



COURT OF APPEAL FOR ONTARIO

CITATION: Faichney (Re), 2022 ONCA 300

DATE: 20220414

DOCKET: C69694

Fairburn A.C.J.O., Gillese
    and Paciocco JJ.A.

IN THE MATTER OF:  James
    Faichney

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Suzan E. Fraser, 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 11, 2022 by video conference

On appeal from the disposition of the Ontario Review
    Board, dated June 15, 2021, with reasons dated July 7, 2021.

Paciocco J.A.:

OVERVIEW

[1]

James Faichney is a 52-year-old Indigenous man. On September 16, 1999,
    while transient and homeless, he attended a church looking for food. There, he
    assaulted an 84-year-old night supervisor, injuring him. It was a serious
    attack and led to a charge of assault causing bodily harm contrary to the
Criminal
    Code of Canada
, R.S.C. 1985, c. C-46. On November 9, 1999, he was found not
    criminally responsible on account of mental disorder (NCR). He has been under
    the jurisdiction of the Ontario Review Board (ORB) since that time.

[2]

In the decade following the NCR verdict, Mr. Faichney was detained at a series
    of forensic psychiatric institutions before being moved to the Centre for
    Addiction and Mental Health (CAMH) in March 2011. Since that time, CAMH has
    been Mr. Faichneys care provider. Although Mr. Faichney was subject to
    detention orders until 2019, CAMH has been supervising Mr. Faichney in the
    community since March 2015. In 2019, Mr. Faichney was granted a conditional
    discharge with conditions including minimum weekly reporting and residence at a
    supervised boarding house.

[3]

During the June 9, 2021 annual review hearing, CAMH and the Attorney
    General of Ontario (AGO) sought a continuation of the existing order on the
    basis that Mr. Faichney continued to present a serious threat to public safety
    but did not require a detention order. Mr. Faichney sought an absolute
    discharge, arguing that he no longer posed a significant threat to the safety of
    the public.

[4]

On June 15, 2021, the ORB ordered a continuation of the conditional discharge
    that had been in place. The ORB released its Reasons for Disposition on July 7,
    2021.

[5]

This is an appeal by Mr. Faichney of that June 15, 2021 disposition
    order. He argues that the ORB erred by failing to consider a 2011 report filed on
    his behalf in accordance with
R. v.

Gladue
, [1999] 1 S.C.R.
    688, and that the ORB failed to refer to the
Gladue
principles, which
    are summarized at para. 93 of the
Gladue
decision. He also argues that
    the ORBs determination that he posed a significant threat to the safety of the
    public is unreasonable.

[6]

I would dismiss Mr. Faichneys appeal. As I will explain below, I do not
    accept that the ORB failed to consider the 2011
Gladue
report, nor do
    I accept that the ORB failed to respect relevant
Gladue
factors. I also
    conclude that there was ample evidence justifying the ORBs determination that
    Mr. Faichney posed a significant threat to the safety of the public.

BACKGROUND FACTS

[7]

Mr. Faichney is currently 52 years old. He is Anishinaabe with Shawnee
    and Pottawatomi heritage. As the result of an adoption placement, Mr. Faichney
    was raised in a non-Indigenous home. He is a tragic casualty of the Sixties
    Scoop, which saw many Indigenous children being separated from their families
    and denied their heritage.

[8]

At the age of 17, Mr. Faichney left his adoptive home. He ultimately
    reconnected with his Indigenous family, but sadly, his hardships continued. In June
    1996, Mr. Faichney began to receive psychiatric care after displaying psychosis,
    paranoia and suicidal thoughts. He has struggled with major mental illness since
    that time. His current diagnoses are schizophrenia, clinically significant
    trauma history, substance use disorder (in full remission), and personality
    disorder not otherwise specified.

[9]

When not under control, Mr. Faichneys mental illness can cause him to
    become paranoid and to have grandiose delusions and command hallucinations. He
    was experiencing such symptoms when he committed the 1999 assault that
    initially brought him under ORB jurisdiction. On March 28, 2006, while still
    under the jurisdiction of the ORB, Mr. Faichney was again found to be NCR in
    connection with another serious assault that he committed in 2005, this time on
    a co-resident at a mental health facility. Again, this 2005 assault occurred
    when Mr. Faichney was manifesting paranoia and grandiose delusions. In 2007,
    while under the delusion that staff members were framing him for murder, Mr.
    Faichney committed yet another assault, this time on a male staff member,
    punching and kicking him to the point that he required hospital treatment. To
    his considerable credit, although since 2007 Mr. Faichney has frequently reported
    being threatened or offended while under CAMHs care, and has been in
    situations of conflict, he has not engaged in violence since the 2007 assault,
    a period now approaching fifteen years.

