



COURT OF APPEAL FOR ONTARIO

CITATION: Kelly (Re), 2020 ONCA 670

DATE: 20201023

DOCKET: C68002

Feldman, Gillese and Miller JJ.A.

IN THE MATTER OF:  Cindy Kelly

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Hatim Kheir, for the respondent,
    Attorney General of Ontario

Julie A. Zamprogna Ballès, for the
    respondent, Southwest Centre for Forensic Mental Health Care.

Heard: October 5, 2020.

REASONS FOR DECISION

[1]

On November 14, 2019, the appellant was found
    not criminally responsible (NCR) on multiple charges: two counts of uttering
    a threat to burn, destroy, or damage property, two counts of failure to comply
    with probation order, and three counts of failure to comply with recognizance.
    She was remanded to the Ontario Review Board (ORB) for disposition. The
    hearing took place on December 12, 2019, following which a detention order was
    made for reasons delivered on January 21, 2020.

[2]

The charges arose as a result of two original
    incidents in June 2018, when the appellant attended her former family home on
    Olive Avenue that she had sold. She threatened the owner that she would burn
    down the property. Later in June she returned and again threatened to burn down
    the property. She was arrested for failing to comply with recognizances,
    failing to comply with probation, and uttering threats to damage property. She
    attended the Olive Avenue property again on September 25, 2019, where she was
    found camped out on the yard. She was arrested for breach of recognizance. She
    was found NCR in respect of all of these charges.

[3]

The hospital report provided details of the
    appellants personal history. At the time of the ORB hearing, she was 48 years
    old, married for 30 years but now separated from her husband who is homeless.
    She had two sons, but one died of a drug overdose in April 2019. She has a
    lengthy criminal record running from 1992 to 2005, and from 2017 to 2019. The
    convictions were for impaired driving, narcotics, arson and breaches of court
    orders. She has had a number of hospital admissions to mental health facilities
    where she evidenced delusions and substance abuse.

[4]

Dr. Prakash, the appellants attending
    psychiatrist, testified at the hearing. He noted that since she had only been
    in the hospital for less than one month, he was just becoming familiar with
    her. With that caveat, he testified that she showed symptoms of Schizoaffective
    Disorder in her guardedness and suspicion as well as mood lability. Her history
    included significant delusional beliefs requiring hospital admissions. She was
    admitted to Bluewater Heath in Sarnia under Mental Health Act, R.S.O. 1990, c.
    M.7 forms, but left against medical advice with no follow-up treatment. Since
    being in Southwest Centre for Forensic Mental Health Care, a very structured
    unit, she had had no behavioural issues, no seclusion and no violent behaviour.
    He stated that her risk was not based on antisocial traits, as she had a
    pro-social history of running a landscape company while married with children.

[5]

While polite, the appellant was not co-operative
    with her assessment. When probed, her symptoms of paranoia, guardedness, mood
    lability, agitation and anger came to the fore. She refused to give consent to
    the treatment team to contact her family for information. Dr. Prakash
    identified her lack of co-operation as a risk factor. He also identified her
    criminal behavioural history as a risk factor, with offences including assault,
    uttering threats, and failure to comply with court orders. He also connected her
    criminal behaviour to her substance abuse. She had a history of positive urine
    screens for crystal meth upon admission to hospital. He concluded that she
    remained vulnerable to substance abuse without supervision. She had also had
    multiple hospital admissions due to decompensation in her mental health due to
    crystal meth use. She lacked insight into her crystal meth use as well as poor
    insight into her need for ongoing psychiatric treatment. She also appeared to
    have limited insight into the index offences, denying they occurred or refusing
    to comment.

[6]

Dr. Prakash gave the opinion that the appellant
    remains a significant threat to the public based on: symptoms of psychotic
    based disorder, guardedness and suspiciousness towards others, some delusional
    thoughts regarding her former house with the likelihood that without
    supervision or monitoring she would return there; paranoid delusions and active
    psychotic symptoms from crystal meth; lack of insight regarding the offences,
    her illness, and need for treatment.

[7]

She has limited supports in the community, and
    even those could not be confirmed due to her lack of disclosure or consent to
    contact family. This contributes to the risk as she has nowhere to live, no
    supports or doctor. She also has polysubstance use history.

[8]

Dr. Prakash also explained why the appellant
    required a detention order. She has the potential to do well if she co-operates
    with the treatment team. However, without a detention order, she would likely
    not take medication, would relapse to substance abuse, her delusions would
    return and she would require hospitalization. His view was that a detention
    order was necessary and that a conditional discharge would not be sufficient to
    manage her risk in the community.

[9]

He referred to her recent history, the active
    risk factors, and his opinion that, if she decompensated, the Mental Health Act
    would not suffice to get her readmitted and treated, and she would not do so
    voluntarily. In his view, a conditional discharge would put her into the
    community with no follow up treatment. However, going forward, the plan would
    be to allow her privileges and liberties to see how she would tolerate them, to
    assess her for treatment, provide addiction treatment and to build trust with
    the team.

[10]

Dr. Prakash addressed the appellants desire to
    spend Christmas with her son in Sarnia. He recognized that this was important
    for her, but it would not be possible because of the difficulty in having staff
    transport her. However, her son could visit her and perhaps become an approved
    person. He also noted that if she reached the maximum liberties under the
    disposition order, an early Board would be called.

