



COURT OF APPEAL FOR ONTARIO

CITATION: Benjamin (Re), 2016 ONCA 118

DATE: 20160212

DOCKET: C60616

Watt, Lauwers and Hourigan JJ.A.

IN THE MATTER OF: COLEBY BENJAMIN

AN APPEAL UNDER PART XX.1 OF THE
CODE

R. Michael Rodé, for the appellant Coleby Benjamin

Hannah Freeman, for the respondent, Attorney General

Janice Blackburn, for the respondent, person in charge, Waypoint
    Centre for Mental Health Care

Heard: January 26, 2016

On appeal against the disposition of the Ontario Review
    Board dated, May 15, 2015.

Lauwers J.A.:

[1]

This is an appeal from a disposition in which the Ontario Review Board
    did not follow the disposition recommendations in joint submissions put forward
    by the parties.

[2]

The appeal raises one issue. In the wake of this courts decision in
Osawe
    (Re)
, 2015 ONCA 280, did the Board give the parties adequate notice of its
    intention not to accept the joint submission?
[1]


The Factual Context

[3]

Mr. Benjamin has suffered from mental health problems and behavioural
    difficulties since childhood. His current diagnosis is Congenital Neurological
    Abnormality and Mild Mental Retardation.

[4]

The appellant was found unfit to stand trial in February 2015 on charges
    of assault (x7), assault peace officer, utter a threat to cause death or bodily
    harm (x3) and failing to comply with a recognizance (x2). The index offences
    occurred in August and December 2014 and pertained to the appellants conduct
    while he was hospitalized at Providence Continuing Care Centre (Providence). On
    each occasion, the appellant became upset and aggressive towards hospital
    staff, guards, or police officers. During the August offences, the appellant
    struck and bit guards and staff members, spit in guards faces and at staff
    members, punched another sleeping patient in the face, kicked a nurse in the
    hands and wrist and told her he was going to kill her when he gets out of
    this, and kicked another nurse in the legs and punched her in the right breast.
    In December 2014, after police were dispatched to the appellants hospital, the
    appellant became violent and took a swing at a police officer. As he was
    being restrained, he bit the officer in the forearm hard enough to break the
    skin through layers of clothing. He also threatened to grab the officers gun
    and shoot him dead.

[5]

After the December 2014 index offences, Providence concluded the
    appellant could no longer be managed at that facility and recommended he be
    transferred for further assessment at Waypoint Centre for Mental Health Care.
    The appellant was admitted to the Provincial Forensic Division of Waypoint on
    January 19, 2015 and placed in the dual diagnosis unit.

[6]

The nursing team reported that the appellant had 22 significant incidents
    at Waypoint between January 24 and April 3, 2015, including verbally
    threatening to harm staff, spitting on staff, biting staff, hitting and kicking
    his door and walls, swinging items at staff, hitting a staff member with a
    closed fist in the face, throwing items at staff, and threatening and lunging
    at a co-patient. Dr. Bergstrome, the appellants treating psychiatrist, testified
    at the Board hearing that there were more incidents since the appellants
    admission to Waypoint that resulted in his seclusion, most recently on April
    23, 2015.

The Disposition under Appeal

[7]

After determining that the appellant was unfit to stand trial, Justice
    Letourneau of the Ontario Court of Justice on February 19, 2015 ordered the
    appellant to be detained at Waypoint, reserving for Waypoint the discretion to
    transfer him to another facility, including Providence. The detention order
    also allowed the person in charge of Waypoint to permit the appellant:

a.

to attend within
    or outside of the hospital for necessary medical, dental, legal or
    compassionate purposes, escorted by staff or a person approved by the person in
    charge;

b.

hospital ground
    privileges, escorted by staff or a person approved by the person in charge;

c.

to enter the
    Province of Ontario, escorted by staff or a person approved by the person in
    charge; and,

d.

to live in 24
    hour supervised accommodation approved by the person in charge.

