



COURT OF APPEAL FOR ONTARIO

CITATION: Woods (Re), 2019 ONCA 87

DATE: 20190208

DOCKET: C65415

Doherty, Miller and Trotter JJ.A.

IN THE MATTER OF:  Joanne Woods

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Caitlin Sharawy, for the Crown

Michele Warner, for the Person in Charge of the Centre
    for Addiction and Mental Health

Heard: January 25, 2019

On appeal against the disposition of the Ontario Review
    Board dated April 26, 2018.

REASONS FOR DECISION

[1]

Ms. Woods has been subject to the
    jurisdiction of the Ontario Review Board (the Board) since 2012. After her
    most recent review hearing, the Board continued her conditional discharge. She
    appeals, arguing that the Board erred in not ordering an absolute discharge
    pursuant to section 672.54(a) of the
Criminal Code
. For the following
    reasons, the appeal is dismissed.

A.

Background

[2]

Ms. Woods is 52 years old. Her
    primary diagnoses are schizoaffective disorder and substance abuse disorder,
    with differential diagnoses of schizophrenia and personality disorder not
    otherwise specified. Before the index offences, she had roughly 25 hospital
    admissions since 1998. The record reveals that the ingestion of illicit
    substances worsens her condition.

[3]

In 2012, Ms. Woods was charged
    with uttering a death threat and possession of a weapon for a dangerous purpose.
    She boarded a TTC bus which was carrying many passengers and yelled I am going
    to kill someone and I have a knife. She fled from the bus but was soon
    apprehended by police. She was in possession of a knife. Ms. Woods was found
    NCR of these charges.

[4]

Ms. Woods was conditionally
    discharged in 2017. She lives in an apartment that is close to the Centre for
    Addiction and Mental Health (CAMH). Ms. Woods is currently being followed by
    the Enhanced Forensic Outpatient Service Team, due to her heightened need for
    support and supervision. She sees team members five days a week and receives
    medication two days a week. Ms. Woods requires this level of support and
    supervision because there have been medication compliance issues and her mental
    condition is prone to quick deterioration. Even when medicated, Ms. Woods
    continues to experience persecutory and somatic delusions.

[5]

The sole witness at Ms. Woods
    review hearing was her attending psychiatrist, Dr. R. Jones. He testified that
    her medication has not been fully optimized. This is the project for the
    coming year. Dr. Jones is working with Ms. Woods substitute decision maker,
    her daughter, to address this issue. Dr. Jones also expressed concern about
    medication compliance issues and Ms. Woods lack of insight into her mental
    illness and the need for medication. Ultimately, he testified that Ms. Woods
    continues to pose a significant threat to the safety of the public.

[6]

Dr. Jones testified that the
    treatment team has given thought to transitioning Ms. Woods out of the forensic
    system and managing her illness under the civil system, with the support of the
    Assertive Community Treatment (ACT) Team. Dr. Woods testified that, [w]e
    would want to see improvements, however, in terms of her mental state and in
    terms of her insight. Especially with regards to taking medication, before we
    would feel that she was ready to make that transition directly over to the
    ACT.

B.

the boards decision

[7]

The Board accepted the
    uncontroverted opinion of Dr. Jones. It characterized Ms. Woods mental
    status as still fragile. In its reasons, the Board said, at para. 29:

According to the Hospital Report, Ms. Woods history of
    violence includes behaving in an agitated and threatening manner when ill. In
    addition to the index offences, violent incidents in the community include:
    holding a knife to her aunts throat and threatening her mother. In 2012, she
    was reported to have yelled obscenities at children, threatened to kill people
    and to blow up a park. She also spat at police officers. Other incidents of
    aggression have occurred when she has been an impatient in the hospital,
    necessitating seclusion and/or restraint.
The Hospital Report indicates that
    she is assessed as a moderate-high risk if she were to receive an Absolute
    Discharge at this time
. [Emphasis added.]

[8]

Ms. Woods moderate-high ranking
    was based on actuarial measures. There was also a clinical risk assessment
    component in the Hospital Report:

In risk assessment, one of the best predictors is a patients
    history of violence. Ms. Woods history of violence includes behaving in an
    agitated and threatening manner when ill. While suffering from active symptoms
    of psychosis and/or mania, she exhibits behavioural disinhibition, impulsivity,
    paranoid delusions, mood lability and irritability, which leads to aggressive
    behaviour that can be focused on those in close vicinity, often in a
    non-premeditated and unpredictable way.

[9]

In its reasons, the Board twice
    expressed concern about Ms. Woods lack of insight. At para. 28, the Board said:
    She has very little insight into her mental illness and has expressed markedly
    fluctuating insight into the benefits of medications.

[10]

The Board concluded that Ms. Woods
    still requires significant supervision and support, which involves seeing her
    team 5 days a week. The Board concluded, at para. 32, that, absent this level
    of supervision, she would be very likely to fall away from treatment, leading
    to a relapse to psychosis and likely aggression in the community.

C.

issues on appeal

[11]

Ms. Szigeti,
amicus curiae
,
    argues that the Board erred in concluding that Ms. Woods continues to pose a
    significant risk to the safety of the public. She argues that the Board placed
    too much emphasis on the lack of insight exhibited by Ms. Woods. As Ms. Szigeti
    argues, this is a common characteristic of those who come before the Board.
    Moreover, she argues that the Boards reasoning falls short of finding that Ms.
    Woods poses a significant threat to the safety of the public. She submits that
    although there may be a risk that Ms. Woods will discontinue her medication and
    her mental status will deteriorate, the Boards finding of a significant threat
    to the safety of the community is speculative. In these circumstances, Ms.
    Woods should be discharged and her mental well-being managed under the
Mental
    Health Act
, R.S.O. 1990, c. M.7.

