



COURT OF APPEAL FOR ONTARIO

CITATION: Scott (Re), 2017 ONCA 94

DATE: 20170202

DOCKET: C62083

Feldman, MacPherson and Hourigan JJ.A.

IN THE MATTER OF: DAVID THOMAS SCOTT

AN APPEAL UNDER PART XX.1 OF THE
CODE

Janice Blackburn, for the appellant Person in Charge of
    Waypoint Centre for Mental Health Care

Dena Bonnet, for the respondent Attorney General of
    Ontario

Breese Davies and Owen Goddard, for the respondent David
    Thomas Scott

Heard: December 15, 2016; Disposition delivered orally December
    15, 2016 with reasons to follow

On appeal against the disposition of the Ontario Review
    Board dated March 23, 2016.

Feldman
    J.A.:


[1]

The hospital appeals from paragraph 3) of the disposition of the ORB amended
    on April 20, 2016, which provides:

AND IT IS FURTHER ORDERED that the
    accused have passes for 4 hours, up to twice a year, to have dinner at the home
    of the accuseds mother in Coldwater, Ontario, escorted by staff.

[2]

The original disposition of the Board included the passes home as part
    of the discretionary powers of the hospital, along with attending for medical
    or compassionate purposes outside the hospital and grounds privileges beyond
    the secure perimeter.

[3]

The Board then issued its amended disposition together with its reasons
    for disposition on April 20, 2016. The amended disposition contained the new
    mandatory pass provision based on the reasons of the majority of the Board. In
    minority reasons, Ms. Kert dissented from the provision that required the
    hospital to provide passes to Mr. Scott to be escorted to his mothers home for
    two meals.

[4]

The hospitals main objection to the order is that it is mandatory and
    does not give the hospital its normal discretion to implement only if and when
    circumstances permit. The hospital also objects that the order was made without
    notice to it that the order was to be mandatory. Third, the hospital submits
    the Board erred in making the order without notice to Mr. Scotts mother, who
    was not a party to the proceeding, but is bound by the result. Fourth, the
    hospital submits that there was no evidentiary basis from the treating
    psychiatrist for the order. Finally, the hospital submits that the Board
    misapprehended the treating psychiatrists evidence about the potential risk if
    Mr. Scott were to be escorted to his mothers home.

Factual Background

[5]

Mr. Scotts index offences were sexual assault of a 19-year-old woman
    with threat to use a weapon and sexual assault causing bodily harm of an 8-year-old
    girl, which both occurred in November of 1987. Mr. Scotts mental illness was
    caused by a severe head injury as a result of a car accident when he was 11
    years old. He has been detained at Waypoint since March 1989, in the Provincial
    Forensic Programs Division unit, which is the highest security, all-male unit.

[6]

At the hearing, it was agreed that Mr. Scott continues to represent a
    significant threat to the safety of the public. The hospital report recommended
    that he remain in the Provincial Forensic Programs Division at Waypoint, which
    has a large secure perimeter and numerous therapeutic, recreational and
    educational opportunities that would allow him a better quality of life than in
    a less secure setting. The report also recommended that his hospital grounds
    privileges, escorted by staff, be continued.

[7]

Mr. Scott has significant support from his family. His mother lives in Coldwater,
    about 20 minutes from Waypoint, and visits him there often. The proximity to
    family was an important reason for keeping Mr. Scott at Waypoint. Although
    there is a less secure unit at Waypoint, it is co-ed and not appropriate for Mr.
    Scott. Therefore any move to a less secure unit farther away would disrupt the
    easy access by his family.

[8]

At the hearing, the treating psychiatrist, Dr. Danyluk, agreed with the
    suggestion from Mr. Scotts counsel that Mr. Scott be assessed at the Chedoke
    Acquired Brain Injury Clinic in Hamilton, with the view to seeing if there is
    any relevant medical treatment that could help him. Counsel also raised with
    Dr. Danyluk whether the privilege of having a meal at his mothers home would
    be a reasonable goal for him for the future, if he were moved to the General
    Forensic Unit. She said she would be open to it as a goal for the next few
    years. She explained that the secure unit does not manage risk in the
    community.

