



COURT OF APPEAL FOR ONTARIO

CITATION: Walker (Re), 2019 ONCA 957

DATE: 20191205

DOCKET: C65778

Watt, Miller and Fairburn JJ.A.

IN THE MATTER OF:  David Walker

AN APPEAL UNDER PART XX.1 OF THE
CODE

Suzan E. Fraser, for the appellant

Amy Alyea, for the respondent, the
    Attorney General of Ontario

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

Heard: September 13, 2019

On appeal against the disposition of the
    Ontario Review Board dated, June 29, 2018, with reasons dated July 27, 2018.

REASONS FOR DECISION


[1]

The appellant committed a violent sexual assault
    and was found not criminally responsible because of mental disorder (NCR) in
    1981. He came under the authority of the Ontario Review Board. On May 31, 1997,
    while on a community pass from his forensic hospital, the appellant committed
    another violent sexual assault. He was convicted of offences including sexual
    assault with a weapon, robbery, uttering threats and unlawful confinement. He
    was subsequently declared a dangerous offender on February 16, 1999, and has
    been in the penitentiary since his initial placement hearing. He is subject to
    a disposition from the Review Board that he be detained at Waypoint Centre for
    Mental Health Care (Waypoint) should he cease to be subject to a term of
    imprisonment.

[2]

The appellant is therefore a dual status
    offender as defined by s. 672.1(1) of the
Criminal Code
, meaning that
    he is subject to a sentence of imprisonment in respect of one or more offences
    and a custodial disposition (detention order) under s. 672.54(c) in respect of
    others.

[3]

The single issue on this appeal is whether the
    Review Board erred in its interpretation of the
Criminal Code
provisions requiring it, on application of the offender, to hold a placement
    hearing to determine whether the current place of custody of the offender is
    inappropriate to meet that offenders mental health needs or to safeguard the
    well-being of other persons.

[4]

The Review Boards position is that s. 672.69(2)
    requires it to schedule a placement hearing on application by a dual status
    offender if  and only if  the Review Board is satisfied that there has been a
    significant change in the offenders circumstances. The Review Boards position
    is that although it has the authority to conduct a placement hearing together
    with a review hearing  as was its former common practice  an offender can
    only trigger the scheduling of a placement hearing after the Review Board has
    first determined that there has been a significant change in circumstances.

[5]

The appellant objects to this bifurcated
    approach to a placement hearing and argues that the Review Board had an
    obligation to order a placement hearing in the circumstances of the appellant.

[6]

For the reasons that follow, we disagree.

Background

[7]

In a pre-hearing conference on May 15, 2018,
    held prior to his annual review hearing, the appellant advised that he wished
    to be moved from prison to Waypoint, and would make that request at the June
    27, 2018 review hearing. The appellant was advised that the June 27 hearing
    would likely be a disposition review only, but that if the evidence at the review
    hearing established a significant change in the appellants circumstances that
    would warrant a placement hearing, the Review Board would likely order a
    placement hearing to take place at a later date and before a different panel.

[8]

At the June 27 review hearing, the appellant
    argued that that the Review Board had an obligation to review the appellants
    placement on its own motion, which did not depend on the existence of a
    significant change in circumstances. In the alternative, the appellant contended
    that the evidence heard by the Review Board in the review hearing established
    that there had been a significant change in the appellants circumstances,
    necessitating that a subsequent placement hearing be scheduled.

[9]

In its reasons, the Review Board did not address
    the submission that it was obligated to review the appellants placement on its
    own motion.

[10]

Considering the alternative submission, the
    Review Board found there was insufficient evidence to establish a significant
    change in circumstances. It was therefore not obligated to schedule a placement
    hearing. In reviewing the evidence said to establish a significant change in
    circumstances, the Review Board noted:

·

There is no recent evidence to counter the 2008
    Forensic Psychiatric Report of Dr. Hucker, concluding that the appellant had
    access to a much better coordinated regimen of sex offender programming within
    CSC than within the Ontario Forensic Mental Health System, which, of necessity,
    focusses mainly on the management of chronic psychosis. Furthermore, the
    appellant was not being treated with anti-psychotic medications and there was
    no evidence that he suffered from psychosis.

·

With respect to the argument that the
    appellants participation and engagement in programming has improved since
    2008, the Review Board concluded that the 10 years of criminogenic programming did
    not alter the risk he poses as a dangerous offender.

·

With respect to the argument that the
    appellants risk to the safety of the public has been reduced and he can now be
    managed at Waypoint, the Review Board highlighted a 2017 Correctional Plan that
    concluded (t)here have been minimal gains made in this case that could be seen
    as mitigating risk.

·

With respect to the argument that the treatment
    of the appellants criminogenic needs would be better addressed within a
    forensic mental health facility such as Waypoint, the Review Board accepted the
    evidence of Dr. Tapscott that the appellants mental heath needs are met at the
    Bath Institution. The Review Board also noted the absence of any evidence of
    augmented (or any) treatment for sex offenders within Ontarios Forensic Mental
    Health System.

ANALYSIS

The statutory scheme

[11]

The statutory scheme for dual status offenders
    is set out in ss. 672.67 to 672.71 of the
Criminal Code
. It sets out
    the approach for prioritizing two custodial orders: one made pursuant to the
    sentencing provisions of Part XXIII of the
Criminal Code
, and one made
    pursuant to the mental disorder provisions of Part XX.1 of the
Criminal
    Code
.

