



COURT OF APPEAL FOR ONTARIO

CITATION: Collins (Re), 2018 ONCA 563

DATE: 20180621

DOCKET: C64471

Doherty, Epstein and Pepall JJ.A.

IN THE MATTER OF: Christopher J. Collins

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Avene Derwa, for the respondent

Gavin S. MacKenzie, for the Centre for Addiction and
    Mental Health

Heard: May 11, 2018

On appeal against the disposition of the Ontario Review
    Board dated Tuesday October 3, 2017.

Epstein J.A.:

[1]

The appellant has a long history of psychiatric illness. In 2005, at 22
    years of age, he committed a nonviolent offence during a psychotic episode. He has
    been under the supervision of the Ontario Review Board ever since.

[2]

He appeals the October 3, 2017 disposition of the Board that followed a
    combined restriction of liberty hearing and annual review hearing. The Board concluded
    that the appellant continued to constitute a significant threat to the safety
    of the public and ordered that he be transferred from the Centre for Addiction
    and Mental Health (CAMH) to St. Josephs Mental Health Care, on the general
    forensic unit.

[3]

The appellant raises two main grounds of appeal. First, he argues that the
    Boards conclusion that he remains a significant threat to the safety of the
    public was unreasonable. Second, he submits that the Board erred in failing to consider
    granting him a conditional discharge.

[4]

For the reasons that follow, I would allow the appeal. Although the
    Boards decision that the appellant continued to pose a significant threat to
    public safety was reasonable in the circumstances, in my view the Board erred
    in failing to consider whether the imposition of a conditional discharge was
    the least onerous and least restrictive disposition available. I would refer
    the matter back to the Board for a new hearing under s. 672.78(3) of the
Criminal
    Code

to consider whether a conditional discharge should be imposed
    in the circumstances.

Background

[5]

The appellants index offences occurred in May, 2005. He was observed
    thrusting a knife into the front door of his neighbours home. He then returned
    to his own home and was arrested.

[6]

The appellant was found not criminally responsible on account of mental
    disorder (NCR) on a charge of mischief over $5000 and possession of a weapon
    for a dangerous purpose. During the twelve years since he was declared NCR, the
    appellant has been detained at CAMH almost continuously, living in the
    community on only brief occasions.

[7]

On July 27, 2017, CAMH advised the Board that the appellant had been
    transferred from the general unit at CAMH to a secure unit. The Board convened
    on September 19, 2017 to hold both a restriction on liberty hearing and a
    review of the appellants disposition.

(1)

The appellants history prior to the NCR ruling

[8]

The appellant suffers from psychotic disorder unspecified, cannabis use
    disorder, anxiety disorder unspecified, and antisocial and Cluster C
    personality traits. He is now 34 years old.

[9]

He had a troubled upbringing; mental health professionals have been
    involved in his care from an early age. He was removed from the family home and
    placed in a group home in Grade 8. As a child, he was diagnosed with ADHD, bipolar
    disorder, and a thought disorder. He was prescribed antipsychotic medication.

[10]

In
    2004 the appellant was admitted to hospital as a result of a psychosis
    presentation. He was diagnosed with a mixed personality disorder and obsessive-compulsive
    disorder.

[11]

The
    appellant also has a criminal record pre-dating his index offences, involving convictions
    for assault and assault with a weapon.

(2)

The appellants conduct under the Boards jurisdiction

[12]

The
    appellant has almost continuously used cannabis while under the Boards
    jurisdiction. He has been caught using cannabis and bringing it into CAMH on
    several occasions, and has regularly tested positive for cannabis and synthetic
    cannabinoid products. The appellant often has difficulty following rules, and
    went AWOL in 2014 while in the community and again in 2015 while on an escorted
    pass.

[13]

The
    appellant has also had a number of incidents of violence since his index
    offence, including:

·

In 2010, while in the community, he was convicted of assaulting
    his father.

·

In 2012, he assaulted a security guard.

·

In 2014 and 2015 there were several incidents of agitation,
    involving furniture destruction and threats to staff and co-patients. During at
    least one of these occasions the appellant was intoxicated as a result of
    cannabis use.

·

In April, 2015, he pushed a co-patients head against the wall,
    kicked the nursing station board, threatened to assault staff, and punched
    walls.

·

In August, 2015 he was involved in a physical fight with a co-patient.
    They were throwing punches and wrestling on the ground when staff intervened.

·

In June, 2015 the appellant punched himself in the face.

·

In February, 2016 he motioned his fist and stated that he would
    knock out a psychiatrist. He was also verbally aggressive towards a co-patient,
    pushed a ping-pong table and yelled obscenities. He was placed in a seclusion
    room, where he punched the wall and mattress.

[14]

Notably,
    however, there was no evidence of any such incident occurring within more than
    two years leading up to the disposition under review.

