



COURT OF APPEAL FOR ONTARIO

CITATION: Blake (Re), 2021 ONCA 230

DATE: 20210412

DOCKET: C68353

Feldman, Lauwers and Trotter
    JJ.A.

IN THE MATTER OF: Glenroy Blake

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Dena Bonnet, for the respondent, Attorney
    General of Ontario

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

Heard: February 19, 2021 by video conference

On appeal from the disposition of the
    Ontario Review Board, dated May 1, 2020, with reasons dated May 7, 2020.

Feldman J.A.:

A.

Overview

[1]

The appellants annual hearing before the
    Ontario Review Board (the Board) on April 29, 2020 was one of its first hearings
    using zoom technology because of the COVID-19 pandemic that was declared a
    public health emergency in March 2020. Although the appellant had received a
    conditional discharge disposition in the past, he was under a detention order
    at the time of the 2020 hearing. He sought another conditional discharge. The
    Board concluded that the necessary and appropriate disposition was to continue
    the detention order, by which, at the time, the hospital required reporting to
    the Centre for Addiction and Mental Health (CAMH or the Hospital) in-person
    five days a week and frequent urine testing for substance abuse.

[2]

The appellant submits on this appeal that the
    Board erred in law and in fact by failing to grant a conditional discharge. The
    appellant argues that the Board erred by 1) failing to consider the significant
    progress the appellant had made over the last eight months while detained in
    hospital; 2) failing to give sufficient consideration to the effect of the COVID-19
    pandemic on the safety of the appellant and others confined or potentially
    confined in a congregate hospital setting; 3) giving too much effect to the
    potential for a restriction of liberty (ROL) hearing to protect the liberty
    interest of the appellant, in light of the Hospitals unacceptable failure to
    release the appellant following the Boards last ROL disposition; and 4)
    finding that the
Mental Health Act
, R.S.O. 1990, c. M. 7, provisions
    would not be sufficient to return the appellant to the Hospital if it became
    necessary.

[3]

I would not give effect to the appellants
    submissions. However, if at any future hearing, there is a dispute regarding the
    proper interpretation and application of the
Mental Health Act
provisions that allow a hospital to detain a person and about the efficacy of
    those provisions in the context of a conditional discharge disposition, the
    Board should require the parties to provide a complete record and full argument.

B.

Background Facts

[4]

The appellant, aged 38 at the time of the
    hearing, was first hospitalized in 2006 for an instance of First Episode
    Psychosis. He was diagnosed with schizophrenia in 2010. His current diagnoses
    are schizophrenia, unspecified personality disorder, and substance use disorder.
    He has over 30 convictions as an adult, including for weapons-related offences,
    uttering threats, assault, and criminal harassment (typically targeting women
    who did not know him). In 2010, the appellant was found not criminally
    responsible (NCR) in respect of offences that occurred between August 2009
    and March 2010. The offences were failure to comply with a recognizance,
    watching a dwelling house, failure to comply with probation, prowling by night,
    and carrying a concealed weapon.

[5]

Following the NCR finding in September 2010, the
    appellant was an inpatient at CAMH for two years. He was first discharged into
    the community in August 2012. He returned to the Hospital for one brief
    admission in June 2014, then again in November 2014, when he was placed on the
    secure unit under a hybrid order as a result of positive screens for cocaine as
    well as other issues (specifically, allegations of drug trafficking, of plans
    to buy a gun, and reports of gambling on hospital grounds). He was transferred
    to the general unit on September 8, 2015 and discharged to the community on
    January 7, 2016, but admitted again on January 19 following a positive screen
    for cocaine, which he denied, and discharged again on January 29. Following
    four positive screens for cocaine (which he again denied), he was admitted on
    August 25, 2016 and discharged on September 15, 2016.

[6]

On January 24, 2018, the appellant was granted a
    conditional discharge. He had one positive drug screen in February. He was
    admitted twice to the Hospital, once at his own initiative from March 30 
    April 4, and a second time under the
Mental Health Act
Form 1 psychiatric
    assessment, as a result of threats to obtain a firearm and to harm two of his
    previous case managers. A no-trespass order was in place at CAMH against him,
    except for his scheduled appointments.

