





CITATION:
Young
      (Re), 2011 ONCA 432



DATE: 20110607



DOCKET: C52218



COURT OF APPEAL FOR ONTARIO



Doherty, Goudge and Armstrong JJ.A.



BETWEEN



The Person in Charge of Centre for Addiction and Mental
          Health



Appellant



and



Ian K. Young



Respondent

and

Her
          Majesty the Queen

Respondent



Jean D. Buie, for the appellant

Uma Kancharla, for the respondent, Young

A. Alyea, for the respondent, Her Majesty the Queen



Heard:  May 6, 2011

On appeal from the disposition of
          the Ontario Review Board dated April 23, 2010.

Doherty J.A.:






I

[1]

In November 1998, the respondent, Ian K. Young
    (Mr. Young), was charged with numerous serious criminal offences, including
    attempted murder and sexual assault.  In
    May 2001, he was found not criminally responsible on account of mental disorder
    (NCRMD).  He has been under the
    jurisdiction of the Ontario Review Board (Review Board) since then.

[2]

Mr. Young was initially held in hospital under a
    detention order.  He has lived in the
    community since March 2005.  At first, Mr.
    Young lived in the community under the terms of a detention order that gave the
    person in charge of the hospital where Mr. Young was detained the discretion to
    allow Mr. Young to live in the community at an approved residence.  By late 2006, Mr. Young was living in the
    community under the terms of a conditional discharge disposition made by the
    Review Board.

[3]

Mr. Young suffers from a longstanding serious
    mental illness.  Until August 2009, Mr.
    Young did relatively well in the community.  He took his medication, complied with the various terms imposed on him
    by the Review Board, maintained employment and kept up his own apartment.  He had support from friends and relatives.  Mr. Youngs condition was described as stable
    and he seemed able to function in the community.  Mr. Young would not, however, have anything
    to do with treatment.  He was quite
    hostile to those who attempted treatment and to the Review Board, which he saw
    as unduly restricting his liberty and stigmatizing him as a deviant person.

[4]

Unfortunately, Mr. Youngs condition
    deteriorated significantly beginning in August 2009.  He refused to comply with requests for
    drug-testing and may have stopped taking his medication.  In October 2009, he was involuntarily
    committed under the terms of the
Mental
    Health Act
, R.S.O. 1990, c. M.7.  Mr.
    Young remained in the hospital under that order until December 2009.

[5]

Mr. Youngs annual review hearing before the Review
    Board pursuant to s. 672.81(1) of the
Criminal
    Code
, R.S.C. 1985, c. C-46,

was
    scheduled to proceed in October 2009.  The hearing was adjourned until November.  At that time, the appellant (CAMH) took the
    position that Mr. Youngs decompensation required that he be ordered detained
    at CAMH with the condition that the person in charge at CAMH have the
    discretion to allow Mr. Young to live in the community.  The hospitals change in position
    necessitated a further adjournment of the annual review.

[6]

For various reasons, the annual review hearing
    did not proceed until March 2010.  By that
    time, Mr. Young was back living in the community.  CAMH maintained the position that a detention
    order was the appropriate disposition.  Counsel for Mr. Young submitted that the Review Board should order Mr.
    Young conditionally discharged on terms similar to those that had been imposed
    in the prior orders.

[7]

At the commencement of the annual review hearing
    in March 2010, the Board was asked to consider the effect of Mr. Youngs
    confinement in October 2009 pursuant to the
Mental
    Health Act
on the Boards obligations under Part XX.1 of the
Criminal Code
.  The Review Board ultimately determined that Mr.
    Youngs confinement under the
Mental
    Health Act
constituted a restriction on Mr. Youngs liberty that necessitated
    notification to the Review Board and a hearing under s. 672.81(2.1).  That hearing should have occurred soon after
    Mr. Youngs detention.

