



COURT OF APPEAL FOR ONTARIO

CITATION: McAnuff (Re), 2016 ONCA 280

DATE: 20160420

DOCKET: C61151

Laskin, Cronk and Miller JJ.A.

IN THE MATTER OF:  NOVAR MCANUFF

AN APPEAL UNDER PART XX.1 OF THE
CODE

Michael Davies and Meaghan McMahon, for the appellant

Amanda Rubaszek, for the respondent Attorney General for
    Ontario

Kathryn Hunt, for the respondent Person in Charge of the
    Centre for Addiction and Mental Health

Heard: March 8, 2016

On appeal against the disposition of the Ontario Review
    Board dated September 4, 2015.

Laskin J.A.:

A.

Overview

[1]

In January 2011, the appellant Novar McAnuff was found not criminally
    responsible (NCR) on account of mental disorder. Since then, he has been
    detained at the Centre for Addiction and Mental Health (CAMH).
[1]
For about three years, beginning in September 2012, he was detained on the
    general (or minimum) forensic unit of CAMH. He had privileges, which included
    being able to go on the hospital grounds or into the community without being
    accompanied by staff and potentially being able to live in the community.

[2]

After his last annual hearing in August 2015, the Ontario Review Board
    found that McAnuff continued to pose a significant threat to the safety of the
    public. Instead, however, of continuing his detention on the general forensic
    unit of CAMH, the Board ordered that he be detained on the secure (or medium)
    forensic unit. The Board removed McAnuffs privileges of unaccompanied access
    to the hospital grounds and the community, and substituted access only when
    accompanied by staff. In the Boards opinion, detention on the secure unit
    without unaccompanied privileges was the necessary and appropriate disposition
    because McAnuffs ongoing use of marijuana increased his psychosis and
    hostility.

[3]

Before the Board, McAnuff sought an absolute discharge, but in this
    court he does not challenge the Boards finding that he continues to pose a
    significant threat to the safety of the public. He raises a single issue before
    us: is the Boards order that he be detained on the secure forensic unit
    unreasonable?

[4]

The resolution of this issue turns on the answers to two questions:
    first, is detention on the secure unit, in practice, more restrictive of
    McAnuffs liberty? And if it is, second, is it necessary and appropriate
    because there is a link between McAnuffs marijuana use and a risk to public
    safety while he is detained?  I would answer these two questions yes and
    no. Thus I conclude that the Boards detention order is unreasonable.

[5]

McAnuffs transfer to the secure unit is more restrictive of his liberty
    because it will deprive him of privileges he enjoyed while on the general unit.
    It is also unnecessary and inappropriate. The index offences that led to
    McAnuffs NCR finding were three minor assaults committed within minutes of
    each other. In the five years McAnuff has been detained at CAMH he has not
    assaulted anyone or engaged in any other acts of physical or verbal aggression,
    despite his continued use of marijuana.

[6]

I would allow the appeal, order that McAnuff be detained on the general
    forensic unit of CAMH, and restore the privileges the Board removed after his
    last hearing.

B.

Relevant Background

(1)

The Appellant
    Novar McAnuff

[7]

Novar McAnuff is 43 years old. He was born in Jamaica and raised by his
    paternal grandmother until he was ten, when he moved to Canada to live with his
    mother. He continues to have a relationship with his mother, and she remains
    his only support in the community. He has not worked since his teens.

[8]

McAnuff has been in and out of psychiatric care for much of his life. In
    the nearly 20 years before he came under the jurisdiction of the Board, he was
    admitted to hospital 11 times for reasons related to his mental health.
    Typically, these admissions were triggered when McAnuff acted aggressively or
    violently towards others, including his mother. Of significance to this appeal,
    these violent acts appear to have occurred when McAnuff was using drugs, was
    not supervised, and was not taking his medication. During this time, he lived
    at various boarding homes and intermittently was homeless.

[9]

Also during this period, McAnuff was charged with three criminal
    offences. On the first two charges  possession of a dangerous weapon and
    criminal harassment  he was found unfit to stand trial; on the last charge,
    assault, he was convicted in September 2009 and placed on probation for 18
    months.

[10]

McAnuffs current diagnoses are schizophrenia, substance disorders (cannabis
    and crack cocaine), and an unspecified personality disorder with antisocial
    traits.