[7]

In November 2018, although the appellant was
    medication-compliant and not psychotic, he began to decline, missing
    appointments, failing to co-operate with the team or with the Boards conditions,
    screening positive eight times out of ten between November 2018 and February
    2019 for cannabis, and violating the no-trespass order on several occasions.
    Also, in that time period, four female CAMH staff members alleged that he had
    followed them.

[8]

As a result of this decline, the Hospital
    requested an early review of the conditional discharge disposition. On March
    26, 2019, he was placed on a detention order that authorized his readmission to
    hospital if necessary. He was readmitted from July 11 to August 1, 2019 after
    screening positive for cannabis and cocaine. He required restraint and
    seclusion and was described as a high risk for violence. He was released from
    the Hospital on August 1, 2019, when he was discharged back into his residence
    in the community. On August 9, 2019, the Board convened a hearing to review the
    appellants ROL from July 11 to August 1. On August 15, 2019, the Board concluded
    that the appellants ROL had been warranted.

[9]

The appellant, however, was readmitted to the
    Hospital later in August after he again tested positive for cocaine, he missed
    appointments, he met with his case manager in an alleyway to give a urine
    sample, and then the next day was not reachable.

[10]

A second ROL hearing was held on October 9, 2019,
    and on November 4, 2019, the Board released a decision where the majority found
    that while his initial detention in hospital was warranted, the appellants
    continued admission was not. In reasons for that decision released January 14,
    2020, the Board found that his continuing admission is not warranted and is
    neither necessary nor appropriate. Despite that finding, the appellants
    physicians did not discharge him to the community. The appellants lawyer advised
    this court that she had made repeated requests for a discharge between November
    2019 and March 2020. After his March 2020 annual review was postponed until
    April 2020 due to COVID-19, the appellant was discharged on April 28, 2020 
    the day before his hearing. During the period of extended detention, the
    appellant made significant progress in hospital.

C.

Decision of the board

[11]

The Board summarized its findings and reasons
    for its decision that the appellant remained a significant threat to the safety
    of the community, and that a detention order was the least onerous and least
    restrictive disposition for the appellant at para. 50 of its reasons:

The Board finds that a detention order is
    necessary and appropriate. Mr. Blake's early hearing and two ROL hearings in
    2019 attest to the ongoing risk he poses in the community. The early hearing in
    2019 arose from reports of drug use and allegations that Mr. Blake had followed
    female staff from CAMH. Later in 2019 he was admitted twice, for reasons that
    included positive drug screens (i.e, including cocaine), as well as missed
    appointments and a refusal to attend or co-operate with the team. The Board is
    not hesitant to find that a detention order is necessary so that Mr. Blake can
    be re-admitted to hospital. The MHA is not a viable alternative because it is
    not adequate to protect public safety. The primary concern is Mr. Blake's
    pattern of drug use and disinhibited behaviour, which creates a risk,
    especially to women but also of weapon use and other criminal behaviour. This
    risk has crystallized in the community when Mr. Blake is compliant with
    medication, is not experiencing psychotic symptoms, and is not certifiable. Mr.
    Blake's two ROLs in 2019 confirm the pattern and the hospital's need for the
    authority of a detention order to readmit him.

(1)

Dr. Toguris evidence

[12]

The Board heard evidence from the appellants
    treating psychiatrist, Dr. Toguri. He advised that while the appellant was
    detained in hospital from September 2019 to the day before the hearing, April 28,
    2020, he had received psychosocial and pharmacological treatment and one-to-one
    counselling as well as group programming to address his substance abuse
    problem. He advised that the appellant uses olanzapine as needed for calming,
    and that his long-acting injectible, aripiprazole, had been increased during
    this period. While in hospital, the appellant had had a positive change in his interactions
    with staff. He also had no positive drug screens.

