





CITATION:
Haye (Re), 2011 ONCA 700



DATE: 20111110



DOCKET: C53476



COURT OF APPEAL FOR ONTARIO



Laskin, Cronk and Blair JJ.A.



IN THE MATTER OF: Naureen G. Haye



Ewa Krajewska, for the appellant, the Person in Charge of
          Ontario Shores Centre for Mental Health Sciences



Naureen G. Haye, acting in person



Anita Szigeti, as
amicus curiae



Robert Gattrell, for the Attorney General



Heard: November 4, 2011



On appeal against the disposition of the Ontario Review Board,
          dated March 31, 2011.



By the Court:



[1]

The Hospital appeals a disposition of the Ontario Review Board dated
    March 31, 2011, granting Naureen Haye an absolute discharge.  In considering
    this appeal, we have had the benefit of written and oral submissions by counsel
    and by Ms. Haye.

[2]

Ms. Haye was found not criminally responsible for wilful mischief
    endangering life after she lit a fire in the driveway she shared with a family
    with young children, and then used her gas-fired oven to incinerate clothes,
    garbage, incense and food while her son was in the house.  She was admitted to
    the Ontario Shores Centre for Mental Health Sciences in February of this year. 
    This was her first Review Board disposition.

[3]

Under s. 672.54 of the
Criminal Code
, a Review Board may grant an
    absolute discharge where it is of the opinion that the accused is not a
    significant threat to the safety of the public.  In the present case, the
    Review Board was satisfied that Ms. Haye suffers from a mental disorder, but
    was not satisfied to the degree required that she is a significant risk to the
    safety of the public.  The principal issue on this appeal is whether the
    Review Board erred in its opinion that Ms. Haye is not a significant threat to
    public safety.

[4]

We recognize the expertise of the Review Board and we acknowledge that its
    opinions are entitled to deference from an appellate court.  However, in the
    present case, the Review Boards reasons raise two concerns, which together
    warrant our intervention.

[5]

The first concern is that the Review Board seems to have misapprehended
    the evidence of Dr. Rootenberg, the psychiatrist who assessed Ms. Haye.  Dr.
    Rootenberg was the only expert to testify before the Review Board and, in
    discharging Ms. Haye absolutely, the Review Board relied on his opinion.  After
    noting that since entering the hospital Ms. Haye had done nothing to indicate
    she is likely to cause physical or psychological harm to anyone including
    herself, the Board said:

When Dr. Rootenberg was questioned by Mr. Balka [a
    Board member] as to his opinion, he acknowledged that at best such a risk was
    speculative.  We appreciate his frankness.  We agree and think that the
    evidence falls short of establishing the accused is a significant risk to the
    safety of the public.

[6]

We have reviewed the entire transcript of Dr. Rootenbergs testimony,
    including the part where he was questioned by Board members.  At no time did he
    say or leave the impression that the risk of harm posed by Ms. Haye was
    speculative.  On the contrary, Dr. Rootenberg said very clearly in his
    evidence that, if released, Ms. Haye was likely to act on her delusional
    beliefs and paranoid thoughts.  For example, in response to a question from
    counsel for the Hospital, he said yes, I do think if she wasnt in a
    structured supervised setting, she may well act on those views.  And when
    counsel for the Attorney General asked: Now in terms of significant risk, I
    take it the concern is that she is going to continue to act out on her
    delusional thinking, the way that she did at the time of the index offence?,
    Dr. Rootenberg replied, Certainly.

[7]

Our second concern is that in its analysis of significant risk, the
    Review Board did not refer either to the evidence of Ms. Hayes sister or to
    the written report of the Hospital treatment team.  Both the sisters testimony
    and the Hospital report strongly support a finding that, if released, Ms. Haye
    would be a significant threat to the safety of the public.  As the Board did
    not refer to this evidence, we cannot be satisfied that it took it into account
    in discharging Ms. Haye absolutely.

[8]

For these brief reasons we set aside the Review Boards disposition and
    remit the matter back to it for a new hearing.  That hearing should be
    scheduled expeditiously, even as early as this month should a date be
    available.

RELEASED:  November 10, 2011                                     John
    Laskin J.A.

EAC                                                                                 E.A.
    Cronk J.A.

R.A.
    Blair J.A.