[8]

The Review Board then proceeded with its annual
    review of Mr. Youngs status.  The Review
    Board considered Mr. Youngs history in some detail.  It appeared that a new psychiatrist had taken
    charge of Mr. Youngs care in the summer of 2009 and that difficulties had developed
    as a result of Mr. Youngs reaction to the more proactive approach taken by
    those who became responsible for his treatment.  In the end, the Review Board decided to continue the order allowing Mr.
    Youngs discharge on conditions.  The
    Board imposed various conditions, two of which were new and are of some
    significance to this appeal.  Those terms
    required that Mr. Young:

·

upon notice by the person in charge of the
    hospital, will immediately submit to attendance and for readmission to
    hospital;  and

·

upon the request of the hospital, attend for
    psychiatric assessment, and upon notice of the person in charge, attend for
    admission to the hospital.

[9]

In addition, the Review Board, acting pursuant
    to s. 672.55(1) of the
Criminal Code
and
    with Mr. Youngs consent, required him to take his medication as required and
    to submit to testing to monitor his compliance with that direction.

[10]

CAMH appeals the disposition raising three
    issues:

·

Did the Review Board err in holding that
    confinement pursuant to the
Mental Health
    Act
triggers the requirement that the Review Board conduct a restriction of
    liberty hearing pursuant to s. 672.81(2.1)?

·

Did the Review Board err in law by imposing a
    disposition that blended a conditional discharge with a detention order
    resulting in a disposition that was not available under either ss. 672.54(b) or
    672.54 (c) of the
Criminal Code
?

·

If the Review Boards disposition was a
    conditional discharge under the terms of s. 672.54(b), was that order unreasonable
    in all the circumstances?

II

Was the Board Required to Hold a Restriction of Liberty Hearing When Mr.
    Young was Confined Under the
Mental Health Act
?

[11]

The disposition under appeal was made at the conclusion
    of the Review Boards annual review of Mr. Youngs status:  see s. 672.81(1).  In the course of its reasons, the Review
    Board found that Mr. Youngs confinement under the
Mental Health Act
in October 2009 triggered CAMHs obligation to
    notify the Board, which in turn required the Board to hold a hearing.  This finding ultimately had no effect on the
    Review Boards disposition or on Mr. Youngs status, and it is therefore
    unnecessary, in resolving the appeal, to determine the merits of the Boards conclusion.  Nevertheless, it is, I think, appropriate for
    this court to decide whether confinement under the
Mental Health Act
triggers the obligations under Part XX.1 of the
Criminal Code
.

[12]

Persons who are subject to dispositions under
    Part XX.1 will no doubt from time to time find themselves confined under the
Mental Health Act
.  This court should resolve the question raised
    on this appeal so that institutions like CAMH, as well as the Review Board,
    understand their obligations where a person who is subject to a disposition
    under Part XX.1 finds him or herself confined under the terms of the
Mental Health Act
.

[13]

With due respect to the contrary view expressed
    by the Review Board (and the Review Board differently constituted in other
    cases), I think the language of the
Criminal
    Code
clearly indicates that confinement under the
Mental Health Act
does not trigger the hearing requirement under s.
    672.81(2.1).

[14]

Under Part XX.1, the Review Board can make dispositions
    that include conditions allowing the person in charge of the hospital to
    increase or decrease the restrictions on the liberty of the person who is subject
    to the disposition:  see s.
    672.56(1).  Where the person to whom the
    power is delegated exercises it to restrict the liberty of the individual subject
    to the disposition, the added restriction is an exercise of the Review Boards
    power over the person subject to the disposition.

[15]

The person exercising the discretion in a manner
    that limits the liberty of the person subject to the disposition must comply
    with s. 672.56(2), which provides:

A person who increases the restriction on the
    liberty of the accused significantly
pursuant to authority delegated to the
    person by a Review Board shall


(a)

make
    a record of the increased restrictions on the file of the accused; and

(b)

give
    notice of the increase as soon as is practicable to the accused and, if the
    increased restrictions remain in force for a period exceeding seven days, to
    the Review Board.  [Emphasis added.]

[16]

The obligation of the Review Board when notified
    of the added restrictions on liberty is set out in s. 672.81(2.1):

The Review Board shall hold a hearing to review a
    decision to significantly increase the restrictions on the liberty of the
    accused, as soon as practicable
after receiving the notice referred to in s.
    672.56(2).
[Emphasis added.]

