorder, bipolar type; substance use disorder; and antisocial
    personality traits. Prior to these events, the appellant had admissions to
    psychiatric facilities. At the time of his arrest, the appellant was
    essentially homeless, supported by the Ontario Disability Support Program.

[10]

In the months between his arrest and his NCRMD
    finding, the appellant was placed at CAMH. However, because of the inability of
    staff to control him, there were a number of admissions to Waypoint, where the appellant
    spent much of his time in seclusion.

[11]

In the days leading up to the hearing, the
    appellant engaged in erratic behaviour. He threatened suicide and attempted to
    suffocate himself. His treatment team believed this was an attention-getting
    reaction to the Hospital Report and his anxiety about his upcoming ORB hearing.

(3)

The Hearing

[12]

At the outset of the hearing, a representative
    for Waypoint advised the Board that the hospital recommended the appellants
    transfer to Providence Care. The appellant supported this recommendation. The
    Crown indicated that it would state its position after hearing the evidence.

[13]

When the parties set out their positions, they
    were aware that Providence Care objected to the proposed transfer. Dr. Tariq
    Hassan, Clinical Director of Forensic Mental Health at Providence Care, had
    sent a letter setting out its reasons for its objection.
[2]
Having reviewed the Hospital
    Report, Dr. Hassan expressed concerns about the appellants significant
    periods of very acute presentations of unwell behaviour and serious threats of
    violence. He provided other reasons, including the relative recency of the
    appellants clinical progress. Being open to the possibility of a future
    transfer, Dr. Hassan said, [t]his is the rare occasion where I would disagree
    with my colleagues at Waypoint and do not accept to have this gentleman
    transferred to Providence Care at this time. The letter was also before the Board
    and entered as an exhibit. It became a focal point at the hearing.

[14]

The Board heard the evidence of one witness, Dr.
    J. Van Impe, the appellants attending psychiatrist. Dr. Van Impe adopted the
    contents of the Hospital Report and provided the opinion that the appellant
    remains a significant risk to the safety of the public. He referred to the
    appellants periods of extreme agitation, extreme threats of violence, and the
    requirement for seclusion.

[15]

Dr. Van Impe testified that the unanimous
    opinion of the treatment team was that the appellant could be managed at
    Providence Care. However, he said the decision was a difficult one, a
    guarded recommendation, and not an easy decision. Dr. Van Impe testified
    that, if the appellant maintained compliance with his medication, as he had
    over the previous five months, he would be manageable in the less-secure
    setting of Providence Care.

[16]

Responding to the objection of Providence Care,
    Dr. Van Impe said, [t]heir concerns are valid. This isnt a cut and
    dryrecommendation. However, pointing to the appellants intense dislike of
    Waypoint, Dr. Van Impe believed that fear of being returned to Waypoint would
    act as a positive incentive at Providence Care.

[17]

At the conclusion of the evidence, Waypoint
    maintained its recommendation for a transfer, but with conditions designed to
    address the appellants risk factors and the possibility of elopement. The
    Crown said it is cautiously in support of the cautious position by the
    hospital.

(4)

The Boards Decision

[18]

The Board accepted the joint submission that the
    appellant was a significant threat to the safety of the public. It declined to accede
    to the joint submission concerning the transfer to Providence Care. As the
    Board said, at para. 29:

The Board appreciates the fact that the
    parties put forward a joint submission that Mr. Alexander be transferred to a
    less secure facility. The panel does not reject this joint submission lightly.
    As the Court of Appeal stated in
Hassan (Re)
, [2011] O.J. No. 3800 at
    para. 24, the Board ought to tread cautiously before making an order that the
    restricts the accuseds liberty beyond that which the hospital and the Crown
    thinks necessary. However, the court went on to say this at para. 25:

However, the Board does not necessarily err
    because it declines to follow a hospitals or Crowns recommendation.
    Automatically adhering to the position of a hospital or Crown would mean
    abdicating its own role. A review board is composed of medical and legal
    experts with specialized knowledge and experience in mental health and in risk
    assessment and management. Parliament has vested these boards with authority to
    make their own independent and often difficult determinations after weighing
    the package of factors in s. 672.54 of the
Code
.

