



COURT OF APPEAL FOR ONTARIO

CITATION: Atkinson (Re), 2020 ONCA 152

DATE: 20200226

DOCKET: C66678

Simmons, Watt and Miller JJ.A.

IN THE MATTER OF:  Sharon Atkinson

AN APPEAL UNDER PART XX.1 OF THE
CODE

Mercedes Perez, for the appellant

Sean Horgan, for the Attorney General
    of Ontario

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

Heard: October 25, 2019

On appeal against the disposition of the
    Ontario Review Board, dated January 10, 2019.

REASONS FOR DECISION

[1]

On May 2, 2000 Sharon Atkinson (the appellant)
    was found not criminally responsible on account of mental disorder (NCRMD) on a
    single count of arson. She set her bed on fire and left the home in which she
    lived. No one was injured. The fire caused property damage of about $5,000.

[2]

During the first decade of her supervision by
    the Ontario Review Board, the appellant was detained at CAMH. From the outset,
    she was found treatment incapable. Her mother has served and continues to serve
    as her substitute decision-maker (SDM).

[3]

In early 2010, the appellant was discharged from
    CAMH to reside at Christian Horizons Group Home (CH), a locked facility with 24-hour
    supervision. To this day the appellant remains a resident of that facility.

The Background Facts

[4]

For our purposes, the essential background may
    be recounted briefly.

The Pre-Board History

[5]

The appellant's mental health issues became
    apparent in her behaviour as she progressed through elementary school. There
    were incidents of self-harm, theft and property damage. Her behaviour was
    impulsive. At times, she was physically and verbally abusive towards her
    parents. In school, the appellant had problems in all academic areas. She was
    at least two years below age expectation. Her impairments compromised her
    ability to assimilate non-verbal social cues and the other information needed
    for good social judgment.

[6]

At age 15, the appellant was diagnosed with Prader-Willi
    syndrome. Behavioural problems associated with this syndrome include
    impulsivity, stubbornness and temper tantrums. Those afflicted are often
    manipulative, perseverative, egocentric and demanding. The appellant's behavioural
    problems escalated at age 16. She frequently ran away from her parents' home.
    Out of fear, her parents locked their bedroom door at night.

[7]

In 1997, at age 17, the appellant was placed in
    a group home.

The CAMH Years

[8]

After she was found NCRMD, the appellant was
    placed in a group home. Shortly after this placement, she stole a van, tried to
    leave the group home and crashed the van into a tree. She was then transferred
    to CAMH where she remained until her discharge to CH in 2010.

[9]

In her early years at CAMH, the appellant was a
    management problem. She set fires. She harassed and stalked male co-patients.
    Her conduct was oppositional, her behaviour, sexually inappropriate. She was
    assaultive, abusive, manipulative and threatening with staff and co-patients.

The Discharge to Supervised Housing

[10]

On January 12, 2010 the appellant was discharged
    from CAMH to reside at CH in Brampton. This is a secure residence with 24-hour
    supervision and 12 hours of daily programming.

The CH Residency

[11]

In the early years at CH, behavioural problems
    persisted. Elopements, sometimes requiring police assistance. Physical
    altercations with staff and other patients. Overnight visits with her parents terminated
    prematurely because the appellant became unmanageable.

[12]

As her tenure at CH continued, the appellant's
    conduct fluctuated between adherence to the behavioural plan put in place for
    her and disobedience of it. Aggressive and assaultive behaviour occurred,
    usually when the appellant felt that her needs had not been met. From time to
    time, the appellant expressed her desire for an absolute discharge. Her
    proposals included living with her family or moving elsewhere, perhaps to
    Ireland. None of these proposals were viable.

The Diagnosis and Risk Assessment

[13]

To understand and evaluate the appellant's
    current and future risk, it is important to understand the condition or
    conditions that contribute to that risk.

[14]

Although actuarial testing has not been carried
    out with respect to the appellant because it is considered inapplicable to her
    situation, her score on an instrument designed to assess the likelihood of
    violent recidivism disclosed that she is a moderate-high risk of violent
    recidivism. She scored full points for historical items like previous violence,
    personality disorder and prior supervision failure. Clinical items included
    impulsivity and risk items, plans lacking feasibility and exposure to destabilizers.

[15]

Behavioural difficulties and emotional lability
    are characteristics of Prader-Willi syndrome. The appellant is stubborn,
    impulsive and prone to temper tantrums.

[16]

The appellant suffers from a mild intellectual
    disability which makes it difficult for her to learn new skills, and access
    appropriate social judgment. She also suffers from certain maladaptive
    personality characteristics of the borderline, narcissistic and antisocial
    personality spectrum. She displays a pervasive pattern of having little regard
    for the rights of others and little empathy or remorse for her actions. In her
    interactions with others, she is self-serving and egocentric.

The Current Disposition

[17]

The current disposition issued by the Board
    about 13 months ago is a conditional discharge including residency and
    reporting conditions.

