



COURT OF APPEAL FOR ONTARIO

CITATION: Reisher (Re) 2015 ONCA 929

DATE: 20151231

DOCKET: C59881

Laskin, Hourigan and Pardu JJ.A.

IN THE MATTER OF: JANET REISHER

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Katherine Stewart, for the respondent Crown

Gavin S. MacKenzie, for the respondent Person in Charge
    of the Centre for Addiction and Mental Health

Heard: August 25, 2015

On appeal against the disposition of the Ontario Review
    Board, dated October 31, 2014, with reasons reported at
Reisher (Re)
,
    [2014] O.R.B.D. No. 2814.

Laskin J.A.:

A.

Introduction

[1]

Janet Reisher appeals the Ontario Review Boards refusal to grant her an
    absolute discharge. The overriding question on this appeal is: Did the Board
    err in finding that Ms. Reisher remains a significant threat to the safety of
    the public?

[2]

In 2002, Ms. Reisher was found not criminally responsible on account of
    mental disorder on charges of carrying a dangerous weapon and assault causing
    bodily harm. She attacked two strangers with a pocket knife, one after another,
    while being driven by paranoid delusions. From 2002 until November 2013, she
    was detained at the Centre for Addiction and Mental Health, often with
    privileges that allowed her to live outside the Hospital. In November 2013 the
    Board granted Ms. Reisher a conditional discharge.

[3]

At her annual review hearing in October 2014, Ms. Reisher sought an
    absolute discharge. The Board refused to order one; instead, it ordered the
    continuation of her conditional discharge. Relying mainly on the evidence of
    Ms. Reishers psychiatrist, Dr. Duff, the Board held, at para. 14:

[T]he accused remains a significant risk to the safety of the
    public.  She has a lengthy history of noncompliance with medication while in
    the community. She has limited insight into her mental illness and the
    relationship between non-compliance with medication and aggression. She lacks a
    concrete plan for follow-up if absolutely discharged.

[4]

Ms. Reisher makes two submissions on appeal. First, she submits that the
    Board erred in two ways in its application of the test for significant threat
    to public safety: it failed to consider whether Ms. Reisher could be supervised
    under the civil mental health system, and it wrongly focused on her historical
    non-compliance with medication, her limited insight into her mental illness,
    and her lack of a concrete plan, instead of asking whether she was likely to
    commit a serious criminal offence if absolutely discharged. Second, Ms. Reisher
    submits that the Boards finding that she remains a significant threat to
    public safety was unreasonable.

[5]

If we were to agree with Ms. Reishers first submission, she would be
    entitled to a new hearing. If we were to agree with her second submission, she
    would be entitled to an absolute discharge.

B.

Background

(a)

Personal circumstances

[6]

Ms. Reisher was 44 years old at the time of the hearing before the
    Board. She was born in the Ukraine and came to Canada in 1991. She completed
    grade 11 and then spent six months at Seneca College, studying cosmetics and
    makeup artistry.

[7]

For some time, Ms. Reisher has lived in her own apartment in a building
    on Bathurst Street in Toronto. Her rent is subsidized by Jewish Family and
    Child Services. According to the Hospital report, she likes the building and
    the neighbourhood. Over the years, Ms. Reisher has had a variety of short-term
    jobs, including waitressing and cleaning private homes. In July 2014, she began
    to volunteer at the Bernard Betel Centre, answering the phone once a week for
    up to two hours.

[8]

While under the Boards jurisdiction, Ms. Reisher has given birth to two
    daughters  the first in February 2009 and the second in September 2010. Ms.
    Reishers mother takes care of the children, but Ms. Reisher visits them
    frequently.

[9]

Ms. Reisher has no history of substance abuse and, apart from her index offences,
    has never been charged with a criminal offence.

(b)

Psychiatric history and the index
    offences

[10]

Ms.
    Reisher has been diagnosed with schizo-affective disorder  bipolar type. She
    has had a long and troubled psychiatric history.

[11]

She
    began seeing a psychiatrist when she was 18. She was hospitalized in her early-
    to mid-twenties for depression and mania. Between 1996 and 2001, she was
    admitted to the North York General Hospital 13 times, both voluntarily and
    involuntarily.

[12]

The
    index offences took place in October 2001. Ms. Reisher first threatened to kill
    a taxi driver, while waiving a four-inch pocket knife. She then fled to a
    nearby apartment building. There, she knocked on the door of a unit occupied by
    a 92-year-old man whom she did not know. When he opened the door, she stabbed
    him twice in the chest and slashed his hand as he was trying to defend himself.

