In the Court of Appeal of Alberta

Citation: R v de Grood, 2023 ABCA 182

Date: 20230615
Docket: 2203-0198A
Registry: Edmonton

Between:

His Majesty the King

Respondent

- and -

Matthew Douglas de Grood

Appellant

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The Court:
The Honourable Justice Frans Slatter
The Honourable Justice Michelle Crighton
The Honourable Justice Kevin Feehan
_______________________________________________________

Memorandum of Judgment

Appeal from the Decision by the Criminal Code Review Board for Alberta
Dated the 7th day of September, 2022
 _______________________________________________________

Memorandum of Judgment
_______________________________________________________

The Court:

[1] The appellant appeals the 2022 annual review of his detention by the Criminal Code
Review Board for Alberta.

Background

[2] In 2014 the appellant caused the death of five people at a house party in Calgary. He was
found not criminally responsible on account of mental disorder as he was suffering from
undiagnosed and untreated schizophrenia.

[3] The appellant has been receiving treatment at Alberta Hospital Edmonton for a number of
years. He is presently under a full warrant committal order under s. 672.54 of the Criminal Code,
although he resides in a highly structured and restricted group home. At his annual review in 2022
the appellant argued that he was no longer a significant threat to the public and he should be
released under an absolute discharge, or in the alternative under a conditional discharge. He argues
that if released he could return to Calgary, where he would be closer his family and could start to
integrate back into the community.

[4] The Review Board considered the report of the treatment team, and concluded that the
appellant still poses a significant risk to the public and could not be released on conditions. It did
modify the conditions of his detention by providing that the treatment team could permit him to
move to a suitable accommodation in Calgary, if that was advisable.

Issues on Appeal

[5] The appellant raises the following issues on appeal:

(a) The proceedings before the Review Board were tainted by a reasonable
apprehension of bias.

(b) The proceedings before the Review Board were procedurally unfair.

(c) The Review Board ignored or misapprehended key evidence and erred in finding
that he remained a significant threat to public safety.

(d) The Review Board erred by not considering all the mandatory factors in arriving at
its disposition.
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Reasonable Apprehension of Bias

[6] The appellant argues that there was a reasonable apprehension of bias on the part of the
Board chair, Mr. Chipeur, K.C.

[7] The test for a reasonable apprehension of bias is whether there are substantial grounds such
that reasonable and right-minded persons, having obtained the required information, having
thought the matter through, and having viewed the matter realistically and practically, would
conclude that it is more likely than not that the adjudicator, whether consciously or unconsciously,
would not decide fairly: R. v R.D.S., [1997] 3 SCR 484 at para. 31; Committee for Justice and
Liberty v National Energy Board, [1978] 1 SCR 369 at p. 378.

[8] At the appellant’s 2019 annual review, the Review Board allowed the appellant to
transition to a supervised group home, and allowed him some unsupervised passes to the City of
Edmonton. Shortly thereafter, the provincial Justice Minister posted a message on Twitter to the
effect that he had been contacted by Albertans who were disturbed by the Board’s decision. The
Minister stated that he would be advocating for a review of the standards of release, including
requesting that victims play a maximum role at hearings. A minister of justice, by virtue of his
office, is entitled to question and promote changes to matters relating to the administration of
justice in the province. There is nothing objectionable about a minister querying or lobbying for
changes to the review procedure, such as enhancing the role of victims.

[9] Shortly after these comments were made, the then chair of the Review Board resigned. The
appellant implies this had something to do with his situation, although as the respondent correctly
points out there is no evidence to support that. In any event, the Minister released a statement
calling this an “opportunity for a reset”. Over the next 18 months several new legal members were
appointed to the Board.

[10] The appellant argues that these new members were “directly recruited”, but there is nothing
on the record to suggest that meant more than that the government sought out persons who had the
necessary qualifications to sit on the Board. By law the Board must have a certain number of
judicial, legal and medically trained members. Specifically, there is nothing on the record to
support the invited inference that these members somehow lacked impartiality or independence.

