



COURT OF APPEAL FOR ONTARIO

CITATION: Abernethy (Re), 2021 ONCA 509

DATE: 20210716

DOCKET: C67878 & C68716

Watt, Pardu and Trotter JJ.A.

IN THE MATTER OF:
Robert Abernethy

AN APPEAL UNDER PART XX.1 OF THE
CODE

Daniel J. Brodsky, for the appellant

Manasvin Goswami, for the respondent,
    Attorney General of Ontario

Leisha Senko, for the respondent, Person
    in Charge of the Centre for Addiction and Mental Health

Jessica R. Szabo, for the respondent, Person
    in Charge of Ontario Shores Centre for Mental Health Sciences

Julia Lefebvre, for the respondent, Person
    in Charge of Waypoint Centre for Mental Health Care

Heard: July 2, 2021 by
    videoconference

On appeal from the dispositions of the
    Ontario Review Board dated December 16, 2019 (C68716) and September 11, 2020
    (C67878), with reasons dated January 6, 2020 and October 5, 2020.

REASONS FOR DECISION

[1]

The appellant appeals from two dispositions of
    the Ontario Review Board.

[2]

The first, issued on December 16, 2019,
    transferred him from the Ontario Shores Centre for Mental Health Sciences
    (Ontario Shores), in Whitby, to the Centre for Addiction and Mental Health
    (CAMH), in Toronto. It was common ground that he should not stay at Ontario
    Shores and that a detention order should be made for some other facility. The
    appellant expressed a preference to go to CAMH and the Board acceded to that
    request, although alerting the appellant that the waiting list could be as long
    as a year. The appellant remained at the Secure Forensic Unit of Ontario Shores
    while waiting for a transfer.

[3]

The second, issued on September 11, 2020,
    concerns an early review scheduled at the request of Ontario Shores. By August
    2020, the appellants condition had worsened and Ontario Shores asked that he
    be sent instead and immediately to the highly secure Waypoint Centre for Mental
    Health Care (Waypoint), in Penetanguishene. Waypoint was prepared to accept
    the appellant. The appellants position was that he still wanted to go to CAMH
    and proposed an interim placement at facilities in Brockville or Hamilton until
    a place could be found for him in CAMH. The Board made a detention order for
    Waypoint.

The appeal from the December 16, 2019
    disposition

[4]

At the hearing this court concluded that this
    disposition was now moot. It had been superseded by the subsequent disposition.
    As a general rule, this court does not decide moot cases and there is no reason
    to depart from that approach here.

The appeal from the September 11, 2020
    disposition

[5]

There was no dispute that the appellant continued
    to constitute a significant threat to public safety and that a detention order
    was required. The issue the Board had to decide was where the appellant should
    be detained.

[6]

The appellant was found not criminally
    responsible for the killing of two co-workers in 2011. He had a significant
    criminal record preceding these index offences, including several convictions
    for assault. He has been detained at Ontario Shores since 2015.

[7]

The Board accepted the evidence of his treating
    psychiatrist, Dr. Harrigan, that the appellants manipulative, exploitive,
    menacing and threatening behaviour had resulted in serious psychological harm
    to staff and that there was a substantial risk of harm from him to staff and
    co-patients at Ontario Shores. The appellant had never taken any form of
    structured programing at Ontario Shores and was now confined to the most secure
    area, with little opportunity for exercise of privileges because staff did not
    feel safe escorting him to the limited privileges which might be available to
    him. It was impossible for staff to work with the appellant on a therapeutic
    level. There was, in any event, no treatment for psychopathy and no medications
    that could be offered. The treating doctor had to be accompanied by two
    security guards when dealing with the appellant.

[8]

The appellants behaviour was getting worse. Dr.
    Harrigan testified that the appellant could no longer be safely managed at
    Ontario Shores or other similar facilities. In her view, the treatment team at
    Waypoint would be better placed to engage the appellant by leveraging the
    broader range of privileges available there.

[9]

The appellant exhibited similar behaviour at the
    hearing before the Board.

[10]

The Board concluded that a necessary and
    appropriate disposition would be a transfer to the maximum secure facility at
    Waypoint:

Given the
    management and therapeutic impasse which has been reached, the panel is
    unanimously of the opinion that the necessary and appropriate disposition,
    considering all of the provisions of s. 672.54, would be a transfer to the
    maximum secure facility at Waypoint. The panel finds that to maintain the
    current Disposition of a transfer to CAMH would not adequately address the
    Boards role in crafting a disposition of which the paramount consideration is
    to protect public safety, which includes staff and co-patients.

[11]

The Board rejected the appellants proposal for
    a transfer to a different hospital, concluding that the maximum-security
    perimeter fence, surrounding the Waypoint facility, offered a much larger
    physical environment for Mr. Abernethy than the secure wards of the other
    proposed hospitals, and further [w]ith the flexibility that this brings
    management of Waypoint and the treatment team, to the earning and exercising of
    unit privileges, it is hoped that Mr. Abernethy will be able to establish a
    therapeutic relationship with a new treatment team and all the staff at
    Waypoint.

Analysis

[12]

The Boards decision was reasonable. It was obliged
    to consider the factors set out in s. 672.54 of the
Criminal Code
:
    the safety of the public which is the paramount consideration, the mental
    condition of the accused, and the reintegration of the accused into society and
    the other needs of the accused.

[13]

The Board responded to the ongoing concern for
    public safety caused by the appellants behaviour while at the same time
    creating new opportunities for treatment and use of privileges by the
    appellant. The Board did not err by including within the ambit of public safety
    the safety of hospital staff and the appellants co-patients.

[14]

There is nothing here which displaces the
    deference owed to the Board about the best way to manage the risk that the
    appellant poses to others. The Boards reasons reflect an internally coherent
    and rational chain of analysis that is justified in relation to the facts and
    the law:
Canada (Minister of Citizenship and Immigration) v. Vavilov
,
    2019 SCC 65, 441 D.L.R. (4th) 1, at para. 85.

Disposition

[15]

Accordingly, the appeal from the disposition of
    December 16, 2019 is dismissed as moot. The appeal from the disposition of September
    11, 2020 is dismissed.

David
    Watt J.A.

G.
    Pardu J.A.

Gary
    Trotter J.A.