[13]

Dr. Toguri explained that before the appellant
    could be discharged into the community, as had been ordered by the Board in
    November 2019, the Hospital had to co-ordinate with an outpatient team because
    of the requirement for a staff safety plan. They had implemented a zero
    tolerance policy for the appellant while in the community, which meant that
    any positive screen or non-compliance related to substance use or reporting
    would result in the appellant being readmitted to hospital. He had to report
    daily during the week with frequent urine tests, and his reporting had to be to
    the West Wing of CAMH in order to comply with the no-trespass order that had
    been imposed on him for the safety of female staff. There was no COVID-19
    outbreak in the West Wing.

[14]

Dr. Toguri gave his opinion that a detention
    order was necessary and appropriate because the Hospital required the authority
    to return the appellant to its care. He stated that the
Mental Health Act
does not address the risk that the appellants personality and substance abuse
    issues could lead to behavioural problems without any change to his mental
    status. Those problems can manifest with disinhibited behaviour and following
    women in the community.

[15]

With respect to the applicability of the
Mental
    Health Act
, Dr. Toguri stated that with substance abuse the appellant
    could become a risk to the public, even without the return of his psychosis. In
    those circumstances, admission to the Hospital under Box B would not be
    available (since the appellant has capacity), and he would likely not meet the strict
    criteria of serious harm in Box A either.

(2)

The Boards findings on the Hospitals failure
    to discharge

[16]

The Board expressly addressed the issue of the Hospitals
    failure until April 28, 2020, to implement the Boards order of November 2019
    following the ROL hearing, where the Board held that the appellants detention
    in hospital was no longer necessary or warranted. The Board stated that [t]he
    clear purpose of s. 672.81(2.1) [of the
Criminal Code
, R.S.C. 1985, c.
    C-46] is to protect NCR offenders from restrictions of their liberties that are
    not authorized by their disposition, and to ensure that such ROLs are subject
    to review by the Board, and found that the appellants prolonged admission to
    hospital contrary to a Board Decision is unacceptable. It also found that the Hospital
    was effectively in breach of the Boards order.

[17]

The Board explained that its orders are not
    self-executable, and that it is up to the Hospital to accept the guidance of
    the Board. The Board did not accept the explanations provided by the Hospital
    that it misunderstood the Boards November 2019 decision and that the
    appellants discharge was very complex. The Board noted in respect of the
    appellants discharge plan, that over the eight month period when the appellant
    was detained in hospital, there were no reports of positive screens or drug use
    concerns, and that counsel for the Hospital had described the period as the
    longest period of stability for the appellant.

(3)

The Boards 2020 disposition

[18]

Counsel for the appellants position was that
    the appellant should receive a conditional discharge. She submitted that the
    zero tolerance policy, in the context of the COVID-19 pandemic, would subject
    him to detention at the first sign of trouble and place him at enormous risk of
    contracting the disease. This would be risk enhancing rather than risk
    diminishing, especially since the appellant was agreeable to both a residence
    requirement and a s. 672.55(1) consent treatment provision as part of his
    conditional discharge. She also submitted that in crafting the appellants
    disposition, the Board should take full account of the COVID-19 pandemic, and endeavour
    to protect his safety and the safety of others by limiting congregate settings
    for mental health patients.

[19]

In response to the first submission, the Board
    found that in light of the appellants history with drug use and disinhibited
    behaviour since November 2018, without a detention order that allows the Hospital
    to readmit him if necessary, the risk to the public safety would be significant.
    The detention order was therefore necessary to satisfy the statutory mandate of
    the Board to treat the safety of the public as a paramount consideration.

[20]

The Board also addressed the COVID-19 issue. It rejected
    jurisprudence regarding the effect of COVID-19 on bail decisions as of limited
    relevance, because while the safety of the public is the second bail criterion,
    it is the Boards paramount consideration under s. 672.54 of the
Criminal Code
.
    The Board quoted with approval the following statement from the bail decision in
R. v. Williams
, 2020 ONSC 2237, at para. 125: The law continues to
    require that accused who pose a substantial risk of endangering the public,
    like Mr. Williams, must remain in custody, even during the COVID-19 pandemic.

