Scott (Re)

Scott (Re) Collection Decisions of the Court of Appeal Date 2017-02-02 Neutral citation 2017 ONCA 94 Docket numbers C62083 Judges Feldman, Kathryn N.; MacPherson, James C.; Hourigan, C. William Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: Scott (Re), 2017 ONCA 94 DATE: 20170202 DOCKET: C62083 Feldman, MacPherson and Hourigan JJ.A. IN THE MATTER OF: DAVID THOMAS SCOTT AN APPEAL UNDER PART XX.1 OF THE CODE Janice Blackburn, for the appellant Person in Charge of Waypoint Centre for Mental Health Care Dena Bonnet, for the respondent Attorney General of Ontario Breese Davies and Owen Goddard, for the respondent David Thomas Scott Heard: December 15, 2016; Disposition delivered orally December 15, 2016 with reasons to follow On appeal against the disposition of the Ontario Review Board dated March 23, 2016. Feldman J.A.: [1] The hospital appeals from paragraph 3) of the disposition of the ORB amended on April 20, 2016, which provides: AND IT IS FURTHER ORDERED that the accused have passes for 4 hours, up to twice a year, to have dinner at the home of the accused’s mother in Coldwater, Ontario, escorted by staff. [2] The original disposition of the Board included the passes home as part of the discretionary powers of the hospital, along with attending for medical or compassionate purposes outside the hospital and grounds privileges beyond the secure perimeter. [3] The Board then issued its amended disposition together with its reasons for disposition on April 20, 2016. The amended disposition contained the new mandatory pass provision based on the reasons of the majority of the Board. In minority reasons, Ms. Kert dissented from the provision that required the hospital to provide passes to Mr. Scott to be escorted to his mother’s home for two meals. [4] The hospital’s main objection to the order is that it is mandatory and does not give the hospital its normal discretion to implement only if and when circumstances permit. The hospital also objects that the order was made without notice to it that the order was to be mandatory. Third, the hospital submits the Board erred in making the order without notice to Mr. Scott’s mother, who was not a party to the proceeding, but is bound by the result. Fourth, the hospital submits that there was no evidentiary basis from the treating psychiatrist for the order. Finally, the hospital submits that the Board misapprehended the treating psychiatrist’s evidence about the potential risk if Mr. Scott were to be escorted to his mother’s home. Factual Background [5] Mr. Scott’s index offences were sexual assault of a 19-year-old woman with threat to use a weapon and sexual assault causing bodily harm of an 8-year-old girl, which both occurred in November of 1987. Mr. Scott’s mental illness was caused by a severe head injury as a result of a car accident when he was 11 years old. He has been detained at Waypoint since March 1989, in the Provincial Forensic Programs Division unit, which is the highest security, all-male unit. [6] At the hearing, it was agreed that Mr. Scott continues to represent a significant threat to the safety of the public. The hospital report recommended that he remain in the Provincial Forensic Programs Division at Waypoint, which has a large secure perimeter and numerous therapeutic, recreational and educational opportunities that would allow him a better quality of life than in a less secure setting. The report also recommended that his hospital grounds privileges, escorted by staff, be continued. [7] Mr. Scott has significant support from his family. His mother lives in Coldwater, about 20 minutes from Waypoint, and visits him there often. The proximity to family was an important reason for keeping Mr. Scott at Waypoint. Although there is a less secure unit at Waypoint, it is co-ed and not appropriate for Mr. Scott. Therefore any move to a less secure unit farther away would disrupt the easy access by his family. [8] At the hearing, the treating psychiatrist, Dr. Danyluk, agreed with the suggestion from Mr. Scott’s counsel that Mr. Scott be assessed at the Chedoke Acquired Brain Injury Clinic in Hamilton, with the view to seeing if there is any relevant medical treatment that could help him. Counsel also raised with Dr. Danyluk whether the privilege of having a meal at his mother’s home would be a reasonable goal for him for the future, if he were moved to the General Forensic Unit. She said she would be open to it as a goal for the next few years. She explained that the secure unit does not manage risk in the community. [9] When the lay member of the Board pursued this questioning with Dr. Danyluk, Dr. Danyluk referred the issue to the Vice President of Clinical Services, Mr. Desroches who was called in to testify. He explained a number of