



COURT OF APPEAL FOR ONTARIO

CITATION: Tolias (Re), 2019 ONCA 123

DATE: 20190219

DOCKET: C65400

Sharpe, Benotto and Brown JJ.A.

IN THE MATTER OF: Helen Tolias

AN APPEAL UNDER PART XX.1 OF THE
CODE

Jeff Marshman, for the Appellant

Manasvin
    Goswami, for the Respondent

Heard: February 8, 2019

On appeal against the disposition of the Ontario Review
    Board dated, March 14, 2018, with reasons for disposition dated April 9, 2018,
    with reasons reported at [2018] O.R.B.D. No. 794.

REASONS FOR DECISION

I.

OVERVIEW

[1]

The appellant, Ms. Helen Tolias, appeals from the March 14, 2018
    disposition of the Ontario Review Board (the Board) ordering that she be
    detained on the secure forensic unit at the Providence Care Hospital, Kingston
    (the Hospital).

[2]

Ms. Tolias submits that the Board's finding that she remains a
    significant threat to the safety of the public is unreasonable and the Board
    erred in failing to grant her an absolute discharge. In the alternative, she
    submits that the Board erred in failing to grant her a conditional discharge or
    transfer to the Centre for Addiction and Mental Health (CAMH) in Toronto.

[3]

For the reasons that follow, we dismiss her appeal.

II.

BACKGROUND

The index offences

[4]

Ms. Tolias is 46 years old. She suffers from schizoaffective disorder, with
    persecutory delusions.

[5]

Ms. Tolias originally was charged in 2003 with uttering threats and
    criminal harassment of her ex-boyfriend, together with breach of recognizance.
    She was admitted to CAMH to be assessed for criminal responsibility on those
    charges. There, Ms. Tolias became infatuated with, and developed erotomanic
    delusions about, Dr. Colleton, the CAMH staff psychiatrist who conducted her
    assessment. She began to send him letters and repeatedly called him on the
    telephone. As a result, Ms. Tolias was charged with criminal harassment
    and with making harassing telephone calls.

[6]

On November 14, 2003, she was convicted of the charges relating to her
    ex-boyfriend.

[7]

Despite recognizances containing conditions that she abstain from direct
    or indirect communication with Dr. Colleton, Ms. Tolias persisted with her
    communications and was again charged.

[8]

On July 14, 2005, Ms. Tolias was found not criminally responsible on
    account of mental disorder (NCR) of four charges of making harassing phone
    calls to Dr. Colleton, three charges of failure to comply with a recognizance,
    and two charges of failure to comply with probation. She received a conditional
    discharge and was required to report to the Whitby Mental Health Centre.

[9]

Ms. Tolias continued in her efforts to communicate with Dr. Colleton.
    She was again charged and again found NCR in 2006. Since that time, Ms.
Tolias has remained under the jurisdiction of the Board.

Places of treatment

[10]

Since
    the disposition of the index offences in April 2006, Ms. Tolias has been
    detained and treated at several hospitals: she was at the Whitby Mental Health
    Centre from 2006 until her transfer to the Hospital in August 2009, where she
    remained until May 2011 when she was transferred to St. Josephs Healthcare in
    Hamilton. Ms. Toliass family had requested that move to facilitate visits as
    they lived in the GTA.

[11]

The
    Board held an early review hearing in March 2017 to consider a request by Ms.
    Tolias for a transfer from Hamilton to the Hospital in Kingston, which it
    granted. Since that time, Ms. Tolias has remained at the Hospital.

[12]

The
    capacity of Ms. Tolias to consent to treatment has fluctuated since the
    disposition of the index offences. At the time of the 2018 Board hearing, she
    had been found incapable of consenting to treatment.


III.

FIRST ISSUE: SIGNIFICANT THREAT TO THE SAFETY OF THE PUBLIC

[13]

The
    Board found that Ms. Tolias continued to pose a significant threat to the
    safety of the public because of the severe nature of her schizophrenic illness,
    including continued delusions of being assaulted by her treating psychiatrists,
    Hospital staff, and co-patients.

[14]

Ms.
    Tolias submits that the Boards conclusion was unreasonable, for two main
    reasons: (i) her continued verbal misconduct was not reasonably capable of
    causing serious criminal harm; and (ii) she has not had any contact with Dr.
    Colleton who was the complainant in the index offences.

