



COURT OF APPEAL FOR ONTARIO

CITATION: Davies (Re), 2020 ONCA 544

DATE: 202000901

DOCKET: C67650

Tulloch, Paciocco and Harvison Young JJ.A.

IN THE MATTER OF:  Jacqueline Davies

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti
, for the appellant

Eric Taylor, for the respondent, Attorney General
of Ontario

Lauren Barney
, for the
    respondent, St. Joseph Health

Heard: In writing

On appeal from the disposition of the Ontario Review
    Board, dated September 13, 2019, with reasons dated October 21, 2019.

REASONS FOR DECISION

[1]

Ms. Davies was found not criminally responsible
    on account of mental disorder on charges of assault with a weapon and
    aggravated assault in 2007. She appeals from the September 2019 disposition of
    the Ontario Review Board (the Board) and seeks an absolute discharge. The
    Boards disposition accepted the hospital recommendation that the existing
    detention order be continued. For the following reasons, we conclude that the
    Boards decision was reasonable.

Background

[2]

Ms. Davies was 19 years old at the time of the
    index offences. She has no prior criminal record. She is now 32.

[3]

The hospital report describes the index offence
    as follows. Ms. Davies had been standing alone in the lobby of an apartment
    building in Welland holding a folding tree saw when a woman and her 11-year-old
    daughter walked past her on their way out to a parking lot through a rear door.
    Without provocation, she approached the child from behind and hit her with the
    saw blade on the back of the head. The mother heard the childs screams and
    intervened to protect her. She tackled the appellant who continued to fight,
    striking the mothers face with the saw. The appellant then dropped the saw and
    fled the scene. Both victims were treated and released from hospital.

[4]

Ms. Davies psychiatric history is detailed in
    the hospital report. In the period before the index offences she had multiple
    hospital admissions. Her current diagnoses include:

·

Schizophrenia;

·

Cannabis Use Disorder;

·

Alcohol Use Disorder; and

·

Borderline Personality Disorder.

[5]

From the time of her initial Board hearing until
    October 2016, she remained subject to a detention order. She was granted a conditional
    discharge in 2016. At that time, she was living in the community in 24-hour
    supervised housing. The conditional discharge disposition was continued at her
    annual hearing in 2017. At the 2018 annual hearing the Board accepted the hospitals
    recommendation and replaced the conditional discharge with the existing
    detention order. She has remained in hospital since her readmission on July 9,
    2018.

[6]

In February 2019 there was a failed attempt to
    begin reintegrating Ms. Davies into community living in 24-hour supervised
    housing. On her first overnight pass, she returned to the hospital saying she
    did not want to stay there. She has since fluctuated between wanting to return
    there and insisting on independent living. The supervised home held a bed open
    for her from the time of her readmission to hospital in July 2018 until March
    2019 when it advised that hospital that, due to community need, it could no
    longer do so. It has advised the hospital that when she is ready to fully
    transition, they will place her on the priority list.

The Boards Decision is Reasonable

[7]

In making its decision, the Board looked
    carefully at the evidence relating to the replacement of the conditional
    discharge order with the existing detention order. It also considered Ms.
    Davies evidence that there have been some encouraging signs of improvement
    since the 2018 disposition, including her interest in obtaining her Food
    Handlers certificate so she can work in the food service industry, and in
    working to obtain her high school equivalency. The Board expressly referred to
    the constellation of factors relied on by Dr. Alatishe:

·

Severe and persistent mental illness, Schizophrenia,
    sub-optimally treated

o

Active symptoms (psychosis, mood dysregulation)

·

History of violence (and offending behaviour);

o

Serious index offence

o

Unprovoked, use of a weapon, violent

o

Random victims

o

History of physical violence to others (staff)

o

History of verbal aggression

o

Threats to assault and kill (staff, psychiatrist)