concerns with the suggestion, including that staff on the secure unit are not trained to do community escorts, budget constraints, and the likelihood that other patients whose families live much further away could request a similar privilege, which would be very difficult to accommodate. [10] The Board released its original disposition on March 23, 2016, delegating to the person in charge of Waypoint the discretion regarding certain privileges for Mr. Scott including up to two escorted passes of four hours to have a meal at his mother’s home. Then on April 20, 2016, the Board released an amended disposition, stating that through oversight, the original disposition contained an error. The amended disposition removed the discretion of the hospital regarding the two escorted visits. [11] The majority reasons that explained the disposition gave the following explanations for ordering the escorted home visits: · Dr. Danyluk “felt [Mr. Scott’s] risk in the community could be appropriately managed by having him escorted to his mother’s home”; · The reasons offered by the Vice President of Clinical Services did not “appropriately [take] Mr. Scott’s needs into account”; · “Seeing his mother and other family members at his mother's home is something [Mr. Scott] wants and is likely to be therapeutic for him”; · While “it is possible for Mr. Scott, under current Waypoint policies, to have meals with his mother on the Waypoint premises … [t]he Majority finds there is a significant distinction between Mr. Scott visiting with his mother at Waypoint and visiting her at her home.” Accordingly, “escorted visits to his mother in her home outside of Waypoint must also be implemented as a more appropriate way to meet his needs”; · “Granting Mr. Scott visits outside Waypoint to his mother's home would represent a departure from Waypoint policy. The Majority of the Board notes that permitting Mr. Scott to exercise such visits would be a ‘rare exception’ due to his particular circumstances that are not found in other long-term patients at Waypoint”; · “[O]rdering such visits outside of the ‘medical, dental or compassionate’ clause on a limited basis is important to Mr. Scott’s ongoing quality of life, meets his needs, is likely to be therapeutic and affords him the utmost liberty compatible with his situation”; and · “While the Majority of the Board could have found a visit to his mother's home given her age constituted a compassionate reason for entering the community, it wished to avoid a conflict with any hospital interpretation of that clause and to make it abundantly clear by means of a specific Order that such visits must occur, assuming Mr. Scott's ongoing behavioural stability.” [12] The legal member of the Board did not agree with granting this privilege to Mr. Scott. In her dissenting reasons, she stated that there was no sufficient reason to make an exception from the hospital policy of no escorted visits outside the secure perimeter except for certain medical, dental and compassionate purposes. However, she suggested that the policy could be reconsidered for the benefit of long-term detainees such as Mr. Scott. Issues [13] The hospital raises five issues on appeal: 1) Was the Board’s decision to impose a mandatory order an error in law and unreasonable? 2) Did the Board err by making the order mandatory without notice to the hospital? 3) Did the Board err by making an order that binds a third party without notice or consent? 4) Was there an evidentiary basis for the order? 5) Did the Board misapprehend the evidence about risk management in the community? [14] The hospital seeks an order quashing the escorted passes provision or alternatively, an order for a new hearing. [15] The Crown supports the position of the hospital that the mandatory order made by the Board was unreasonable and an error in law. The discretion given to the hospital to implement privileges that affect the safety of the community is a risk management tool that protects the public. Further, the Board erred in law by imposing an order that binds the mother without her consent. However, the Crown’s position on remedy is that the court should set aside the order only to the extent that it imposes a mandatory obligation, and reinstate the original discretionary order. [16] Mr. Scott’s position is that no error was made, and the appeal should be dismissed. [17] Following oral argument, the court announced its decision with reasons to follow. The appeal is allowed, the mandatory part of the order is set aside and the original order with discretion to the hospital is re-instated. Analysis 1. Was the Board’s decision to impose a mandatory order an error in law and unreasonable? [18] Having found that Mr. Scott continued to pose a significant threat to the safety of