



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)     In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an offence
    other than an offence referred to in subsection (1), if the victim is under the
    age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b);
    2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s.
    18.

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: Groves (Re), 2020 ONCA 634

DATE: 20201007

DOCKET: C67267

Doherty, van Rensburg and Trotter JJ.A.

IN THE MATTER OF: Jeffrey W. Groves

AN APPEAL UNDER PART XX.1 OF THE
CODE

Jeffrey W. Groves, acting
    in person

Kelley J. Bryan,
amicus
    curiae

Sean Horgan, for the respondent, Ministry of the
    Attorney General

Leisha Senko, for the respondent, Centre for Addiction
    and Mental Health

Heard: September 30, 2020 by video conference

On appeal from the
    disposition of the Ontario Review Board dated July 9, 2019, with reasons dated July
    22, 2019.


REASONS
    FOR DECISION

A.

Introduction

[1]

In 2001, Mr. Groves was found not criminally responsible on account of a
    mental disorder (NCRMD) in relation to charges of sexual assault, sexual
    touching, and failure to comply with a probation order.

[2]

The offences relate to Mr. Groves conduct towards a five-year-old girl
    who lived next door. Mr. Groves, who was 26 at the time, became acquainted with
    her family and routinely babysat this child. On a number of occasions, he
    touched her vagina over her clothing.

[3]

Mr. Groves has a youth criminal record for sexual offences against
    children. When Mr. Groves was 15, he worked at a restaurant, where he confined
    a six-year old boy in a washroom stall. He told this boy he was a doctor and
    needed to examine him. He attempted to insert a pen into the boys rectum. On a
    separate occasion, Mr. Groves confined a five-year-old boy in a washroom stall
    at the same restaurant. When he was 17, Mr. Groves exposed himself to two
    children (ages 4 and 5) and made one of them touch his penis. When he was 23,
    he sexually assaulted the 2 ½-year-old son of his common law partner.

[4]

Mr. Groves current diagnoses are: pedohebephilia, personality disorder NOS
    (with features of antisocial and narcissistic personality disorder), and mild
    intellectual disability.

[5]

Mr. Groves has been subject to a detention order since 2001, when he was
    found NCRMD. Since then, he has been detained at multiple secure forensic units
    under 24-hour supervision, with no indirectly supervised access to the
    community. Since 2009, his disposition has permitted Mr. Groves to live in the
    community in 24-hour supervised accommodation approved by the person in charge.
    Since May 2012, he has been living in a house supervised by VITA Community
    Living Services, an organization, which among other things, assists people living
    with mental challenges. He has been accepted for and is awaiting transfer to
    another VITA home in Schomberg, Ontario.

[6]

At his most recent hearing before the Ontario Review Board (the Board),
    Mr. Groves did not dispute his detention. However, he sought two exceptions to
    his detention order: (a) that he have indirectly supervised passes into the
    community through the Community Trust Program available through VITA; or (b)
    in the event that the Board did not accede to his first request, that he be
    permitted to be indirectly supervised for the specific purpose of taking his G2
    drivers licence road test. Despite the opposition of the Hospital and the
    Attorney General, the Board granted Mr. Groves request for indirect
    supervision for the purpose of taking his driving test. The Board did not grant
    his broader request to have indirectly supervised passes into the community for
    participation in the Community Trust Program.

[7]

Mr. Groves advances three grounds of appeal.  First, he submits that the
    Board misapprehended his position by failing to consider both of his requests,
    noted in para. 6 above. Second, he contends that the Boards reasons for
    denying his request for indirectly supervised passes are insufficient. And
    third, Mr. Groves asks us to find that the Boards disposition was unreasonable
    and not supported by the evidence.

[8]

We are unable to give effect to these submissions.

B.

Analysis

(1)

The Board Did Not Misapprehend Mr. Groves Request

[9]

In our view, the Board did not misapprehend the dual nature of Mr.
    Groves position. A review of the transcript of the proceedings demonstrates
    that the issue was presented by counsel and discussed with Board members at the
    hearing. Moreover, Mr. Groves broader request was a significant focus of the
    testimony of his psychiatrist, Dr. Meng. The Board reviewed and accepted her
    testimony in their reasons for disposition.

[10]

We
    acknowledge that there is language in the Boards reasons that, when considered
    in isolation, suggest that it failed to consider the request for indirectly
    supervised access to the community. For example, in framing the issues before
    it, the Board said the following, at para. 6:

Counsel for Mr. Groves indicated she was not conceding the
    issue of significant threat, but was not disputing the continuation of the
    Disposition,
save for a request that a term be added to provide him with
    indirectly supervised privileges to attend at the MTO to apply for his G2
    drivers licence.
[Emphasis added.]

This passage makes no reference to Mr. Groves broader
    request for indirectly supervised passes for the purpose of participating in
    the Community Trust Program.

[11]

However,
    when read as a whole, it is evident from the Boards reasons that it considered
    both aspects of Mr. Groves position. As the Board said, at para. 16:

With respect to the request for indirectly supervised passes
,
    Dr. Meng said the VITA program staff did not approve indirectly supervised
    passes and stated that it was a critical part of Mr. Groves management plan
    that he have continuous supervision while in the community to prevent any
    reoffending.
With respect to  the request for indirectly supervised
    privileges to attend at the MTO for a driving test, Dr. Meng expressed concern
    about this request in that it potentially could expose Mr. Groves to children in
    the course of the testing.
[Emphasis added.]