[17]

The
    language of the
Criminal Code
provisions leaves no doubt.  The
    obligation to hold a hearing found in s. 672.81(2.1) is triggered by the
    provision of notice to the Review Board, as set out in s. 672.56(2).  That notice is to be provided when
    restrictions on the liberty of an accused are significantly increased by a
    person acting pursuant to authority delegated to the person by a Review
    Board.  The purpose of the hearing is to
    review the restrictions resulting from that exercise of discretion.

[18]

The Board has a supervisory role over all of its
    dispositions, including those where it has delegated to someone else the power
    to restrict the liberty of an individual subject to a disposition.  Where the Review Board has made such an order
    and the power to restrict liberty is exercised, the Review Board, as the entity
    ultimately responsible for the order, must review it.  The relevant provisions of Part XX.1 provide
    for the necessary oversight and ensure that the Review Board will be aware of
    and ultimately responsible for any restrictions imposed under its
    authority.

[19]

An involuntary committal under the
Mental Health Act
has nothing to do with
    the Review Board or the terms of any disposition made by the Review Board.  Committal under the
Mental Health Act
depends on the criteria set out in that
Act
and is determined using the procedures
    set down in the
Mental Health Act
.

[20]

No one questions the competence of the province
    to enact the
Mental Health Act
.  Those who exercise confinement powers under
    the
Mental Health Act
are not subject
    to the authority of the Review Board or to the terms and conditions imposed by Part
    XX.1 of the
Criminal Code
.  The Review Board has no oversight role to
    play in connection with the exercise of powers under the
Mental Health Act
.  The
    exercise of those powers is reviewable by the Consent and Capacity Review Board:
    see
Mental Health Act
s. 39.  Confinement pursuant to the
Mental Health Act
is not a restriction
    on liberty made pursuant to any authority delegated to hospital personnel by
    the Review Board and is, therefore, not subject to the requirements of s.
    672.81(2.1).

[21]

In holding that an involuntary committal under
    the
Mental Health Act
does not
    trigger the Review Boards obligation to conduct a restriction on liberty
    hearing, I do not disregard the submissions of all counsel that it is important
    that the Review Board be made aware of any restrictions on the liberty of
    persons subject to a Review Board disposition.  Clearly, if a person subject to a Review Board disposition is confined
    under the terms of the
Mental Health Act
,
    the Review Board should be made aware of that order.

[22]

Steps can be taken to require that the Review Board
    be notified of any confinement under the
Mental
    Health Act
without torturing the language of the relevant sections of the
Criminal Code
.  The Review Board has the power to impose
    conditions, both in respect of detention orders and conditional discharges.  Those conditions can require the hospital to
    take certain steps, including notification to the Review Board if a person subject
    to a disposition is confined under the terms of the
Mental Health Act
.  If the Review
    Board includes that condition in its disposition and if it is notified that the
    person subject to the disposition has been confined under the
Mental Health Act
, the Review Board has
    the discretion to direct a hearing before it pursuant to s. 672.82(1) of the
Criminal Code
.  That section reads:

A Review Board may hold a hearing to review any of its
    dispositions at any time, of its own motion or at the request of the accused or
    any other party.

[23]

The approach that provides for notice to the Review
    Board of committal under the
Mental
    Health Act
as a condition of the Boards disposition, combined with the
    Review Boards exercise of its discretion to review its own disposition, is
    consistent with the language of the relevant sections of the
Criminal Code
and with the function of
    the Review Board.  That approach maintains
    the Review Boards focus on its own dispositions rather than on the merits of
    any intervening order made by an independent authority.

[24]

For the reasons set out above, the Review Board
    erred in finding that involuntary committal under the
Mental Health Act
for a period in excess of seven days triggered CAMHs
    obligation to give notice under s. 672.56(2), and in turn the Boards
    obligation to hold a hearing under s. 672.81(2.1).  That error, however, had no effect on the
    ultimate disposition imposed by the Board.  I turn now to the grounds of appeal that challenge that
    disposition.

