



COURT OF APPEAL FOR ONTARIO

CITATION:
Armstrong
    (Re), 2021 ONCA 799

DATE: 20211108

DOCKET: C69207

Tulloch, Hourigan and Harvison Young JJ.A.

IN THE MATTER OF:  Luke Armstrong

AN APPEAL UNDER PART XX.1 OF THE
CODE

Suzan E. Fraser, for the appellant

Nicolas de Montigny, for the respondent Attorney General
    of Ontario

Gavin S. Mackenzie, for the respondent Ontario Shores
    Centre for Mental Health

Heard: November 5, 2021 by video conference

On appeal against the disposition of the Ontario Review
    Board dated, January 26, 2021, with reasons dated February 12, 2021.

REASONS FOR DECISION

[1]

On November 26, 2010, the appellant was found not criminally responsible
    on account of mental disorder for the murder of his mother. He appeals his
    continued Detention Order dated January 26, 2021.

[2]

The facts surrounding the most recent disposition by the Board are as
    follows.

[3]

In September 2019, the appellant discontinued anti-psychotic medication,
    and did not experience any re-emergence of psychosis.

[4]

In December 2019, the appellant found full-time employment. However, his
    working privileges were suspended by the hospital on April 5, 2020, on the
    grounds that he did not adhere to measures to prevent the spread of COVID-19.

[5]

The hospital returned the appellant from a general unit to a secure unit
    on July 20, 2020, citing evidence of his general deterioration in 2020, and his
    use and distribution of tea with psychoactive properties to co-patients. There
    were also incidents of physical aggression and verbally abusive and
    intimidating behaviour.

[6]

At the start of the hearing before the Board, the parties were informed
    that the hearing would last one and a half hours and that the parties would
    each have 15 to 20 minutes to give evidence and testimony before moving on to
    submissions. The appellant was permitted to ask questions in excess of his
    allotted time, but the Chairperson ultimately ended his questioning before the
    appellant was finished, in the interest of time.

[7]

During the appellants testimony, he raised concerns regarding
    discrepancies in the hospitals report and the revocation of his work
    privileges. His testimony was stopped by the Chairperson due to time
    constraints. The appellant attempted to raise further points, but the
    Chairperson instructed him to deal with them during his submissions. He was
    allowed two minutes for submissions and was cut off by the Chairperson at the
    expiry of that time. The hearing ultimately lasted just over 1.5 hours. At times,
    the Board interrupted the appellant during his questioning and when he gave his
    evidence.

[8]

In light of two incidents of physical aggression against co-patients along
    with behavioural difficulties with staff and co-patients during the reporting
    year, the Board found that the appellant continued to present a significant
    threat to public safety. It found that his use of kratom tea, a substance with
    the potential to cause psychosis, demonstrated an ongoing lack of insight into
    the potentially negative impact of substance abuse on his mental state.

[9]

The Board held that a continued Detention Order was necessary and
    appropriate to allow for a high level of support and staff supervision both in
    the hospital and when he transitioned to the community. It also found that the
Mental
    Health Act
, R.S.O. 1990, c. M.7, would not be sufficient to manage his
    risk, as the appellant would likely not cooperate with a voluntary readmission
    if requested.

[10]

Two grounds of appeal are raised:

1.

The Board breached its duty of procedural fairness by restricting the
    time limit of the hearing to 1.5 hours; and

2.

The Board erred in denying the appellant a conditional discharge.

[11]

We do not give effect to these submissions.

[12]

On the procedural fairness ground, we agree with the appellant that he
    was entitled to a high degree of fairness. In our view, that fairness
    requirement was met in this case.

[13]

The Board explained to the appellant at the outset of the hearing that
    he would be able to cross-examine, give testimony, and make submissions, and he
    was permitted to do so. The Boards interruptions were primarily intended to
    focus the appellant in each of these roles to maximize the meaningfulness of
    his participation. The appellant also had the benefit of
amicus
to
    consult with and to raise further issues through his questioning and
    submissions.

[14]

We see no error in the Boards exercise of its discretion to control its
    process. All the parties were given an opportunity to present their cases on
    the relatively straightforward issues before it. There is nothing in the
    submissions of the appellant that suggests that there was evidence or
    submissions on an important area that were not adequately covered. Indeed, it
    is unclear what would have been materially different had the hearing been further
    extended. Accordingly, there is no basis for this court to interfere in the
    Boards reasonable exercise of its discretion.

[15]

On the matter of the disposition, there was considerable evidence to
    support the Detention Order and the finding of the likely ineffectiveness of a
    conditional discharge. Considering the appellants lack of insight into the
    potential effect of substance use on his mental state, his behavioural issues
    with staff and co-patients that included physical aggression, and his
    difficulty cooperating with his team, we are not of the view that a Detention
    Order was an unreasonable disposition.

[16]

Further, we agree with the Boards conclusion that there was a clear
    risk to public safety stemming from the appellants interactions with his
    co-patients and hospital staff that could not be sufficiently managed with a
    conditional discharge.

[17]

The appeal is dismissed.

M. Tulloch J.A.

C.W. Hourigan J.A.

Harvison Young J.A.


