COURT OF APPEAL FOR ONTARIO

CITATION: Issariotis (Re), 2014 ONCA 182

DATE: 20140307

DOCKET: M43304 (C58047)

Laskin J.A. (In Chambers)

BETWEEN

Person In Charge of Waypoint Centre for Mental Health Care

Appellant/Moving Party

and

Her Majesty the Queen

Respondent/Responding Party

and

Michael Issariotis

Respondent/Responding Party

and

Minister of Public Safety and Emergency Preparedness

Respondent/Responding Party

Janice Blackburn, for the moving party

Andrew Menchynski and Jill R. Presser, for the responding party M. Issariotis

Susan Keenan, for the responding party Minister of Public Safety

Deborah Calderwood, for the responding party Her Majesty the Queen

Heard:  February 5, 2014

On motion for an order suspending the placement decision of the Ontario Review Board dated December 5, 2013, and for an order that the respondent be detained at the Pacific Institution/Regional Treatment Centre.

Laskin J.A.:

A.           OVERVIEW

[1]          Waypoint brings this motion for an order suspending a placement decision made by the Ontario Review Board and for an order that the respondent, Michael Issariotis, remain in prison pending Waypoint’s appeal of the Board’s decision.

[2]          Issariotis is a dual status offender:  in 2003, he was found not criminally responsible for several offences and thus came under the Board’s jurisdiction; in 2008, he was convicted of additional criminal offences and sentenced to a term of imprisonment.  He is currently incarcerated at the Pacific Institution/Regional Treatment Centre in Abbottsford, British Columbia.  His warrant expiry date is January 10, 2015.

[3]          In November 2013, the Board held a placement hearing for Issariotis.  In reasons dated January 14, 2014, by a 3-2 majority, the Board ordered that Issariotis be transferred to Waypoint. 

[4]          Waypoint has appealed the Board’s decision.  It challenges the Board’s jurisdiction to make a placement decision.  It also contends that the majority’s decision is unreasonable.  Pending its appeal, it asks me to suspend the Board’s decision.  Its appeal has not yet been scheduled.

[5]          Under s. 672.76(2)(b) of the Criminal Code, a judge of this court may suspend a placement decision pending appeal “if satisfied that the mental condition of the accused justifies it”.  This discretion should be exercised only for compelling reasons.  Waypoint has not persuaded me of any compelling reasons that would justify suspending the Board’s decision.  I therefore dismiss Waypoint’s motion.

B.           BACKGROUND

(a)         The Respondent Michael Issariotis

[6]          Michael Issariotis is 34 years old.  On the record before me, he is an extremely dangerous man.  He has a lengthy history of criminal activity, which began when he was 13, has continued unabated and has escalated in severity.  His score on the Violence Risk Appraisal Guide places him in the highest of the nine categories for risk of violent recidivism.  His psychopathy checklist, revised (PCL-R) score is 35.6 out of a possible score of 40 – an extremely high score suggesting that Issariotis is a psychopath.

[7]          Issariotis has confounded the psychiatric community about his proper diagnosis.  Some, including Dr. Pallandi, who practises at Waypoint, have concluded that Issariotis is malingering and has fabricated his psychiatric symptoms.  Other psychiatrists, including Dr. Tomita, his treating psychiatrist in British Columbia, have said that Issariotis suffers from a schizoaffective disorder.

(b)         The 2003 Disposition

[8]          In 2003, Issariotis was found not criminally responsible for the offences of attempted murder, assault with a weapon and possession of weapons for a dangerous purpose.  He was detained at Waypoint from February 2004 to December 2008.

(c)         The 2008 Offences

[9]          In 2008, Issariotis was convicted of several serious offences, all committed while he was at Waypoint.  These offences included an unprovoked attack on a fellow patient with a water bottle, an attack on another patient with a pool cue, and death threats against staff members.  Issariotis was discharged from Waypoint and sentenced to 45 months’ imprisonment.

(d)         2008 to 2013

[10]       Issariotis was first incarcerated at the Kingston Penitentiary/Regional Treatment Centre.  While there, he engaged in numerous acts of self-harm.  At his request, he was transferred to the Pacific Institution, where he was accepted into the Complex Needs Program, a pilot project.  However, the pilot project ended in March 2013 and Issariotis then asked to be returned to Waypoint.

[11]       At both the institutions in Ontario and in British Columbia, Issariotis committed more criminal offences – various assaults and death threats – for which he was found criminally responsible.  These convictions added to his original 45-month sentence and extended his warrant expiry date to January 2015.

(e)         The November 2013 Ontario Review Board Hearing and Decision

(i)           The Hearing

[12]       The Board convened to determine Issariotis’s placement.  Issariotis was represented by counsel, who acknowledged that his client remained a significant risk to the community.  Both Issariotis’s treating psychiatrist, Dr. Tomita, and the Vice-President of Waypoint, Dr. Jones, testified at the hearing.  As their evidence has not yet been transcribed, the following brief summary of their testimony is taken from the Board’s reasons and from Dr. Jones’s affidavit filed in support of the motion.