[8]

This appeal concerns the appellants first Ontario Review Board hearing,
    which was conducted about two months later, on April 28, 2015. The parties
    presented a joint submission to continue the first disposition. Waypoint gave
    the opinion that the appellant did not require the intensive structure and
    security in its forensic program, and recommended his transfer to Brockville or
    Whitby. His mother did not want him to be transferred to Providence.

[9]

Contrary to the joint submission, on May 15, 2015, the Board unanimously
    ordered the appellant to be detained at Waypoint, but removed the hospitals authority
    to transfer him to another institution, and the permission for the appellant to
    live in 24 hour supervised accommodation approved by the person in charge. The
    Board changed the conditions to permit the appellant only:

a.       to attend within or outside of the hospital for necessary
    medical, dental, legal or compassionate purposes; and

b.       hospital ground privileges beyond the secure
    perimeter, escorted by staff.

[10]

The Board based its disposition on the level of violence
    the appellant continues to manifest. The Board found, as agreed by the parties,
    
Mr. Benjamin is unfit to stand trial and that he poses a significant
    threat to the safety of the public. The Board cited the serious incidents of
    violence against security guards and hospital staff shown by the index offences
    and the more recent unpredictable, violent outbursts, which remain a concern.
    The Board accepted Dr. Bergstromes evidence that it is unlikely, given the recent
    history of violence in a community setting, that the appellant will be able
    to transition straight from Waypoint to community living. This explains the deletion
    of the proposed community living prospect at this time.

[11]

The
    record also shows that neither Brockville nor Whitby were prepared to receive
    the appellant for the same reason. The Board accepted Dr. Bergstromes
    evidence that Brockvilles concerns are justified. The Board expressed
    sympathy with the appellants mothers involvement and her desire to have him
    closer to home, but concluded: given the current situation the Board feels
    that a longer period of time at Waypoint, would allow for the medication
    changes, recently imposed, to have greater effect and would allow for a close
    staff ratio to direct and guide Mr. Benjamin's behaviour in an attempt to
    better understand and treat his condition(s). This explains why the Board was
    not prepared to agree to leave the discretion to transfer the appellant in the
    hospitals hands.

[12]

Finally,
    the Board pointed out, based on Dr. Bergstromes evidence:

[t]here is reason to be hopeful that Mr.  Benjamin  is 
    capable  of  becoming  fit  and  that  with  the  recent  change  in  his
    medication and structured behavioural supervision he may become so within the
    next year. The Board notes, that should Mr. Benjamin's situation change within
    the next year, an early hearing can be requested.

[13]

In short, the Board considered the
    proposed terms premature in the current cycle.

The Positions of the Parties

[14]

The
    appellant submits the Board breached a fundamental duty of procedural fairness
    by imposing a more restrictive disposition without allowing the parties the
    opportunity to address their concerns.

[15]

The
    Crown submits it was open to the Board to reject the joint submission, and its
    decision was reasonably supported by the evidentiary record. The Board
    provided adequate notice that it was contemplating rejecting the joint
    submission through questions from the panel. The appellant had a meaningful
    opportunity to call relevant evidence, and used the opportunity to call the
    appellants mother, who was also his substitute decision maker.

[16]

Waypoint submits that given the
    appellants ongoing level of violent behaviour and the reluctance of Brockville
    and Whitby to accept his transfer, it is difficult to characterize the Boards
    decision as one which is outside the range of reasonable outcomes based on the
    evidence before it.

The Issue

[17]

As noted, there is only one issue on this appeal:
Did
    the Board give the parties adequate notice of its intention not to accept the
    joint submission?

[18]

I
    begin by setting out the governing principles and then address their
    application.

The Governing Principles

[19]

Occasionally,
    the parties to a hearing before the Board agree on a joint submission. This is
    beneficial to the process, since joint submissions can narrow the issues,
    reduce the time and expense of hearings and minimize the inconvenience to
    physicians who can attend to their other tasks. Although the Board is inquisitorial
    in its approach, not adversarial, joint submissions can also temper any
    adversarial positions which arise, to the benefit especially of the person
    whose disposition is under consideration.