[21]

Additionally, the Board consulted the CAMH
    statement on the pandemic, and after considering the appellants circumstances,
    concluded that a detention order would not entail an inappropriate risk of
    exposure to COVID-19. There were no outbreaks at the time in the West Wing
    where the appellant would be required to report, meaning that any potential risk
    was from readmission, which he could avoid by complying with the conditions of
    his detention. If the appellant were to be brought back into hospital under the
    detention order, an ROL hearing would be triggered after seven days, and the
    admission would only be warranted under s. 672.81(2.1) when it is the least
    onerous and least restrictive alternative in the circumstances.

D.

Issues

[22]

The appellants position is that the Board erred
    by failing to grant a conditional discharge as the least onerous and least
    restrictive disposition order, and raises four grounds of appeal in support:

1.

The Board erred by failing to take account of
    the significant progress the appellant made while detained in hospital.

2.

The Board erred by failing to give sufficient consideration
    and effect to the presence of the COVID-19 pandemic and the danger it poses to
    the appellant and others who are confined or required to attend at the Hospital.

3.

The Board erred by relying on the ROL hearing as
    a procedural safeguard for the appellant, when the Hospital had unacceptably failed
    to implement the Boards previous order that his ongoing admittance to the Hospital
    was not warranted or necessary.

4.

The Board erred by relying on the evidence of Dr.
    Toguri that the
Mental Health Act
provisions would not apply to the
    appellant when his psychosis remained under control, but his risk to public
    safety arose from his personality disorder and substance abuse.

E.

Analysis

(1)

Did the Board err by failing to take account of
    the significant progress the appellant made while detained in hospital?

[23]

The appellant submits that the Board did not
    take his recent positive progress while in hospital into account in arriving at
    its disposition. I do not accept this submission. The Board fully outlined the
    appellants history and the testimony of Dr. Toguri, whose opinion was based on
    his knowledge of the appellants history and his progress while under treatment
    in hospital. Dr. Toguris opinion was that despite the appellants progress,
    the detention order was necessary, and that the current requirement for a zero
    tolerance compliance regime was also necessary to ensure that the appellant
    would not use substances that had the effect of causing his mental condition to
    deteriorate and increasing his risk of being a danger to the public.

(2)

Did the Board err by failing to give sufficient consideration
    and effect to the presence of the COVID-19 pandemic and the danger it poses to
    the appellant and others who are confined or required to attend at the
    Hospital?

[24]

The appellant submits that in response to the COVID-19
    pandemic, it is the Boards obligation to depopulate the Hospital as a congregate
    living setting, to the extent possible, in order to protect both the
    appellants and the publics safety from the pandemic. To that end, he submits
    that the low threshold for readmission under the zero tolerance policy that the
    Hospital would implement as part of his detention order would needlessly expose
    him and others to the risk of contracting the disease. This submission was
    supported at the hearing by the affidavit of Dr. A. Orkin, a public health
    physician, and a written statement from the Bazelon Center for Mental Health
    Law. In other words, to protect the appellant as part of the public as well as
    to protect the rest of the public from COVID-19, the Board should have imposed
    a conditional discharge with appropriate conditions as the least onerous and
    least restrictive disposition, and that it erred by not doing so.

[25]

In my view, the Board made no error in its approach
    to its obligation, including its consideration of how to factor in the COVID-19
    pandemic. The Board was acutely aware of the pandemic, and its effect on the Hospital
    and on the whole of society. It considered the evidence presented by the
    appellant as well as the CAMH policy on COVID-19 and the current conditions at
    the Hospital. It noted that the reporting requirement for the appellant was to
    the West Wing where there was no outbreak. The Board also addressed its primary
    statutory obligation to protect the safety of the public, in the context of the
    appellants history of substance abuse and disinhibited behaviour. The Board
    recognized the need to be able to return the appellant to the Hospital because
    he could become dangerous to women as he had in the past. The Board concluded,
    at para. 55:

In light of Mr. Blakes history since November
    2018  as discussed above  the Board finds that the risk to public safety
    would be significant absent a detention order granting the hospital authority
    to re-admit Mr. Blake, if necessary. As noted above, the Board is required,
    under its statutory mandate, to treat the safety of the public as a paramount
    consideration.

