



COURT OF APPEAL FOR ONTARIO

CITATION:
Pickering (Re), 2022 ONCA 26

DATE: 20220118

DOCKET: C69472

Paciocco, Nordheimer and Sossin
    JJ.A.

IN THE MATTER OF:  Sarah Pickering

AN APPEAL UNDER PART XX.1 OF THE
CODE

Jeff Marshman, for the appellant

Nicholas Hay, for the respondent, Attorney
    General of Ontario

Gavin S. MacKenzie, for the respondent,
    Ontario Shores Centre for Mental Health Sciences

Heard: January 12, 2022 by
    video conference

On appeal from the disposition of the
    Ontario Review Board, dated March 4, 2021 with reasons dated March 31, 2021.

REASONS FOR DECISION

[1]

Ms. Pickering appeals from the disposition of
    the Ontario Review Board that continued the detention order against her. The
    appellant submits that the Board erred in not awarding an absolute discharge. In
    the alternative, the appellant submits that the Board erred in not awarding her
    a conditional discharge. In the further alternative, the appellant asks for a
    new hearing. For the following reasons, the appeal is dismissed.

[2]

The appellant has been under the jurisdiction of
    the Board since February 2020 when she was found not criminally responsible
    (NCR) with respect to offences of assault with a weapon and possession of a
    weapon dangerous to the public peace.

[3]

At this most recent review, the Board found that
    the appellant continues to pose a significant threat to the safety of the public.
    The appellant challenges that conclusion. However, in our view, there was a
    sufficient evidentiary basis for it. The evidence establishes that the
    appellant suffers from a schizophrenic illness which requires medication to
    control it. Unfortunately, the appellant does not yet fully accept that she has
    such an illness. This lack of acceptance poses a concern regarding the
    appellants willingness to continue medication for her illness absent
    supervision. Without that medication, the appellant is likely to decompensate
    quickly and become a danger to others. We note, on this point, that the appellant
    is currently unable to consent to treatment on her own. Rather, her aunt
    operates as her substitute decision maker for such purposes.

[4]

There is also a concern that, without proper
    supervision, the appellant will commence using substances, such as drugs and
    alcohol, that will accelerate the decompensation of her mental state. It was
    the use of such substances that contributed to the conduct underlying the index
    offences. There is also evidence that the appellant continues to harbour some
    level of persecutory delusions regarding her parents, who were the subjects of
    the assaults that led to the appellants convictions. Her lack of insight into
    her condition greatly increases the risk that she poses if she does not maintain
    her medication.

[5]

In our view, many of the submissions made on
    behalf of the appellant fail to recognize that her progress, which she relies
    upon as indicative of her potential conduct if she is in the community,
    occurred while she was under the direct supervision and control of the hospital.
    The appellant has not, as yet, had the experience of living in the community in
    a controlled setting that could be used as an introduction to assessing how she
    will cope under indirect supervision. Along with her underdeveloped insight
    into her mental illness, the risks associated with substance abuse, and what
    may well be the continued delusions she maintains relating to her parents, the
    absence of a record of success in the community materially weakens her
    challenge to the reasonableness of the Boards decision.

[6]

These considerations also undercut the
    appellants request for a conditional discharge. Among other things, there is
    no evidence as to where the appellant would reside if she was permitted to live
    in the community that would have the requisite control and supervision. For
    example, it is not clear that she could return to her parents home, given that
    they were the victims of the original offences, notwithstanding that they
    continue to support her.

[7]

The Board appreciated the steps that the appellant
    has taken to address her illness and we would commend her on the progress she
    has made. However, the Board agreed with the psychiatrist that, at the time the
    disposition now under review was made, it was premature to permit the appellant
    unsupervised and unrestrained access to the community. The appellant has failed
    to establish that the decision of the Board in this regard is an unreasonable
    one. We note, on this point, that the detention order granted provides for the
    appellant to enjoy privileges as recommended by the hospital.

[8]

We also note that the next annual review for the
    appellant is in February. The Board will have that opportunity to further
    evaluate the progress of the appellant and the continuing need for a detention
    order. The Board will also be in a better position to decide, if the
    opportunity for community living is appropriate at that point, what the best
    terms and conditions are to permit that step to be taken while ensuring the safety
    of the public.

[9]

In the end result, the Boards conclusion was a
    reasonable one based on the evidence. It is entitled to deference from this
    court.

[10]

The appeal is dismissed.

David M. Paciocco J.A.

I.V.B. Nordheimer J.A.

Sossin J.A.