[20]

The
    Board has, as Laskin J.A observed in
Osawe (Re)
, at para. 33, the
    undoubted authority, indeed the duty, to reject a joint submission if it is of
    the view that the joint submission does not meet the requirements of s. 672.54
    of the Criminal Code. He cited
Hassan (Re)
, 2011 ONCA 561, 283 O.A.C.
    154, at para. 25, and
R. v. Lepage
(1997), 152 D.L.R. (4th) 318 (Ont.
    C.A.), aff'd [1999] 2 S.C.R. 744, at para. 73. Automatic acceptance of a joint
    submission is inconsistent with the Boards statutory mandate:
Thurston
    (Re)
, 2015 ONCA 351, at para. 43;
Osawe (Re)
, at paras. 33 and
    57;
Hassan (Re)
, at para. 25.

[21]

When
    it considers that it might reject a joint submission,
Osawe
obliges
    the Board to provide procedural fairness to the parties, and particularly to
    the NCR or unfit accused, consistent with the Supreme Court of Canadas
    decision in
Baker v. Canada (Minister of Citizenship and Immigration)
,
    [1999] 2 S.C.R. 817, at para. 20; and this courts decision in
Kachkar (Re)
,
    2014 ONCA 250, 309 C.C.C. (3d) 1, at paras. 42-44.

[22]

In
Osawe
, Laskin J.A. noted, at para. 74, that the form of notice may
    vary, but the method must satisfy the objective of allowing the accused a
    meaningful opportunity to present the evidence and argument relevant to the
    Boards disposition. Justice Laskin set out some of the acceptable methods in
Osawe
,
    at para. 73. These include:

-notice given
    by the presiding Chair expressing the Board's concerns about accepting a joint
    submission at the hearing itself, and asking the parties if they wish to lead
    more evidence, following an adjournment, if necessary;

-the
    questions asked by a number of the panel members during the hearing, where the
    questions are significantly probing about the core elements of the joint
    submission; and

-where
    concerns arise after the Board begins its deliberations, the Board may need to
    notify the parties and offer the opportunity for additional submissions or
    evidence.

[23]

I
    would add that the context can also make it clear that the proposed disposition
    may not be easily accepted by the Board and will have to be amply demonstrated
    on the evidence. This was the Boards first disposition, and it followed a
    disposition by a judge who, unlike the members of the panel, was not an expert on
    the issues to be determined.

The Principles Applied

[24]

The
    appellant focuses on the deletion from the judges disposition of the hospitals
    discretion to transfer him to another facility, or to move him into a group
    home, and to allow his mother to take him out of the hospital. All were excluded
    by the Boards disposition.

[25]

Probing
    questions from the panel communicated its unwillingness to leave discretion in the
    hands of the hospital to transfer the appellant to another facility. The
    unwillingness of Whitby and Brockville to take the appellant in his current
    state, and the appellants mothers refusal to accede to a transfer to
    Providence, left the Board in some difficulty. This concern is, for example,
    reflected in the following exchange between Dr. Lightfoot, the psychologist
    member of the panel, and Dr. Bergstrome:

Q. [Dr. Lightfoot]: So in terms of what your  you would
    request the Board to do in terms of a disposition for next year, youre, I
    think, saying youd like it structured in the same way this one is [Justice
    Letourneaus disposition], am I understanding you? Its just

A. Similar, yes, I believe this one Im not sure if this
    specifically indicates that we would  I guess under 2(d) that could be  that
    could grant us permission to transfer him to a less secure forensic facility
    such as Brockville.

Ms. Murphy: I think 2(d) would be more for the group home
    (inaudible).

Dr. Bergstrome: Would that be only group home, though?

Ms. Murphy: No, not necessarily.

Dr. Bergstrome: Thats what Im saying, would that not also
    cover a lower secure forensic facility such as Brockville or Whitby?

By Dr. Lightfoot:

Q. Yeah, The way this is worded it says, To another facility,
    which we generally are unable to do, we have to specify a facility and if
    Kingston is off the list and at the present time it doesnt appear these two
    are on, you know, anywhere near ready, Im not sure

A. Okay.

Q.  what position that puts us in?

A. Yeah. Its a difficult position because I  I dont
    anticipate seeing a transfer from our facility to a group home setting. That
    would, I think, a too big of a transition. So it may be that we would have to
    look at a  calling an  possibly calling an early Board if he responded well
    over the next six months.

