



COURT OF APPEAL FOR ONTARIO

CITATION: Smith
    (Re), 2013 ONCA 458

DATE: 20130704

DOCKET: C56607

MacPherson, Rouleau and Lauwers JJ.A.

IN THE MATTER OF: SHIRLEY SMITH

AN APPEAL UNDER PART XX.1 OF THE
CODE

Shirley Smith, in person

Anita Szigeti,
Amicus Curiae

Philippe G. Cowle, for the Attorney General of Ontario

Janice E. Blackburn, for the Person in Charge of the
    Centre for Addiction and Mental Health

Heard and released orally: July 3, 2013

On appeal against the disposition of the Ontario Review
    Board dated September 21, 2012.

ENDORSEMENT

[1]

The appellant appeals from the disposition of the Ontario Review Board
    dated September 21, 2012, whereby the Board ordered that the appellant be
    detained in a secure forensic unit at the Centre for Addiction and Mental
    Health (the Hospital), subject to her transfer to a general forensic unit, in
    the discretion of the person in charge of the Hospital, if her condition
    clinically improves to the extent of justifying such a transfer.

[2]

Amicus
challenges the Boards hybrid order on the grounds that
    it is unreasonable and that the Board failed to make the least onerous and
    least restrictive disposition available.  In particular,
Amicus
argues
    that the Board erred (1) by failing to include in its disposition order a term
    permitting the appellant to reside in the community, as the Board had ordered
    in the past; (2) by failing to consider the requirements of s. 672.54 of the
Criminal
    Code
in any meaningful way; and (3) by failing to have regard to the
    appellants liberty interests.

[3]

We are not persuaded that the Boards disposition is unreasonable or
    that the Board erred in the ways asserted by
Amicus
.

[4]

The appellant suffers from bipolar disorder, historical cocaine abuse
    and personality disorder NOS (Cluster B, severe).  As the Board noted, her
    treatment course has been complicated by her non-compliance with outpatient
    care and medication.

[5]

It was common ground at the review hearing that the appellant continues
    to pose a significant risk to the safety of the public.  The evidence before
    the Board established that in the months and weeks before the review hearing,
    the appellant experienced frequent, rapid and unpredictable declines into
    aggressive, manic behaviour, rendering her a threat to the public while in the
    community.  During her episodes of acute mania, she became psychotic and
    behaved in impulsive, aggressive and sometimes violent ways.

[6]

While the appellant had been able to maintain some stability while
    living in the community in the past, her condition had recently declined to the
    extent that her treatment team no longer regarded community living as
    appropriate, then or for the foreseeable future.  The appellants treating
    psychiatrist since her March 2012 readmission to Hospital testified before the
    Board that the appellant required a period of stability for several months
    before she could be transferred to a general secure unit at the Hospital. 
    Further, in his opinion, it was highly unlikely that she would be well enough
    to live in the community in the coming year.

[7]

It was on the basis of this evidence that the Board concluded that a
    condition permitting community living in the coming year was inappropriate.  On
    this record, the Boards disposition was reasonable and well within the realm
    of its expertise.

[8]

We are also not persuaded that the Board failed to consider the
    mandatory requirements of s. 672.54 of the
Code
or the appellants
    liberty interests.

[9]

The Boards reasons indicate that it was cognizant of the requirements
    of s. 672.54 of the
Code
and the need to fashion the least onerous and
    restrictive disposition possible in light of the appellants changed
    circumstances.  The Boards hybrid order was fashioned specifically to allow
    for the appellants eventual reintegration into the community by a transfer to
    a new general forensic unit at the Hospital as soon as her clinical condition
    had sufficiently improved to permit this transfer (such a transfer in fact took
    place six months ago).  By so ordering, the Board expressly considered both the
    liberty interests of the appellant and the least onerous and restrictive
    disposition possible in light of the appellants recent and serious
    decompensation.

[10]

Finally,
    we want to record that we were impressed with Ms. Smiths oral submissions at
    the hearing today.  It is obvious that she is making real progress which will
    be highly relevant at her next review hearing scheduled for October 23, 2013.

[11]

The
    appeal is dismissed.

J.C. MacPherson J.A.

Paul Rouleau J.A.

P. Lauwers J.A.