the public and that the least onerous and least restrictive disposition required his continued detention in the secure Provincial Forensic Programs Division at Waypoint, it was the Board’s role to set out the general parameters of Mr. Scott’s detention, leaving the day-to-day management decisions to the hospital. See: R. v. Petroniuk, 2014 ONSC 6951, 322 C.R.R. (2d) 276; Conway (Re), 2016 ONCA 918, where the courts observed that it is not the role of review boards to micromanage the day-to-day operations of the hospital. [19] In setting out the parameters of the disposition, the Board must balance the twin goals of public safety and fairness to the detained person as described by the Supreme Court of Canada in Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528, at para. 19, as follows: The objective is to reconcile the twin goals of public safety and treatment. In this process of reconciliation, public safety is paramount. However, within the outer boundaries defined by public safety, the liberty interest of an NCR accused should be a major preoccupation of the Review Board when, taking into consideration public safety, the mental condition and other needs of the individual concerned, and his or her potential reintegration into society, it makes its disposition order. [20] However, within those parameters, the hospital requires the flexibility to implement the disposition in accordance with the day-to-day needs of the detained person and the circumstances that may arise. In R. v. M.L.C., 2010 ONCA 843, 104 O.R. (3d) 450, this court discussed the relationship between the roles of the Board and the hospital in formulating and implementing the least onerous and least restrictive disposition at para. 28: While the Board has the jurisdiction to review a patient’s disposition at a particular hearing, it is not in a position to oversee the patient on a day-to-day basis and to refine the restrictions on his or her liberty. This is why the statutory framework gives the hospital the ability and flexibility to monitor patients who suffer from mental disorder. The responsibility for adjusting the restrictions for such a patient comes from s. 672.56(1), which allows the Board to delegate to the hospital certain decisions about the patient’s liberty. Any restrictions the hospital places on the patient must fall within the envelope of the conditions enumerated by the Board in its disposition. As a safeguard, any decision by a hospital that significantly restricts a patient’s liberty for more than seven days must be considered by the Board in a restrictions review. [21] In this case, the efficacy and propriety of any visit to Mr. Scott’s mother for a meal would depend on his clinical state, the availability of staff, the consent and convenience of his mother, as well as any other administrative issues that could arise. While it made the order mandatory, the Board recognized that Mr. Scott’s clinical state should be determinative of his ability to make such visits, as it stated in the reasons that the “visits must occur, assuming Mr. Scott’s ongoing behavioural stability.” [22] The record discloses that the hospital has a policy of not providing escorted visits to the community for patients on the secure unit. In her argument, counsel for the Attorney General submitted that the Board may have removed any implementation discretion from the hospital in order to ensure that in spite of the policy, the hospital would implement the visits. If that was the case, then the Board erred in failing to appreciate that a hospital is already required to implement a discretionary order if the circumstances permit it, in order to comply with the Board’s directive. [23] We accept that submission. The original order was for the creation of a program for Mr. Scott within the Provincial Forensic Programs Division of Waypoint where the hospital “may permit” up to two escorted passes for him to have dinner at his mother’s home. Under that order, the hospital would have been required to exercise that discretion with a view to implementing the Board’s intention to give Mr. Scott certain liberty privileges, if it was possible to do so. The Board would not have been entitled to refuse to implement the order because of its pre-existing policy. [24] The hospital has patients like Mr. Scott who are long-term residents of the unit whose interests may be served by facilitating community visits, like family visits for a meal as contemplated for Mr. Scott. By making an order that allows the hospital to do that in appropriate cases and where circumstances allow it to be done safely, the Board can give the hospital the opportunity to review its policy to determine whether it can and should be modified to be able to accommodate the legitimate needs of particular patients, within the context of the need for public safety. [25] However, by making the order mandatory, with no discretion accorded to the hospital to implement it only if and when circumstances permitted for the benefit of Mr. Scott and while ensuring public safety, the Board erred in law and acted unreasonably. 