



COURT OF APPEAL FOR ONTARIO

CITATION: Trudel (Re), 2021 ONCA 720

DATE: 20211014

DOCKET: C69037

Fairburn A.C.J.O., Doherty and Watt JJ.A.

IN THE MATTER OF:  CHANTAL TRUDEL

AN APPEAL UNDER PART XX.1 OF THE
CODE

Meaghan McMahon, for the appellant

Sunil Mathai, for the respondent Attorney General of
    Ontario

Barbara J. Walker-Renshaw and Kate Deakon, for the respondent
    Royal Ottawa Mental Health Centre

Heard: October 7, 2021 by video conference

On appeal from the January 12, 2021 disposition of the
    Ontario Review Board, with Reasons for Disposition dated January 26, 2021.

REASONS FOR DECISION

[1]

In 2008, the appellant was found not criminally
    responsible. The index offence involved an aggravated assault, where the appellant
    stabbed a man in the chest while in a paranoid and psychotic state. She has
    been under the supervision of the Ontario Review Board since that time.

[2]

In her most recent review hearing, the appellant
    requested an absolute discharge or, in the alternative, a conditional
    discharge. That position was rejected. The Board concluded that the appellant
    remains a significant threat to the safety of the public and that a
    continuation of the detention order is necessary.

[3]

The appellant argues that the Boards reasons
    reflect two errors.

[4]

First, the appellant contends that the Board failed to
    conduct an appropriate analysis regarding whether she constitutes a significant
    threat to public safety. The appellant says that the Boards reasons fall short
    by failing to meet the principles of justification and transparency:

Canada (Minister of Citizenship and Immigration)
v. Vavilov
, 2019 SCC 65,
441
    D.L.R. (4th) 1,

at paras. 84-86;
Sim (Re)
,
    2020 ONCA 563, at para. 68. More specifically, the appellant argues that the
    Board failed to adequately explain why the following three factors, noted at
    para. 20 of its reasons, supported its conclusion that the appellant remains a
    significant threat to the safety of the public: (1) the appellants risk of
    relapse; (2) the appellants lack of insight into her mental illness and the
    need for medication; and (3) the appellants use of substances to the point
    that she recently decompensated after eloping from the location where she was
    required to live. This decompensation required hospital admission and
    stabilization.

[5]

We do not accept that the Board failed in its duty to justify or
    transparently explain the conclusion that the appellant remains a significant
    threat to public safety.

[6]

The Boards reasons must be read in the context of the previous
    disposition, a detention order, and the fact that this court upheld that
    disposition on appeal: see
Trudel (Re)
, 2019 ONCA 759. In this type of
    situation, this Courts primary focus must be on the period of time between the
    date of the prior disposition and the date of the annual review.  Importantly,
    the appellants last disposition was based upon largely the same evidence as
    was before the Board in the most recent hearing. To the extent that it differs,
    the differences point even more clearly toward a detention order than before,
    specifically the circumstances surrounding the appellants recent elopement and
    decompensation requiring hospital stabilization.

[7]

The impugned paragraph must also be read against the entire reasons,
    including the factual summary that supports the conclusions drawn in that paragraph.
    It must also be read against the factual record from the hearing, including the
    psychiatric evidence underscoring the appellants difficulties with substance
    abuse and her symptomatic nature during the period of time most recently under
    review.

[8]

Against that contextual backdrop, we conclude that the reasons provide a
    transparent and intelligible basis upon which to understand how the Board
    arrived at the conclusion that the appellant continues to be a significant
    threat to the safety of the public.

[9]

Second, the appellant argues that the Board failed to perform its
    inquisitorial duties in a way that would have allowed it to correctly determine
    the least onerous and least restrictive disposition commensurate with the
    safety of the public. In particular, the appellant suggests that the Board
    should have sought out evidence to assist in considering whether a conditional
    discharge could have been carefully crafted as a less onerous disposition while
    still addressing the concerns expressed by the treating psychiatrist. The
    appellant suggests that the Board should have sought out evidence on whether it
    would have been appropriate to order a conditional discharge with a treatment
    clause, a residence condition, and a condition directing her to quickly return
    to the hospital if required.

[10]

Respectfully,
    we disagree.

[11]

In
    light of the record, we see no abdication by the Board of its responsibilities.

[12]

While
    it is true that the Board performs an inquisitorial function, the demands
    arising from that function must be considered in context, including the record
    as developed before the Board and the positions of the parties as advanced
    before the Board. Here, the appellant was represented by counsel who did not
    lead evidence on these issues. Moreover, as reflected in the hospital report,
    the appellant took the position that she did not want any restrictions placed
    on her.

[13]

As
    well, the appellants psychiatrist testified that, in light of the appellants
    risk to the community, the hospital would need to be directly involved in
    approving her supervised community housing, something that can only be done
    through a detention order. The psychiatrist also emphasized the need for a
    quick return to the hospital should the appellant start to decompensate,
    something that can be more easily accomplished under a detention order than
    under the
Mental Health Act
, R.S.O. 1990, c. M.7.

[14]

Finally,
    the Board accepted the psychiatrists evidence that the appellants risk
    profile had actually increased since the last Board disposition involving a
    detention order.

[15]

Against
    that contextual backdrop, there was nothing that the Board needed to inquire
    into.

[16]

In
    our view, the disposition was carefully tailored to allow the appellant to
    progress toward even further community integration, including the possibility
    of being discharged into a 24-hour care group home when COVID-19 restrictions
    permit.

[17]

The appeal is dismissed.

Fairburn
    A.C.J.O.

Doherty
    J.A.

David
    Watt J.A.