[11] As the respondent points out, the Minister’s comments were made in 2019, and no
objection was made to the Board’s independence at the appellant’s 2020 or 2021 reviews. The
Minister has since resigned from government, and there is no evidence that in 2022 he continued
to have any interest in or influence over the Board’s proceedings. A fully informed objective
observer would not apprehend any risk of bias.

[12] The appellant notes that Mr. Chipeur is a lawyer practicing in Calgary, argues he is “aligned
politically” with the provincial government, and that he has represented or had contact with many
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public sector clients. For example, it is suggested that Mr. Chipeur advised former Prime Minister
Stephen Harper, and that he went on a trade mission to South Korea with former Premier Kenny.
As the respondent correctly points out, in the absence of evidence no reasonable observer would
think that the former Prime Minister or Premier had any involvement with the appellant’s
detention, or ever raised the issue directly or indirectly with Mr. Chipeur or anyone else.

[13] An adjudicator does not become disqualified because of vague allegations that he is
“aligned with the government” in terms of his general political philosophy or history of public
involvement. No reasonable citizen would assume that such a person who is appointed to a tribunal
would be incapable of fairly and impartially deciding individual matters that came before the
tribunal according to law. As stated in Yukon Francophone School Board, Education Area #23
v Yukon (Attorney General), 2015 SCC 25 at para. 33, [2015] 2 SCR 282:

33 Judicial impartiality and neutrality do not mean that a judge must have no prior
conceptions, opinions or sensibilities. Rather, they require that the judge’s identity
and experiences not close his or her mind to the evidence and issues. There is, in
other words, a crucial difference between an open mind and empty one. . . .

On this record, the appellant’s arguments do not rise above unsubstantiated innuendo.

[14] The appellant also argues a reasonable apprehension of bias arose because the chair
dismissed a number of interlocutory applications brought by the appellant. Adjudicators routinely
have to rule on procedural applications, but that does not create a reasonable apprehension of bias
even if one party is predominantly unsuccessful: Kostic v Scott Venturo Rudakoff LLP, 2022
ABCA 392 at para. 28, citing Alberta Health Services v Wang, 2018 ABCA 104 at para. 9. The
argument by the appellant that these rulings collectively were “punitive as regards the Appellant
and overwhelmingly favoured the victims’ families” is hyperbole not supported by this record.

[15] The chair’s refusal to recuse himself as a result of these allegations discloses no reviewable
error.

Procedural Fairness

[16] The appellant makes a number of discrete arguments about the fairness of the proceedings.

[17] The appellant requested a number of procedural orders, premised on the argument that the
families of the young people who died had expressed strong feelings and emotions, had been very
outspoken in the public about what should happen to the appellant, had lobbied governments to
ensure that Mr. de Grood was never released, and had been active on social media. He alleged
there had been suggestions of vigilante action and implied threats. He asked the Board to exclude
the media and the victims’ families from the hearing except for the specific purpose of reading
their statements out loud. This was said to be needed to protect the appellant and his family.
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[18] A specific concern was victim impact statements that exceeded the proper scope of such
statements. The Board, with the assistance of counsel, redacted the statements. The Board,
however, declined to order the victims not to post the unredacted versions on social media, on the
basis that this would interfere with the victims’ freedom of expression. This was a reasonable
ruling in the circumstances. Even if the Board had purported to prohibit the posting of the
unredacted statements, that would not have prevented the victims from posting other comments to
like effect about the underlying circumstances. Any total publication ban on the victims would
have been inappropriate. In any event, whether the victims publicly posted their statements had no
effect on the fairness of the appellant’s hearing or his safety.

[19] The appellant argues (contrary to the Board’s ruling) that the victim impact statements are
part of the “disposition information” under s. 672.51(1) of the Criminal Code. If they are, their
publication is prohibited under s. 672.51(11) if the Board ruled under s. 672.51(7) that disclosure
would be seriously prejudicial to the accused and that his protection took precedence over the
public interest in disclosure. No such order was ever made. In any event, if publication was
prohibited by the Criminal Code any order by the Board that the victim impact statements were
not to be published would be redundant. Further, whether the victims were entitled to post their
statements, and whether the Board attempted to intervene had no impact on the fairness of the
appellant’s hearing or his safety.