2. Did the Board err by making the order mandatory without notice to the hospital? [26] The issue of according Mr. Scott the privilege of escorted visits to his mother’s home for a meal arose during the hearing as a result of questions from counsel for Mr. Scott followed up by questions from the Board. The hospital submits that making such an order mandatory on the hospital was not raised squarely with proper notice to the hospital to be able to respond. [27] The court’s decision to remove the mandatory aspect of the order and leave its implementation in the discretion of the hospital addresses the concern raised by this issue. 3. Did the Board err by making an order that binds a third party without notice or consent? [28] Both the hospital and the Crown submit that the Board erred by imposing an order that affects Mr. Scott’s mother directly by requiring her participation without notice to her or her consent. Mr. Scott’s position is that if his mother did not want him to visit and she so advised the hospital, then the hospital could request a mandatory review of the disposition under s. 672.81(2) of the Criminal Code and explain to the Board why the order could not be implemented. [29] Similar to the issue regarding notice to the hospital, the court’s decision to remove the mandatory aspect of the home visit order also addresses the concern raised by the issue of binding Mr. Scott’s mother without her consent. However, we note that it is clear that such visits may not be imposed on Mr. Scott’s mother without her consent and co-operation. Consultation with her should be part of the considerations and arrangements necessary to implement the order. 4. Was there an evidentiary basis for the order? [30] The hospital also submits that there was no evidentiary basis that visits to Mr. Scott’s mother for a meal would have a therapeutic benefit for him, especially as he could have a meal with her on the grounds of the hospital. [31] In our view the Board was entitled to conclude, based on its discussion with Dr. Danyluk during her evidence, that according Mr. Scott the privilege of visiting his mother at the family home would be beneficial for him, either now or in the future, if it were possible to accommodate. There was no suggestion that such visits would have a negative effect on him. [32] In the normal course, according privileges to a patient that can be accommodated and facilitated by the institution, which has the effect of granting the patient more freedom while under the supervision of the Board, constitutes an important part of the process of the patient’s rehabilitation and reintegration into society. It is consistent with the Board’s mandate to protect the public and be fair to the NCR accused who is held under its jurisdiction. 5. Did the Board misapprehend the evidence about risk management in the community? [33] The hospital submits that the Board misapprehended Dr. Danyluk’s evidence about the hospital’s ability to manage Mr. Scott’s risk in the community. It submits that although Dr. Danyluk initially appeared to testify that she thought the risk could be managed, she later clarified this. In her clarification, she indicated that she was speaking about risk management in a different environment, namely if Mr. Scott were to reside in a different facility with staff trained to manage risk in the community. [34] In our view, the Board did not misapprehend this evidence. In its reasons, the Board correctly noted that Dr. Danyluk testified that Mr. Scott’s risk could be managed if he were to be escorted to his mother’s house. The Board went on to address the evidence that staff at Mr. Scott’s portion of the facility lacked training in managing risk in the community. There was no misapprehension of the evidence. Result [35] The Board erred by imposing a mandatory order on the hospital to take Mr. Scott for up to two escorted visits to his mother’s home for a meal, rather than make the order with implementational discretion in the person in charge of the hospital. The person in charge must be able to ensure that Mr. Scott is able to handle such a visit, that his mother is prepared to accommodate it, and that the hospital is able to facilitate it. [36] The appeal is allowed. Paragraph 3 of the amended disposition is set aside and paragraph 2(c) of the original disposition is reinstated. Released: February 2, 2017 (“K.F.”) “K. Feldman J.A.” “I agree. J.C. MacPherson J.A.” “I agree. C.W. Hourigan J.A.”