[9]

When the lay member of the Board pursued this questioning with Dr.
    Danyluk, Dr. Danyluk referred the issue to the Vice President of Clinical
    Services, Mr. Desroches who was called in to testify. He explained a number of
    concerns with the suggestion, including that staff on the secure unit are not
    trained to do community escorts, budget constraints, and the likelihood that
    other patients whose families live much further away could request a similar
    privilege, which would be very difficult to accommodate.

[10]

The Board released its original disposition on March 23, 2016,
    delegating to the person in charge of Waypoint the discretion regarding certain
    privileges for Mr. Scott including up to two escorted passes of four hours to
    have a meal at his mothers home. Then on April 20, 2016, the Board released an
    amended disposition, stating that through oversight, the original disposition
    contained an error. The amended disposition removed the discretion of the
    hospital regarding the two escorted visits.

[11]

The majority reasons that explained the disposition gave the following explanations
    for ordering the escorted home visits:

·

Dr. Danyluk felt [Mr. Scotts] risk in the community could be
    appropriately managed by having him escorted to his mothers home;

·

The reasons offered by the Vice President of Clinical Services did
    not appropriately [take] Mr. Scotts needs into account;

·

Seeing his mother and other family members at his mother's home
    is something [Mr. Scott] wants and is likely to be therapeutic for him;

·

While it is possible for Mr. Scott, under current Waypoint
    policies, to have meals with his mother on the Waypoint premises  [t]he
    Majority finds there is a significant distinction between Mr. Scott visiting
    with his mother at Waypoint and visiting her at her home. Accordingly, escorted
    visits to his mother in her home outside of Waypoint must also be implemented
    as a more appropriate way to meet his needs;

·

Granting Mr. Scott visits outside Waypoint to his mother's home
    would represent a departure from Waypoint policy. The Majority of the Board
    notes that permitting Mr. Scott to exercise such visits would be a rare
    exception due to his particular circumstances that are not found in other
    long-term patients at Waypoint;

·

[O]rdering such visits outside of the medical, dental or
    compassionate clause on a limited basis is important to Mr. Scotts ongoing
    quality of life, meets his needs, is likely to be therapeutic and affords him
    the utmost liberty compatible with his situation; and

·

While the Majority of the Board could have found a visit to his
    mother's home given her age constituted a compassionate reason for entering the
    community, it wished to avoid a conflict with any hospital interpretation of
    that clause and to make it abundantly clear by means of a specific Order that
    such visits must occur, assuming Mr. Scott's ongoing behavioural stability.

[12]

The legal member of the Board did not agree with granting this privilege
    to Mr. Scott. In her dissenting reasons, she stated that there was no
    sufficient reason to make an exception from the hospital policy of no escorted
    visits outside the secure perimeter except for certain medical, dental and
    compassionate purposes. However, she suggested that the policy could be reconsidered
    for the benefit of long-term detainees such as Mr. Scott.

Issues

[13]

The hospital raises five issues on appeal:

1)

Was the Boards
    decision to impose a mandatory order an error in law and unreasonable?

2)

Did the Board
    err by making the order mandatory without notice to the hospital?

3)

Did the Board
    err by making an order that binds a third party without notice or consent?

4)

Was there an
    evidentiary basis for the order?

5)

Did the Board
    misapprehend the evidence about risk management in the community?

[14]

The hospital seeks an order quashing the escorted passes provision or
    alternatively, an order for a new hearing.

[15]

The Crown supports the position of the hospital that the mandatory order
    made by the Board was unreasonable and an error in law. The discretion given to
    the hospital to implement privileges that affect the safety of the community is
    a risk management tool that protects the public. Further, the Board erred in
    law by imposing an order that binds the mother without her consent. However, the
    Crowns position on remedy is that the court should set aside the order only to
    the extent that it imposes a mandatory obligation, and reinstate the original
    discretionary order.

[16]

Mr. Scotts position is that no error was made, and the appeal should be
    dismissed.

[17]

Following oral argument, the court announced its decision with reasons
    to follow. The appeal is allowed, the mandatory part of the order is set aside
    and the original order with discretion to the hospital is re-instated.