(3)

The opinion of the treating psychiatrist

[15]

The
    Board heard evidence from Dr. Rootenberg, the appellants treating
    psychiatrist. Dr. Rootenberg testified that the decision to restrict the
    appellants liberty on July 19, 2017 was due to his escalating substance use
    and the clinical teams inability to control his substance use on a general
    forensic unit.

[16]

Dr.
    Rootenberg testified that his view was that the appellant represented a
    significant threat to the safety of the public. He based this on the
    appellants long history of violence, lack of insight, and poor impulse
    control. He also identified the appellants use of marijuana and synthetic
    cannabinoids as a major risk management concern  he noted that the appellant
    had recently tested positively for synthetic agents, which are more
    unpredictable than regular cannabis products and increased the likelihood of his
    becoming violent. Consistent with the Hospital Report prepared for the
    disposition, Dr. Rootenberg testified that the appellant has poor insight into
    his mental illness and his substance use.

[17]

The
    conclusion set out in the Hospital Report was that based on the appellants
    history of aggression, ongoing substance use, and limited insight, he remained
    a significant threat to the safety of the public. The appellants score on the Violence
    Risk Appraisal Guide test put him at a high risk of violent recidivism. The other
    actuarial risk test conducted by the hospital, the HCR-20 test, identified the
    appellant as being at a low-moderate risk of violently reoffending with his
    current supervision and structure, but that this would greatly increase if he
    were to receive an absolute discharge.

(4)

The Boards decision

[18]

The
    appellant requested an absolute discharge, or, alternatively, a conditional
    discharge. In the further alternative, the appellant argued that there was a
    treatment impasse at CAMH and that he should be transferred to St. Josephs.

[19]

The
    Board unanimously concluded that the appellant continued to constitute a
    significant threat to the safety of the public. It relied on Dr. Rootenbergs
    evidence that there was a real risk that the appellant would fall away from
    treatment and stop taking his medication if absolutely discharged. The Board
    noted the appellants long history of substance abuse with cannabis and
    synthetic cannabinoids, which impacts his mental health negatively and has
    triggered psychosis which on occasion has led to violence.

[20]

The
    Board did not consider whether a conditional discharge was an appropriate
    disposition.

[21]

The
    majority of the Board ordered that the appellant be detained on a general
    forensic unit with the opportunity for community living privileges, and that he
    be transferred to St. Josephs so that he could be given a fresh start and an
    opportunity to work with a new treatment team. A minority of the Board would
    have made a hybrid order, permitting the hospital to detain the appellant on
    the secure forensic unit and to transfer him to a general forensic unit and the
    community, should his treating psychiatrists determine that his mental state
    had improved.

[22]

The
    appellant has been moved to St. Josephs Health Centre, Hamilton since this disposition.

Issues

[23]

This
    appeal gives rise to two issues:

1.

Was the Boards conclusion that the appellant remained a significant
    threat to the safety of the public reasonable?

2.

Did the Board err in failing to consider whether to grant the appellant
    a conditional discharge?

analysis

(1)

Did the Board err in concluding the appellant was a significant threat
    to the public?

(a)

The significant threat requirement

[24]

The
    Board must order an absolute discharge if it concludes that an NCR accused does
    not pose a significant threat to the safety of the public:
Criminal Code
,
    s. 672.54(a).

[25]

The
    phrase significant threat to the safety of the public refers to a foreseeable
    and substantial risk of physical or psychological harm to members of the
    public. This risk must be serious, in the sense of going beyond the merely
    trivial or annoying:
Winko v. British Columbia (Forensic Psychiatric
    Institute)
, [1999] 2 S.C.R. 625
, at para. 62. As
    Doherty J.A. explained in
R. v. Ferguson
,
2010 ONCA 810, 271
    O.A.C. 104, at para. 8, [a] very small risk of even grave harm will not
    suffice. A high risk of relatively trivial harm will also not meet the
    substantial harm standard. While the conduct must be criminal in nature, not
    all criminal conduct will suffice to establish a substantial risk. There must
    be a risk that the NCR accused will commit a serious criminal offence.

(b)

The standard of review

[26]

This court reviews decisions of the Board on a
    reasonableness standard. The Boards membership has significant expertise in
    evaluating the medical and social factors associated with risk assessment:
Ferguson
, at para. 10. The Boards decisions are owed a high degree of
    deference in the light of the nature of the inquiries before the Board, the
    familiarity of the Board with the statutory regime and the specific NCR accused
    persons before the Board, as well as the difficulty in assessing whether a
    given individual poses a significant threat to public safety:
Winko
,
at para. 60. This decision is not
    amenable to strict proof  the Board is required to exercise its expert
    judgment based on its evaluation of the evidence:
Re Carrick
,
2015 ONCA 866, 128 O.R. (3d) 209, at
    para. 25.