III

Was the Review Boards Disposition Beyond the Scope of the Remedial Powers
    in Sections 672.54(b) and (c)?

[25]

Before the Review Board, and in this court, all
    parties agreed that Mr. Young, by virtue of his mental disorder, poses a
    significant threat to the safety of the public.  He could not be absolutely discharged.  The Review Board had two options.  It could discharge Mr. Young on conditions, as it had in the previous
    three orders, or it could order his detention in CAMH and give the person in
    charge the authority to allow Mr. Young to live in the community.  The Board had made this type of order prior
    to 2006.

[26]

The important difference between a conditional
    discharge and a detention order lies in the mechanism available to the hospital
    to return Mr. Young to the confinement of the hospital if necessary for the
    safety of the public.  If the Review
    Board released Mr. Young on a conditional discharge, it could return him to the
    hospital by convening a new hearing under s. 672.82(1), by resorting to the provisions
    governing breaches of conditional discharges found in s. 672.92, or through the
    committal provisions available under the
Mental
    Health Act
.  If, however, Mr. Young
    were subject to a detention order, he would be at large under the terms of a warrant
    of committal issued pursuant to s. 672.57.  If CAMH determined that the safety of the public required Mr. Youngs
    confinement in the hospital, it could simply direct the authorities to exercise
    the warrant and return Mr. Young to the hospital.  Re-confinement of persons who are subject to a
    detention order is significantly more expeditious than re-confinement of
    persons at large on a conditional discharge.  Re-confinement of persons under detention orders is also available as a
    preventative measure, whereas re-confinement of those under a conditional
    discharge will usually be available only after a breach of the conditions of
    that order.

[27]

The Review Board was faced with a difficult
    situation.  Mr. Young had fared quite well
    in the community for many years.  However, his condition had quickly and significantly deteriorated in the
    late summer and fall of 2009.  By the
    time the Review Board hearing commenced in March 2010, Mr. Youngs condition
    had settled and he was again doing relatively well in the community.  However, he continued to have no insight into
    his problems and was reluctant to participate in any treatment programs.

[28]

The Review Board decided that Mr. Young should
    remain in the community under a conditional discharge.  It attempted to address concerns for public
    safety should Mr. Young decompensate again by directing that he was required to
    return and be readmitted to the hospital if so directed by the person in charge
    of CAMH.

[29]

Counsel for CAMH submits that the Review Board
    was properly concerned about the risk Mr. Young posed should his condition once
    again deteriorate.  The Review Board
    appreciated that his speedy return to CAMH might be necessary for the safety of
    the public.  Counsel contends, however,
    that the disposition fashioned by the Review Board is, in effect, an amalgam of
    a conditional discharge and a detention order and is not an order that can be
    made under s. 672.54.

[30]

Counsel for CAMH interprets the Review Boards
    disposition as discharging Mr. Young conditionally, while at the same time
    imposing terms that would allow the hospital to require Mr. Youngs continued
    confinement at CAMH.  Counsel correctly
    submits that s. 672.54 does not contemplate a disposition in the form of a conditional
    discharge that includes conditions that give the hospital authorities the
    discretion to unilaterally remove the individual from the community and return
    that person to confinement within the hospital:  see
Brockville Psychiatric
    Hospital v. McGillis
(1996), 93 O.A.C. 226 at paras. 2-4 (C.A.);
Forensic Psychiatric Institute (B.C.) v.
    Johnston et al.
(1995), 66 B.C.A.C. 34 at paras. 48-59 (C.A.).

[31]

Counsel for Mr. Young and counsel for the
    Attorney General agree that a conditional discharge cannot contain a term
    authorizing the hospital to re-confine the individual within the hospital.  They submit, however, that properly
    interpreted, the Review Boards order does not have that effect.

