



COURT OF APPEAL FOR ONTARIO

CITATION: Esgin (Re), 2019 ONCA 155

DATE: 20190226

DOCKET: C65351

Feldman, Lauwers and Nordheimer JJ.A.

IN THE MATTER OF: Burhan Esgin

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Andrew Cappell, for the respondent, Attorney General of
    Ontario

Kathryn Hunt, for the respondent,
Centre for Addiction and Mental Health

Heard: January 29, 2019

On appeal from the disposition
    of the Ontario Review Board, dated April 10, 2018, with reasons for disposition
    dated April 24, 2018, reported at [2018] O.R.B.D. No. 927.

Lauwers J.A.:

[1]

On May 29, 2014, Burhan Esgin was found not criminally
    responsible on account of mental disorder on charges of possession of weapons
    dangerous, contrary to the
Criminal Code
, R.S.C., 1985, c. C-46
. Mr. Esgin has been diagnosed with
    Schizoaffective Disorder, Bi-polar Type; Substance Use Disorder, Alcohol and Cannabis;
    and Unspecified Personality Disorder, Narcissistic and Antisocial.

[2]

Mr. Esgin was subject to a 2017 disposition, which detained him
    in the general forensic unit at the Centre for Addiction and Mental Health, and
    granted him privileges up to and including living in the community with
    accommodation approved by the person in charge. The 2018 disposition relaxed
    the reporting requirement from daily to not less than once every two weeks.

[3]

Mr. Esgin appeals. He maintains that the Board erred by failing
    to grant a conditional discharge. He seeks a conditional discharge from this
    court, and in the alternative, a new hearing.

Index offence and detention history

[4]

Mr. Esgin was driving his automobile on November
    30, 2013. He began yelling at pedestrians on the sidewalk and at drivers of
    other vehicles, and he pointed what appeared to be a black handgun at several
    drivers. He then parked the car, leaving the handgun behind, got out of the car
    and began yelling at people. As he returned to the car, police officers arrived
    and arrested him. The black handgun was an air pistol.

[5]

Mr. Esgin is particularly vulnerable to alcohol,
    and the hospital report summarizes a number of incidents from November 2013 to
    February 2017, in which he showed positive test results for alcohol; he was
    also on occasion medication non-compliant. Mr. Esgin was discharged to the
    community in 2017 and lived with his mother until January 22, 2018. He now
    lives alone. There has been no evidence of psychotic symptoms.
Mr. Esgin
    is currently being treated by long-acting injections, which he receives every
    two weeks at the hospital.

The decision under appeal

[6]

The Board unanimously found that Mr. Esgin
    continues to pose a significant threat to the safety of the public. The Board relied
    on the evidence of Dr. Swayze, Mr. Esgins treating physician, to find that
    there is a foreseeable and substantial risk that Mr. Esgin would commit a
    serious criminal offence if he were discharged absolutely.

[7]

The Board also found that there is no air of
    reality to a Conditional Discharge at the present time, noting that Mr. Esgin
    has only been living on his own in the community for under three months and a
    further period of time and stability would be required before a Conditional Discharge
    could be considered.

[8]

Dr. Swayze expressed concern about the two positive tests for
    cannabis on March 5 and 13, 2018, and the positive test for a marker for
    alcohol, Ethyl Glucuronide. Mr. Esgin acknowledged that he had used cannabis
    once only due to the stress of his upcoming Board hearing which was originally
    set for March 2018 but had to be adjourned due to Dr. Swayze's illness and to
    the lack of a Hospital Report. Mr. Esgin also admitted drinking a non-alcoholic
    beer believing there was no alcohol in it, which could account for the marker.

[9]

The Board noted, at para. 48:

When asked if he would return to
    hospital voluntarily if asked, he said he would. He indicated if he received a
    Conditional Discharge and then had a positive test for cannabis, he would come
    in "based on my mental status". He said if he showed signs of
    deterioration he would come in but would also come in if there was no
    deterioration.

[10]

The Boards analysis of the request for a conditional
    discharge is set out in paras. 59-61:

The Board noted the strong presentation made by counsel for Mr.
    Esgin for a Conditional Discharge. The Board finds that there is no air of
    reality to a Conditional Discharge at the present time.