[27]

As Doherty J.A. noted in
Ferguson
, this court on review does not decide whether the appellant poses a
    significant threat to the safety of the public; it only decides whether the
    Boards determination is reasonable. In performing that function, it asks only
    whether the Boards decision was unreasonable in the sense of not being
    supported by reasons that can bear even a somewhat probing examination:
R.
    v. Owen
, 2003 SCC 33, [2001] 1 S.C.R. 779, at para. 33.

(c)

Was the Boards decision that the appellant posed a significant threat to
    public safety reasonable?

[28]

The
    appellant argues that the Board erred in law in failing to grant him an
    absolute discharge. Specifically, the Board erred in concluding that the
    significant threat threshold had been met in the circumstances, relying on a
    dated history of violence involving relatively minor incidents. The Board also
    made unreasonable findings in: (i) concluding, based on the testimony of Dr.
    Rootenberg, that the appellant would fall away from treatment if granted an
    absolute discharge, despite the fact that the appellant had been compliant with
    treatment for many years; and (ii) relying on the appellants continued use of
    cannabis as evidence of a risk of psychosis, even though the appellant in the
    reporting period had not become psychotic despite using cannabis.

[29]

The
    Crown submits that the Boards finding that the appellant is a significant
    threat to the safety of the public discloses no error in the light of his
    mental disorders, lengthy history of violence, and legitimate concerns about
    his falling away from treatment if discharged.

[30]

I
    would not give effect to this ground of appeal.

[31]

The only evidence before the Board on whether
    the appellant would fall away from treatment if given an absolute discharge;
    namely, the Hospital Report and the testimony of Dr. Rootenberg, demonstrated
    that the appellant has limited insight into his mental illness. He regularly (although
    not always) denies that he has a mental illness, and disputes whether his
    medication is of any benefit to him. Although he may take his medication while
    under a detention order, on this record, it was reasonable for the Board to
    rely on the opinion of the appellants treatment team and conclude that he
    would likely stop taking anti-psychotic medication if no longer subject to
any

supervision.

[32]

The appellants counsel also conceded before the
    Board that the appellant has consistently used cannabis and synthetic
    cannabinoids while under the Boards jurisdiction and will continue do so if
    discharged absolutely. Although during the reporting period the appellant had
    not become psychotic while using cannabis, there was evidence before the Board
    that this had occurred previously, and that cannabis use generally impacted his
    mental state. That evidence, combined with the expert testimony that
    established the connection between cannabis and his psychosis, was sufficient to
    support the Boards conclusion that his use of cannabis increased his risk of
    psychosis.

[33]

The question before the Board, then, was whether
    the appellant constituted a significant risk of violent recidivism after taking
    into account: (i) his history of violent behavior; (ii) his likely failure to
    take anti-psychotic medication if absolutely discharged; (iii) his continued cannabis
    use; and (iv) the evaluations and risk assessment done by his treatment team.

[34]

In
    my view, it was reasonable for the Board to conclude that the appellant
    remained a significant threat to public safety. As Binnie J. said for the
    majority in
Owen
, at para. 33, this court should decline to intervene where
    the Boards decision could reasonably be the subject of disagreement between
    Board members. The Boards decision was grounded in the evidence and was within
    a range of acceptable and rational solutions:
Dunsmuir v. New Brunswick
,
    2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.

[35]

Dr.
    Rootenberg testified that the appellant has an established history of
    violence, which is triggered by perceived slights or real slights  not
    simply frustration because his liberty was being restricted, as the appellant
    contends. He concluded that the appellant met the significant threat threshold
    as a result of the appellants past history, his substance use, and  crucially
     his lack of insight. He testified that if absolutely discharged the appellant
    would not take his medication and would constitute a greater risk to the
    public, and that the appellant was a significant threat to public safety even
    if he did not take substances, based on his history of violence and problems
    with impulse control. The actuarial risk assessments performed by the hospital
    supported this conclusion.

[36]

The
    Hospital Report notes that the appellants risk of reoffending on an absolute
    discharge would result from non-adherence to his current psychopharmacological
    regiment in conjunction with substance use, which would lead to psychosis. His
    reoffending behavior would most likely involve family members as victims. The
    report notes that when psychotic, the appellant behaves in a dangerous and
    unpredictable fashion.

[37]

Although
    the appellants history of violence is relatively dated, it was far more recent
    and relevant than the violent conduct at issue in
Re Wall
, 2017 ONCA
    713, 417 D.L.R. (4th) 124,

pointed to by the appellant. It was not
    unreasonable for the Board to rely on the appellants history of violence as
    part of its expert determination:
Re Medcof
,
2018 ONCA 299,

at
    para. 55. Unlike
Re Pellett
,
2017 ONCA 753, 139 O.R. (3d) 651, upon
    which the appellant also relied, the appellants violence was not a one-off
    incident, but a pattern of behaviour.