[32]

I agree with this submission.  The Review Boards disposition required Mr.
    Young to submit for readmission to CAMH if directed by the appropriate
    authority.  The terms of the disposition
    did not, however, and in my view could not, authorize the hospital to have Mr.
    Young forcibly returned to CAMH against his will and confined there.    The
    disposition made by the Review Board gave CAMH the power to require Mr. Young
    to attend for readmission to CAMH.  The
    terms also required Mr. Young to comply with the direction of CAMH.  If Mr. Young refused to comply, he would be
    in breach of the conditions of the order.  As with any breach of a provision of a conditional discharge, CAMH would
    have available to it the provisions of ss. 672.91, 672.92 and 672.93.  None of those provisions gives CAMH the power
    to have Mr. Young arrested, brought back to CAMH against his will and confined
    there.  While the two new terms imposed
    by the Review Board could properly be attached as conditions to a conditional
    discharge, a breach of those conditions triggers the breach provisions and does
    not give CAMH the power to detain Mr. Young.  He could only be confined in CAMH following a breach if so ordered by a justice
    pursuant to s. 672.93(2).
[1]


[33]

The Review Boards disposition is a conditional
    discharge within the meaning of s. 672.54(b).  That interpretation leads to the third issue.  Was the Review Boards disposition unreasonable?

IV

Was the Disposition Unreasonable?

[34]

The reasonableness standard of review as applied
    to decisions of the Review Board is articulated in
R. v. Owen
, [2003] 1 S.C.R. 779  at para. 33:

[T]he Court of Appeal should ask itself whether the
    Boards risk assessment and disposition order was unreasonable in the sense of
    not being supported by reasons that can bear even a somewhat probing
    examination... If the Boards decision is such that it could reasonably be the
    subject of disagreement among Board members properly informed of the facts and
    instructed on the applicable law, the court should in general decline to
    intervene.

[35]

Counsel for CAMH agrees that Mr. Young should be
    living in the community.  Counsel
    submits, however, that he should be doing so under the terms of a detention
    order which allows the person in charge at CAMH to bring Mr. Young back into CAMH
    quickly should he decompensate as he did in the summer of 2009.  In making this submission, counsel refers to
    Mr. Youngs longstanding refusal to engage in any meaningful way in the
    treatment process and the risk that Mr. Young poses should he go off his
    medication.  Counsel submits that the
    conditions attached to the conditional discharge aimed at securing Mr. Youngs
    re-confinement in CAMH, if necessary, cannot adequately protect the public in
    that they do not allow CAMH to act expeditiously or even pre-emptively should
    Mr. Young stop taking his medication and become a danger to the public.

[36]

The Review Boards reasons are detailed and
    thoughtful.  It was acutely aware that
    the discharge of Mr. Young did pose potential risks to the public despite his
    relative success living in the community for many years.  The extracts from the Review Boards reasons
    set out below demonstrate its appreciation of Mr. Youngs condition:

The overall picture presented in so describing the
    accuseds behaviour over the years is one that describes an accused whose risk
    is associated with a psychotic illness with Bipolar Disorder and an AXIS II
    Personality Disorder.  It appears that
    the Bipolar Disorder is under control and stabilized for the most part, however
    the accuseds persistent and adamant refusal to communicate with his caregivers
    in this Boards view has resulted in an incomplete rehabilitation path. The
    Board tends to agree with Dr. Cohens observations that the accused has flown
    under the radar for some time, not because his caregivers were not aware of
    the communication problems with the accused, but because addressing them from a
    risk perspective has been incomplete.

Based on the evidence, the Board is not at all
    satisfied that the accused has sufficient insight into the relationship between
    his diagnosis and the happening of the index offences.  He has consistently refused to reveal
    anything of a personal nature to his caregivers or shared such information in
    groups when he did attend them and he has minimized or denied that he might
    represent a risk to others in the future.   Instead his concerns seem to be almost entirely self-centered.  He blames others for his problems.  He feels he is being mistreated by the
    Ontario Review Board and by his treatment team.  He gets angry by his needs not being immediately met.  He is upset that others may become aware of
    his criminal record and legal involvement.  He becomes offended that he might have been symptomatic or
    non-compliant.

...