The Board accepts the evidence of Dr. Swayze that Mr. Esgin
    appears externally motivated to take his medication and to avoid substances.
    The fact there were two positive tests for cannabis and one for a marker for
    alcohol this year indicate that Mr. Esgin has not fully dealt with his
    substance abuse issues. He readily succumbed to peers to use cannabis when he
    felt stressed despite having had extensive training on stress management
    techniques.

In addition, the Board is not
    confident that a Conditional Discharge would permit the Hospital to intervene
    quickly enough should there be deterioration in Mr. Esgin's mental status. The
    Board prefers the evidence of Dr. Swayze and the events of Mr. Esgin's history
    under the Board as evidence for the fact he is not likely to return to hospital
    voluntarily over the evidence of Mr. Esgin who himself said that he would
    return to hospital if requested. The fact that Mr. Esgin would agree to a
    consent to treatment clause being included in the Conditional Discharge does
    not sway the Board's view in this matter.

A significant threat

[11]

The
    Board unanimously found that Mr. Esgin continues to pose a significant threat
    to the safety of the public, because his noncompliance with prescribed
    medication would lead to decompensation and the re-emergence of behaviours
    similar to that of the index offence. I would defer to that finding, which is
    well established on the evidence.

The disposition

[12]

Amicus
submits that: The Board was
    required, but failed to consider in a serious and probing manner, the evidence
    in relation to mechanisms of return to hospital as they would present in the
    particular circumstances of the Appellant. She pointed to the following
    positive developments:

The Appellants
    mental state had been essentially stable for the reporting year preceding the
    hearing, at least, and probably for longer. The Appellant had been medication compliant,
    his medications had been adjusted and optimized; indeed, there had been a
    switch to an injectable form of the same antipsychotic medication the Appellant
    was previously receiving. This now required only biweekly administration of his
    main medication treatment, his anti-psychotic. There were no incidents of
    aggression or violence or for that matter any verbal altercations in the
    reporting year.

[13]

Amicus
argues
    that it was unfair for the hospital to pursue the allegations of cannabis use
    and alcohol without providing any notice or record in the hospital report of those
    allegations. She points out that the hospital was sufficiently untroubled that
    it did not bring Mr. Esgin in when the test results were received.

[14]

This court recently dealt with a similar situation in
Valdez
    (Re)
, 2018 ONCA 657. The comments made by the court in
Valdez
apply equally to Mr. Esgin who, like Mr. Valdez, is
    taking long-acting medication administered at the hospital. The hospital would
    know immediately if he did not attend for a scheduled injection and would be
    immediately able to take remedial steps. In Valdez this court said, at para.
    21:

However, we have difficulty with the majority's cursory
    consideration of whether Mr. Valdez's risk to the public could be managed under
    a conditional discharge. The majority reasoned that "it is substantially
    easier to bring about a return to the hospital for individuals who are under a
    Detention Order" and that a warrant will always be acted upon to bring a
    person back to the hospital if necessary. However, this would always be true
    and could always be used to justify the refusal of a conditional discharge.
    But, given the least onerous and least restrictive test, something more is
    required than mere convenience to the hospital.

Analysis

[15]

Part
    XX.1 of the
Criminal Code
establishes the legislative regime for
    mental disorders and dealing with NCR accused. As Bastarache J. observed in
Mazzei
    v. British Columbia (Director of Adult Forensic Psychiatric Services)
,
    2006 SCC 7, [2006] 1 S.C.R. 326, at para. 32: "the primary purpose of the
    legislative scheme is to protect the public while minimizing any restrictions
    on the NCR accused's liberty interests".

[16]

The
    Board is charged with the responsibility for determining the necessary and
    appropriate disposition in the language of s. 672.54 of the Criminal Code. The
    previous version of the section directed the Board or a court to make the
    disposition 
that is the least
    onerous and least restrictive to the accused. However,
the Board and
    the courts have considered that the new language did not change the applicable
    test, still commonly expressed as: the least onerous and least restrictive
    disposition necessary to protect the public:
Winko v. Forensic Psychiatric
    Institute
, [1999] 2 S.C.R. 625, at para. 47. The Board is a specialized,
    expert body and its decisions are owed a significant degree of deference:
R.
    v. Owen
, 2003 SCC 33, [2003] 1 S.C.R. 779, at paras. 29-30, 37. Appellate
    courts are "'not [to] be too quick to overturn a review board's 'expert
    opinion' on how best to manage a patient's risk to the public":
R. v.
    Conway
,
2010 SCC 22, [2010] 1 S.C.R. 765 at para. 95; see also
Owen
,
at para. 69.