[26]

A similar argument regarding the effect of COVID-19
    on the Boards obligations was made to the Board and to this court, and
    rejected, in the recent appeal in
Scalabrini (Re)
, 2021 ONCA 212. There,
    Fairburn A.C.J.O. emphasized, at para. 45, that it would be contrary to the statutory
    scheme for the Board to impose a conditional discharge in circumstances where
    a detention order is called for, only to make it more difficult for the
    appellant to be returned to the hospital in circumstances where he is
    decompensating and in need of stabilization. She added the important
    observation, at para. 46, that it will be for the healthcare professionals who
    administer the detention order to keep COVID-19 in mind at the time that
    decisions are being made about whether to intervene in the context of
    decompensation, and, if so, how, including using strategies other than
    re-hospitalization. In this case, as the respondent Attorney General points
    out, the Boards order only required the appellant to report once per month, or
    as required giving the Hospital the flexibility to reduce the reporting
    conditions from five days per week if that should become appropriate.

[27]

The Board in this case also made two important
    observations when weighing the risk to the appellant of being exposed to COVID-19
    by his potential readmission to the hospital. The first was that the appellant
    could avoid readmission to hospital by complying with his reporting requirements
    and abstaining from substance use. The appellant had been compliant while in
    hospital. It was a fair expectation that he would remain so in order to be able
    to remain in the community. The second, which will be discussed in further
    detail below, was that the appellant had the procedural safeguard of an ROL
    hearing requiring the Board to re-consider his admission to hospital after
    seven days.

(3)

Did the Board err by relying on the ROL hearing
    as a procedural safeguard for the appellant, when the Hospital had unacceptably
    failed to implement the Boards previous order that his ongoing admittance to
    the Hospital was not warranted or necessary?

[28]

The Boards second observation was that the
    appellant had the protection of s. 672.81(2.1) of the
Criminal Code
,
    which requires the Board to hold an ROL hearing after seven days to ensure that
    the appellant would be returned to the community as soon as possible. The
    appellant objects that in light of the Hospitals recent failure to abide by
    the order of the Board following an ROL hearing, this was a hollow observation.

[29]

I do not agree. The Board strongly reprimanded
    the Hospital in its reasons for failing to abide by the Boards order following
    the ROL hearing, and made its expectations for future compliance abundantly
    clear. By adding that the ROL gives the appellant further protection from any
    unwarranted extended stay in hospital, and therefore exposure to COVID-19, the
    Board was reinforcing its message to the Hospital, and its confidence that the Hospital
    would not be in breach in the future. I would endorse the Boards reprimand and
    its approach.

(4)

Did the Board err by relying on the evidence of
    Dr. Toguri that the
Mental Health Act
provisions would not apply to the
    appellant when his psychosis remained under control, but his risk to public
    safety arose from his personality disorder and substance abuse?

[30]

In this case, the appellant had a history of
    remaining medication-compliant in respect of his injectable medications and
    keeping his psychosis under control, but then decompensating and becoming
    dangerous as a result of cocaine or cannabis use.

[31]

The appellant objects that when deciding whether
    the
Mental Health Act
committal provisions would be sufficient to
    bring him back to hospital for breach of a condition of discharge, the Board
    relied on what his counsel alleges was erroneous testimony from Dr. Toguri that
    the
Mental Health Act
provisions cannot be used to detain a person for
    substance abuse where there is no manifestation of psychosis.