[13]       Dr. Tomita testified that Issariotis has made little progress in his treatment and remains a high risk to re-offend.  According to Dr. Tomita, Issariotis needs programming and ongoing mental health treatment to address his psychiatric condition and incidents of self-harm.  However, since the closure of the pilot project in British Columbia, Issariotis has spent the majority of his time in seclusion.  In Dr. Tomita’s opinion, Issariotis would have more success with rehabilitation and reintegration if he were transferred to Waypoint.  If he is not transferred, his mental health will likely decline further. 

[14]       Dr. Jones testified that Issariotis should not be returned to Waypoint until the warrant expiry date of his most recent sentence.  He was removed from Waypoint because he assaulted two patients and threatened staff.  Dr. Jones remains concerned for the safety of all the patients and staff at Waypoint. 

[15]       In his affidavit, Dr. Jones said that Dr. Tomita was incorrect in his opinion that Issariotis could be managed with less seclusion at Waypoint.  However, according to the Board’s reasons, Dr. Jones acknowledged that the team at Waypoint is experienced and equipped to deal with patients such as Issariotis and that, if Issariotis did well, he would be placed into an open-ward environment.  Dr. Jones also acknowledged that if Issariotis displayed appropriate behaviour, he would be able to participate in more psycho-educational and recreational programs at Waypoint than in the correctional system.

(ii)         The Board’s Decision

[16]       The Board was unanimous that Issariotis remains a significant threat to the safety of the public and “that only a disposition of detention at a maximum secure hospital is adequate to protect the public and serve his treatment needs.” 

[17]       The Board divided on the appropriate placement. The majority was of the view that the end of the pilot project in British Columbia amounted to a significant change in circumstances and that Issariotis’s placement in the correctional system was no longer appropriate.  The majority relied on Dr. Tomita’s opinion that Issariotis’s mental state will further decline if he is not transferred to Waypoint.  It concluded that Issariotis’s mental health needs will be better met at Waypoint.  The majority considered the need to protect the public but concluded that Issariotis was a violent man and that the staff and patients at Waypoint and in a prison are equally at risk.  Finally, the majority noted that Issariotis’s family lived in Ontario and being close to his family “may assist his future rehabilitation and reintegration into society”.

[18]       The minority was of the view that Issariotis should remain in prison until his warrant expiry date brings him back under the jurisdiction of the Board.  In the minority’s opinion, Issariotis’s present placement in prison is not “inappropriate”, nor has there been a significant change in his circumstances.  In prison, he is receiving excellent treatment from a dedicated treatment team.  The minority concluded that Issariotis’s current placement “best considers all of the competing interests.”

C.           Should the Board’s Placement Decision be Suspended Pending Appeal?

(a) The Test for Suspending a Placement Decision

[19]       Under s. 672.76(2)(b) of the Code, a judge of this court has discretion pending appeal to suspend a placement decision or a disposition that either conditionally discharges or detains an accused in custody.  That section provides:

(2) On receipt of an application made pursuant to subsection (1) a judge of the court of appeal may, if satisfied that the mental condition of the accused justifies it … (b) by order, direct that the application of a placement decision or a disposition made under paragraph 672.54(b) or (c) be suspended pending the determination of the appeal.

[20]       Counsel advised me that they have not found any decision in which a party has moved to suspend a placement decision pending appeal.  However, three decisions of judges of this court have considered the appropriate test on a motion under s. 672.76(2)(b) to suspend a disposition pending appeal.  In all three cases, this court has said that the moving party has the onus to show compelling reason to doubt the soundness or validity of the Board’s decision.  Only in exceptional circumstances should a disposition be suspended pending appeal.

[21]       In the earliest of these three cases, Conway v. Brockville Psychiatric Hospital (1994), 18 O.R. (3d) 27 (C.A.), at pp. 29-30,  Griffiths J.A. wrote:

Clearly, the provisions of s. 672.76 are designed to give a judge in chambers authority to relieve against a board disposition pending appeal where it is in the best interest of the accused having regard to his mental condition.  I agree with Ms. Train, counsel for the respondent hospitals, that a judge should invoke this section only in extraordinary circumstances.  Clearly, the onus is on the applicant under this section.  In my view, that burden requires the applicant to demonstrate that there are compelling reasons to doubt the validity or soundness of the disposition made by the Review Board as it relates to the mental condition of the applicant on an application such as this.

The judge should not be restricted to the evidence put forward by the applicant, but the findings of the Review Board, to the extent they appear supportable, ought to be given careful consideration.

[22]       Similarly, in Northeast Mental Health Centre v. Rogers, 2007 ONCA 561, [2007] O.J. No. 5823, at para. 9, after referring to Conway, LaForme J.A. emphasized the heavy burden on the moving party under s. 672.76:

First, the onus is on the applicant to demonstrate compelling reasons to doubt the validity or soundness of the Board’s disposition.  And second, the section should only be invoked in extraordinary circumstances. I concur completely with these additional principles.

