



COURT OF APPEAL FOR ONTARIO

CITATION:
Runnalls
    (Re), 2012 ONCA 295

DATE: 20120508

DOCKET: C54159

Weiler, Watt and Epstein JJ.A.

IN THE MATTER OF:  Nelson Runnalls

Nelson Shaun Runnalls, acting in person

Michael Davies, as
amicus curiae

Grace Choi, for the Minister of Attorney General

Janice E. Blackburn, for North Bay Regional Health
    Centre

Heard: May 2, 2012

On appeal against the disposition of the Ontario Review
    Board dated, July 25, 2011.

ENDORSEMENT

[1]

The appellant appeals from a decision of the Ontario Review Board, dated
    June 30, 2011. The Boards disposition maintained the appellants detention,
    with the Person in Charge empowered to grant privileges including that the
    appellant he lived in supervised accommodation within the community.

[2]

The following grounds of appeal are raised: 1) misapprehension of the
    evidence; 2) whether the Board erred in not specifically considering a
    conditional discharge when it rejected an absolute discharge, and; 3) whether
    the Board erred in not ordering an independent psychiatric assessment.

[3]

The background facts are contained in the decision of this court at 2011
    ONCA 364 and need not be repeated here.

1.       Misapprehension
    of the Evidence

[4]

In its 2011 Disposition, the Board found that:

Mr. Runnalls continues to pose a significant threat to the
    safety of the public and that if left to his own devices, he would likely
    disengage from appropriate mental health supports, discontinue taking his
    medication and, as he said, resume consumption of alcohol and perhaps even
    other intoxicants, thereby precipitating rapid deterioration in his mental
    state that would put himself and others at acute risk of harm.

[5]

Amicus
submits that this finding is based in part on a
    misapprehension of the evidence, namely, that the appellant said he
would
resume consumption of alcohol and perhaps even other intoxicants.
Amicus
submits that the record discloses that what the appellant actually said was
    that, if granted an absolute discharge, he would have the
right
to
    consume alcohol. The submission is that this misapprehension of the evidence
    entitles him to a new hearing.

[6]

We agree that the Board misstated the appellants literal words. However,
    his words are accurately quoted earlier in the Boards reasons. Read as a
    whole, therefore, the reasons support the legitimacy of the Boards concern
    that the appellant, if left unsupervised, would resume consumption of alcohol
    and abuse of other substances. If there were a misapprehension on the part of
    the Board, it did not affect its conclusion.

2.       Whether the Board Failed to Specifically Consider
    a Conditional Discharge and whether the Disposition of Detention was
    Unreasonable

[7]

Amicus
submits that, although the appellant did not
    specifically seek a conditional discharge as an alternative to an absolute discharge,
    the Board erred because it failed to specifically consider a conditional
    discharge. In support of this position our attention was directed, in
    particular, to two authorities of this court.

[8]

In 2008, in respect of this same appellant, this court held that, having
    regard to the appellants evidence that he would comply with any order of the
    Board, the Board had a duty to expressly inquire into and consider the
    availability of a conditional discharge as part of its duty to impose the least
    onerous and least restrictive disposition:
R. v. Runnalls
,

[2008]
    O.J. No. 463.

[9]

In
R. v. Breitwieser
,

2009 ONCA 784, this court also
    held that, where there was an air of reality to a conditional discharge being
    an appropriate disposition, it was an error for the Review Board to fail to
    consider whether the person detained would have consented to a condition
    requiring him to continue his medication regime and whether or not there was an
    appropriate route to accomplish an involuntary return to hospital in the event
    of decompensation.

[10]

Amicus
submits that there was an air of reality to the possibility of a conditional
    discharge and that, based on these authorities, the Board erred.

[11]

The
    respondents position is that the Board considered and rejected a conditional
    discharge. In the Boards specific comment on the appellants efforts to
    navigate around restrictions, it was implicit that it was rejecting the
    suitability of a conditional discharge. This comment would have been irrelevant
    to an absolute discharge, but highly relevant to the need for compliance with
    conditions. The Board also expressly mentioned the question of conditional
    discharge in its summary of the hospitals recommendations.  Furthermore, on
    the evidence, the respondent submits a conditional discharge was not a
    realistic option.

[12]

In
    our opinion, the Board had before it both documentary and
viva voce
evidence as to the necessity that Mr. Runnalls reside in supervised
    accommodation approved by the Person in Charge of the Hospital. This
    requirement, that the appellant reside in approved, supervised community
    housing meant that a conditional discharge was not an appropriate disposition.
    The appropriate disposition in such instances is a continued detention order
    with discretion given to the hospital administrator to permit the appellant to
    reside outside of the hospital:
Brockville Psychiatric Hospital v. McGillis
,
    [1996] O.J. No. 3430 (Ont. C.A.).
[1]

[13]

While
    it would certainly have been better if the Board had specifically set out in
    its reasons that a conditional discharge was not appropriate because of the
    need for the appellant to reside in supervised approved accommodation in the
    context of the issues upon which the Board was asked to focus, the Boards
    reasons satisfy the functional test of enabling us to understand why a
    conditional discharge was not granted. Further, the Boards decision was not
    unreasonable.

3.       Whether
    the Board erred in not ordering an independent assessment

[14]

The
    Board may order an independent assessment under s. 672.121 of the
Criminal Code
if it has reasonable grounds to believe that it is necessary to make a
    disposition. The Board considered the appellants application for an assessment
    and concluded that an independent assessment was not necessary in the
    circumstances.

[15]

In
    our opinion, this conclusion was reasonable. The Board had before it evidence
    from the appellants treating psychiatrist that the appellant failed to
    appreciate that any independent assessment would be carried out having regard
    to the information existing with respect to the appellant. It would not take
    place in a vacuum as the appellant wanted. Furthermore, an independent
    assessment may well be counterproductive in that any minor discrepancies would
    be seized upon by him and used to resist treatment. This was not a case of
    treatment impasse referred to in
Mazzei v. British Columbia
(Director
    of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 206 C.C.C. (3d)
    161.

[16]

The
    Board had the benefit of up to date psychiatric information concerning the
    appellant and did not err in refusing to order an independent assessment.

[17]

Accordingly,
    we would dismiss the appeal.

K.M.
    Weiler J.A.

David
    Watt J.A.

G.J.
    Epstein J.A.





[1]
We were advised that in fact, the appellant is currently living in supervised
    approved accommodation, Maplewood House.  The current apartment maintained by
    the appellant and in which his girlfriend resides is neither approved nor
    supervised accommodation.