Q. And then canvassing the potential receiving hospitals again
    based on the improvement?

A. Yes.

Q. Is that what you see?

A. Yes.

Q. Yeah. Okay. I think  yeah, the other issue I have has been
    addressed already. Thank you, doctor.

[26]

This
    exchange shows Dr. Bergstrome effectively resiling from the request for
    authority to transfer the appellant to another facility, in the face of the
    problem Dr. Lightfoot identifies, and accepting the alternative of an earlier
    board if the appellant responded well over the next six months.

[27]

The
    appellants mother was seeking the prospect of a transfer to a group home, but the
    appellants counsels cross-examination of Dr. Bergstrome showed it was not a
    workable option:

Q. And whats your feeling then about transitioning him to a
    supervised accommodation in the community -- 24 hour supervised?

A. I feel that would be premature at this point.

Q. And do you think hes working towards that, or not?

A. Well, that is certainly the plan, that is what we are
    working toward. And that was part of the plan when he was transferred to this
    facility that he would eventually go back and eventually to the community.

Q. And thats still a possibility?

A. That is our hope and our plan, yes.

Q. And do you have any opinion with respect to timeline for
    that?

A. I cant really say. Itll depend on response to treatment
    here, both behavioural and medication.

[28]

The
    following exchange between Dr. Lightfoot and Dr. Bergstrome is most telling:

Q. [Dr. Lightfoot] And from your evidence you just presented,
    you dont believe at this point in time hes ready for a transfer to a group
    home kind of setting?

A. Thats correct.

[29]

As
    the hearing progressed, the appellants counsel appears to have noticed the
    drift of the questions and the implications of the answers, and decided to call
    the appellants mother to respond to the evidence. No questions were addressed
    to her about her ability to control the appellant if she were to take him out
    of the hospital, or whether she had exercised that privilege after the initial
    disposition. The Board showed Ms. Draper great respect and sympathy.

[30]

On
    the appeal, appellants counsel did not identify any other evidence that he would
    have called in support of the appellants position.

[31]

To
    some extent, the situation was clouded by the medication issue. There were
    improvements in the appellant with new medication, but it was not yet at a
    therapeutic level, owing to his mothers request to hold off. This issue was
    also explored in the Boards questioning, and led it to express the hope that
    the the recent change in his medication and structured behavioural supervision
    would lead to the appellant becoming fit for trial. The Board noted as well the
    prospect of an early hearing should things improve.

[32]

In
    short, the Board clearly saw the joint submission as premature in the
    circumstances.

Disposition

[33]

To
    summarize, I must consider this case on the basis that it involved a joint
    submission that attracts the application of
Osawe (Re)
. The members of
    the panel asked questions that unmistakably showed they considered the initial Ontario
    Court Judges dispositions to have been too permissive in the appellants
    current circumstances, and were not prepared to continue it, specifically to
    permit the transfer of the appellant to another facility or a group home, or to
    allow him to leave the hospital premises unaccompanied by staff.

[34]

While
    it would have been preferable for the Chair to have expressed clearly the
    panels reservations about the joint submission at the outset, in my view the
    notice provided by the questions was adequate and procedurally fair, within the
    principles of
Osawe (Re)
. The appellant had and took the opportunity
    to call the appellants mother in response. Finally, the Board gave reasons for
    its disposition that were amply supported by the record.

[35]

The
    appellant has not demonstrated that the Board made a reviewable error in its
    disposition. I would dismiss the appeal.

Released:  February 12, 2016  DW

P.
    Lauwers J.A.

I
    agree David Watt J.A.

I
    agree C.W. Hourigan J.A.





[1]

This courts
    reasons in
Osawe (Re)
were issued on April 22, 2015, six days before the
    Board hearing in this case. The Boards decision was released on June 1, 2015
.