[23]       Finally, in the recent decision in Re Furlan, 2013 ONCA 618, 311 O.A.C. 173, Watt J.A. summarized the principles that have developed in our limited jurisprudence.  He said in part, at para. 37:

[T]he applicant bears the onus under s. 672.76 to demonstrate that there are compelling reasons to doubt the validity or soundness of the disposition made by the Board as it relates to the mental condition of the accused:  Conway v. Brockville Psychiatric Hospital (1994), 18 O.R. (3d) 27 (Ont. C.A. – Ch’rs), at p. 29; Northeast Mental Health Centre v. Rogers, 2007 ONCA 561 (Ch’rs), at para. 9; Penetanguishene Mental Health Centre, at para. 7. The provisions of s. 672.76 should only be invoked in extraordinary circumstances:  Conway, at p. 29, Rogers, at paras. 9, 16-17.

[24]       The criteria for making a disposition under s. 672.54 of the Code and the criteria for a placement decision under s. 672.68 differ.  However, in my view, the test for suspending a placement decision pending appeal should be substantially the same as the test for suspending a disposition pending appeal.  I rely on two considerations.  First, the Code prescribes that, in either case, the focus must be on the mental condition of the accused.  Second, in either case, the Board’s assessment of an accused’s mental condition is entitled to significant deference from this court.  This assessment lies within the Board’s specialized expertise on matters of psychiatry and mental health.  If its assessment is reasonable, this court will not interfere. 

[25]       In the light of these two considerations, I would frame the test for suspending a placement decision pending appeal as follows:  has the moving party shown a compelling reason to doubt the reasonableness of the Board’s decision concerning the mental condition of the accused?[1]

(b)         Application of the Test

[26]       Waypoint makes four arguments why I should suspend the Board’s placement decision pending appeal.

·        The well-reasoned minority opinion casts doubt on the soundness of the majority’s placement decision.  In particular, the majority’s decision ignores the evidence of Dr. Jones.

·        The safety of the public is paramount.  A suspension will safeguard the well-being and physical safety of the patients and staff at Waypoint.

·        The majority does not address the question of the Board’s jurisdiction to make a placement decision.

·        If the motion to suspend is dismissed but Waypoint’s appeal is allowed, Issariotis will likely engage in more aggressive behaviour because of the disruption caused by his transfer back to the correctional system.

[27]       I am not persuaded that any of these four arguments, individually or cumulatively, provides a compelling reason to suspend the Board’s placement decision.

[28]       First, the majority’s and the minority’s opinions on placement.  The majority and the minority differed in their assessment of the evidence of Issariotis’s mental condition and needs.  Without a transcript, I am in no position to question either assessment.  Instead, I have to accept the majority’s decision.  And, on its face, its decision seems reasonable. 

[29]       The majority concluded that Issariotis’s mental health needs would be better met by a transfer to Waypoint.  In reaching that conclusion, the majority relied on the opinion of Dr. Tomita, Issariotis’s treating psychiatrist.  I cannot say that it was unreasonable for the majority to do so.  I accept that it did not refer to the evidence of Dr. Jones, but neither did the minority refer to the evidence of Dr. Tomita.  If Waypoint intends to argue that the majority’s reliance on Dr. Tomita’s evidence and its failure to consider Dr. Jones’s evidence was unreasonable, it must make that argument on appeal with a full transcript of evidence.

[30]       Second, public safety.  The majority addressed and took into account the public safety considerations from a transfer to Waypoint.  However, the majority concluded that the risk to staff and to patients or inmates was equal, whether Issariotis is at Waypoint or in a prison.  I have no basis to doubt the reasonableness of the majority’s conclusion.  Further, the evidence seems to suggest that Waypoint and prison officials would face similar obstacles in trying to control Issariotis’s violent behaviour.

[31]       Third, the Board’s jurisdiction.  Even accepting that the question of the Board’s jurisdiction to make a placement decision is an arguable ground of appeal, I agree with Mr. Menchynski, counsel for Issariotis, that this is an argument for the panel hearing the appeal.  My focus is not on the Board’s jurisdiction, but on Issariotis’s mental condition.

[32]       Fourth, the disruption that would result from a transfer back to the correctional system if the appeal is allowed.  This concern is at best a possibility, and not one grounded in the record before me.  Even giving this possibility some credence, it is substantially outweighed by Dr. Tomita’s concern that if Issariotis remains in prison, he will be in a setting where his mental health needs are not being met. 

[33]       For these reasons, Waypoint’s motion is dismissed.  At the request of all parties, I order that Waypoint’s appeal be expedited.  If the parties cannot agree on times for the filing of factums, I will case-manage this appeal.

Released: March 7, 2014

“John Laskin J.A.”