[10]

There is no indication in the record that attention was paid to Mr.
    Faichneys Indigeneity in the early years after he fell under the ORBs
    jurisdiction. However, by 2011, hospital records show that Mr. Faichney began
    to demonstrate interest in receiving culturally appropriate care and there is
    periodic reference in those records to his attendance at Indigenous community counselling,
    faith healing sessions and meetings with CAMH Aboriginal Services. Those
    hospital reports also record a number of instances in which Mr. Faichney reported
    experiencing racism within the institution from co-patients and his treatment
    team.

[11]

By the time Mr. Faichney was living in the community, Indigenous
    agencies were playing a significant part in his life, providing him with support
    services relating to both his housing and his health. Most significantly, Anishnawbe
    Health Toronto (AHT) was assisting him and continues to assist him. A letter
    from an AHT social worker, placed into evidence at the June 9, 2021 annual
    review hearing, confirms that Mr. Faichney has been receiving weekly, if not
    biweekly support from the AHT social worker for the last three years, and has
    access to traditional healing services and psychiatric support.

[12]

By February 2020, after Mr. Faichney had experienced a long period of
    stability in the community, the CAMH clinical team began to explore a treatment
    plan that would provide for his gradual progression to civil psychiatric care
    in the community, with psychiatric follow-up through AHT. As a result, Mr.
    Faichneys reporting hours at CAMH were reduced and in May 2020 he was
    permitted to take more control over the administration of his medication at his
    residence. The Reasons for Disposition of the ORB relating to the July 8, 2020
    conditional discharge disposition affirmed the objective of withdrawing some of
    Mr. Faichneys current levels of support and giving priority to eventually
    moving his care to AHT while he is under ORB jurisdiction.

[13]

During the June 9, 2021 annual review hearing that led to the order that
    is the subject of this appeal, Mr. Faichney argued that he no longer represents
    a significant threat to the safety of the public. He maintained that AHT is
    better able to attend to his mental health needs than CAMH, given the
    culturally appropriate care provided by AHT, CAMHs acknowledged legacy as a colonial
    institution [operating as] part of a system tainted with racism and oppression,
    and the racism he has personally experienced within CAMH. Simply put, it was Mr.
    Faichneys position before the ORB that the time has arrived to remove CAMHs
    support so that his care could be moved to the AHT.

[14]

The AGO, with the support of Mr. Faichneys CAMH treatment team, took
    the position that this change was premature. Supported by the opinion of Dr. Meng,
    Mr. Faichneys treating physician at CAMH, the AGO argued that Mr. Faichney
    continued to pose a significant threat to the safety of the public that could
    not be ameliorated by anything less than a continuation of the conditional
    discharge disposition on the terms then in place.

[15]

During the hearing, the parties did not join issue on the suitability of
    those terms, but only on whether Mr. Faichney continued to pose a danger to the
    public.

[16]

I will address the material evidence relied upon by each of the parties
    below when addressing Mr. Faichneys grounds of appeal, but there is one point
    that warrants immediate mention. In correspondence between Dr. Khan, an AHT
    psychiatrist, and Mr. Faichneys Transitional Care Manager at CAMH in January
    2021, Dr. Khan said:

We are happy to follow [Mr. Faichney] here regularly once his
    review board is complete. I dont want the client to get confused about who is
    providing psychiatric care for him at this time. Im happy to check in with him
    once every 3-4 months until he is fully discharged to us. I last saw him in
    Late Oct, so maybe in late Feb we can check in again.

[17]

As indicated, on June 15, 2021, the ORB issued a disposition order imposing
    a conditional discharge on the same terms as the July 8, 2020 order. In the
    Reasons for Disposition relating to the June 15, 2021 disposition order, the
    ORB listed the documentary evidence before it, including the 2011
Gladue
Report,
    but the ORB did not otherwise reference the
Gladue
Report in its reasons,
    nor did it advert specifically to
Gladue
principles. However, as I
    will explain, the ORB did describe efforts that CAMH had taken to assist Mr.
    Faichney in receiving culturally appropriate care.