[15]

We
    do not agree. The Boards finding was reasonable given the evidence of: the nature
    of Ms. Toliass mental illness; her continuing persecutory delusions, which
    have led to aggressive oral outbursts, including threats; her limited coping
    abilities; and the need to ensure ongoing medication compliance and
    optimization.

[16]

As
    well, there was evidence before the Board of a strong link between certain acts
    of Ms. Tolias during the review period and the conduct underlying the index
    offences involving her former treating psychiatrist, Dr. Colleton.
    Significantly, Ms. Tolias continued to voice the belief that she has a husband
    and, in June 2017, submitted a written request to have her name changed to
    Michelle Colleton, the name she used during the commission of the second index
    offence. As well, Ms. Tolias requested at transfer to CAMH. While that facility
    certainly would move her closer to family members, the evidence before the
    Board was that Dr. Colleton still practised there.

[17]

Taken
    together, the evidence reasonably supported the Boards conclusion that Ms.
    Tolias remained a significant threat to the safety of the public.


IV.

SECOND ISSUE: CONDITIONAL DISCHARGE

[18]

The
    Board rejected the alternative request by Ms. Tolias for a conditional
    discharge. The Board described her request as premature for several reasons:
    (i) a reduction in her delusions and sometimes aggressive behaviours was needed
    before she could progress to grounds and community living privileges; (ii) her
    requests to change her name and transfer to CAMH indicated that the
    delusionary thoughts regarding the victim of the index offences  remain
    active; and (iii) optimization of her medications was required given the
    current severity of her symptoms.

[19]

Ms.
    Tolias contends that the Board failed to impose the least onerous and
    restrictive disposition, especially given: the lack of any violent conduct by
    Ms. Tolias; the existence of a strong family support network; and the lack of
    any attempt by her to contact Dr. Colleton when she was absent without leave
    from the Hospital for four days, which she spent in Toronto.

[20]

In
    its decision dismissing the appeal of Ms. Tolias from the 2016 and 2017 Board
    dispositions, this court directed the Board to inquire into whether conditions
    could be crafted to release Ms. Tolias into the community:
Re Tolias
,
    2018 ONCA 215, at para. 20.

[21]

We
    have reviewed the transcript of the Board hearing. We are satisfied the Board
    made such inquiries. We are also satisfied that the evidence elicited by those
    inquiries support, as reasonable, the Boards conclusion that a conditional discharge
    would be premature. We would also note that at the hearing Ms. Tolias, who was
    represented by counsel, did not present any concrete plan concerning
    alternative living and treatment arrangements.

[22]

That
    said, cases such as this one always raise a certain concern. The index offences
    involved criminal harassment. Such offences have a serious impact on the victim
    but, in the case of Ms. Tolias, the offences did not involve any violence. Yet,
    the offences occurred more than a decade ago, and since that time Ms. Tolias
    has remained in detention. Although the record certainly supports the Boards
    conclusion that Ms. Tolias continues to suffer from a serious mental illness,
    cases such as this require constant vigilance and inquiry by the Board into the
    appropriate disposition, especially the appropriateness of a conditional
    discharge with community living.

[23]

We
    note that the next review hearing for Ms. Tolias will be held on February 25,
    2019. We expect the Board to inquire actively into the appropriateness of
    alternative dispositions for Ms. Tolias.


V.

THIRD ISSUE: TRANSFER TO CAMH

[24]

As
    her final ground of appeal, Ms. Tolias submits that the Board erred by failing
    to grant her request for a transfer to CAMH.

[25]

We
    are not persuaded by this submission. First, only a year before the hearing the
    Board had acceded to Ms. Toliass request for a transfer from Hamilton to
    Kingston. Second, the information from CAMH placed before the Board showed that
    there was an extensive waiting list for secure beds at CAMH, which would delay
    any ordered transfer. Finally, the Board had reason to be concerned about Ms.
    Toliass request for the transfer against the background of her name change
    request.


VI.

DISPOSITION

[26]

For
    these reasons, the appeal is dismissed.

Robert
    J. Sharpe J.A.
M.L. Benotto J.A.
David Brown J.A.