[19]

As discussed below, the Board outlined the
    factors that caused it to give effect to Dr. Hassans objections to the
    proposed transfer to Waypoint.

(5)

Discussion

[20]

It is well-established in this courts
    jurisprudence that the Ontario Review Board is not bound by joint submissions.
    However, the Board owes a duty of procedural fairness to those individuals over
    which it exercises jurisdiction, which includes a duty to give notice when it
    considers rejecting a joint submission. Notice gives the parties an opportunity
    to address the Boards concerns, by adducing (further) evidence, making
    responsive submissions, or both:
Re Osawe
, 2015 ONCA 280, 125 O.R.
    (3d) 428, at paras. 33, 42-43;
Re Kachkar
, 2014 ONCA 250, 119 O.R.
    (3d) 641, at paras. 42-44; and
Re Elman
, 2021 ONCA 783, 407 C.C.C.
    (3d) 481, at paras. 31-32.

[21]

Notice may take different forms. It may be
    direct or indirect. Notice may be given by Board members asking questions that
    are significantly probing about the core elements of the joint submission:
    see
Re Benjamin
, 2016 ONCA 118, at para. 22. See also
Osawe
,
    at para. 22 and
Elman
, at paras. 43-44. Whether questioning is a
    sufficient substitute for explicit notice involves a contextual inquiry:
Re
    Nguyen
, 2020 ONCA 247, 387 C.C.C. (3d) 13, at para. 20.

[22]

There was clearly a joint submission concerning
    the transfer request. As noted in para. 18 above, the Board acknowledged this
    reality. The Crown places significance on the fact that the joint submission was
    only reached at the end of the evidentiary phase of the hearing. But this did
    not detract from the essential nature of a joint submission. A joint submission
    may be formed at any time up until the decision-maker commences deliberations.

[23]

There was no explicit mention by any Board
    member that the joint submission might not be accepted. It would have been
    preferrable if this had been done. This is a matter that should not be left to
    guesswork. However, the manner in which the hearing was conducted ought to have
    signalled that the requested transfer was not a done deal.

[24]

The letter of Dr. Hassan was before the Board
    and made an exhibit. The issue was squarely in play. The questioning of Dr. Van
    Impe by Justice Lipson revealed some concern with the proposed transfer in the
    face of Dr. Hassans resistance.

[25]

The Crown relies on the questioning of the
    Alternative Chairperson as notice that the joint proposal was on infirm ground.
    In the lead up to a question concerning the possibility of moving the appellant
    to a less secure setting within Waypoint, he made the following parenthetical
    comment  I have no idea where Im going as far as a decision let alone my
    colleagues. Later, he commented that, Im trying to come to grips with this
    decision.

[26]

It would have been preferrable had the Board
    advised counsel of its concern during the submissions stage of the hearing. But
    there were no questions of counsel. Nonetheless, the aspects of the hearing
    mentioned in the preceding paragraphs collectively provided adequate notice
    that the joint submission might not be accepted. There was no procedural
    unfairness.

[27]

We dismiss this ground of appeal.

[28]

The appellant submits that the Boards decision
    to refuse the transfer was unreasonable. He submits that the Board should not
    have given effect to Dr. Hassans objections because they reflected more of a
    concern about the appellant being a nuisance in the institution. He submits
    that the Board could have approved the transfer along with an appropriate
    envelope of conditions to assuage Dr. Hassans concerns by giving Providence
    Care the proper tools to manage the appellant.

[29]

Both respondents submit that the Boards refusal
    to order the appellants transfer was reasonable. As noted above, counsel for
    Waypoint alludes to more recent events that might justify the denial of the
    transfer. This was not a proper submission. If counsel wish to update the court
    about the progress or decompensation of an NCRMD detainee, the appropriate procedure
    is an application to introduce fresh evidence. That was not done in this case.
    In reaching our decision on this issue, we rely exclusively on the formal
    record, and nothing more.

