



COURT OF APPEAL FOR ONTARIO

CITATION: Valdez (Re), 2018 ONCA 657

DATE: 20180720

DOCKET: C64516

Lauwers, Miller and Fairburn JJ.A.

IN THE MATTER OF: Joel
    Valdez

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Justin Reid, for the respondent Attorney General of
    Ontario

Logan Crowell, for the respondent Person in Charge of Ontario
    Shores Centre for Mental Health Sciences

Heard: June 8, 2018

On appeal from the disposition of the Ontario Review
    Board, dated September 27, 2017, with reasons dated October 12, 2017.

REASONS FOR DECISION

[1]

On December 3, 2015, Mr. Valdez (the appellant) was found not criminally
    responsible (NCR) by reason of mental disorder on a charge of arson and failure
    to comply with a probation order. Mr. Valdez has since been diagnosed with Schizophrenia,
    undifferentiated subtype. He is treated monthly with injectable medication. Mr.
    Valdez has displayed no signs of psychosis since receiving his treatment and
    has been residing since November 2016 in the community, with his family,
    without incident. Following Mr. Valdezs annual hearing on September 19, 2017,
    the Board ordered him to be detained on the general forensic unit of Ontario
    Shores Centre for Mental Health Sciences under a detention order and continue
    with his same level of privileges.

[2]

Mr. Valdez appeals. He maintains that the Board erred by failing to
    impose an absolute discharge. In the alternative, and at a minimum, Mr. Valdez
    maintains that he should have been conditionally discharged.

[3]

The respondents submit that Mr. Valdez remains a significant threat to
    the public and the majoritys decision not to order a conditional discharge is
    reasonable.

[4]

While we agree with the Board that Mr. Valdez was not entitled to an
    absolute discharge, we would remit for the Boards consideration whether Mr.
    Valdez should receive a conditional discharge.

Index Offence and Detention History

[5]

On December 25, 2014, Mr. Valdez set fire to his parents home,
    including setting fire to three separate couches and three separate beds. He
    was found NCR for these offences on December 3, 2015.

[6]

Mr. Valdez had previously been convicted of forcible confinement,
    uttering threats and assault with a weapon, all directed at his wife.

[7]

On November 1, 2016, Mr. Valdez was moved from the hospital to his
    family home, as permitted at the discretion of the hospital and under the terms
    of his detention order. He has resided there since that time with his wife,
    three children, and his wifes parents. Mr. Valdezs parents live in close
    proximity. Mr. Valdez does some work around the house and has been able to find
    employment from time-to-time. There has been no evidence of psychotic symptoms
    since his return to the family home.

The Decision under Appeal

[8]

The Board unanimously agreed that Mr. Valdez remains a significant
    threat to public safety. Based on Dr. Pearces evidence, the Board found that:

Mr. Valdez has absolutely no insight into his need for
    medication and accept further that if he were not under the Boards
    jurisdiction he would stop medication and within a few months become psychotic
    andlikely to act out in an aggressive manner.

[9]

On this basis, the Board refused to grant Mr. Valdez an absolute
    discharge, which was the remedy he sought.

[10]

However,
    the Board was divided on the issue of the necessary and appropriate
    disposition. Four of the five members of the Board accepted the Crowns
    position that Mr. Valdez should continue to be subject to a detention order, largely
    on the basis that it would be easier to have Mr. Valdez returned to hospital
    under a detention order than under a conditional discharge. The majoritys
    reasoning on this point was brief:

The evidence of Mr. Valdezs stated intention to stop his
    medication as soon as he is no longer under an ORB disposition leads not only
    to the conclusion that he is a significant threat to public safety, but also to
    the conclusion that the necessary and appropriate disposition is a Detention
    Order. In the Boards experience, as confirmed both by Crown counsel and by
    defence counsel, it is substantially easier to bring about a return to hospital
    for individuals who are under a Detention Order. The Board understands that
    there is a warrant that will always be acted upon by the police if the police
    are required to bring about a return to hospital. In the majoritys opinion,
    public safety would be compromised in a situation where Dr. Pearce or any other
    doctor is forced to negotiate with the patient and to threaten hospitalization
    in order to have Mr. Valdez accept his medication. In the majoritys opinion,
    the necessary and appropriate disposition is a Detention Order.

[11]

The
    minority would have accepted the hospitals recommendation of a conditional
    discharge as the least onerous and least restrictive disposition consistent
    with public safety. In reaching this conclusion, the minority relied on Dr.
    Pearces evidence that Mr. Valdez could remain medically compliant without a
    detention order. Dr. Pearce cited several reasons for this opinion including:
    (1) his interactions with Mr. Valdez in the past; (2) the support of Mr. Valdezs
    family; and (3) the available enforcement mechanisms under a conditional
    discharge.

Absolute Discharge

[12]

Before
    us, Mr. Valdez argues that the Board erred in failing to impose an absolute
    discharge. We disagree. That decision was squarely rooted in the evidentiary
    record. Indeed, Dr. Pearce stated that an absolute discharge is likely years
    and years off. The Boards decision that Mr. Valdez remains a significant
    threat to public safety was within the range of reasonable outcomes. We defer
    to that finding.

