



COURT OF APPEAL FOR ONTARIO

CITATION: McFarlane (Re), 2021 ONCA 632

DATE: 20210920

DOCKET: C69015

Tulloch, van Rensburg
    and Nordheimer JJ.A.

IN THE MATTER OF: Odean
    McFarlane

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Anita Szigeti and Maya Kotob, for the appellant

Elena Middelkamp, for the respondent, Attorney General
    of Ontario

James P. Thomson, for the respondent, Person in Charge of
    St. Josephs Healthcare Hamilton

Heard: September 10, 2021 by video conference

On appeal from the disposition of the Ontario Review
    Board, dated December 2, 2020, with reasons dated January 5, 2021.

REASONS FOR DECISION

[1]

The appellant appeals the disposition of the Ontario Review Board
    (ORB), dated January 5, 2021, ordering his detention at the Forensic
    Psychiatry Program of the St. Josephs Healthcare Hamilton (the Hospital), with
    provision for certain privileges, including that he be permitted to live in the
    community in accommodation approved by the Person in Charge of the Hospital.

[2]

The appellant argues that the Board erred by refusing his request to
    continue his previous disposition of a conditional discharge. The appellant
    also argues, in oral submissions, that a detention order and being subjected to
    the continued jurisdiction of the ORB exacerbates his mental condition by
    making him more anxious, which leads to further deterioration to his mental
    health.

[3]

At the conclusion of the hearing, we dismissed the appeal with reasons
    to follow. We now provide our reasons.

Background

[4]

The appellant has a lengthy history under the ORB. We include here only
    the aspects of this history that are pertinent to this appeal.

[5]

The appellant has been diagnosed with schizophrenia, which is now in
    remission; substance use disorder, which is currently in early remission in a
    controlled environment; and anti-social personality traits.

[6]

The appellant has been the subject of a range of dispositions under the
    ORB since 2008, after he was found not criminally responsible on account of a
    mental disorder for a charge of assault.

[7]

In recent years, the appellants mental condition significantly
    improved, and he commenced living with his long-time partner, who is now his
    fiancée. After showing considerable progress in his treatment and relative
    stability in his condition, on February 5, 2020, the Board granted the
    appellant a conditional discharge.

[8]

While in the community, the appellant worked with a treatment team.
    After some challenges with his initial case manager, his case was re-assigned.
    He met with his treatment team twice per week, provided negative urine samples,
    and showed no thought disorders.

[9]

Since being discharged, the appellant has resided in an apartment with
    his fiancée in Hamilton. Unfortunately, the couple began experiencing
    challenges in their relationship, which has resulted in them taking time apart
    from one another. The appellants fiancée commenced living in Brampton during
    the week and returned to the apartment on weekends, both to accommodate her
    commute to work in the Peel area, and due to the discord in their relationship.
    The appellant has questioned his fiancées fidelity, which has resulted in
    increased stress in their relationship. On one occasion, the appellant
    voluntarily admitted himself to hospital, as he was having difficulty coping
    with these relationship challenges.

[10]

In
    September 2020, the appellant reported that his relationship with his fiancée
    was undergoing an increased level of stress. During the same month, the
    appellant approached two 15-year-old boys and demanded their cell phones and
    backpacks, which were given to him. The appellant returned to his apartment and
    discarded the stolen items. The appellants treatment team determined that
    there was no change in the appellants mental status, and his toxicology
    screens returned negative. Consequently, he could not be admitted to hospital under
    the
Mental Health Act
.

[11]

On
    October 29, 2020, the appellant was charged with two counts of mischief, after
    which he was taken to the Hospital by police and admitted into seclusion.
    Earlier that day, around 2:45 a.m., the appellant had driven to a home and
    asked the occupant if he could park his car in their driveway to sleep. He was
    refused. The appellant attended at another home and threw a rock through a
    window of the home. He explained he had been trying to get the attention of the
    houses occupants. At the Hospital, the appellant tested positive for THC and,
    when asked, he admitted to having consumed a cannabis edible.

[12]

On
    November 27, 2020, an early review hearing was held. In a disposition dated
    December 2, 2020, the appellants previous conditional discharge was vacated,
    and a detention order was imposed. The appellant now appeals this disposition.

Discussion

[13]

We
    see no error with the Boards disposition. At the hearing before the Board, the
    appellants treating psychiatrist, Dr. Nagari, gave evidence that a detention
    order was necessary and appropriate as the appellants mental state had
    deteriorated. Dr. Nagari based his conclusions on the appellants unexplained
    actions in which he exhibited concerning behaviours on two separate occasions
    during September and October 2020, which resulted in police intervention.

[14]

The
    Board also heard evidence from Dr. Mamak who conducted a Psychological Risk
    Assessment on the appellant and found him to be at a moderate to moderate-high
    risk to reoffend.

[15]

Finally,
    the Board considered whether the appellants request for the inclusion of a
    Young clause within a conditional discharge order would mitigate the risk, as
    it would require the appellant to attend at the Hospital for the purposes of
    assessment and re-admission, if requested by the Hospital. The Board concluded
    that based on the evidence, it would not sufficiently mitigate the risk.

[16]

In
    the end, the Board concluded that based on all the evidence before it, a
    conditional discharge was no longer appropriate to manage the appellants
    apparent state of decompensation, and that the appellant continued to pose a
    risk to the safety of the public.

[17]

In
    our view, the evidence provided a reasonable basis for the imposition of a disposition
    that would permit the Hospital to approve the appellants accommodation. As has
    been held in previous decisions of this court, giving the Board the power to
    require the hospitals approval of accommodation is only possible under a
    detention order: see
Runnalls (Re),
2012 ONCA 295; 2013 ONCA 386.

[18]

We
    see no error in the Boards decision, as there was ample evidence to support
    its finding that the appellant continues to pose a significant risk to the
    community (which is not contested), and the disposition that was imposed. As
    the appellants counsel acknowledged, although the disposition may be
    disappointing to him, and may contribute to his anxiety, this is not a basis to
    interfere.

[19]

We
    encourage the appellant to continue his treatment to improve his condition. We also
    encourage the treatment team to continue in its efforts to work towards the
    appellants full reintegration into the community when that is possible.

[20]

As
    we were satisfied that the Boards disposition was both reasonable and
    consistent with a need to achieve a disposition that is the least onerous and
    least restrictive, the appeal was dismissed.

M. Tulloch J.A.

K. van Rensburg J.A.

I.V.B. Nordheimer
    J.A.