THE ISSUES

[18]

Mr. Faichney appeals the June 15, 2021 ORB disposition. He raises several
    objections to the ORBs decision, but his grounds of appeal fairly resolve into
    two, which can be expressed as follows:

A.

Did the ORB err by failing to consider and refer to the 2011
Gladue
report and the
Gladue
principles when concluding that Mr. Faichney
    remains a significant threat to the safety of the public within the meaning of
    s. 672.54?

B.

Was the significant threat finding unreasonable?

[19]

As indicated, I would not give effect to either of these grounds of
    appeal.

ANALYSIS

A.

Did the orb err by failing to consider and refer to the 2011
gladue
report and the
gladue
principles when concluding that Mr. Faichney
    remains a significant threat to the safety of the public within the meaning of
    s. 672.54?

[20]

The appellant submits that the Board
    erred in law when it determined that he was a significant threat to the safety
    of the public without referring to the
Gladue
Report and principles. He contends that the Board did
    not address his special circumstances arising from his Indigeneity and that
    individualized assessment is required by s. 672.54.

[21]

The respondent AGO submits that
Gladue
factors are not pertinent to the threshold
    question of significant threat, the only live issue during the disposition
    hearing. The AGO relies on
Re Sim

(2005), 78 O.R. (3d) 183
for this
    proposition.

[22]

If the AGOs submission is correct, there
    is no need to closely consider the ORB decision in resolving this ground of
    appeal, so it is convenient to address the AGOs submission at the outset. I do
    not agree that
Gladue
principles
    are not pertinent to the threshold question of significant threat. In
Sim
, Sharpe J.A., writing on behalf of this court, affirmed
    the importance of the
Gladue
principles
    to ORB dispositions. He explained how the
Gladue
principles are to be integrated with the analysis set
    out in
Winko v. British Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625 relating to whether someone
    poses a significant threat to the safety of the public and, if so, what the
    least onerous and least restrictive disposition is, now described under the
    legislation as the necessary and appropriate disposition.

[23]

Specifically, the Supreme Court of Canada
    affirmed in
Winko
that a review
    board must take into account the four statutory criteria set out in s. 672.54
    of the
Criminal Code
: (1) the
    need to protect the public from dangerous persons; (2) the mental condition of
    the accused; (3) the reintegration of the accused into society; and (4) the
    other needs of the accused: at para. 55.
In
Sim
, at paras. 18
    and 19, Sharpe J.A. described the impact that the
Gladue
principles would
    have on each of these four criteria:

When assessing the dangerousness [statutory factor one] or
    mental condition [statutory factor two] of the accused, it would no doubt be
    helpful for the ORB to have as full a record as possible. A full record would
    contain information pertaining to the accused person's background, including
    aboriginality.
However, so far as I am aware, aboriginal status would
    ordinarily have little direct bearing upon the dangerousness [statutory factor one]
    or the mental condition [statutory factor two] of the accused. An individual
    will not be more or less dangerous, nor will an individual be more or less
    mentally ill, because of his or her aboriginal status.

On the other hand, proper consideration of appropriate
    placement of the accused, reintegration into society [statutory factor three]
    and the other needs of the accused [statutory factor four] will call, where the
    circumstances warrant, for the ORB to advert to the unique circumstances and
    background of aboriginal NCR accused. Accordingly, the
Gladue
principles
    should be applied to compliment the analysis that s. 672.54 requires. [Emphasis
    added.]

[24]

It is the emphasized part of para. 18 on
    which the AGO rests its submissions. However, when the emphasized words are
    read in context, it is apparent that Sharpe J.A. was not suggesting that
Gladue
principles are not relevant to the question
    of significant threat. Rather, he was making clear that, when determining
    whether the NCR accused is a significant threat and, if so, what disposition
    should be imposed, the mere fact of Indigeneity will not make the person more
    or less dangerous or more or less mentally ill. Of course, that is as true
    today as it was when
Sim
was
    written. To hold otherwise would open the door to dangerous, offensive and
    manifestly incorrect stereotypes. Therefore, he was not saying that Indigeneity
    can never be relevant to the significant threat analysis. Rather,
Sim
provides that:

1)


Gladue
principles should be applied to compliment the analysis
    that s. 672.54 requires: at para. 19;

2)

That analysis requires the ORB to look at four factors when determining
    the question of significant risk and least onerous and least restrictive
    disposition; and

3)

While
Gladue
factors may have less impact on statutory factors
    one and two (dangerousness and mental condition), and more commonly inform
    statutory factors three and four (reintegration into society and the other
    needs of the accused), it would no doubt be helpful for the ORB to have as
    full a record as possible when dealing with these issues: at para. 18.

