



COURT OF APPEAL FOR ONTARIO

CITATION: Campbell (Re), 2019 ONCA 973

DATE: 20191211

DOCKET: C66819

Lauwers, van Rensburg and Hourigan JJ.A.

IN THE MATTER OF: Angela Campbell

AN APPEAL UNDER PART XX.1 OF THE
CODE

Meaghan McMahon, for the appellant

Amy Alyea, for the respondent, the Attorney General of
    Ontario

Marie-Pierre T. Pilon, for the respondent, the
    Person-in-Charge for the Royal Ottawa Mental Health Centre

Heard: November 8, 2019

On appeal from the disposition of the Ontario Review Board,
    dated November 15, 2018, with reasons dated December 10, 2018.

REASONS FOR DECISION

[1]

The appellant, Angela Campbell, appeals the disposition
    of the Ontario Review Board, dated November 15, 2018. Ms. Campbell says that,
    in concluding that she continues to pose a significant threat to the safety of
    the public, and thus refusing an absolute discharge, the Board reached an
    unreasonable decision, and made improper use of two unproven allegations
    against her.

[2]

Ms. Campbell was found not criminally responsible
    on account of mental disorder (NCR) in June 2004 as a result of an offence on
    March 3, 2004. She was 20 years old at the time. The index offence involved the
    theft of a motor vehicle and assault on police officers that occurred after she
    was taken into custody. Ms. Campbell had a history of mental illness,
    having been first diagnosed with schizoaffective disorder, alcohol abuse
    disorder and conduct disorder at age 18.

[3]

After her NCR verdict, Ms. Campbell was
    initially detained at the Brockville Psychiatric Hospital. There were a number
    of unsuccessful attempts to place her in the community in 2006 and 2007. In
    2014, after ten years in Brockville, she was transferred to the Royal Ottawa
    Hospital (the Hospital). In November 2017, Ms. Campbell was discharged
    with conditions to a group home in Ottawa. After an incident at the group home,
    she was readmitted to the Hospital in February 2018.

[4]

The Board convened in March 2018 for a
    restriction of liberties hearing. On that occasion, Ms. Campbells treating
    psychiatrist, Dr. Joel Watts, raised the issue of whether she continued to
    represent a significant threat to the safety of the public. The Board
    determined that it did not have enough information to hold an early hearing on
    the issue of significant threat and adjourned the matter to August 24, 2018.

[5]

Following the March 2018 hearing, Ms. Campbell was
    discharged back to the group home. On May 29, 2018, she had a verbal
    altercation with a co-resident of the home who reported that Ms. Campbell had
    threatened to kill him, and he felt unsafe (the May 29 incident). She was
    also reported to have been verbally and physically aggressive with staff and
    other co-residents.

[6]

At the hearing on August 24, 2018, Dr. Watts
    again expressed the opinion that Ms. Campbell, although not complying with the
    conditions of her disposition (she was using substances and was no longer
    taking her mood stabilizer and one of her two anti-psychotic drugs), did not
    show evidence of behaviour that meets the threshold of significant threat. Dr.
    Watts had not confirmed whether Ms. Campbell would continue her injectable
    anti-psychotic medication if she received an absolute discharge. The Crown had
    filed the 2014 and 2015 Hospital reports and sought to call other evidence. The
    hearing was adjourned to November 13, 2018.

[7]

On October 23, 2018, Ms. Campbell was dropped
    off at the group home by police who did not explain why. After showing bizarre
    and disruptive behaviour, Ms. Campbell was persuaded by a staff member to
    attend the Hospital where she was admitted. In the interim, it was determined
    that Ms. Campbell had been charged with assault after she allegedly kicked and
    spat on a fellow passenger on an OC Transpo bus on October 23rd (the OC
    Transpo incident).

[8]

At the November 13, 2018 hearing (which was both
    an annual review and a restriction of liberties hearing), Dr. Watts advised
    that the Hospitals position had changed. He and the treatment team now took
    the position that Ms. Campbell was a significant threat to the safety of the
    public and that she should be maintained on her current disposition order
    (which required her detention at the Secure Forensic Unit of the Hospital, with
    privileges up to and including to live within the community in accommodation
    approved by the person-in-charge).