[38]

Based
    on this analysis I would not give effect to this ground of appeal.

(2)

Did the Board err in failing to consider granting the appellant a conditional
    discharge?

[39]

However,
    in my view the Board erred by failing to consider whether a conditional
    discharge was the least onerous and least restrictive disposition available in
    the circumstances.

[40]

The appellant submits that the Board erred in
    failing to consider whether a discharge subject to conditions could manage his
    risk to the community.

[41]

The Crown attempts to justify the Boards
    failure to consider whether a conditional discharge was the least onerous and
    restrictive disposition consistent with public safety by submitting that there
    was no air of reality to a conditional discharge. In particular, the Crown
    argues that there was evidence that if the appellant was discharged he would
    need to reside in structured accommodation approved by the hospital, and it is
    well established law that a Review Board cannot order a conditional discharge if
    the hospital needs to approve the NCR accuseds accommodation.

(a)

The legal framework

[42]

After
    concluding that the appellant continued to represent a significant threat to
    public safety, the Board was required to impose the least onerous and least restrictive
    disposition in the circumstances:
Criminal Code
,
s. 672.54.

[43]

In
Winko
,
at para. 43,
the Supreme Court directed that
    an NCR offender is to be treated with dignity and accorded the maximum liberty
    compatible with Part XX.1's goals of public protection and fairness to the NCR
    accused. In my view, where the NCR accused requests a conditional discharge
    and there is an air of reality that such a disposition would be appropriate, the
    Board must consider granting an NCR accused a conditional discharge: see
R.
    v. Breitwieser
, 2009 ONCA 784, 99 O.R. (3d) 43.

[44]

In this case, in my view there was a sufficient air of reality to
    the appellants claim that a conditional discharge would be an appropriate
    disposition. It follows that it was incumbent upon the Board to consider whether
    a conditional discharge
was the least onerous and least restrictive
    disposition available in the circumstances.

[45]

The
    appellants lack of insight and probable failure to take anti-psychotic
    medication if absolutely discharged was a central reason for the Boards
    finding that the appellant was a significant threat to public safety. Absent
    this conclusion, given the appellants relatively dated history of acting out
    in a violent manner and the nature of the index offence, a conclusion that he
    represented a significant threat may have been unreasonable.

[46]

As
    noted above, the Board was required to consider whether the appellants risk to
    public safety was capable of being managed. The evidence disclosed that while
    in the hospital the appellant was compliant with his anti-psychotic medication.
    Dr. Rootenbergs concern was that the appellant would fall away from taking his
    medication absent
any

supervision. He did not testify about the
    possibility of ensuring the appellant remained compliant with his medication
    through the supervision inherent in a conditional discharge, or the risk the
    appellant would pose in the community if conditionally discharged.

[47]

At
    minimum, the Board was required to consider whether conditions could be crafted
    to adequately address medication compliance concerns and allow the appellant to
    be safely managed in the community. The failure to do so was an error: see
Re
    Baumann
, 2015 ONCA 603, 447 O.A.C. 199;
Re Tolias
, 2018 ONCA 215;
Re Runnals
, 2008 ONCA 93. Of course, compliance with medication
    treatment cannot be a condition of a discharge order absent an NCR accuseds
    consent:
Criminal Code
,
s. 672.55(1). However, in these
    circumstances the Board was required to canvass whether the appellant would
    have consented to such a condition:
Breitwieser
,
at para. 18;
R.
    v. Coles
,
2007 ONCA 806, at para. 4.

[48]

After
    properly engaging in this analysis and considering the factors outlined in s.
    672.54 of the
Criminal Code
, the Board may have gone on to reject the
    appellants request for a conditional discharge. But there was nonetheless an
    air of reality to the appellants request for a conditional discharge such
    that the Board was required to consider this disposition.

[49]

I
    would also reject the Crowns argument that there was no air of reality to a
    conditional discharge because the evidence before the Board indicated that the
    appellant required structured accommodation approved by the hospital. Although
    this proposition is correct in law  see, for example,
Re Boucher
,
2015
    ONCA 135,

at para. 6  the Board made no such factual finding in its
    reasons. The appellants apparent need for structured accommodation approved by
    the hospital was only a suggestion in the Hospital Report  it was not
    considered by the Board.

Disposition

[50]

In
    the result, I would allow the appeal and order that this matter return to the
    Review Board to consider whether a conditional discharge should be imposed in
    the circumstances.

Released: DD JUN 21 2018

Gloria Epstein J.A.

I agree. Doherty
    J.A.

I agree. S.E. Pepall
    J.A.


