DATE: 19990112
                                                   DOCKET: C29949
                                                                 
                   COURT OF APPEAL FOR ONTARIO
                                
                BROOKE, OSBORNE and GOUDGE JJ.A.
                                
BETWEEN:                 )
                                )
THE ADMINISTRATOR OF THE        )
PENETANGUISHENE MENTAL          ) Jack Coop,
HEALTH CENTRE and THE           ) for the Administrator of the
ADMINISTRATOR OF THE WHITBY     ) Penetanguishene Mental Health
MENTAL HEALTH CENTRE            ) Centre and for the
Administrator                   ) of the Whitby Mental Health
                    Appellants  ) Centre, appellants
                                )
- and -                         )
                                ) Carl Mandrish,
THE ATTORNEY GENERAL FOR        ) for the respondent Clement
ONTARIO                         )
                                )
                    Respondent  ) Eric Siebenmorgen,
                                ) for the respondent The Attorney
- and -                         ) General for Ontario
                                )
RONALD CLEMENT                  )
                                ) Heard: October 15, 1998
                    Respondent  )
                                )
                                )
GOUDGE J.A.:
[1]       On December 31, 1986 Ronald Clement, the respondent in
this appeal, was found unfit to stand trial on charges arising
out of serious attacks on his father and mother. He was diagnosed
as suffering from paranoid schizophrenia and has been detained
since then in the Oak Ridge maximum security facility at the
Penetanguishene Mental Health Centre. Eventually, in
December 1997, he was found fit to stand trial and on March 3,
1998 he was found not criminally responsible on account of mental
disorder.
[2]       As a consequence, on April 9, 1998 the Ontario Review
Board held a hearing concerning Mr. Clement, as required by
s. 672.47(3) of the Criminal Code. The Review Board had before it
the report of the Administrator of the Mental Health Centre dated
November 24, 1997 together with an addendum dated April 1, 1998.
It also heard evidence from Dr. Hector, Mr. Clement's attending
psychiatrist, and Ms. P. Moody, his programme director.
[3]       The Board rendered its decision on April 15, 1998,
ordering that Mr. Clement be transferred to medium security and
determining that this should be done by moving him to the Whitby
Mental Health Centre. On May 22, 1998 the Board issued its
reasons for this decision. The essence of those reasons was set
out as follows:
               Having considered all the evidence
          adduced and submissions, the Board finds that
          after twelve years of not being a management
          problem, his risk could be equally managed in
          a medium security facility, however we
          recognize that his misidentification syndrome
          is a major risk to the public. Taking into
          consideration the need to protect the public
          from dangerous persons, the mental condition
          of the accused, and the other needs of the
          accused, the Board is of the unanimous view
          that the least onerous, least restrictive
          disposition is that the accused be
          transferred to a medium security facility in
          Whitby under a standard custodial order.
          
[4]       The Administrator, supported by the Attorney General
for Ontario, appeals from this decision. They raise two
arguments:
     
     1.   The decision to transfer Mr. Clement to medium security
     is unreasonable and cannot be supported by the evidence.
     
     2.   The same is true of the direction that Mr. Clement be
     moved to the Whitby Mental Health Centre.
     
     
[5]       For the reasons that follow I have concluded that the
first argument is correct and that the appeal must therefore
succeed.
[6]       Two provisions of the Criminal Code are relevant to
this matter. The first, s. 672.54, sets out the criteria to be
applied by the Review Board in making its decision. It reads as
follows:
          672.54         Where a court or Review Board
          makes a disposition pursuant to subsection
          672.45(2) or section 672.47, it shall, taking
          into consideration the need to protect the
          public from dangerous persons, the mental
          condition of the accused, the reintegration
          of the accused into society and the other
          needs of the accused, make one of the
          following dispositions that is the least
          onerous and least restrictive to the accused:
          (a) where a verdict of not criminally
          responsible on account of mental disorder has
          been rendered in respect of the accused and,
          in the opinion of the court or Review Board,
          the accused is not a significant threat to
          the safety of the public, by order, direct
          that the accused be discharged absolutely;
          (b) by order, direct that the accused
          be discharged subject to such conditions as
          the court or Review Board considers
          appropriate; or
          (c) by order, direct that the accused
          be detained in custody in a hospital, subject
          to such conditions as the court or Review
          Board considers appropriate.

[7]       The second, s. 672.78, describes the powers of this
court on appeal from the Review Board. It reads as follows:
          672.78  (1)  The court of appeal may allow an
          appeal against a disposition or placement
          decision and set aside an order made by the
          court or Review Board, where the court of
          appeal is of the opinion that
             (a) it is unreasonable or cannot
             be supported by the evidence;
             (b) it is based on a wrong
             decision on a question of law; or
             (c) there was a miscarriage of
             justice.
          (2)   The court of appeal may dismiss an
          appeal against a disposition or placement
          decision where the court is of the opinion
             (a) that paragraphs (1)(a), (b)
             and (c) do not apply; or
             (b) that paragraph (1)(b) may
             apply, but the court finds that no
             substantial wrong or miscarriage of
             justice has occurred.
          (3)   Where the court of appeal allows an
          appeal against a disposition or placement
          decision, it may
             (a) make any disposition under
             section 672.54 or any placement decision
             that the Review Board could have made;
             (b) refer the matter back to the
             court or Review Board for rehearing, in
             whole or in part, in accordance with any
             directions that the court of appeal
             considers appropriate; or
             (c) make any other order that
             justice requires.