Conditional Discharge

[13]

Mr.
    Valdez argues alternatively that he should receive a conditional discharge. He
    asserts that the Board is obliged to determine the necessary and appropriate
    disposition and that it failed to do so. The evidence of Dr. Pearce supports
    the conclusion that Mr. Valdezs mental illness is well controlled by
    long-acting injectable drugs. Given his more recent treatment history and his
    strong family support, he is likely to attend at the hospital and receive his
    monthly injection. If Mr. Valdez fails to attend for his monthly injection, the
    hospital would be immediately aware of this; because he would not decompensate
    for one to two months, there would be sufficient time for the hospital to
    respond effectively before decompensation occurs.

[14]

The
    respondent Crown maintains that the majoritys decision is reasonable given:
    (1) Mr. Valdezs lack of insight into his mental illness; (2) his stated desire
    to stop taking medication; (3) the historical difficulties with getting him to
    take his medication; and (4) the danger he presents without medication.

[15]

Although
    the hospital supported a conditional discharge at the hearing, it takes the
    position on appeal that the Boards decision was reasonable and it was within
    its power to conclude that it is easier to return a person to hospital for
    treatment when a warrant of committal under a detention order is in place.

Analysis

[16]

Part
    XX.1 of the
Criminal Code

establishes the legislative regime
    for mental disorders and dealing with NCR accused. As Bastarache J. observed in

Mazzei v. British Columbia (Director of Adult Forensic Psychiatric
    Services)
, 2006 SCC 7, [2006] 1 S.C.R. 326, at para 32: the primary
    purpose of the legislative scheme is to protect the public while minimizing any
    restrictions on the NCR accused's liberty interests.

[17]

The
    Board is charged with the responsibility for determining the necessary and
    appropriate disposition, meaning least onerous and least restrictive
    disposition necessary to protect the public:
R. v. Winko
, [1999] 2
    S.C.R. 625, at para. 47. The Board is a specialized, expert body and its
    decisions are owed a significant degree of deference:
R. v. Owen
, 2003
    SCC 33, [2003] 1 S.C.R. 779, at para. 95. Appellate courts are not [to] be
    too quick to overturn a review boards expert opinion on how best to manage
    a patients risk to the public:
R. v. Conway
,
2010 SCC 22, [2010]
    1 S.C.R. 765 at para. 95. See also,
Owen
,
at para. 69.

[18]

The
    issue on this appeal is whether the Boards decision falls within a range of
    reasonable outcomes:
Owen
, at para. 33. A decision will be considered
    unreasonable when the reasons do not bear even a somewhat probing
    examination:
Saikaley Re
, 2012 ONCA 92, 287 O.A.C. 200, at para. 35;
Mazzei
,
at para. 17.  Our task is somewhat hampered by the Boards reasons, which
    are sparse in their application of the least onerous/restrictive test:
Re Marchese
,
    2018 ONCA 307, at paras. 16-23.

[19]

In
    our view the majoritys decision is unreasonable.

[20]

The
    Board was right to be concerned that Mr. Valdez would decompensate if he failed
    to take his medication. We accept the Boards finding, based on Dr. Pearces evidence,
    that if Mr. Valdez were not under the Boards jurisdiction he would stop
    medication and within a few months become psychotic and likely  act out in an
    aggressive manner.

[21]

However,
    we have difficulty with the majoritys cursory consideration of whether Mr.
    Valdezs risk to the public could be managed under a conditional discharge. The
    majority reasoned that it is substantially easier to bring about a return to
    the hospital for individuals who are under a Detention Order and that a
    warrant will always be acted upon to bring a person back to the hospital if
    necessary. However, this would always be true and could always be used to
    justify the refusal of a conditional discharge. But, given the least onerous
    and least restrictive test, something more is required than mere convenience to
    the hospital.

[22]

The
    ease of returning an individual to hospital will not always justify a detention
    order as the necessary and appropriate disposition. As discussed in
Young
    Re
,
2011 ONCA 432, 278 O.A.C. 274,

at para. 26, there are
    multiple ways in which to secure someones attendance at the hospital when they
    fail to comply with a condition of their discharge. For instance, the person
    could be returned: (1) by convening a new hearing under s. 672.82(1) of the
Criminal
    Code
; (2) by resorting to the breach provisions of the
Criminal Code
;
or (3) through the committal provisions available under the
Mental
    Health Act
,
R.S.O. 1990, c M.7.

[23]

The
    Board had a duty to assess the evidentiary record in context, including taking
    into consideration in this case: (1) the risk of non-attendance for medication;
    (2) the mechanisms for securing someones attendance at hospital under the
    conditional discharge framework; (3) the length of time that any such steps may
    take; (4) the effect of that delay on Mr. Valdezs mental health; and (5) the
    risk to public safety posed by any delay in treatment.

[24]

The
    majoritys reasoning does not demonstrate that it took these considerations
    into account. Although Mr. Valdez appears to be a significant risk to public
    safety when off of his medication, the Board found he would not decompensate
    for at least a month, if not more, from the time of him missing an injection.
    This is not a case like
R. v. Breitwieser
, 2009 ONCA 784, 99 O.R. (3d)
    43, in which the appellant was responsible for administering his own
    medication, which could therefore not be monitored, and failing which, he would
    quickly decompensate. There is no evidence here that any short delay in the
    administration of Mr. Valdezs medication would be critical to public safety.
    The evidence on the record is to the contrary.

[25]

For
    these reasons, we return the matter to the Board to consider whether, in light
    of all of the relevant factors, Mr. Valdez should be subject to a conditional
    discharge rather than a detention order.

P. Lauwers J.A.

B.W. Miller J.A.

Fairburn J.A.