[32]

The appellant submits that as an expert
    tribunal, the Board should have understood the proper interpretation and
    application of the
Mental Health Act
. Counsel added, in reply
    submissions, that when Dr. Toguri was asked questions by one of the
    psychiatrist Board members during the hearing, the Board member referred to language
    used in a previous version of the
Mental Health Act
that no longer
    applies, and thus called into question its own expertise.

[33]

The appellant submits that, contrary to the
    evidence of Dr. Toguri, the applicable
Mental Health Act
provisions
    that allow a person to be detained in prescribed circumstances can apply to
    substance abuse, and therefore could be used in the appellants circumstances
    to bring him back to hospital if he were to decompensate. The appellant also
    relies on the fact that he consented to a treatment clause under s. 672.55 of
    the
Criminal Code
, which he submits would allow readmission to the Hospital
    for treatment under a conditional discharge disposition.

[34]

The issue of the extent to which the
Mental
    Health Act
provisions may be of sufficient efficacy that they may be used
    effectively in the context of a conditional discharge disposition to return a
    decompensating person subject to the disposition to hospital, and keep him or
    her in for treatment as required, has been raised in appeals to this court in a
    number of cases over the last twelve years: see, for example,
R. v.
    Breitwieser
, 2009 ONCA 784, 99 O.R. (3d) 43, at paras. 7-18;
R. v.
    Lamanna
, 2009 ONCA 612, 252 O.A.C. 280, at paras. 14-17;
Young (Re)
,
    2011 ONCA 432, 273 C.C.C. (3d) 512, at para. 26;
Coburn (Re)
, 2016
    ONCA 536, at para. 19;
Munezero (Re)
, 2017 ONCA 585, at paras. 4-9;
Marchese
    (Re)
, 2018 ONCA 307, 359 C.C.C. (3d) 408, at paras. 19-23;
Valdez (Re)
,
    2018 ONCA 657, at paras. 21-24;
Leger (Re)
, 2018 ONCA 1035, at paras.
    9-14;
Negash (Re)
, 2018 ONCA 179, at paras. 10-13;
Esgin (Re)
,
    2019 ONCA 155, at paras. 19-21;
Davies (Re)
, 2019 ONCA 738, 380 C.C.C.
    (3d) 552, at paras. 33-39;
Ahmadzai (Re)
, 2020 ONCA 169, at paras.
    22-24;
Yunus-Ali (Re)
, 2020 ONCA 669, at paras. 10-12; and
Williams
    (Re)
, 2021 ONCA 90, at paras. 19-22.

[35]

These cases make it clear that in deciding
    whether a detention order is required and is the least onerous and least
    restrictive disposition, the Board must consider the committal provisions of
    the
Mental Health Act
as one of the available mechanisms for securing
    the persons attendance at hospital for breach of a discharge condition. However,
    in order to do that, the Board must have an accurate understanding of how the
    committal provisions of the
Mental Health Act
operate.

[36]

Ms. Szigeti, who is an expert in mental health
    law, has argued that both the treating psychiatrist and one of the Board
    psychiatrists did not have that accurate understanding of the
Mental Health
    Act
. However, neither this court, nor the Board, can be in a position to
    rule on that submission without a full record. Such a record could include
    expert evidence from a legal expert in mental health law, expert evidence from specialist
    psychiatrists with significant experience with the committal provisions of the
Mental
    Health Act
, as well as legal briefs on behalf of the appellant, the Hospital
    and the province.

[37]

In this case, the Board, which had only the
    evidence of Dr. Toguri on this issue, was entitled to accept and act on that
    evidence. However, in a future case where the efficacy of the
Mental Health
    Act
committal provisions is going to be a disputed issue before the Board,
    it will be incumbent on the Board, as an inquisitorial body, to require the
    parties to place a sufficient evidentiary and legal record before it, to enable
    it to determine the issue in the context of supporting its disposition as the
    least onerous and least restrictive.

F.

Conclusion

[38]

For these reasons, I would dismiss the appeal.

Released: April 12, 2021 K.F.

K Feldman
    J.A.

I agree. P.
    Lauwers J.A.

I agree. Gary
    Trotter J.A.