[17]

The
    issue on this appeal is whether the Board's decision falls within a range of
    reasonable outcomes:
Owen
, at para. 33. A decision will be considered
    unreasonable when the reasons do not "bear even a somewhat probing
    examination":
Saikaley (Re)
, 2012 ONCA 92, 109 O.R. (3d) 262, at
    para. 35;
Mazzei
,
at d. 17. As in
Valdez
, this task is
    hampered by the Board's reasons, which are sparse in their consideration of the
    least onerous/restrictive test:
Marchese (Re)
, 2018 ONCA 307, 359
    C.C.C. (3d) 408, at paras. 16-23.

[18]

In
    my view, the Boards decision is unreasonable.

[19]

The
    Board was right to be concerned that Mr. Esgin would decompensate if he failed
    to take his medication. However, I have difficulty with the Boards cursory
    consideration of whether Mr. Esgins risk to the public could be managed under
    a conditional discharge. The Boards conclusory assertion is that it is not
    confident that a Conditional Discharge would permit the Hospital to intervene
    quickly enough should there be deterioration in Mr. Esgin's mental status. The
    Board gives no reasons for this statement that are rooted in the realities of
    managing Mr. Esgin.

[20]

As
    was noted in oral argument, it is always easier to bring about a return to the
    hospital for individuals who are under a detention order since a warrant will
    always be acted upon to bring a person back to the hospital if necessary.
    However, this would be true in every case and could always be used to justify
    the refusal of a conditional discharge. But, given the least onerous and least
    restrictive test, something more is required to justify a detention order than
    mere convenience to the hospital.

[21]

As
    discussed in
Young (Re)
, 2011 ONCA 432, 278 O.A.C. 274, at para. 26,
    there are multiple ways in which to secure someone's attendance at the hospital
    when they fail to comply with a condition of their discharge. For instance, the
    person could be returned: (1) by convening a new hearing under s. 672.82(1) of
    the
Criminal Code
; (2) by resorting to the breach provisions of the
Criminal
    Code
;
or (3) through the committal provisions available under the
Mental
    Health Act
,
R.S.O. 1990, c. M.7.

[22]

Some
    of these options were discussed in oral argument, but I am not confident that
    the ramifications were fully aired. Also, I do not consider the evidence of Dr.
    Swayze on this point to be sufficient.

[23]

In my view, the reasons of the Board are inadequate and did not
    permit meaningful appellate review.
Decision makers must give
    reasons for their decisions that display the qualities of accountability,
    intelligibility, adequacy and transparency, and that are responsive to the live
    issues.
See
R. v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869 per Binnie J. at para. 55. See also
Clifford
    v. OMERS
, 2009 ONCA 670;
Vancouver International Airport Authority v.
    Public Service Alliance of Canada
, 2010 FCA 158, at para. 16.

[24]

The
    Board had a duty to assess the evidentiary record in context, and to take into
    consideration in this case: (1) the risk of Mr. Esgins non-attendance for
    medication; (2) the mechanisms for securing his attendance at hospital under
    the conditional discharge framework; (3) the length of time that any such steps
    may take; (4) the effect of that delay on Mr. Esgin's mental health; and (5)
    the risk to public safety posed by any delay in treatment.

[25]

The
    Board's reasoning does not demonstrate that it took these considerations into
    account. Although Mr. Esgin appears to be a significant risk to public safety
    when unmedicated, it appears that, given the biweekly injection schedule, that he
    would not decompensate immediately. There was no evidence here that any delay
    in apprehending Mr. Esgin for the purpose of administering his medication would
    be critical to public safety.

[26]

For
    these reasons, I would direct the Board at its next hearing to consider
    whether, after due consideration of all of the relevant factors set out above
    and any others that appear relevant, Mr. Esgin should be subject to a
    conditional discharge rather than a detention order and to set out its reasons
    for its conclusion to select one disposition rather than the other. Since the
    next hearing is very close, I would dismiss the appeal.

RELEASED:  P.L.  February 26,
    2019

P. Lauwers J.A.

I agree. K. Feldman J.A.

I agree. I.V.B. Nordheimer J.A.