[20] Some of the victims intended to read their victim impact statements during the hearing.
While some of the victims’ family members had expressed strong views about the appellant and
the need to keep him in custody, it was reasonable for the Board to conclude that the mere presence
of the victims at the virtual hearing would not have any meaningful impact on the appellant’s
safety. Exclusion of the victims’ families from the hearing would have been disproportionate and
inappropriate. Further, exclusion of the media from the hearing would have been an extraordinary
step in light of the open court principle that the appellant cites. The Board did direct, as the
appellant asked, that the name of the appellant’s group home and his parents’ community not be
published.

[21] The appellant also asked for an advance ruling that if the victims strayed from the redacted
version of their statements in any substantive way, the Board would interject and stop them from
reading further. In that event, the Board would rely on the written redacted version of the statement
only. Victim impact statements sometime stray from what is appropriate, but courts and tribunals,
being sensitive to the need for surviving victims to express their grief in public, will sometimes
tolerate that. Inappropriate content is to be discouraged, but can be disregarded: s. 722(8); R. v
Granada, 2013 ABCA 404 at para. 12; R. v Labrash, 2006 BCCA 357 at para. 14, 229 BCAC 66.
There is no indication that any inappropriate statements by any victim showed up on the record or
were relied on in any way by the Board: R. v Berner, 2013 BCCA 188 at paras. 28-29, 297 CCC
(3d) 69. It was reasonable for the Board to decline to give any generic advance ruling, and instead
deal with issues arising from the victim impact statements if and when they arose. The Board’s
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advance ruling regarding how it would deal with the victim impact statements did not have any
impact on the fairness of the appellant’s hearing.

[22] A parent of one of the deceased victims unlawfully accessed the private healthcare records
of the appellant and his family. The matter was investigated by the Information and Privacy
Commissioner, and Alberta Health Services disciplined the parent, but the Crown declined to lay
charges. The appellant argues that this parent is a “particularly controversial figure”, and that the
treatment of this occurrence by the Board was “particularly troubling”, but it is difficult to see
what the Board could or should have done about the situation. There is no air of reality to the
suggestion that the presence of this parent at the virtual hearing would have had an impact on the
safety of the appellant or his family, or would have created any risk to the fairness of the procedure.
In fact, no such risk emerged.

[23] The appellant argues that the recusal application was improperly heard in camera, contrary
to the open court principle. While the Board has some discretion over its procedures (see s.
472.5(6) and Fairgrieve v British Columbia (Review Board), 2022 BCSC 1882 at paras. 121-24),
justification for conducting the application in private is not apparent from the record. However, no
one who was excluded has come forward to complain. The procedure followed had no effect on
the fairness of the appellant’s hearing, and the issue is moot.

[24] The chair gave his ruling on the recusal application verbally, and the Board provided the
appellant with a transcript of those reasons. There was no legal requirement for the chair to provide
those reasons in any other format, or to supplement them with written reasons: Baker v Canada
(Minister of Citizenship and Immigration), [1999] 2 SCR 817 at para. 44. The legal adequacy of
the reasons does not depend on whether they were given orally and transcribed, or reserved and
rendered in writing later.

[25] In summary, the appellant’s complaints about the fairness of his hearing are without merit.

Errors in Assessing the Evidence

[26] At the hearing, the treatment team concluded that the appellant was still a “significant threat
to the safety of the public”, and that his detention on a full warrant was necessary to protect the
public. The appellant submitted that his health had stabilized and he was entitled to an absolute
discharge. In the alternative, he advocated for a conditional discharge, with conditions that would
allow him to reside with his parents in their home jurisdiction.