[12]

The respondents argue that there
    was an evidentiary basis for the Boards disposition. The reasons of the Board
    go beyond speculation about the threat posed by Ms. Woods to the safety of the
    public. The respondents further submit that the Board did not give undue weight
    to Ms. Woods enduring lack of insight into her condition.

D.

analysis

[13]

We consider this case to be a close
    call. However, after careful consideration, we have reached the conclusion that
    the appeal must be dismissed.

[14]

Appellate review of the Boards
    decisions does not involve a search for a single, correct answer to the
    complex and multifactorial decision that the Board is tasked with making: see
Carrick
    (Re)
, 2015 ONCA 866, 128 O.R. (3d) 209, at para. 24. Instead, the question
    is whether the Board, in the exercise of its specialized knowledge and
    expertise, rendered a decision that falls within the range of reasonable
    outcomes. As Huscroft J.A. said, at para. 26:

This court does not make its own judgment on the significant
    threat question and use that judgment as the benchmark for assessing the
    reasonableness of the boards decision. Nor does this court re-weigh the
    considerations before the board. The reasons for the boards decision and the
    substantive decision reached by the board must be considered together to
    determine whether an acceptable and defensible outcome has been reached.

See also
Medcof
    (Re)
, 2018 ONCA 299, at paras. 44-46; and
R. v. Conway
, 2010 SCC
    22, [2010] 1 S.C.R. 764, at para. 95.

[15]

In our view, the Boards disposition
    was within the range of reasonable outcomes available based on the record
    before it. There was an evidentiary basis to support the Boards conclusion
    that the significant threat standard was met in this case. Despite the very
    high level of supervision and support that Ms. Woods receives, her mental state
    remains precarious. The disordered thought processes that she currently
    experiences (even while medicated) are similar to those that were active at the
    time of the index offences. There was evidence before the Board that, in this
    state, Ms. Woods becomes threatening and aggressive. As noted in para. 7 above,
    the Hospital Report explained the downward spiral that will almost inevitably
    occur when Ms. Woods falls away from treatment, which, on this record, also
    seems very likely.

[16]

The Board was also entitled to
    rely on the actuarial assessment of Ms. Woods which placed her at moderate to
    high risk of reoffending. We acknowledge that results on risk assessment tests
    such as
the HCR-20
V3
are only capable
    of predicting the likelihood of future violence, and not its nature or
    magnitude: see
Krivicic (Re)
, 2018 ONCA 535, at para. 60. As such, standing alone,
    these measures cannot satisfy the requirements of s. 672.541. However, in this
    case, the Board considered the actuarial testing alongside the clinical risk
    assessment in the Hospital Report and the evidence of Dr. Jones.

[17]

Accordingly, it cannot be said
    that the Boards decision was unreasonable. Nor do we find that the Board
    committed any legal errors in reaching its ultimate decision. However, Ms.
    Szigetis submissions about the Boards reliance on Ms. Woods lack of insight
    deserve consideration. Lack of insight has its place in the overall clinical
    picture; however, it must not dominate the significant threat analysis. This is
    important in Ms. Woods situation. As Ms. Szigeti submitted, Ms. Woods will
    likely never gain any real insight into her situation. However, this alone
    cannot form the basis for indeterminate detention under Part XX.1 of the
Criminal
    Code
.

[18]

Despite Ms. Szigetis helpful
    submissions, we are satisfied that the Boards decision was not overwhelmed by
    this factor; it was one, albeit an important one, of many components of
    analysis. Still, it bears repeating the words of Hoy A.C.J.O. in
Kalra
    (Re)
, 2018 ONCA 833, at para. 52:

As I have said, the Board's Disposition was rooted in its
    concern that Mr. Kalra lacked insight into his illness and therefore would not
    continue to take his medication if he received an absolute discharge.
It
    bears stating that lack of insight is not of itself a basis to deny an absolute
    discharge.
As the Supreme Court instructs, the mentally ill are not
    inherently dangerous:
Winko
, at para. 35.
Whether an NCR accused has
    insight into his or her mental illness, and the extent of that insight, is only
    part of the analysis in determining if there is a significant threat to the
    safety of the public.
While insight is a treatment goal, it is one some
    persons living with mental illness may be unable to fully achieve.
In some
    instances, particularly where the contemplated harm falls at the lower end of
    the spectrum, it may be unreasonable to require, as the Board did here, that an
    NCR accused's insight into his or her illness be "entrenched on his
    consciousness" in order to obtain an absolute discharge.
[Emphasis
    added.]

[19]

In conclusion, we reiterate that
    we consider this case to be a close call. Deference prevents us from
    interfering. However, there appears to be a path forward. As Dr. Jones
    testified, the current plan is to optimize Ms. Woods medication. The prospect
    of transitioning Ms. Woods out of the forensic system is clearly on his radar.
    It is hoped that Ms. Woods progress in the coming year will allow this to
    happen or at least move her closer to this goal.

E.

disposition

[20]

The appeal is dismissed.

Doherty J.A.

B.W. Miller J.A.

G.T. Trotter J.A.