(2)

The Index Offences

[11]

The index offences consisted of three minor assaults committed within
    five minutes of each other during the evening of September 2, 2010.

[12]

At 8:30 p.m., two women left their apartment building to walk their
    dog. McAnuff approached the women and lunged at the dog, trying to take it. One
    of the women swung at McAnuff with her keys; McAnuff tried to grab her and take
    her keys away but she pushed him off. He then grabbed the shirt of the other
    woman. The two women got away and called the police.

[13]

Five minutes later, about a block away, a mother and her daughter were
    walking down the street. McAnuff was on the other side of the street but
    suddenly crossed over, approached the women, and grabbed one of them by the
    waist. The other woman dropped her belongings and started hitting McAnuff with
    an umbrella. McAnuff released the first woman, grabbed the items the second
    woman had dropped, and fled. The two women then called the police.

[14]

None of the women suffered any injuries and none of McAnuffs acts were
    sexual in nature.

(3)

McAnuffs Marijuana
    Use

[15]

McAnuff first used marijuana when he was seven years old. He smoked it
    daily from the age of 16 up to the time of the index offences.

[16]

While he has been at CAMH, McAnuff has been able to obtain marijuana and
    continues to use it regularly. The hospital report documents numerous incidents
    of McAnuffs failure to comply with conditions prohibiting his use of the drug.

[17]

McAnuff claims that he has a right to smoke marijuana and that it makes
    him feel better, both physically and mentally. He denies that it adversely
    affects his mental state. The hospital doctors, on the other hand, say that
    McAnuffs insistence on using marijuana shows that he has little or no insight
    into his mental illness.

(4)

McAnuffs Detention on the General Forensic Unit and the Boards 2014 Disposition

[18]

McAnuffs detention on the general forensic unit of CAMH from September
    2012 until the Boards 2014 disposition can be summarized as follows:

·

McAnuff did not assault anyone; nor did he engage in any
    aggressive or confrontational behaviour towards staff or patients.

·

He continued to smoke marijuana, thus demonstrating to his
    treatment team that he had little or no insight about how its use affected his
    mental health.

·

He generally complied with his medication regime.

·

He regularly used his privileges to go on the hospital grounds
    unaccompanied by staff. When exercising these privileges, he often used
    marijuana. As a result of doing so, his privileges were suspended and
    eventually reinstated many times.

·

In late January 2013 and again in February 2013, he was
    discharged into the community, but each time he had to be readmitted to CAMH
    because of his substance abuse and mental decompensation.

[19]

In its reasons following McAnuffs August 2014 hearing, the Board noted
    Dr. Ramshaws evidence that McAnuff is doing well at the moment and that he is
    thoughtful, delightful, has a sense of humour, and is involved in activities. But
    Dr. Ramshaw was concerned that McAnuff has been unable to maintain stability.
    [W]henever indirectly supervised hospital and grounds privileges were
    re-introduced he tested positive for drugs soon after. Dr. Ramshaw testified
    that marijuana use has negative effects on Mr. McAnuffs mental stability: he
    becomes angry, hostile, irritable, and suspicious.

[20]

The Board concluded that McAnuff could not safely be discharged into the
    community until he demonstrated that he could exercise his privileges without
    using drugs. The Board ordered that McAnuff continue to be detained on the
    general forensic unit with the same privileges of unaccompanied access to the
    hospital grounds and the community that he had enjoyed previously.

C.

The Boards 2015 Disposition was Unreasonable

(1)

The Necessary
    and Appropriate Standard

[21]

In determining the proper disposition to impose on a person who, like
    McAnuff, represents a significant threat to the safety of the public, the Board
    must consider the four factors in s. 672.54 of the
Criminal Code
, R.S.C. 1985, c. C-46
: the need to
    protect the public from dangerous persons; the mental condition of the person;
    the reintegration of the person into society; and the other needs of the
    person. The Board must then arrive at a disposition that is necessary and
    appropriate in the circumstances.

[22]

The necessary and appropriate standard came into force on July 11,
    2014. Before then, the
Criminal
Code
required that the
    disposition be the least onerous and least restrictive to the accused. This
    court has endorsed the Boards view that the two standards are synonymous  in
    other words, the necessary and appropriate disposition is also the least
    onerous and least restrictive disposition:
Ranieri (Re)
, 2015 ONCA
    444, 336 O.A.C. 88, at paras. 20-21. The change in language was meant to
    clarify the standard and make it easier to understand, not to modify it. Thus,
    the jurisprudence developed under the least onerous and least restrictive
    standard continues to apply to dispositions under the necessary and appropriate
    standard.

