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REVIEW BOARDS - Orders - Considerations - Other needs of accused - Appeals and judicial review

Tuesday, February 28, 2017 @ 9:57 AM  


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Appeal by Waypoint Centre from an Ontario Review Board disposition in respect of a patient, Scott. Scott suffered from mental illness from age 11 onward as a result of a severe head injury sustained in an automobile accident. In 1987, Scott was found not criminally responsible for two serious sexual offences. He was detained at Waypoint from 1989 onward in a high security all-male unit. At a review hearing before the Board, it was agreed Scott continued to represent a significant threat to public safety. Waypoint recommended he remain in the same division, with continuation of certain staff-escorted privileges outside of the hospital grounds. Any move to a less secure facility would affect the ability of his nearby family to continue regular visits. At the review, the Board pursued the issue of whether Scott visiting his mother's home would be a worthwhile therapeutic goal. Waypoint took issue with the suggestion. The Board determined that escorted visits by Scott to his mother's home were an appropriate privilege, and granted two mandatory four-hour passes per year. Waypoint appealed.

HELD: Appeal allowed. Having found that 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 Scott’s detention, leaving the day-to-day management decisions to the hospital. The efficacy and propriety of any visit to 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. 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 Scott and while ensuring public safety, the Board erred in law and acted unreasonably. The mandatory aspect of the order was set aside, with discretion to Waypoint reinstated.

Scott (Re), [2017] O.J. No. 495, Ontario Court of Appeal, K.N. Feldman, J.C. MacPherson and C.W. Hourigan JJ.A., February 2, 2017. Digest No. 3640-005