Dr. Cohen expressed his concern that when those
    persons closest to the accused noticed signs of anger and irritability it was
    not reported to the hospital.  The
    essence of the hospitals concern is that to properly monitor the accused for
    compliance with medication and to be able to enforce the lithium level testing
    and to immediately deal with any relapse or emergence of symptoms, a custodial
    order represents the best vehicle for this.  On a conditional discharge the hospital feels hampered by the
    comparative uncertainty of being able to readmit the accused to hospital.  It is concerned that criteria which would
    otherwise enable it to quickly respond on a custodial disposition might not
    qualify for readmission under the
Mental
    Health Act
.  An example of this is
    the patients recent refusal to submit blood to measure his lithium levels.

[37]

The situation faced by the Review Board was
    similar to that found in
R. v.
    Breitwieser
(2009), 99 O.R. (3d) 43 (C.A.), a case referred to by the
    Review Board in its reasons.  In
Breitwieser
, as in this case, the primary
    concern was the risk to the public should the accused stop taking his
    medication.  This court said, at para.
    18:

In our view, in any case where the primary issue is
    compliance with conditions, and there is an air of reality to the claim that a
    conditional discharge would be an appropriate disposition, the Board must
    address these two elements. First, the Board must canvass whether the accused
    will consent to appropriate conditions under s. 672.55. Second, it must address
    the potential mechanisms for the accused's return to the hospital in the event
    of non-compliance, and determine whether the patient is likely to agree to
    return or whether a combination of s. 672.55 and either s. 672.92 or s.
    672.93(2) or another route of return would be sufficient in the circumstances.
    The Board must consider these elements in light of the legislative scheme and the
    requirement of s. 672.54 that, after taking into consideration the designated
    factors, the Board must make the disposition that is the least onerous and least
    restrictive to the accused.

[38]

The Review Board followed the direction in
Breitwieser
.  After noting the risk factors described above
    and Mr. Youngs guarded willingness to co-operate with those responsible for
    his treatment after his confinement in the fall of 2009, the Review Board went
    on to say:

The accused was presented with the option of agreeing
    to a condition that he take his prescribed medication and submit to lithium
    level testing in a conditional discharge.  The accused agreed to both of these conditions and indeed he had signed
    a risk management plan on his discharge from hospital in December 2009 in
    which, among other things, he agreed to regular urine drug screens and lithium
    levels as well as consenting to a psychiatric assessment.

The Board has taken into consideration Mr.
    Youngs above noted agreement and along with an additional condition that he
    submit to readmission to hospital upon demand by the person in charge,
the
    Review Board is of the unanimous opinion that a conditional discharge with
    these appropriate conditions represents the least onerous and least restrictive
    order for the accused at this time.  [Emphasis added.]

[39]

It is not suggested that the Review Board
    misapprehended material evidence or failed to consider material evidence.  On my review of its reasons, the Review Board
    was alive to the very real possibility that Mr. Young would not avail himself
    of treatment opportunities and could discontinue his medication.  At the same time, the Board was obligated to
    give significant weight to Mr. Youngs past performance while under various
    dispositions.  The Board also understood
    that a detention order would be seen by Mr. Young as very much a step backward that
    could well have a significant negative impact on him.

[40]

I think the order fashioned by the Review Board
    recognized Mr. Youngs performance in the community over several years, while
    at the same time identified the very real risk management concerns associated
    with Mr. Young.  The disposition order
    made addresses, in my view, Mr. Youngs best interests and the public safety
    concerns in a manner that is consistent with the statutory scheme of Part XX.1.  The order is not an unreasonable one.

V

Conclusion

[41]

I would dismiss the appeal.

RELEASED:
DD  JUN
    07 2011

Doherty J.A.

I agree S.T. Goudge J.A.

I agree Robert P.
    Armstrong J.A.





[1]
Section 672.92(1)(b) allows a peace officer who has decided to release a person
    subject to a disposition order to deliver the person to the place specified in
    that order.  It does not appear to me,
    however, that the section gives the hospital any authority to hold the person
    so delivered against his or her will.