[30]

Notwithstanding Mr. Menchynskis able
    submissions, our evaluation of the Boards reasons leads us to conclude that
    its decision was reasonable.

[31]

In reaching this conclusion, we must give the deference
    that is typically afforded to the Boards decisions on appeal. Moreover, the
    Board provided thorough reasons for giving effect to Dr. Hassans objection to
    the Hospitals proposal. We do not accept the appellants submissions that Providence
    Care resisted the transfer because the appellant was merely a nuisance and engaging
    in attention-seeking behavior. The problems he posed at the time were more
    serious. As the Board said, at paras. 25-28:

Since the time of Mr. Alexanders latest
    disposition in July 2020, Mr. Alexander required three periods of seclusion as
    a result of aggressive and bizarre behaviours and are described in great detail
    in the hospital report. He has been threatening to staff, sexually
    inappropriate towards female staff. He has also engaged in feces smearing when
    frustrated and angry. There were incidents when he was kicking and punching his
    door and on one occasion, he broke the fire sprinkler in his room causing the
    room to flood. It should also be said that Mr. Alexander did not physically
    assault any staff or co-patients during this review period.

The evidence is that Mr. Alexander has
    demonstrated significant improvement since December 2020 after being started on
    Abilify Maintena, an injectable antipsychotic medication. To his credit, Mr.
    Alexander achieved the most privileged security level available in early
    January 2021. He has participated in an anger management program and cognitive
    behavioural therapy. He sought out counselling with a psychologist and a
    substance abuse counsellor. He was a ward worker on his unit. His mental status
    has improved, and obvious psychotic symptoms have been minimal. In the opinion
    of his treatment team, Mr. Alexander is now ready for a transfer to a less
    secure facility.

Unfortunately, Mr. Alexanders positive
    trajectory was interrupted by the very concerning events of March 22, 2021 when
    he engaged in acts of self-harm, including trying to suffocate himself with a
    laundry bag, submerging his head into a toilet and wrapping a safe gown
    around his head. He required 4-point restraints and placement in a padded room
    for his own safety. Dr. Van Impe described these attempts at self-harm as an
    impulsive reaction to reading what Mr. Alexander viewed as unfavourable
    comments in the hospital report in combination with his overall anxiety about
    his upcoming Board hearing.

Mr. Alexanders progress is relatively recent
    and his self-harming behaviour on March 22, 2021 raises significant concerns
    about his current mental status.
The Board agrees with the opinion expressed
    by Dr. Hassan that while Mr. Alexander has made some gains in recent months,
    his recovery is still in its infancy. The Board notes that Mr. Alexander has
    yet to reside on the least structured and highest privileged unit of Waypoint
.
    Upon a consideration of all the evidence, the Board is of the view that a
    further period of stabilization at Waypoint is necessary before Mr. Alexander
    can be transferred to and safely managed in a less secure hospital.
In
    arriving at this decision, the Board attached significant weight to the well
    supported and clearly stated reasons of Dr. Hassan in exhibit 3 explaining why
    he did not consider Mr. Alexander to be an appropriate candidate for transfer
    to Providence
. [Emphasis added].

[32]

In the light of these cogent reasons, based on a
    proper appreciation of the evidence, it cannot be said that the Boards decision
    was unreasonable.

Disposition

[33]

The appeal is dismissed.

Paul Rouleau J.A.

Grant Huscroft J.A.

Gary Trotter J.A.





[1]
An appeal (C68650) from that disposition was launched but never
    reached the hearing stage. By way of a separate order, and on the consent of
    the parties, that appeal is dismissed as a moot appeal.



[2]
Pursuant to r. 13 of the Ontario Review Boards
Rules of
    Procedure
, when any party at a hearing requests that the accused should be
    transferred to another institution, that party shall provide notice to all
    other parties as well as the person in charge of the prospective receiving hospital.
    See the discussion about how this rule operates in practice in Michael Davies,
    Anita Szigeti, Meaghan McMahon and Jill R. Presser,
A Guide to Mental
    Disorder in the Canadian Criminal Justice System
(Toronto: LexisNexis
    Canada Inc., 2020), at pp. 230-232.