[11]

The Board also heard from the appellant. She
    said that if released, she would apply for housing through the Good Shephard in
    Lambton County. She talked about her car accident in 2016 when she fell asleep
    at the wheel after taking her older son to a treatment facility. She also told
    the Board that she had attended programming in 2019 on healthy relationships
    and substance abuse. She also advised that she had been hallucinating while in
    the Sarnia jail. She wanted to return to Sarnia to deal with ongoing issues in
    the community. She acknowledged her drug addiction and could not say if she
    would use illicit drugs if she were released.

[12]

The Board first found that the appellant was a
    significant threat to the safety of the public. That conclusion was based on
    the evidence of the appellants ongoing symptoms of her psychotic disorder,
    exacerbated by her drug addiction, together with her lack of insight and her
    limited personal supports. The Board also relied on the opinion expressed by
    Dr. Prakash that without a detention order in place, she would likely return to
    the use of substances that would exacerbate her mental illness and likely result
    in decompensation and behaviour similar to the index offences.

[13]

The Board agreed that the necessary and
    appropriate disposition was a detention order with the terms suggested by the
    hospital. The Board found that a conditional discharge had no air of reality at
    the time, because the appellant had no residence or community supports, she had
    a significant history of non-compliance, and she had shown by going AWOL that
    the Mental Health Act provisions were insufficient to manage her risk in the
    community.

[14]

In reaching its disposition, the Board referred
    to the safety of the public as the paramount consideration, the mental
    condition of the appellant, her reintegration into society and her other needs.

Issues

[15]

The appellant raises two bases on which she says
    the Boards decision was unreasonable and not supported by the evidence: 1) its
    finding that she poses a significant threat to the public; and 2) its failure
    to meaningfully consider a conditional discharge.

Analysis

Issue 1:
The finding that the appellant continues to pose a
    significant threat to the public.

[16]

The appellant says that she does not meet the
    test for a significant threat, which requires a significant risk of significant
    harm, and that [t]aken at its highest the evidence may support a low threat of
    physical harm and/or a high threat of low psychological harm. She submits that
    the Board fell into error by focussing on the concern that the appellant would
    use substances if discharged, and the hope that she would engage in treatment
    in the hospital and have a better life.

[17]

We do not agree.

[18]

The appellants major index offence of
    threatening to burn down her former and currently occupied home, if carried
    out, would cause very significant harm. The fact that the appellant has an
    arson conviction adds weight to the threats significance. The Board accepted
    the evidence of the treating psychiatrist that left on her own, the appellant
    would very likely revert to substance abuse, leading to mental decompensation
    and the risk of the same conduct as the index offences.

[19]

The appellant went to the house three times
    between June 2018 and September 2019 and threatened the owner.  She was found
    NCR in November 2019, and the hearing was held in December 2019 at a time when
    she had not yet received any treatment because of her lack of co-operation to
    receive treatment. These circumstances provided no basis to infer that the
    appellant no longer posed a significant threat to the safety of the public. The
    Boards decision, supported by the opinion of the treating psychiatrist and all
    the evidence, was reasonable.

[20]

We note that in its factum, the hospital
    submitted that counsel for the appellant at the hearing (not counsel on the
    appeal), while initially opposing a finding of significant threat, conceded the
    issue at the conclusion of the hearing and requested a conditional discharge.
    This was disputed by the appellant on appeal. As the reasons of the Board do
    not refer to such a concession, we decline to address the issue in these
    reasons.

Issue
    2:
Did the Board give
    meaningful consideration to ordering a conditional discharge as the least
    onerous disposition consistent with public safety?

[21]

The appellants position is that the Board erred
    by not giving effect to her evidence that she was prepared to engage in
    substance abuse programming and by failing to ask her to consent to such a term
    under s. 672.55. Her position is that she does not have a major mental disorder
    but only a substance abuse problem. She submits that in her evidence she
    explained the reason she did not want to talk about her recent traumas, and
    that explanation accounted for her guardedness and lability as symptoms of her
    alleged mental illness, leaving only her substance abuse as a risk factor. It
    follows that her substance abuse was manageable with therapy, counselling and
    treatment programs as an outpatient, coupled with a prohibition on substance
    use and random drug screening. She says the Board should have considered this
    option and crafted conditions for a conditional release that would safeguard
    the public.

[22]

We do not accept this submission.

[23]

It is contrary to the evidence of the treating
    psychiatrist whose evidence the Board was entitled to accept. While he was
    still coming to know the appellant after only a short time, he concluded that
    she evidenced symptoms of Schizoaffective Disorder and suffered from delusions.
    Because she showed these symptoms, he considered her failure to co-operate with
    the treatment team to be a risk factor. He testified that a conditional
    discharge had no air of reality in the appellants circumstances at the time.
    There were a number of reasons for this that the Board clearly articulated: the
    appellant had no place to reside and no community support to assist her or to
    get her help if needed, including for the effects of substance abuse; she has a
    history of non-compliance with court orders as well as leaving hospital when
    taken there under a form issued under the Mental Health Act. As a result, there
    was no basis for any confidence that the appellant could be managed in the
    community and that the safety of the public would be protected.

[24]

The Board accepted the conditions proposed by
    the hospital which included the possibility of taking the appellant to Lambton
    County to see her son, based on compassionate grounds, as well as a ladder of
    liberty privileges including entering Elgin County indirectly supervised.

Result

[25]

The Board made no error in the conclusions it
    reached and in the order it made, based on the four statutory criteria: safety
    of the public as the paramount consideration; the mental condition of the
    appellant; her re-integration into society and her other needs.

[26]

The appeal is dismissed.

K. Feldman J.A.

E.E. Gillese J.A.

B.W. Miller J.A.


