Groves (Re)

Groves (Re) Collection Decisions of the Court of Appeal Date 2020-10-07 Neutral citation 2020 ONCA 634 Docket numbers C67267 Judges Doherty, David H.; van Rensburg, Katherine; Trotter, Gary T. Subject Criminal Decision Content 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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 complainant’s 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and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 boy’s 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 driver’s 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 Board’s reasons for denying his request for indirectly supervised passes are insufficient. And third, Mr. Groves asks us to find that the Board’s 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 Board’s 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 driver’s 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 Board’s 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 Board’s 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 Board’s 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 person’s circumstances.” Nevertheless, Dr. Meng maintained her opinion that the proposed plan was not appropriate at this time. [18] The Board accepted Dr. Meng’s 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 Board’s 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 Board’s 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.”