[25]

Accordingly, I do not accept the AGOs
    contention that
Sim
held that
Gladue
principles do not apply to the threshold question of
    whether a person remains a significant threat.

[26]

Nor do I accept Mr. Faichneys submission that the ORB erred in law
when it determined that the appellant was a
    significant threat to the safety of the public without referring to the
Gladue
Report and principles
.

[27]

As a preliminary matter, it must be borne in mind that the
ORBs reasons must be read contextually. That context
    includes the evidence before the ORB that I refer to above confirming that CAMH
    has done much in the last several years to support the appellants Indigeneity.
    His forensic care team has encouraged and facilitated AHTs provision of
    services to him and CAMH has proposed a shared model of care while the
    appellant transitions to AHT. As I will explain, the Reasons for Disposition
    reveal that the ORB was fully alive to this, and to the barriers that remained
    in fully transitioning Mr. Faichney to culturally appropriate care.

[28]

Moreover, as the AGO correctly pointed out, the sufficiency of the
    direct attention the ORB gave to Mr. Faichneys Indigeneity and to the
Gladue
principles cannot be assessed without close attention to what was at issue
    during the disposition hearing. Quite simply, given the live issues at the
    disposition hearing, extensive explicit reference to the
Gladue
principles
    was not required.

[29]

Specifically, no issue was taken before the ORB relating to the
    conditions that would be included in the disposition, nor were there live issues
    relating to how best to achieve rehabilitation or restorative justice through a
    disposition. There was therefore no need for the ORB to address the impact that
Gladue
principles would have on Mr. Faichneys rehabilitation or
    prospects for restorative justice, since those questions were not in issue. Nor
    was the suggestion made that systemic discrimination or Mr. Faichneys
    background experiences as an Indigenous person would have had any relevance in
    identifying the nature and intensity of his mental condition. The only live issue
    at the hearing was whether Mr. Faichney continued to pose a significant threat
    to public safety. The relevance his Indigeneity had before the ORB at the June
    9, 2021 annual review was therefore confined to its impact on whether he posed
    a danger to the public.

[30]

In that regard Mr. Faichney argued, in effect, that his relationship
    with AHT, with its culturally appropriate treatment, was an important
    consideration in deciding whether he would pose a threat to the safety of the
    public. His position was that his access to this culturally appropriate
    treatment at AHT reduced the risk that he would fall away from treatment in the
    community, including medication, which is required to stabilize his condition
    and prevent the kind of deterioration that could create a danger to public
    safety.

[31]

Although the ORB did not reference the 2011
Gladue
report or
    expressly identify
Gladue
principles when addressing this point, it is
    clear that the ORB fully appreciated and addressed this submission, finding, as
    a fact, that AHT is not able to provide the level of the psychiatric care and
    case management support currently required by Mr. Faichney. The psychiatrist on
    staff is only available a few hours per week and provides services to a number
    of clients. This finding is a complete answer to the submission that Mr.
    Faichney could maintain his mental health in the community by taking advantage
    of the culturally appropriate care provided by AHT.

[32]

This dispositive finding is amply supported by the evidence before the
    ORB. Initially, Mr. Faichney consulted with Dr. Khan, a part-time psychiatrist
    who was assisting AHT at the time. In her January 7, 2021 correspondence, Dr.
    Khan explained a five-week delay in responding to Mr. Faichneys CAMH
    Transitional Care Managers request for information on the basis that she [hadnt]
    been in the office since late November. She then offered to hold a meeting
    with Mr. Faichney in late February. Mr. Faichney did not manage to meet with an
    AHT psychiatrist until March 24, 2021, when he met with Dr. Hunter, who had
    replaced Dr. Khan. Dr. Hunter also worked at AHT part-time and attended the
    clinic only once weekly, with a large roster of patients waiting to be seen.

[33]

As illustrated below, there was also evidence before the ORB that Mr. Faichney
    was prone to discontinuing his medication, leading to deterioration in his
    condition, and that there were issues with his insight into his mental health
    and his need for community support.

[34]

In my view, the Reasons for Disposition relating to the disposition of
    June 15, 2021 amply explain why the
Gladue
arguments advanced on Mr.
    Faichneys behalf did not provide meaningful support for an absolute discharge.

[35]

Thus, I reject this ground of appeal.