[9]

The Board concluded that Ms. Campbell continued to
    represent a significant threat to the safety of the public. The Board also
    concluded that Ms. Campbells return to the Hospital was necessary, appropriate
    and justified. The Board confirmed the continuation of her current disposition
    as the least onerous and least restrictive in the circumstances.

[10]

At the November 2018 hearing, the Board had
    additional evidence with respect to the May 29 incident. It had summonsed Emily
    Armstrong, an employee of the group home to give evidence at the hearing, and
    had notes from the group home. With respect to the OC Transpo incident, the
    Board had the Crown brief, the police summary, and a victim statement.

[11]

The Board also had evidence about Ms. Campbells
    behaviour after the August 2018 hearing, including the events precipitating her
    readmission to the Hospital and her conduct while in the Hospital, both before
    and after her readmission. This information was detailed in an updated Hospital
    report and set out in the evidence of Dr. Watts. Ms. Campbell did not testify
    at the hearing, although she interjected comments at various times.

[12]

In concluding that Ms. Campbell continued to
    represent a significant threat to the safety of the public, the Board noted
    that until this particular hearing, the panel had struggled with trying to
    assess the degree of risk that Ms. Campbell presented. This was due to the lack
    of detailed descriptions in the Hospital reports and in
viva voce
evidence of the physical and verbal aggression attributed to her over the years
    in the Hospital. It was difficult to ascertain from the Hospital records
    whether Ms. Campbells conduct went beyond what was only trivial or annoying or
    whether there was a risk of serious physical or psychological harm.

[13]

The Board turned to the information about the
    May 29 incident that was recorded by the group home residential worker, Ms.
    Armstrong. The notes set out details of threats that Ms. Campbell made to Ms.
    Armstrong and two co-residents, and that one co-resident called the police. Ms.
    Armstrong testified that Ms. Campbell said nothing had happened. Although Ms.
    Armstrong had not heard the threats to the other residents, she had spoken to
    them and was aware that one co-resident feared for his safety. She acknowledged
    that Ms. Campbell was not physical towards her, but had made a kicking motion
    to warn her not to come too close.

[14]

The Board noted that Ms. Campbells reported
    conduct in threatening to kill a co-resident could have resulted in criminal
    charges, but because of her disposition, it was likely the case that the police
    had left it to Ms. Campbells hospital worker to determine what steps should be
    taken. The Board concluded that the circumstances involving a threat to a
    fellow resident and his fear for his safety provided evidence of the threat of
    serious psychological harm by Ms. Campbell.

[15]

The Board also considered the OC Transpo
    incident and relied on the Crown brief. The Board noted that, on her
    readmission to the Hospital on October 24th, Ms. Campbell reported that she had
    accidentally hit a Chinese girl with her foot and had been arrested. The
    evidence in the Crown brief was largely unchallenged. After acknowledging that
    the charges were still before the court (they have since been resolved with Ms.
    Campbell entering into a peace bond), the Board concluded on a balance of
    probabilities that the assaultive event on the OC Transpo bus occurred. It took
    this into consideration in determining that Ms. Campbells conduct met the
    significant threat threshold. Further, the Board noted that the OC Transpo
    incident should be viewed in the context of certain bizarre text messages Ms.
    Campbell sent around October 22, 2018, the conduct precipitating and following her
    readmission to the Hospital, and Dr. Watts opinion that there had been an
    escalation of Ms. Campbells manic behaviour consistent with hypomania
    associated with schizoaffective disorder.

[16]

On appeal, counsel argues that the Boards
    determination that Ms. Campbell continues to pose a significant threat is
    unreasonable and that, in arriving at its conclusion on significant threat, the
    Board improperly relied on unproven allegations with respect to the May 29
    incident and the OC Transpo incident. In particular, Ms. Campbell submits that
    the Board ought not to have given the weight that it did to the May 29 incident
    or the OC Transpo incident because the information it had was hearsay. Ms.
    Campbell had denied the OC Transpo incident and the charges had not been
    resolved.

[17]

We disagree.

