



COURT OF APPEAL
    FOR ONTARIO

CITATION: Leger (Re), 2018 ONCA 1035

DATE: 20181214

DOCKET: C65490

Hoy A.C.J.O., Feldman and Fairburn JJ.A.

IN THE MATTER OF: Michael Leger

AN APPEAL UNDER PART XX.1 OF THE
CODE

Pierre-Luc Fréchette, for the appellant

E. Nicole Rivers, for the respondent Attorney General of
    Ontario

Marie-Pierre T. Pilon, for the respondent Royal Ottawa
    Health Care Group

Heard: December 7, 2018

On appeal against the disposition of the Ontario Review
    Board, dated February 22, 2018, with reasons reported at [2018] O.R.B.D. No
    715.

REASONS FOR DECISION

[1]

The appellant appeals from the February 22, 2018 disposition of the
    Ontario Review Board. The majority of the Board concluded that the necessary
    and appropriate disposition remained a detention order, with privileges up to
    and including living in the community in approved accommodation. However, a
    minority of the Board would have granted the appellant a conditional discharge.
    In the minoritys view, s. 15(1.1) of the
Mental Health Act
, R.S.O.
    1990, c. M. 7 (which the Board referred to as the Box B criteria) would be
    available to re-admit the appellant to the Hospital, should he decompensate and
    not be willing to return to the Hospital voluntarily.

[2]

The appellants position is that the Boards disposition should be set
    aside and a conditional discharge ordered in its place. In furtherance of this
    position, he makes two main submissions.

[3]

First, he argues that the majority of the Board made a palpable and
    overriding factual error in finding that he had a propensity to decompensate
    within hours or days of missed doses of medication.

[4]

We reject this argument. The majoritys finding is rooted in  and amply
    supported by  the evidence of the appellants attending psychiatrist, Dr.
    Strike. There is no basis for this court to interfere with it.

[5]

Second, the appellant argues that the majority of the Board failed to
    adequately consider alternative mechanisms to affect his readmission to the
    Hospital upon decompensation, and that the majoritys conclusion that a
    detention order was the least onerous and least restrictive disposition available
    in the circumstances was therefore unreasonable. He further argues that the
    majority improperly substituted a test of most convenient to the [Hospital]
    for the legal test of least onerous and least restrictive disposition to the
    accused.

[6]

We disagree.

[7]

The appellants current diagnosis is Schizoaffective Disorder, Bipolar
    Type, multiple episodes, in partial remission with medication. He is incapable of
    consenting to treatment. The management of the appellants illness is
    complicated by his deficits in executive functioning. The appellant
    self-administers his daily medication, and has a proclivity to miss doses due
    to his cognitive difficulties.

[8]

He also has a history of rapid decompensation. In one instance of
    decompensation, the appellant threw furniture off his sixth-floor balcony. The
    appellant continued to experience psychotic symptoms over the course of the
    review period.

[9]

In Dr. Strikes opinion, a detention order continued to be required due
    to the risk of rapid decompensation. She reported that the appellant is very
    sensitive to medication changes or missed doses. The appellant can fully
    decompensate in a matter of two or three weeks, but psychotic symptoms that
    put him at an acute risk of violent acts can happen within a shorter period
    such as hours. Although the appellants insight into his illness is generally
    quite good, Dr. Strike testified that this insight is not there when hes
    unwell and, as a result, she was not so confident that the appellant would
    come to the Hospital voluntarily were he to decompensate.

[10]

The
    mechanism under s. 15(1.1) of the
Mental Health Act
was the subject of
    discussion at the hearing, and the majority specifically considered whether it
    was sufficient to manage the appellants risk to public safety in the event of
    decompensation. Section 15(1.1) of the
Mental Health Act
allows a
    physician to bring an application for a psychiatric assessment of a person if,
    among other requirements, the application is signed by a physician within seven
    days after he or she examined the person who is the subject of the examination.

[11]

Dr.
    Strike testified that the appellant is not currently seeing her every seven
    days. In her view, the mechanism under s. 15(1.1) of the
Mental Health Act
would be too onerous on the appellant, presumably because it would entail
    requiring the appellant to see her more frequently in order for it to be a
    viable option.

[12]

The
    majority accepted Dr. Strikes evidence. The majority wrote:

[T]he detention order continues to be required to effect rapid
    readmission to hospital given the very brittle nature of [the appellants]
    illness and his propensity to decompensate within hours or days of missed doses
    of medication. Though the
Mental Health Act
Box B criteria might be
    available to effect involuntary readmission to hospital, the Form 49 under the
    detention order is the most accessible and immediate means of readmission, at
    the first sign of decompensation.

[13]

The
    majoritys conclusion that a detention order was the least onerous and least
    restrictive disposition available, given the need to manage the appellants
    risk to public safety, was reasonable and amply supported by the evidence
    before the Board. We see no basis to interfere with that conclusion.

[14]

Further,
    the majority of the Board did not substitute a test of most convenient to the
    Hospital, as suggested by the appellant. The majority correctly framed the
    legal test at several points in its Reasons for Disposition as being the least
    onerous and least restrictive disposition available to the appellant. The
    portion of the majoritys Reasons impugned by the appellant  namely, its
    reference to Form 49 as being the most accessible and immediate means of
    readmission  was directed towards the need to ensure the appellants timely
    re-admission to the Hospital, given his propensity to decompensate rapidly. On
    the evidence before the Board, this was a legitimate consideration.

[15]

Accordingly,
    the appeal is dismissed.

Alexandra Hoy
    A.C.J.O.

K. Feldman J.A.

Fairburn J.A.