·

History of treatment non-compliance

o

Refusing advised dosages of psychotropic medications

o

Discontinued long acting intra-muscular injection of
    antipsychotic medication

o

Non-compliant with oral medications during this review period

·

History of polysubstance use

o

Ongoing intermittent use of alcohol and cannabis even while under
    monitoring and supervision (inpatient status)

o

Historical evidence of significant effect substance use has had
    on mental status

o

Engaging in extensive means to avoid detection of substance use

o

Buying clean urine and providing
it
as her own

o

Has used intrusive methods to avoid detection

·

Poor insight

o

Regarding risk substance use poses to potential exacerbation of
    psychiatric symptoms and subsequent increased risk to reoffend

o

Suboptimal insight regarding psychotropic medication and their
    role in managing psychiatric symptoms

·

Poor Support Network

o

Has disengaged from all family contact

o

No known positive peer supports

o

Has disengaged from professional supports

o

Recent (August 2019) improvement in expressed motivation for
    therapeutic engagement.

[8]

The Board accepted Dr. Alatishes evidence that
    Ms. Davies continued to present a significant threat to public safety which
    could not be adequately mitigated within the ambit of a conditional
    discharge. Having considered his evidence, it stated

29. Ms. Davies seemed sincere in expressing her intention to
    continue her prescribed medications, find housing, and continue her education
    with the goal of finding a job and successfully reintegrating into the
    community.

30. However, Ms. Davies evidence
    must be viewed with regard to her history of fluctuating insight, with periods
    when she fails to recognize the seriousness of her mental illness, her need for
    psychotropic medications, and the risk of decompensating when she discontinues
    her mediations.

Significant Threat

[9]

Having reviewed and considered all the evidence
    before it, the Board applied the correct test including that the risk of
    serious physical or psychological harm as a result of the commission of a
    serious criminal offence must be more than speculative:
Winko v. British
    Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625, at paras.
    57, 69. In doing so it referred to the hospital report, stating that:

32. The Board has considered the
    evidence and the submissions of counsel and the evidence outlined at paragraphs
    22 to 24 of these reasons, which we accept. Of particular significance in the
    Boards opinion is that Ms. Davies continues to have poor insight into her need
    to remain compliant with prescribed medications and her extensive efforts to
    mask her substance abuse by providing clean urine and providing it as her
    own. These factors along with the others set out in paragraphs 22 to 24,
    satisfy the Board that Ms. Davies continues to represent a significant threat
    to the safety of the public.

[10]

This finding was open to it on the law and
    evidence before it.

Necessary and Appropriate

[11]

The Board then went on to consider its duty, set
    out in s. 672.54 of the
Criminal Code
, R.S.C., 1985, c. C-46, to make
    the least onerous and appropriate disposition having regard to the safety on
    the public:
Winko
at para. 42. The Board concluded that the
    continuation of the detention order was necessary and appropriate, finding that
    the risk to the public could not be safely managed within the ambit of a
    conditional discharge. It specifically referred to the difficulties Ms. Davies
    had faced in the previous reporting year along with the facts that she did not
    have an identified potential residence in the community, had a recent history
    of substance abuse, and also of taking elaborate measures to conceal the
    substance abuse. Her insight into the need to continue her medication was
    limited and she had only limited engagement with her treatment team. Based on
    the record, the Board concluded:

35.  We are satisfied that in
    order to safely ensure the protection of the public, the hospital must be able
    to approve her accommodation and return her quickly if she shows signs of
    decompensation.

[12]

The detention order contemplates supervised
    community access as the hospital considers appropriate. This provides a
    framework within which Ms. Davies can continue the improvement that the Board
    noted had begun and work towards community living in the future.

[13]

In short, the Boards decision was reasonable. The
    disposition is well grounded in the evidence before the Board. It specifically
    considered the evidence it heard and clearly justified its conclusion. It
    applied the correct legal principles. Its reasoning process and the outcome
    reflected "an internally coherent and rational chain of analysis"
    that was "justified in relation to the facts and law:
Canada
    (Minister of Citizenship and Immigration) v. Vavilov
,
2019 SCC 65, 441 D.L.R. (4th) 1,
at paras. 34
,

83 and 85
;
see also
Ahmadzai
    (Re)
, 2020 ONCA 169, at paras. 12-13.

[14]

The appeal is dismissed.

M. Tulloch J.A.


David M. Paciocco J.A.

A. Harvison Young
    J.A.