[23]

Two features of this jurisprudence are especially relevant to this
    appeal. First, the necessary and appropriate standard applies to the entire
    package of conditions imposed on the person detained: see, for example,
Penetanguishene
    Mental Health Centre v. Ontario (Attorney General)
, 2004 SCC 20, [2004] 1 S.C.R. 498,
at
    para. 71.

[24]

Second, the standard is constitutionally justifiable because [i]t
    ensures that the NCR accuseds liberty will be trammelled no more than is necessary
    to protect public safety:
Winko v. British Columbia (Forensic Psychiatric
    Institute)
, [1999] 2 S.C.R. 625, at para. 70. As I will discuss, the
    Boards failure to link the more restrictive conditions it imposed on McAnuff
    to the protection of public safety justifies this courts intervention.

(2)

The August 2015
    Hearing before the Board

[25]

The Board hearing took place in late August 2015. Its disposition was
    made on September 4, 2015 and its reasons were given on October 2, 2015.
    McAnuff was represented by counsel but did not testify. Dr. Ramshaw testified
    for the hospital, as she did at the 2014 hearing. She was the only person to
    give evidence.

[26]

Dr. Ramshaw asserted, as she did the previous year, that McAnuff posed a
    significant threat to public safety. But her opinion on the conditions of his
    detention changed. She now recommended that McAnuff be detained on the secure
    forensic unit of CAMH, which in her opinion would be less restrictive of
    McAnuffs liberty than his detention on the general unit.

[27]

The parties took starkly different positions before the Board. McAnuff
    sought an absolute discharge. The hospital, relying on Dr. Ramshaws opinion,
    maintained that McAnuff still posed a significant threat to public safety and
    had to be detained. It sought his detention on the secure forensic unit instead
    of the general forensic unit and the removal of his unaccompanied grounds and
    community privileges. The Crown supported the hospitals position.

[28]

The Board accepted the hospitals position on significant threat and on
    the necessary and appropriate conditions of detention. It did not expressly say
    why continued detention on the general forensic unit was inappropriate. Nor did
    it adopt Dr. Ramshaws opinion that detention on the secure forensic unit would
    be less restrictive of McAnuffs liberty. Its reasons for ordering McAnuffs
    detention on the secure unit with only accompanied grounds and community
    privileges focused on McAnuffs marijuana use.

The Board unanimously finds that the most necessary and
    appropriate Disposition necessary to manage the risk posed to the public while
    still meeting Mr. McAnuffs needs pursuant to s. 672.54 of the
Criminal
    Code
is that he be detained in the Secure Forensic Unit at CAMH with
    limited privileges into the community. In coming to this conclusion the Board
    notes the continuing ongoing use of substances by Mr. McAnuff even while he has
    been confined to a general unit and the resulting deleterious effect on his
    mental status. The Board is hopeful that a move to a secure unit will make
    access to substances extremely difficult for Mr. Mcanuff and will allow him to
    develop some significant insight around the effect of such substances on his
    mental illness. In the circumstances, this Disposition is the most necessary
    and appropriate.

(3)

Analysis

[29]

In his factum, McAnuff submitted that the Board erred because it did not
    refer to the least onerous and least restrictive standard. Wisely, he did not
    pursue this submission during oral argument. The Board correctly stated the
    current standard  necessary and appropriate. It cannot be faulted for not
    referring to the previous standard, which, as I have said, is synonymous with
    the current standard.

[30]

The only question before us is whether the Board erred in its application
    of the necessary and appropriate standard. In recognition of its expertise,
    this court must give deference to the Boards disposition. The standard of
    appellate review is reasonableness. The Boards view of how best to manage the
    risk posed by a particular NCR accused should not be interfered with so long as
    the conditions of detention lie within a range of reasonable judgment:
Pinet
    v. St. Thomas Psychiatric Hospital
, 2004 SCC 21, [2004] 1 S.C.R. 528, at
    para. 22.