B.

Was the significant threat finding unreasonable?

[36]

Although it was not abandoned, this ground of appeal was not pressed in
    oral argument. There was good reason for the tactical decision not to press this
    ground of appeal before us. In my view, it is patent that when a somewhat
    probing examination is undertaken, the reasoning process and the outcome arrived
    at by the ORB reflects a coherent and rational chain of analysis that is fully
    justified in relation to the constellation of law and facts that is relevant to
    its decision.

[37]

During the reporting period, Mr. Faichney had less stability than in the
    prior year, when his treatment team developed the plan to reduce his level of
    support and to transition him to community care through AHT. Significantly, CAMH
    attempted to move towards that plan, but that effort failed. In her testimony,
    Dr. Meng stated:

I think in this year in particular, there are two main
    challenges. One is that because he was discussing this idea of potentially
    living more independently, we did try to back off on the level of supervision
    of his medications earlier in the year and the destabilization that that
    conferred never really fully stabilized until hes since been subject to daily
    medication supervision by a clinical team. The other aspect is that over this
    last year his medical health has significantly worsened.

[38]

There was clear evidence before the ORB supporting these observations.
    After Mr. Faichney was given more control over his medication, the levels of
    Clozapine in his system diminished, at times to the point where the drug, which
    should have been observed, was undetectable. Those levels fluctuated, despite
    arrangements made by CAMH to enable him to obtain his injections at a local
    pharmacy. Dr. Meng concluded that the fluctuation in levels could only be explained
    by Mr. Faichneys decision not to take the medication.

[39]

There was also evidence that Mr. Faichney was not contacting his
    treatment providers when not taking his medication, he was unreliable with his
    self-reporting relating to his health, and his willingness to seek care was linked
    to the fact that he is under external oversight.

[40]

There was also clear evidence that when Mr. Faichneys Clozapine levels
    were low, the symptoms of his mental illness became aggravated. Supported by
    contemporaneous observations contained in the hospital reports, Dr. Meng
    testified that there have been times where he has presented as more paranoid,
    more vague and less coherent in his thought process and more guarded and more
    dismissive.

[41]

Dr. Meng expressed the view that, in these circumstances, [a]ny course
    towards more independent living would require a very gradual transition and a
    lot more support and assessments around that. Yet there was evidence that, during
    the reporting period, Mr. Faichney resisted referrals to community care,
    stating that he did not need higher levels of support, and that on four
    occasions he refused inpatient hospital admission to stabilize his mental
    condition.

[42]

Dr. Meng also expressed the opinion that Mr. Faichneys expectations
    about what he could accomplish in his own community are unrealistic. He told
    his treatment team that he did not want a further relationship with CAMH once
    discharged and that he exclusively wanted his care to be provided by a program
    from his culture.

[43]

Dr. Meng expressed the opinion that, although Mr. Faichney would likely
    continue to see the AHT team when he felt it necessary, he would continue to
    have difficulties with medical compliance and stress. She then offered the
    opinion:

That combination of factors is anticipated to lead to him having
    more of the kind of symptoms he has historically exhibited over and over again
    when hes been unwell, mainly becoming quite paranoid, quite somatically
    preoccupied, which then worsens his paranoia by worsening his medication
    compliance and experiencing both persecutory as well as referential delusions
    and hallucinations, which have led him to feel extremely persecuted, extremely
    unsafe and has on multiple occasions in the past, led him to behave in a
    violent manner.

[44]

In concluding based on this evidence that Mr. Faichney continues to
    represent a significant threat to the safety of the public, the ORB recognized
    that Mr. Faichney has not acted with serious aggression for many years but
    attributed his restraint to the effective treatment plan that has been in
    place. The ORB observed that these psychotic symptoms and the attending
    aggressive behaviour identified in the evidence are similar to the symptoms he
    displayed in the past, and to the index offences.

[45]

Citing some of the evidence just recounted, the ORB also accepted Dr. Mengs
    opinion that, absent the support of the treatment team, Mr. Faichney would
    likely fall away from treatment. On this basis, the ORB concluded that a
    conditional discharge was a necessary and appropriate disposition.

[46]

I would dismiss this ground of appeal.

CONCLUSION

[47]

I would therefore dismiss Mr. Faichneys appeal.

Released: April 14, 2022 J.M.F.

David M. Paciocco
    J.A.

I agree. Fairburn
    A.C.J.O.

I agree. E.E.
    Gillese J.A.