[18]

The Board identified and applied the correct
    test for whether Ms. Campbell continued to pose a significant threat: there
    must be a real risk of physical or psychological harm from conduct that is
    criminal in nature and must go beyond what is only trivial or annoying: See
Winko
    v. British Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625, at
para. 57
.

[19]

The Board acknowledged that there had been doubt
    on this question before, and it ensured that it had all of the necessary
    information to be able to make a fully informed decision on this important
    question. Contrary to the appellants submission, the Board was entitled to
    consider the two incidents that resulted in the police being called,
    notwithstanding that both incidents involved hearsay evidence.

[20]

It is settled law that the Board is entitled to
    receive hearsay evidence, in part because its proceedings are more
    inquisitorial than adversarial:
Re Conway
, 2016 ONCA 918, 135 W.C.B.
    (2d) 147, at para. 31. Information from a police occurrence report is a form of
    hearsay evidence and may be received and considered by the Board. Indeed,
    [i]nformation about prior behaviour that led to police involvement can be
    useful in assessing whether an accused poses a significant threat to the safety
    of the public and in determining the appropriate disposition:
Re Ranieri
,
    2015 ONCA 444, 336 O.A.C. 88, at para. 17.

[21]

Of course, some hearsay evidence will require
    greater scrutiny before the Board can accept it:
Re Conway
, at para.
    31. It is for the Board to evaluate the hearsay evidence while being aware of
    the dangers inherent in evidence of this type:
Re Ranieri
, at para.
    16. The Board must evaluate the evidence having regard to such matters as its
    source and context, and any contradictory information, including any account or
    explanation provided by the accused:
Re Ranieri
, at para. 17.

[22]

Contrary to the submissions made on Ms.
    Campbells behalf, the Board did not accept the May 29 incident and OC Transpo incident
    without the proper level of scrutiny. With respect to the threat to kill a
    co-resident, the co-resident had called the police. There was a note that the
    group home employee and police officer, together with the group home owner, determined
    that Ms. Campbell, while a threat, should stay at the group home for the night.
    This was a better alternative than taking her to a shelter because she had a
    history of substance abuse and that environment might lead her to use again.
    While Ms. Armstrong had not witnessed the threats, she testified that the
    co-resident felt unsafe, remained uncomfortable, and was persuaded by staff to
    tolerate Ms. Campbells presence in the home that night. Moreover, Ms.
    Armstrong had witnessed similar threats in the past.

[23]

As for the OC Transpo incident which led to an
    assault charge, the Board noted that Ms. Campbells explanation was that she
    had hit the victim accidentally. The Board concluded on a balance of
    probabilities that the assaultive event on the OC Transpo bus had occurred. Although
    Ms. Campbell had not been convicted of an offence, and the charges had not been
    resolved at the time of the hearing, it was appropriate for the Board to
    consider the evidence that was available to it concerning the OC Transpo
    incident. The issue for the Board was not to determine whether she was guilty
    of an offence, but to consider her conduct on that occasion as part of its
    evaluation of whether she continued to pose a significant threat to public
    safety: see
Re Ranieri
,

at paras. 16-18.

[24]

Moreover, as noted above, the Board did not rely
    on the OC Transpo incident in isolation. The Board considered this in the
    context of Ms. Campbells bizarre text messages around October 22, 2018, her
    presentation at the group home preceding this event, and her behaviour after
    she was readmitted to the Hospitalthreatening to spit at staff, kick a staff
    member, and strike an orderly with a baseball bat. On one occasion, she
    required four-point restraints.

[25]

We see no error here. The Board was required to
    consider all the evidence that was available to make an informed determination about
    whether Ms. Campbell continued to pose a significant threat of harm to the safety
    of the public. The Board approached its task carefully, as is demonstrated by
    the repeated adjournments to obtain more information. It considered the two
    reports that were based on hearsay and concluded reasonably that the incidents
    had occurred. When these incidents were considered in the context of Ms.
    Campbells history and recent behaviour, it was reasonable for the Board to
    accept Dr. Watts opinion and to find that Ms. Campbell continued to pose a
    significant risk.

[26]

The appeal is therefore dismissed.

P.
    Lauwers J.A.

K.
    van Rensburg J.A.

C.W.
    Hourigan J.A.