Analysis

1.       Was the Boards decision to impose a mandatory order
    an error in law and unreasonable?

[18]

Having found that Mr. Scott continued to pose a significant threat to
    the safety of the public and that the least onerous and least restrictive disposition
    required his continued detention in the secure Provincial Forensic Programs
    Division at Waypoint, it was the Boards role to set out the general parameters
    of Mr. Scotts detention, leaving the day-to-day management decisions to the
    hospital. See:
R. v. Petroniuk
, 2014 ONSC 6951, 322 C.R.R. (2d) 276;
Conway
    (Re)
, 2016 ONCA 918, where the courts observed that it is not the role of review
    boards to micromanage the day-to-day operations of the hospital.

[19]

In setting out the parameters of the disposition, the Board must balance
    the twin goals of public safety and fairness to the detained person as
    described by the Supreme Court of Canada in
Pinet v. St. Thomas Psychiatric
    Hospital
, 2004 SCC 21, [2004] 1 S.C.R. 528, at para. 19, as follows:

The objective is to reconcile the twin goals of public safety
    and treatment. In this process of reconciliation, public safety is paramount.
    However, within the outer boundaries defined by public safety, the liberty
    interest of an NCR accused should be a major preoccupation of the Review Board
    when, taking into consideration public safety, the mental condition and other
    needs of the individual concerned, and his or her potential reintegration into
    society, it makes its disposition order.

[20]

However, within those parameters, the hospital requires the flexibility
    to implement the disposition in accordance with the day-to-day needs of the
    detained person and the circumstances that may arise. In
R. v. M.L.C.
,
    2010 ONCA 843, 104 O.R. (3d) 450, this court discussed the relationship between
    the roles of the Board and the hospital in formulating and implementing the
    least onerous and least restrictive disposition at para. 28:

While the Board has the jurisdiction to review a patients
    disposition at a particular hearing, it is not in a position to oversee the
    patient on a day-to-day basis and to refine the restrictions on his or her
    liberty. This is why the statutory framework gives the hospital the ability and
    flexibility to monitor patients who suffer from mental disorder. The
    responsibility for adjusting the restrictions for such a patient comes from s.
    672.56(1), which allows the Board to delegate to the hospital certain decisions
    about the patients liberty. Any restrictions the hospital places on the
    patient must fall within the envelope of the conditions enumerated by the Board
    in its disposition. As a safeguard, any decision by a hospital that significantly
    restricts a patients liberty for more than seven days must be considered by
    the Board in a restrictions review.

[21]

In this case, the efficacy and propriety of any visit to Mr. Scotts
    mother for a meal would depend on his clinical state, the availability of staff,
    the consent and convenience of his mother, as well as any other administrative
    issues that could arise. While it made the order mandatory, the Board
    recognized that Mr. Scotts clinical state should be determinative of his
    ability to make such visits, as it stated in the reasons that the visits must
    occur, assuming Mr. Scotts ongoing behavioural stability.

[22]

The record discloses that the hospital has a policy of not providing
    escorted visits to the community for patients on the secure unit. In her argument,
    counsel for the Attorney General submitted that the Board may have removed any
    implementation discretion from the hospital in order to ensure that in spite of
    the policy, the hospital would implement the visits. If that was the case, then
    the Board erred in failing to appreciate that a hospital is already required to
    implement a discretionary order if the circumstances permit it, in order to
    comply with the Boards directive.

[23]

We accept that submission. The original order was for the creation of a
    program for Mr. Scott within the Provincial Forensic Programs Division of
    Waypoint where the hospital may permit up to two escorted passes for him to
    have dinner at his mothers home. Under that order, the hospital would have
    been required to exercise that discretion with a view to implementing the
    Boards intention to give Mr. Scott certain liberty privileges, if it was
    possible to do so. The Board would not have been entitled to refuse to
    implement the order because of its pre-existing policy.

[24]

The hospital has patients like Mr. Scott who are long-term residents of
    the unit whose interests may be served by facilitating community visits, like
    family visits for a meal as contemplated for Mr. Scott. By making an order that
    allows the hospital to do that in appropriate cases and where circumstances
    allow it to be done safely, the Board can give the hospital the opportunity to
    review its policy to determine whether it can and should be modified to be able
    to accommodate the legitimate needs of particular patients, within the context
    of the need for public safety.