[31]

McAnuff submits that the Boards disposition is unreasonable. His
    submission has two branches: in practice, detention on the secure forensic unit
    is more restrictive of his liberty than detention on the general forensic unit;
    and it is neither necessary nor appropriate because of the absence of evidence that
    his marijuana use poses a risk to public safety. The hospital and the Crown
    rely on Dr. Ramshaws opinion that detention on the secure forensic unit will
    be less restrictive of McAnuffs liberty. And they submit that the Boards
    finding on the effects of McAnuffs marijuana use is reasonable and should be
    upheld on appeal. I agree, however, with both branches of McAnuffs submission.

(a)

Detention on the Secure
    Forensic Unit is More Restrictive of McAnuffs Liberty

[32]

The secure forensic unit of CAMH has a higher level of security than the
    general forensic unit. On its face, a transfer from the general to the secure
    unit is more restrictive of McAnuffs liberty. Of course, the level of security
    by itself does not always conclusively determine the extent of a detained
    persons liberty. This very issue was canvassed by the Supreme Court in
Penetanguishene
and by my colleague Cronk J.A. in
Penetanguishene Mental Health Centre
    v. Magee
(2006)
, 80 O.R.
    (3d) 436 (C.A.). In some cases, a detained person may have access to more
    programs and amenities in a more as opposed to a less secure setting.

[33]

In the present case, however, the hospital and the Crown do not appear
    to claim that McAnuff will have more access to programs and other amenities on
    the secure forensic unit. Dr. Ramshaw gave a different explanation for why
    McAnuffs detention on the secure unit would be less restrictive of his
    liberty.

So, based upon that, we  he has been very restricted over the
    past, particularly six months, confined to the unit when he uses and then more
     only able to enjoy accompanied privileges because of his use with indirectly
    supervised privileges. So, it is our opinion that he is actually more
    restricted on a general forensic unit, which is very porous, and which clearly,
    there is a lot of substances, substance availability, at least to Mr. McAnuff
    somehow he manages to get those and it is for these reasons that we would
    recommend a secure unit. It would be less restricted, it would be less porous,
    it would be  it would put the public at a decreased risk.



So, it is our opinion that he will not do better on the general
    forensic unit, given how hes done over the last couple of years and that hes
    doing worse, rather than better, unfortunately, and that it is quite likely
    that on a more secure unit, without opportunity, he would have a better chance to
    potentially gain some insight and recognize that substances have created
    difficulties for him and placed him at greater risk and so, its for those
    reasons that we have made such recommendations at this juncture and with that,
    I will leave it open to questions.

[34]

This passage seems to suggest that McAnuff will find it harder to obtain
    marijuana while on the secure unit, will therefore use it less often, and will
    eventually gain better insight into his illness. Even accepting Dr. Ramshaws
    opinion, it does not take into account that the necessary and appropriate
    disposition must have regard to the entire package of conditions to which
    McAnuff will be subjected.

[35]

On the general unit, McAnuff could go on the hospital grounds and into
    the community unaccompanied by staff. He even had the potential of living in
    the community, and was on the waiting list for 24-hour supervised accommodation.
    All of these privileges have been taken away by the Boards disposition.
    Neither the hospital nor the Crown contends that these privileges can be
    maintained if McAnuff is on the secure forensic unit. On the secure unit,
    McAnuff can go onto the hospital grounds or into the community only when
    accompanied by staff. And he no longer has even the possibility of living in
    the community. Thus McAnuffs detention on the secure forensic unit is more
    restrictive of his liberty than his detention on the general forensic unit.

[36]

Admittedly, his unaccompanied privileges on the general unit can be
    suspended, as they have been in the past, when he used marijuana while
    exercising them. But these privileges have also typically been reinstated and,
    under his previous conditions of detention, would still remain available to
    him. In the light of the differences in the privileges available to McAnuff on
    the general unit and the secure unit, the Board ought at least to have
    addressed whether it viewed a transfer to the secure unit as more or less
    restrictive of McAnuffs liberty. It did not do so.

(b)

The Record Does Not Show a Link
    between McAnuffs Marijuana Use and a Risk to Public Safety

[37]

The only other basis on which the Boards disposition can be supported
    is if the evidence shows a link between McAnuffs marijuana use and a risk to
    public safety, the paramount consideration under s. 672.54. The hospital and
    the Crown contend the evidence of Dr. Ramshaw and the hospital report establish
    this link. I do not accept the respondents contention. The record demonstrates
    that while on the general unit, even though he continued to use marijuana,
    McAnuff posed no real risk to the safety of patients, staff, or the public.

