



COURT OF APPEAL FOR ONTARIO

CITATION: Shepherd (Re), 2018 ONCA 593

DATE: 20180628

DOCKET: C64499

Lauwers, Miller and Fairburn JJ.A.

IN THE MATTER OF: Frank
    Shepherd

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Ken J. Berger, for the appellant

Alexander Hrybinsky, for the respondent Attorney General
    of Ontario

Julie Zambrogna Ballès, for the respondent Southwest
    Centre for Forensic Mental Health Care

Heard: June 8, 2018

On appeal against the disposition of the Ontario Review
    Board, dated September 27, 2017, with reasons, dated October 20, 2017.

REASONS FOR DECISION

[1]

Mr. Shepherd was found not criminally responsible on account of mental
    disorder (NCR) in February 2009 on these charges: uttering threats, forcible confinement
    (x2), criminal harassment, and assault.  He has bipolar disorder type 1.

(1)

The Disposition under Appeal

[2]

At the time of the Boards hearing, the appellant was the subject of a
    detention order under a September 9, 2016 disposition, which detained him at
    the Southwest Centre for Forensic Mental Health Care. He had the privilege of
    residing in southwestern Ontario in an accommodation approved by the Person in
    Charge of the hospital. The hospital recommended a continuation of the
    detention order.  The Attorney General supported the hospitals position. The
    appellant sought an absolute discharge.

[3]

The appellants attending psychiatrist at the time of the Board hearing,
    Dr. N. Ugwunze, referred to the results from recent testing, which suggested that
    Mr. Shepherd presented a moderate risk of reoffending violently in the next 12
    months. His opinion was that Mr. Shepherds lack of insight and potential for
    instability and treatment non-adherence could not be managed without a detention
    order. The Board noted that: Dr. Ugwunze advised that ongoing therapeutic
    intervention to improve [the appellants] insight, improve his stress tolerance
    and coping skills have not made a difference in this reporting year.

[4]

The Board stated, based on the evidence, that it is satisfied that Mr.
    Shepherd remains a significant threat to the safety of the public. The Board
    ordered the continuation of the detention order. The critical paragraph in the
    conclusion explains the decision:

The evidence supports that Mr. Shepherd benefits from residing
    at Clarke House in the community, a structured and supervised setting. The
    evidence supports that his level of insight into his index offence, illness and
    ongoing need for medication is poor. His symptoms are controlled by his
    medication. He has been compliant with his medication regimen throughout this
    reporting year but staff is not convinced that he would remain compliant
    without the structures and cues in his current living situation. His suggestion
    of a medication break and his expressing a wish to drink alcohol and use
    marijuana shows a lack of understanding of the potential harm to himself and
    members of the public arising from mixing substances and psychotropic
    medications. This is a clear indication that Mr. Shepherd requires the
    continuation of a structured and supervised setting.

(2)

The Second Disposition

[5]

The hospital brought a motion for fresh evidence, which we grant.

[6]

On May 14, 2018, a restriction of liberty hearing was held by the Board,
    the context of which is set out in the affidavit of Dr. Ugwunze, filed as fresh
    evidence. The appellant was absent from his community residence (the Clarke
    Centre rehabilitation group home) without leave on two occasions, which led to
    re-admissions to the hospital.

[7]

On October 10, 2017, the appellant was re-admitted to the hospital
    because he was absent without leave from October 4-9, 2017. Dr. Ugwunzes
    evidence is that the appellant told Clarke Centre staff that he was going to
    spend the night at his girlfriends home, but he later admitted that he went to
    Ottawa, stayed in a hotel, attended the races, and smoked cannabis several
    times. He told the doctor that it was because he was frustrated with the
    outcome of the Boards decision that is under appeal. The appellant was
    returned to the Clarke Centre on October 17, 2017.

[8]

However, the appellant was again re-admitted to the hospital on March
    19, 2018 based on his absence from the Clarke Centre without leave from March
    16-19, 2018. Dr. Ugwunzes evidence is that the appellant had been smoking
    cannabis, and he was worried that he was being investigated. He panicked and
    drove to Ottawa, where he stayed in a hotel, gambled at a casino, and smoked
    cannabis throughout, including while operating a motor vehicle. Dr. Ugwunzes
    restriction of liberty report noted that:

Upon admission to [the Southwest Centre], Mr. Shepherd
    presented as hypomanic. He was irritable during his admission interview and he
    also appeared agitated. His speech was pressured although interruptible.
    Initially, Mr. Shepherd was not granted privileges.

[9]

The following week, Mr. Shepherds privileges were largely restored. He
    was allowed to return to the Clarke Centre, but he was not allowed to leave
    overnight for a period of three months.

[10]

Dr.
    Ugwunzes restriction of liberty report stated, under the heading Opinion and
    Recommendation:

Mr. Shepherd continues to pose a significant risk to members of
    the public. Ongoing problems with supervision persist; hence, the need for
    Outreach to continue to closely monitor his mental state and manage his
    attendant risk. Mr. Shepherd should remain on a detention disposition order
    with no changes proposed to the specified terms and clauses therein.

[11]

The
    Boards restriction of liberty decision, dated May 15, 2018, stated:

The Board has concluded that the decision of the hospital to
    significantly increase the restrictions on the liberty of the accused was
    warranted, and in the circumstances of this case represented the least onerous
    and least restrictive decision and finds that the existing Disposition remains
    appropriate.

[12]

There
    is no appeal of the restriction of liberty disposition before this court.

(3)

The Jurisdictional Argument

[13]

The
    Crown and the hospital argue that the Boards May 15 decision raises a jurisdictional
    issue on this appeal. They submit that a decision made by the Board following a
    hearing under s. 672.81 is a disposition

under s. 672.83 of the
Criminal
    Code
,
R.S.C. 1985, c. C-46. They argue that the appellant can be
    subject to only one disposition at a time; thus, the May 15 decision effectively
    displaced the disposition under appeal, depriving this court of jurisdiction to
    hear the appeal.

[14]

The
    Crown referred to two decisions of this court:
Chaudry (Re)
, 2015 ONCA
    317, 125 O.R. (3d) 641, at paras. 55-63; and
Murray (Re)
, 2017 ONCA
    731, at para. 10.  Assuming without agreeing with the Crown and the hospital
    that this appeal is moot, we note that the disposition under appeal remains the
    effective disposition, because the May 15 decision found that the existing
    Disposition remains appropriate. Accordingly, even if it is moot, we would
    exercise our discretion in favour of deciding the matter.

(4)

Disposition

[15]

Turning to the substantive appeal, the evidence of Dr. Ugwunze amply
    substantiated the Boards decision. The Board specifically considered the
    appellants risk of violent reoffending, specifically in light of his offending
    history and his failure to appreciate the risk of serious physical and
    psychological harm to members of the public arising from his substance abuse.
    The Board relied upon a hospital report that showed, among other things, the
    appellants lack of insight into his condition, and his need for medication and
    to abstain from substances, contrasted with his stated desire to stop taking
    his medication and his history of rapid decompensation. The unsuitability of an
    absolute or conditional discharge is exemplified by the appellants behaviour
    as revealed in the fresh evidence. We see no error in the Boards conclusion
    that the disposition was the least onerous and least restrictive disposition in
    the circumstances.

[16]

The appeal is dismissed.

P. Lauwers J.A.

B.W. Miller
    J.A.

Fairburn
    J.A.


