



COURT OF APPEAL FOR ONTARIO

CITATION: Keizer (Re),
    2016 ONCA 483

DATE: 20160616

DOCKET: C61774/C61899

MacFarland, van Rensburg
    and Huscroft JJ.A.

IN THE MATTER OF:
    Timothy Keizer

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Suzan E. Fraser and Cate Martell, for the appellant
    Timothy Keizer

Barbara Walker-Renshaw, for the appellant the
    Person-in-Charge, St. Josephs Healthcare Hamilton

Amy Rose, for the respondent Her Majesty the Queen

Janice Blackburn, for the respondent the
    Person-in-Charge, Waypoint Centre for Mental Health Care

Heard: June 1, 2016

On appeal from the disposition of
    the Ontario Review Board, dated January 7, 2016.

ENDORSEMENT

[1]

The appellants, Timothy Keizer (Keizer) and the Person-in-Charge, St. Josephs
    Healthcare Hamilton (St. Josephs), appeal from a disposition of the Ontario
    Review Board, denying Keizers request for an absolute discharge and ordering
    that he be transferred from Waypoint Centre for Mental Health Care (Waypoint)
    to St. Josephs pursuant to a hybrid disposition.

[2]

The index offence was a failure to comply with a recognizance following
    a charge of threatening death in 2012. Keizer was found not criminally
    responsible for breaching his recognizance and held at St. Josephs. (He was
    subsequently acquitted of the threatening death charge.) He was diagnosed with
    delusional disorder, persecutory type and assessed as incapable of consenting
    to treatment. This assessment was upheld by the Consent and Capacity Board and
    an appeal to the Superior Court was dismissed.

[3]

Keizer argues that the Board erred in concluding that he poses a
    significant threat to public safety. St. Josephs argues that the Boards
    decision is unreasonable because it failed to consider the threat to public
    safety. In addition, St. Josephs argues that the Board breached the duty of
    fairness it owed to St. Josephs and that, as a result, its decision
    should be quashed.

[4]

We will address the procedural fairness argument before considering the
    Boards decision.

Did the Board breach the duty of fairness?

[5]

St. Josephs argues that the Board breached the duty of fairness by
    failing to give notice of its intention to override St. Josephs objection to
    Keizers transfer and failing to provide an opportunity to St. Josephs to make
    further submissions or file further evidence opposing the transfer.

[6]

This argument must be rejected.

[7]

It is clear that St. Josephs knew and understood what was at stake in
    the Board proceedings. By letter dated September 25, 2015, Keizer informed the
    Crown, the Board, Waypoint, Ontario Shores Centre for Mental Health Services,
    and St. Josephs that he would be requesting a transfer from Waypoint to a less
    secure facility, and that one of his choices was St Josephs. This notice was
    provided pursuant to rule 13 of the Ontario Review Boards Rules of Procedure.

[8]

On October 22, 2015, St. Josephs replied, informing the parties that it
    did not agree that Keizer could be managed in a less secure environment and
    that he continued to pose a threat that requires the greater level of security
    provided at Waypoint. But St. Josephs took no further action. It made no
    submissions and did not seek to participate in the Boards review process.

[9]

It is not obvious that St. Josephs  a public institution  was owed a
    common law duty of fairness by the Board in the context of Keizers request for
    an absolute discharge. But even assuming that it was, in our view the duty
    would extend no further than the notice it received pursuant to rule 13. Having
    chosen not to take any further steps to participate in the review process, St.
    Josephs cannot be heard to assert that the Board acted unfairly in determining
    Keizers request on the basis of the submissions that were made before it.

Is the Boards decision unreasonable?

[10]

The Boards decision is reviewable on a reasonableness standard, as
    prescribed by s. 672.78 of the
Criminal Code
. The court is required to
    review the decision of the Board pursuant to administrative law principles:
R.
    v. Owen
, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 34. The Board was
    required to exercise its expert judgment based on its evaluation of the
    relevant evidence, and the reasonableness of its decision must be evaluated by
    considering the reasons given by the Board in the context in which its decision
    was made.

[11]

Keizer argues that the Boards decision is unreasonable because the
    Board did not accept the evidence of Dr. Bergstrome, the only witness with
    recent clinical experience with him. Dr. Bergstrome found Keizer capable of
    consenting to treatment and discontinued his anti-psychotic medication. He
    testified that Keizer does not have a delusional disorder, persecutory type.
    Keizer has never been physically violent and, according to Dr. Bergstrome, poses
    no significant risk to public safety.

[12]

St. Josephs argues that the Board failed to consider the safety of
    those who had been psychologically harmed by Keizers threats and would be
    exposed to him if he were returned to St. Josephs. It submits that the Board
    considered only the needs of Keizer and his proximity to friends and family in
    the Hamilton area.

[13]

These arguments must be rejected.

[14]

The Board found that Keizer suffers from a delusional disorder,
    persecutory type, which he neither acknowledges nor accepts treatment for. This
    finding was open to the Board on the evidence that was before it, which
    included Keizers history documented in the Hospital Report. Keizer was
    diagnosed with delusional disorder in 2002 and with delusional disorder,
    persecutory type in 2007. Several attending psychiatrists made the same
    diagnosis since that time.

[15]

The Board was under no obligation to accept Dr. Bergstromes opinion, in
    whole or in part. The Board is an expert tribunal whose membership includes two
    psychiatrists, and it is entitled to form its own opinion and make its own
    finding on the matter. Given Keizers extensive history, it cannot be said that
    the Boards finding about his diagnosis is unreasonable.

[16]

The Board also rejected Dr. Bergstromes opinion in finding that Keizer
    continues to pose a significant threat to the safety of the public. The Board
    was entitled to conclude, as it did, that a reasonable person would feel
    threatened by Keizers threats, despite the absence of violent behaviour 
    which the threat recipients might not be aware of in any event.

[17]

Finally, the Board was entitled to consider Keizers proximity to family
    and friends in crafting its disposition order. The Board noted Keizers
    maintenance of security privileges at Waypoint and his progress, and quite
    properly factored these into its disposition. The Board acknowledged
    St. Josephs opposition to the Keizers transfer from Waypoint, but
    concluded that the least onerous and least restrictive disposition was a hybrid
    disposition, detaining him in the Secure Forensic Service and General Forensic
    Service at St. Josephs with privileges up to entering the community of
    Hamilton, accompanied by staff.

[18]

In all of the circumstances, we are satisfied that the Boards decision
    is reasonable and must be upheld.

[19]

The appeal is dismissed.

J.
    MacFarland J.A.

K.
    van Rensburg J.A.

Grant
    Huscroft J.A.