[38]

Dr. Ramshaw did testify that she saw an increase in McAnuffs hostility,
    which in her view was linked to his marijuana use.

We do see a direct link between an increase in psychosis and
    the substance use and an increase in hostility and substance use.

[39]

But Dr. Ramshaw conceded that Mr. McAnuff did not engage in any acts of
    violence or aggression.

Q.      But there was no overt acts of violence or           aggression?

A.       No.

Q.      And we can say the same in the September 2013 to July
    2014 period as well.  Page 17 at the bottom and Page 18 at the top. A whole
    year basically

A.

Yes.

Q.

without
    violence?

A.

That is correct.

[40]

Dr. Ramshaw also said that over the course of the year leading up to his
    August 2015 hearing, McAnuff became agitated from time to time. But she again
    acknowledged that his agitation stopped short of physical aggression.

Q.      Okay. So, thats again, for a full year period and intermittent
    can mean a wide variety of things. Do you know how many times he was said to be
    agitated?

A.       No. It could be quite frequent. I dont have the exact
    number of times. Its difficult to count because he can have different levels
    of agitation within one day, but it is intermittent because there are also
    periods when he is very pleasant, he appears to be in good spirits, he appears
    to be future oriented again, wants to gain stability, but then reverts to
    these, to the more decompensated mental state intermittently. So, again, I
    really dont have numbers, but it has been for a large part of the year. Id
    say particularly in the last six months.

Q.      You couldnt say, though, hes, hes been agitated
    every day?

A.       No, he has not.

Q.      Not at all?

A.       No.

Q.      And, certainly, intermittent agitation is quite
    distinct from any, sort of, verbal or aggression or physical aggression?

A.       He has not been physically aggressive.

[41]

The hospital report states that in the year leading up to his August
    2015 hearing, McAnuffs marijuana use increased and he became increasingly
    psychotic over time with intermittent agitation associated with marijuana use.

[42]

But the hospital report does not document any incident where McAnuff has
    been physically or even verbally aggressive on the general forensic unit. Despite
    his increased use of marijuana and the fluctuations in his mental state, he
    posed no risk to the safety of other patients or the staff. In her testimony
    before the Board, Dr. Ramshaw did say: Its my opinion that some of his
    behaviours potentially contribute to safety issues of patients on the ward
    because of the somehow encouraging, at least, the bringing in of more
    substances. But this opinion, without any evidence to support it, cannot
    justify McAnuffs detention on the secure forensic unit.

[43]

In my opinion, the hospital and the Board focussed on McAnuffs
    treatment needs and on making it harder for him to obtain marijuana,
[2]
but failed to adequately consider that the restrictions on his liberty must be
    consistent with his level of risk to public safety:
Winko
, at para. 70;
Saikaley
    (Re)
, 2011 ONCA 136, [2011] O.J. No. 722, at para. 7. The link between his
    marijuana use and public safety on which the respondents rely to support the
    Boards disposition does not exist. Indeed there has been no link for the
    entire time McAnuff has been at CAMH.

[44]

The evidence on McAnuffs conduct before and after his detention on the
    general forensic unit at CAMH is telling. In the years leading up to his NCR
    finding and his detention, McAnuff could act violently towards others, even his
    own mother. Then, too, he used drugs, but he was not supervised and was not
    regularly taking the medication prescribed for him. At CAMH, he is in a
    structured, supervised environment and he takes his medication
[3]
.
    Under these conditions of detention he has not acted violently despite his
    continued use of marijuana.

[45]

I conclude that the Boards disposition is unreasonable. I would allow
    McAnuffs appeal and order that he be detained on the general forensic unit of
    CAMH on the conditions in the Boards August 2014 disposition.

Released: April 20, 2016 (J.L.)

John Laskin J.A.

I agree. E.A. Cronk J.A.

I agree. Bradley W. Miller
    J.A.





[1]
Except for a brief period of one and a half months in early 2013 when he was
    living in the community.



[2]
The hospital was unable to explain from where and how McAnuff obtained his
    marijuana.



[3]
On March 30, 2015, McAnuff was found incapable of consenting to anti-psychotic
    medication. The Public Guardian and Trustee is his substitute decision-maker.