[27] The treatment team agreed that the appellant had made significant progress, and was in
many respects a model and cooperative patient. He had successfully transitioned to living in a
highly structured group home, and had been allowed some passes to visit his family. He was highly
motivated to stay healthy and was medication compliant.
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[28] The appellant has undoubtedly made progress, but the treatment team thought his health is
still fragile. He is highly responsive to his oral medication, but any disruption in that medication
may cause him to decompensate. He has not yet had any experience with self-medication. Further,
it appears that even when he is medicated he can decompensate. The deterioration of his mental
health can be subtle and masked by other factors, and may not be obvious to the treatment team or
appreciated by the appellant himself.

[29] Dr. Manuwa, the treating psychiatrist, performed a number of tests, and also applied his
clinical judgment and experience in assessing the appellant’s condition. He concluded that the
appellant’s risk of imminent future violence, if given an absolute discharge, would be low, but any
future violence is significantly likely to be of high severity. Further, if he transitioned to a lower
level of psychiatric care, the appellant would be more likely to deteriorate mentally and
behaviorally, and pose an increased risk to the safety of the public. Given his lack of early insight
into decompensation, there was a risk that the appellant would not voluntarily return to the hospital
for care if he was discharged. In order to protect the public, the treatment team required the ability
to quickly return the appellant to hospital for treatment, which required his detention on a full
warrant.

[30] The Board considered the evidence before it and concluded that the appellant “remains a
significant threat to the safety of the public and that a full warrant is necessary”:

23. The treatment team is unequivocal that, at this point in Mr. de Grood’s progress
and treatment, they require the ability to compel Mr. de Grood into hospital without
delay. The Board agrees. Mr. de Grood still has a long way to go in the recovery
and reintegration process. Further, he loses insight early on when his mental state
deteriorates and it is unlikely that he will voluntary return to hospital while in
relapse. Given the subtlety of his relapse symptoms, Mr. de Grood is also unlikely
to be certifiable under the Mental Health Act while in relapse. It is important that
the treatment team have the tools afforded to them by a full warrant.

The Board concluded that the alternative suggestion of a consent treatment condition would not
be an effective response. Even being “cognizant of the necessity to balance the full warrant with
the liberties of Mr. de Grood”, a full warrant was required. The Board did, however, include
conditions that would allow the treatment team to approve the appellant’s transfer to Calgary.

[31] The appellant argues that the Board merely adopted the recommendations of the treatment
team without making any independent analysis of the evidence. The Board, however, specifically
self-instructed at para. 12 that it was required to make an independent assessment of the risks posed
by the appellant.

[32] The appellant also argues that the Board relied on inaccurate recitations of the evidence,
its conclusions were speculative, and it failed to examine whether Dr. Manuwa’s testimony could
be supported by other evidence. The appellant specifically challenges the Board’s findings
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respecting stressful circumstances encountered by the appellant, how he reacts to stress, the impact
it would have on his health, and whether he was consciously or unconsciously underreporting
stress. He also challenges the significance of his insomnia and restlessness, arguing that they may
be side effects of the medication. He says that indications of his relapse, both before the index
offences and recently, were more obvious than the Board assumed. He argues that the Board
incorrectly attributed circumstances to his mental health that really related to inconsistent staff
reporting, directions from the staff to be more assertive, the appellant’s love of exercise, and
disagreements with the doctors about whether he had deteriorated. Further, he argues the Board
incorrectly attributed episodes in 2019 and 2021 to evidence of decompensation.

[33] The appellant also challenges many aspects of Dr. Manuwa’s opinions, arguing that there
was “little to support” the conclusion that he would deteriorate if he was not managed by regular
psychiatric services, and that he would not return to the hospital if he required intervention. He
argues that Dr. Manuwa’s conclusions about his dangerousness are inconsistent with his own
statistics and studies.

[34] While the appellant characterizes these as examples of the Board ignoring or
misunderstanding key evidence, they are merely factual findings with which the appellant does
not agree. It is not the role of this Court to re-weigh the evidence: R. v Gagnon, 2023 ABCA 32
at para. 32. The Board’s finding that the appellant still poses a risk to the public did not turn on
any one of the many discrete factors disputed by the appellant. The Board was required to draw an
overall inference about risk by collectively assessing and weighing these facts. The Board is an
expert tribunal including both lawyers and doctors and its findings are amply supported by the
record.