[12]

Section 672.67(1) of the
Criminal Code
provides that where a court imposes a sentence of imprisonment on a dual status
    offender, that sentence takes precedence over any prior custodial disposition,
    pending any placement decision by the Review Board. The scheme therefore
    prioritizes the most recent custodial order, presumably on the basis that the
    most recent order best reflects the offenders current state of psychiatric
    health. Where the criminal conduct was found to have been committed wilfully
    and resulted in a conviction, it is more likely that the offenders mental
    disorder was not acute at that time.

[13]

Nevertheless, s. 672.68(2) enables the Review
    Board to make a change to the offenders placement in order to better meet the
    offenders mental health needs, or to better safeguard other persons. Section
    672.68(2) provides the Review Board with the authority to make a placement
    determination after giving notice to the offender and the Minister, where the
    Review Board is of the opinion that the place of custody of a dual status
    offender pursuant to a sentence or custodial disposition made by the court is
    inappropriate to meet the mental health needs of the offender or to safeguard
    the well-being of other persons.

[14]

Additionally, s. 672.69(2) provides a dual
    status offender with the power to apply for a placement hearing: (t)he Review
    Board shall hold a hearing as soon as practicable to review a placement decision,
    on application by the Minister or the dual status offender who is the subject
    of the decision, where the Review Board is satisfied that a significant change
    in circumstances requires it.

[15]

Section 672.69(3) further provides that (t)he
    Review Board may of its own motion hold a hearing to review a placement
    decision after giving the Minister and the dual status offender who is subject
    to it reasonable notice.

The appellants argument

[16]

The appeal is centred on the statutory
    interpretation of the above provisions. The appellant argues that the Review
    Board erred in not carrying out its statutory obligation to review placement
    whenever it reviews an offenders disposition.

[17]

The appellant submits that placement decisions
    are inextricable from dispositions, in that they both require the Review Board
    to consider the present circumstances of the offender, and that the
    appropriateness of placement is always in issue on a disposition review. The
    Review Board is said to have erred in following a bifurcated approach  to not
    schedule a placement hearing unless significant change is established in the review
    hearing. The appellant contends that is, placement is an essential element of
    disposition, such that placement must always be considered whenever disposition
    is reviewed. The appellant refers to this as the holistic approach, which it
    contrasts with the bifurcated approach followed by the Review Board in this
    case.

[18]

The appellant draws support from the former
    practice of the Review Board, which was to conduct a placement review when it
    conducted an annual disposition review, and to give notice of both hearings
    simultaneously.

[19]

In the alternative, the appellant argues that
    even if placement review is not inherently an aspect of a disposition review,
    the Review Board in this case fettered its jurisdiction by not considering
    whether to order a placement review on its own motion. The appellant advances
    an interpretation of s. 672.69(3) that would require the Review Board to order
    a change in placement so as to make the least restrictive disposition
    consistent with public safety.

Application

[20]

We are not persuaded by either of the appellants
    arguments.

[21]

As a preliminary matter, with respect to the
    standard of review, the Review Board is interpreting the provisions of its home
    statute and is presumptively entitled to deference. With this in mind, the fact
    that the Review Board formerly interpreted the provisions of the
Code
differently does not establish that the present interpretation is unreasonable.

[22]

On the Review Boards interpretation of the
Code
,
    a significant change in the circumstances of the offender is a prerequisite to
    the Review Board granting a request to schedule a placement hearing on the
    offenders application. The Review Board is interpreting its home statute and
    its interpretation is entitled to deference. The appellant has not identified
    any basis on which we could interfere with the Review Boards interpretation of
    its obligations under the
Code
.

[23]

With respect to the appellants argument that
    the Review Board was necessarily required to conduct a placement review as a
    part of a disposition review, we disagree. The interpretation advanced by the
    appellant conflates the two independent review schemes established in the
Code
and the distinct criteria appropriate to each. The fact that there will be
    some commonality in the factors assessed in each review does not provide, in
    the face of statutory language to the contrary, any warrant to combine them.

[24]

With respect to the second argument, we do not
    agree that the Review Board fettered its discretion. The fact that the Review
    Board has the jurisdiction to schedule a placement review on its own motion
    does not establish that it was required to do so in the circumstances of the
    appellant, or that its failure to do so was the result of the adoption of an
    invariable policy. There was no evidence before the Review Board to suggest that
    a change in placement would advance the goals of the statutory scheme. We are
    not persuaded by the appellants argument that he was not in a position to
    adduce evidence in this regard because of his incarceration. It would not have
    been difficult for the appellant, through counsel, to have sought information
    from Waypoint as to what therapeutic programming  if any  was available at
    Waypoint to meet what the appellant asserts are his therapeutic needs. The
    evidence before the Review Board was that the appellant has no therapeutic
    needs that are not met in his current placement at the Bath Institute, and that
    Waypoint does not provide programming for sex offenders. The Review Board made
    no error in not scheduling a placement hearing.

DISPOSITION

[25]

The appeal is dismissed.

David
    Watt J.A.

B.W.
    Miller J.A.

Fairburn
    J.A.