[12]

The
    Board returned to the issue of the driving test, at para. 21:

With respect to the driving test
, Dr. Meng acknowledged
    it appeared to be important to Mr. Groves that he be able to take the test and
    achieve success in this regard. She emphasized that it was important Mr. Groves
    have supervision and support of the VITA staff during this process. [Emphasis
    added.]

[13]

These
    paragraphs demonstrate that the Board understood the distinction between Mr.
    Groves two requests. Therefore, when the reasons are viewed holistically, it
    cannot be said that the Board misapprehended the nature of Mr. Groves position. 
    We would dismiss this ground of appeal.

(2)

The Boards Reasons Are Sufficient

[14]

In
    terms of the sufficiency of reasons, Mr. Groves submits that, although the
    Board referred to the evidence bearing on the appropriateness of indirectly
    supervised passes, it made no clear finding on this issue. After reviewing the
    evidence, the Board reached the following conclusion, at para. 27:

Having heard and considered all the evidence and submissions from
    the parties, the Board found Mr. Groves continues to represent a significant
    threat to the safety of the public. We made this finding on the basis of the
    evidence of Dr. Meng and the Hospital Report. It is clear from all the evidence
    that Mr. Groves continues to require intense and ongoing supervision and
    structure which is currently provided to him at the VITA residence in King. It
    is noteworthy that his care is being transitioned to a new residence, which in
    the opinion of his caregivers and Dr. Meng, will give rise to new challenges
    with respect to managing the significant risk he poses to the public,
    especially children. Mr. Groves has a long history of predatory and very
    concerning sexually-inappropriate behaviour and requires the structure and
    support he is currently receiving and will receive in the new residence.

[15]

On
    its face, this passage seems to conflate the question of significant threat in
    s. 672.4201 of the
Criminal Code
, R.S.C. 1985, c. C-46 with the
    appropriateness of the privileges that Mr. Groves sought. Although the two
    issues are related, they are not the same thing. It would have been preferable for
    the Board to address them separately.

[16]

However,
    in this case, the reason why Mr. Groves continues to present a significant
    threat also justifies the rejection of his request for broader indirectly
    supervised privileges. In particular, the Board concluded based on all the
    evidence that Mr. Groves requires intense and ongoing supervision,
    especially in a time of heightened risk due to his transition to a new
    residence. This finding belies his request to participate in community
    programming under less supervision than he is accustomed to. Rather, the
    Boards reasons suggest that this is a time where he may need
more
supervision, not less.

[17]

Mr.
    Groves further submits that the Board failed to address the true nature of his
    request for indirectly supervised privileges. He was not seeking wide-ranging
    privileges that would allow him liberal access to the community; instead, he
    requested modest, incremental privileges that allowed him a measure of freedom
    that is consistent with the need to restrict his access to children. This theme
    was pursued in the cross-examination of Dr. Meng, who agreed that it is not a
    one size fits all ladder of privileges and that a flexible and
    individualized plan may be geared to each persons circumstances. Nevertheless,
    Dr. Meng maintained her opinion that the proposed plan was not appropriate at
    this time.

[18]

The
    Board accepted Dr. Mengs assessment of the suitability of what was being
    proposed. Again, it would have been preferable for the Board to address the
    nuances of Mr. Groves proposal in greater detail. Nonetheless, overall, the
    reasons are sufficient to inform Mr. Groves why he was unsuccessful; they also
    enable this court to understand why the Board decided the case as it did.

[19]

We
    are advised that Mr. Groves next hearing before the Board is scheduled for
    October 28, 2020. Should this issue arise again, it would be helpful if the
    Board confronted this aspect of the evidence more directly.

[20]

We
    would dismiss this ground of appeal.

(3)

The Boards Disposition Was Reasonable

[21]

Lastly,
    we cannot say that the disposition crafted by the Board was unreasonable. The
    Hospital Report and the evidence of Dr. Meng  both of which the Board
    expressly adopted  amply supported the Boards disposition. The evidence demonstrated
    that, without direct supervision, Mr. Groves is at high risk to re-offend
    against children. As stated in the Hospital Report:

Mr. Groves has indicated an interest in participating in the
    Community Trust Program at VITA, which entails that an individual be given
    increased freedom under indirect supervision in the community.
In the
    opinion of the treatment team, Mr. Groves risk is not compatible with indirect
    community privileges at this time. This is necessitated by his long-standing
    paraphilic urges combined with his externalization of responsibility for his
    behaviour and the need for constant supervision as part of his risk management
    plan.
[Emphasis added.]

[22]

Dr.
    Meng reaffirmed this view at the hearing. She also testified that VITA staff did
    not support Mr. Groves participation in the Community Trust Program, and there
    was no indication that this position would change in the following year. It was
    common ground at the hearing of the appeal that the Board could not compel VITA
    to accept Mr. Groves into this program. Consequently, the program that Mr.
    Groves sought to participate in was not available to him at the time. The Board
    was aware of this important circumstance.

[23]

Based
    on the evidence before the Board, the disposition was reasonable. We would
    dismiss this ground of appeal.

C.

Conclusion

[24]

For these reasons, the appeal is
    dismissed.

Doherty J.A.

K. van Rensburg
    J.A.

Gary Trotter
    J.A.