[35] At the hearing the appellant testified that Dr. Woods had expressed a different opinion
about the side effects of the medication. The Board declined to obtain a report from him because
the request came up “for the first time while in the hearing and without any evidentiary basis”.
While the Board has some discretion over the evidence to be called, this ruling does raise questions
as the appellant’s testimony did provide an evidentiary basis. The issue of side effects of the
medication was, however, only a small part of the body of evidence about the appellant’s mental
health. The appellant has the remedy of obtaining this information for his next annual review,
which is imminent.

[36] It is clear the appellant was a serious danger to the public at the time of the index offences,
before he was diagnosed and began receiving treatment. He is undoubtedly much less dangerous
now than he was then. However, his transition to unrestricted life in the community will not happen
overnight, or at any discrete moment in time. It is a journey for him. On every annual review the
treatment team and the Review Board must assess whether he has proceeded far enough that he
can no longer be seen as a significant danger to the public. As the appellant points out, the
“significant risk” test is not a “zero risk” test, and there will presumably come a point when he is
entitled to conditional or absolute release. However, on the evidence on this record, it was
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reasonable for the Review Board to conclude that the appellant still poses a risk of serious violent
behaviour.

Failure to Apply the Proper Legal Test

[37] The appellant argues that the Board failed to apply the proper legal test, which is set out in
the Criminal Code and Winko v British Columbia (Forensic Psychiatric Institute), [1999] 2 SCR
625.

[38] Section 672.54 provides:

672.54 When a court or Review Board makes a disposition under subsection

672.45(2), section 672.47, subsection 672.64(3) or section 672.83 or 672.84, it
shall, taking into account the safety of the public, which is the paramount
consideration, 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 necessary and appropriate in the circumstances: . . .

Although it is no longer a listed statutory condition, given that the liberty of the patient is at stake
the Board should select the least onerous disposition that is “necessary and appropriate in the
circumstances” taking into account the safety of the public. The appellant argues that the Board
failed to consider all of these mandatory factors.

[39] The appellant argues that the Board did not properly assess whether he was a risk to the
safety of the public, specifically the Board did not consider that his schizophrenia had been in full
remission for years. He also argues that the Board did not properly consider whether a transfer to
Calgary was possible, and whether a conditional discharge allowing him to return to his home
would be sufficient. All these arguments overlap with the appellant’s arguments about the
treatment of the evidence by the Board.

[40] The record discloses that the Board did, in fact, consider all of these factors. Notably, the
Board did add a condition enabling a move by the appellant to Calgary when that was appropriate.
The appellant does not agree with the weight that the Board gave to various parts of the evidence,
and the inferences it drew from that evidence. That, however, does not mean that the Board failed
to take account of all of the mandatory factors in the Criminal Code.

[41] As the appellant correctly notes, a full warrant is not to be used just because of therapeutic
convenience: R. v W.C.R., 2019 ABCA 170 at paras. 7-10, 91 Alta LR (6th) 231. That however is
not what is happening here. The treatment team is concerned that the appellant at present remains
a risk to the public unless he is under their direct supervision, and the Board agreed. That is
consistent with the Board’s obligation to impose the least restrictive conditions that will protect
the public.
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Conclusion

[42) The appellant brought a late application to introduce fresh evidence on appeal. That
evidence, even if admitted, would have not have affected the outcome of the appeal. The
application is dismissed.

[43) As the appellant has failed to establish any reviewable error, the appeal is dismissed.

Appeal heard onJune 7, 2023

.,
Memorandum filed at Edmonton, Alberta
this 15th day ofJune, 2023

SlatterJ.A.
FILED
15 Jun 2023

OO

FeehanJ.A.
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Appearances:

M.W. Griener
for the Respondent

J.L. Petrie
for the Appellant