The Grounds of Appeal

[18]

The appellant seeks an absolute discharge, in
    the alternative, a new hearing before a differently constituted Board. She
    advances two grounds of appeal, contending that the Board erred:

i.

in finding that the appellant was a significant
    threat to the safety of the public; and

ii.

in finding the civil mechanisms available,
    together with an absolute discharge, inadequate to control the risk to public
    safety.

[19]

In our view, this appeal fails.

Ground #1: The Significant Threat Finding

[20]

The appellant challenges the Board's finding of significant
    threat" as unreasonable and unsupported by the evidence. According to the
    appellant, the Board failed to focus on the fundamental issue  significant
    threat"  instead rested their conclusion on their concern about the
    consequences of an absolute discharge. In the result, the Board failed to
    consider the core question of whether there was a serious likelihood that the
    appellant would commit an offence involving serious harm. The conclusion of significant
    threat" was speculative, not the product of reasonable inference drawn
    from the evidence adduced before the Board.

[21]

The appellant says that the evidence adduced,
    considered as a whole, cannot support a reasoned conclusion that the appellant
    remained a significant threat to the safety of the public almost 20 years after
    her index offence. In two decades, the appellant has not been involved in any
    assaultive behaviour resulting in serious physical or psychological harm. In
    the year under review, the appellant had made significant improvements
    clinically, in particular, in the areas of self-regulation and de-escalation.
    She has not been returned to a psychiatric facility since her discharge in
    2010. Any problematic behaviour is associated with the Prader-Willi syndrome
    and did not reach the level of significant threat. She made no attempt to elope
    from her residence permanently.

[22]

Satisfied that the finding of significant threat
    was within the range of reasonable outcomes available on the evidence adduced
    at the hearing, we reject this ground of appeal.

[23]

In its assessment of whether the significant
    threat" threshold had been established, the Board was entitled to examine
    a range of evidence. The circumstances of the index offence. The past and
    expected course of the appellant's treatment. The appellant's current condition
    and future plans. The availability of support services in the community. And,
    perhaps most importantly, the recommendations of those who have examined the
    appellant:
Winko v. British Columbia (Forensic Psychiatric Institute)
,
    [1999] 1 S.C.R. 625, at paras. 57, 61, 69.

[24]

In this case, the Board was considering a person
    who had a genetic condition  Prader-Willi syndrome  that will never change
    and causes her to be impulsive, stubborn and subject to emotional dysregulation.
    In addition, she suffers from a significant mental disorder  personality disorder
    not otherwise specified  and a mild intellectual disability that results in
    her functioning at the level of an elementary school child. Her personality
    disorder involves a pervasive pattern that includes little regard for the
    rights of others, little empathy or remorse for her conduct and a self-serving
    and egocentric approach to her interactions with others. She has a robust
    history of elopement and of violence, threats and inappropriate behaviour when
    her needs are not met.

[25]

The Board also had evidence that the appellant
    was a moderate-high risk to recidivate. She has an extensive history of
    violence, albeit not severe violence, more likely than not to occur when her
    demands are not met immediately. Absent the significant support and supervision
    provided under her current disposition, the appellant would most likely revert
    quickly to inappropriate behaviour which would place not only herself, but also
    the community at risk.

[26]

Beyond the fervent hope for an absolute
    discharge, the record before the Board reveals no realistic plan for the
    appellant were an absolute discharge ordered. Her tenure at CH would be over,
    so too its supervision and the administration of vital medication. Left to her
    own devices and unmedicated, recidivism would be likely to occur. Not only did
    the evidence before the Board satisfy the significant threat" threshold,
    it put paid to any claim of an absolute discharge as a necessary and
    appropriate disposition.

Ground #2: The Sufficiency of Civil Mechanisms

[27]

The appellant also argues that the Board
    misapprehended the sufficiency of civil mechanisms, available together with an
    absolute discharge, to reduce the risk of recidivism below the significant
    threat" threshold. This error, the appellant says, is linked to the Boards
    antecedent finding of substantial threat.

[28]

In large measure, this argument fails once the
    Board's core finding of significant threat" is sustained. For a finding
    of significant threat excludes any prospect of an absolute discharge under s.
    672.54(a) of the
Criminal Code
. In any event, we are not persuaded
    that any such error appears in the reasons of the Board.

[29]

The record before the Board is barren of any
    evidence that would give an air of reality to the submission that civil
    mechanisms available under provincial legislation, coupled with an absolute
    discharge, would reduce the risk of recidivism below the significant threat
    threshold.

[30]

The appellant conceptualizes an absolute
    discharge as removing legal barriers to doing as she wishes to do. None of her
    plans for accommodation have any basis in reality. She made it clear by
    interjections at the hearing that she would not return to CAMH. She was not
    eligible for a Community Treatment Order. Even if she were to become eligible,
    her SDM, her mother, would not consent to such an order. Once out of CH, thus the
    supervision of the Board, the mechanisms available under provincial legislation
    would not assist in alleviating the risk.

Disposition

[31]

The appeal is dismissed.

Janet Simmons J.A.

David Watt J.A.

B.W. Miller J.A.