[8]       Given its medical expertise, its specialized knowledge,
and its advantage in observing the witnesses, the Review Board
must be accorded curial deference on appeal. Within the broad
review parameters set by s. 672.78 the Review Board can and
should rely on its significant expertise to analyze and weigh the
evidence before it and to come to its decision. However, if this
court concludes that the decision appealed from is unreasonable
and cannot be supported by the evidence, the Code requires that
the court intervene: see R. v. Peckham (1994), 19 O.R. (3d) 766
(C.A.) at 777-78.
[9]       In this case, it is my view that, having appropriate
regard for the expertise and advantageous position of the Review
Board, its decision to move Mr. Clement to a medium security
facility is unreasonable and unsupported by the evidence. I say
this for three reasons.
[10] First, the Review Board appears to have used the wrong test
in reaching its decision. It ordered the transfer of Mr. Clement
to a medium security facility because that constituted the least
restrictive disposition for him in light of the need to protect
the public from dangerous persons, his mental condition, and his
other needs. However, as this court said in R. v. Pinet (1995),
23 O.R. (3d) 97 (C.A.) at 102, these considerations should only
be applied in choosing among the three alternative dispositions
in paras. (a), (b) and (c) of s. 672.54.
[11] Here, the Review Board was deciding upon the conditions that
should attach to the detention of Mr. Clement in a hospital. In
doing so the Code requires the Board to apply the conditions that
it considers appropriate. While this standard of appropriateness
may include consideration of the relative restrictiveness of
conditions, it is not confined to that.
[12] It is not necessary in this case to proceed on the basis
that the Review Board erred in law by using the wrong test.
Rather, by adopting the approach it did the Review Board focussed
only on the risk of escape to the exclusion of essentially all of
the expert evidence. This led it, in my view, to a decision that
is unreasonable and unsupported by the evidence.

[13] Second, because he had not been a management problem at Oak
Ridge, the Review Board concluded that the risk Mr. Clement
presented could be managed just as well in a medium security
facility. In my view, this conclusion does not automatically
follow. Indeed, the evidence concerning Mr. Clement was to the
contrary. Both his attending psychiatrist and his programme
director gave evidence that a move to a medium security facility
with a more open environment and a new staff unfamiliar to him
would be traumatic for Mr. Clement and would result in his
displaying more behaviour indicative of paranoia.

[14] Third and most important, all the expert evidence before the
Review Board was to the effect that a move of Mr. Clement from
Oak Ridge to a medium security facility would be inappropriate.
There was no evidence to the contrary. The decision to move
Mr. Clement is simply unreasonable on the basis of this record.

[15] The most recent report of the administrator recommended that
he remain at Oak Ridge. That report indicates that throughout his
stay there he has allowed staff almost no access to his inner
feelings and thought processes. This report, tabled with the
Review Board, concludes as follows:
          Until the Clinical Team is allowed enough
          access to Mr. Clement's inner psyche to allow
          for further assessment and treatment, the
          team believes that, in the absence of any
          evidence to the contrary, it must assume that
          the level of risk Mr. Clement posed at the
          time of the index offence remains unchanged.
          As such, it is the unanimous recommendation
          of the Clinical Team that Mr. Clement remain
          in Oak Ridge.


[16] The staff gave evidence that Mr. Clement has indicated that
if he left Oak Ridge he would go off his medication.

[17] His psychiatrist testified that Mr. Clement believes that
his parents are not his real parents and that this
misidentification syndrome remains a major risk factor for
assault in the future.

[18] Finally, as I have said, the staff were unanimous that a
move would be disruptive and traumatic for Mr. Clement and would
result in more behaviour indicative of paranoia.

[19] In summary, the decision to move Mr. Clement from Oak Ridge
to a medium security facility is unreasonable. It is not
supported by the evidence. I would therefore allow the appeal.

[20] Given that Mr. Clement will be subjected to an annual review
within the next few months in any event, I would exercise the
jurisdiction given to this court by s. 672.78(3)(a) and order
that Mr. Clement continue to be detained in the Oak Ridge
Division of the Mental Health Centre at Penetanguishene.

[21] Having thus disposed of this appeal, it is unnecessary to
deal with the appellants' second argument, namely that the Review
Board erred in directing that Mr. Clement be moved to the medium
security unit of the Whitby Mental Health Centre. Suffice it to
say that I do not view this as an issue of natural justice
entitling the Whitby Mental Health Centre to notice prior to the
order being made. However, I think it is appropriate to reiterate
what this court said in R. v. Pinet, supra, at p. 103:
          The administrators agree in theory with the
          right of the Board to delegate authority to
          transfer, and they also agree in theory that
          the Board has the authority under
          s. 672.54(c) to name a specific hospital for
          detention of the accused. However, their
          counsel argues strongly that the Board, in
          naming a specific hospital, is now
          undertaking what was formerly an
          administrative decision, and that it should
          not do so without clear knowledge of the
          availability within that hospital of the
          required facilities necessary for housing,
          securing and treating the accused. Counsel
          for the administrators says that it may not
          have the appropriate facilities, and that the
          Board should order specific transfers only on
          the basis of clear information as to the
          appropriateness of such a transfer.
               The position of the administrators makes
          good sense. It would be of no assistance to
          anyone to have an accused arrive at a
          hospital where there was no room, inadequate
          security, and inappropriate treatment
          facilities to deal with him.


[22] Hence, it seems to me that a specific order like the order
in this case requires either some evidence concerning the host
facility or perhaps some showing by the Review Board in its
reasons of information concerning the facility of which it is
able to take official notice.

[23] In the result, I would allow the appeal and substitute the
order I have indicated.



RELEASED: January 12, 1999