[25]

However, by making the order mandatory, with no discretion accorded to
    the hospital to implement it only if and when circumstances permitted for the
    benefit of Mr. Scott and while ensuring public safety, the Board erred in law and
    acted unreasonably.

2. Did the Board err by making the order mandatory without
    notice to the hospital?

[26]

The issue of according Mr. Scott the privilege of escorted visits to his
    mothers home for a meal arose during the hearing as a result of questions from
    counsel for Mr. Scott followed up by questions from the Board. The hospital
    submits that making such an order mandatory on the hospital was not raised
    squarely with proper notice to the hospital to be able to respond.

[27]

The courts decision to remove the mandatory aspect of the order and
    leave its implementation in the discretion of the hospital addresses the
    concern raised by this issue.

3.       Did the Board err by making an order that binds a
    third party without notice or consent?

[28]

Both the hospital and the Crown submit that the Board erred by imposing
    an order that affects Mr. Scotts mother directly by requiring her
    participation without notice to her or her consent. Mr. Scotts position is
    that if his mother did not want him to visit and she so advised the hospital,
    then the hospital could request a mandatory review of the disposition under s.
    672.81(2) of the
Criminal Code
and explain to the Board why the order
    could not be implemented.

[29]

Similar to the issue regarding notice to the hospital, the courts
    decision to remove the mandatory aspect of the home visit order also addresses
    the concern raised by the issue of binding Mr. Scotts mother without her
    consent. However, we note that it is clear that such visits may not be imposed
    on Mr. Scotts mother without her consent and co-operation. Consultation with
    her should be part of the considerations and arrangements necessary to
    implement the order.

4. Was there an evidentiary basis for the order?

[30]

The hospital also submits that there was no evidentiary basis that
    visits to Mr. Scotts mother for a meal would have a therapeutic benefit for
    him, especially as he could have a meal with her on the grounds of the
    hospital.

[31]

In our view the Board was entitled to conclude, based on its discussion
    with Dr. Danyluk during her evidence, that according Mr. Scott the privilege of
    visiting his mother at the family home would be beneficial for him, either now
    or in the future, if it were possible to accommodate. There was no suggestion
    that such visits would have a negative effect on him.

[32]

In the normal course, according privileges to a patient that can be
    accommodated and facilitated by the institution, which has the effect of
    granting the patient more freedom while under the supervision of the Board,
    constitutes an important part of the process of the patients rehabilitation
    and reintegration into society. It is consistent with the Boards mandate to
    protect the public and be fair to the NCR accused who is held under its
    jurisdiction.

5.       Did the Board misapprehend the evidence about risk
    management in the community?

[33]

The hospital submits that the Board misapprehended Dr. Danyluks
    evidence about the hospitals ability to manage Mr. Scotts risk in the
    community. It submits that although Dr. Danyluk initially appeared to testify
    that she thought the risk could be managed, she later clarified this. In her
    clarification, she indicated that she was speaking about risk management in a different
    environment, namely if Mr. Scott were to reside in a different facility with
    staff trained to manage risk in the community.

[34]

In our view, the Board did not misapprehend this evidence. In its
    reasons, the Board correctly noted that Dr. Danyluk testified that Mr. Scotts
    risk could be managed if he were to be escorted to his mothers house. The
    Board went on to address the evidence that staff at Mr. Scotts portion of the
    facility lacked training in managing risk in the community. There was no
    misapprehension of the evidence.

Result

[35]

The Board erred by imposing a mandatory order on the hospital to take Mr.
    Scott for up to two escorted visits to his mothers home for a meal, rather
    than make the order with implementational discretion in the person in charge of
    the hospital. The person in charge must be able to ensure that Mr. Scott is
    able to handle such a visit, that his mother is prepared to accommodate it, and
    that the hospital is able to facilitate it.

[36]

The appeal is allowed. Paragraph 3 of the amended disposition is set
    aside and paragraph 2(c) of the original disposition is reinstated.

Released: February 2, 2017 (K.F.)

K.
    Feldman J.A.

I
    agree. J.C. MacPherson J.A.

I
    agree. C.W. Hourigan J.A.