[13]

After
    being found not criminally responsible, Ms. Reisher was detained at the Centre
    for Addiction and Mental Health. When exercising community living privileges,
    she often had to be readmitted to the Hospital. On one occasion, she assaulted
    a member of her treatment team. The following year, she assaulted her
    boyfriends roommate; he refused to press charges.

[14]

However,
    a major change occurred, beginning in May 2011. Since then, Ms. Reisher has
    lived continuously in the community, in her Bathurst Street apartment, and has
    had no major incident requiring her readmission to the Hospital. Nor has she
    engaged in any assaultive behaviour. Dr. Duff attributes this major change to a
    change in Ms. Reishers medication, which I will discuss below.

(c)

Ms. Reishers failure to comply with
    her medication regime

[15]

Ms.
    Reisher has a history of failing to take her required medication. Typically,
    she would fail to do so after she was released from or eloped from the Hospital.
    And, typically, her non-compliance would lead to a rapid deterioration in her
    mental health and to symptoms of paranoia.

[16]

Beginning
    in March 2009, her medication regime was changed. She began taking a bi-weekly
    injectable anti-psychotic medication, which is administered at a clinic. She
    supplemented this long-lasting medication with daily oral tablets, which she
    took at home. Dr. Duff agreed that the injectable medication was a turning
    point in her treatment, as it allowed her to be maintained in the community
    without readmission to the Hospital.

[17]

Nonetheless,
    even during the year leading up to her last Board hearing, at least twice Ms.
    Reisher did not take her oral tablets. And on both occasions she demonstrated
    symptoms of paranoia.

[18]

In
    March 2014, Ms. Reisher told her nurse she was concerned about a male tenant
    living upstairs. She believed that the tenant was getting into her apartment at
    night, stealing things, and injecting her, and she believed she could hear him recording
    his own voice. In response, Ms. Reisher changed the locks to her apartment. Her
    paranoia disappeared when the male tenant moved out of the building. Shortly
    after this episode, a nurse found four oral tablets in Ms. Reishers apartment
    that should not have been there. Ms. Reisher claimed they were extras, but,
    as Dr. Duff explained, the Hospital nurses do not leave extra tablets.

[19]

In
    July 2014, Ms. Reisher told her treatment team she was getting very little
    sleep because of a conflict with her on again, off again boyfriend Camillo. She
    called him an evil, bad man and claimed that the Hospital was forcing her to
    have a relationship with him. A week after this incident, a nurse discovered
    eight extra tablets in her apartment.

(d)

The Boards 2013 Disposition

[20]

At
    Ms. Reishers 2013 annual review, the Hospital sought a continuation of her
    detention order. The Board rejected the Hospitals position and ordered a
    conditional discharge. The Boards reasons, however, emphasized the importance
    of maintaining Ms. Reisher under its jurisdiction.

[21]

The
    Board said that Ms. Reisher needed frequent monitoring to ensure that she was
    complying with her medication regime and that her mental state was stable.
    Absent a Board disposition, the risk of her failing to take her medication would
    be high, and, correspondingly, the risk of her violently reoffending would
    increase.

[22]

Still,
    despite her need for a high level of supervision and her lack of insight into
    her mental illness, the Board concluded that Ms. Reishers risk to public
    safety could be managed under a conditional discharge. The Board noted that, if
    Ms. Reisher did not take her medication and if her mental condition then
    deteriorated, under a conditional discharge the Hospital could still respond
    rapidly in one of two ways: by securing her involuntary admission to a hospital
    under the
Mental Health Act
, R.S.O. 1990, c. M.7; or, as she had
    consented to a condition requiring that she accept the treatment recommended by
    her psychiatrist, by returning her to the Centre for Addiction and Mental
    Health for breach of this condition. The Board concluded that consistent
    compliance with medication is crucial to risk management of Ms. Reisher:
Reisher
    (Re)
, [2013] O.R.B.D. No. 3146, at para. 44.

(e)

Ms. Reishers lack of insight into
    her mental illness and her lack of a concrete plan

[23]

As
    the Board observed in its 2013 disposition, Ms. Reisher continues to have
    limited insight into her mental illness. She claims that she does not get sick
    and refuses to acknowledge that she needs ongoing monitoring. When Dr. Duff
    asked her what she would do about taking her medication if she were granted an
    absolute discharge, she said she might go to a psychiatrist, or perhaps her
    family doctor, once a month.

C.

Analysis

(i)

Did the Board misapply the test for
    significant threat to public safety?

[24]

If
    an NCR accused is not a significant threat to public safety, then, under the
Criminal
    Code
, R.S.C. 1985, c. C-46, the accused is entitled to an absolute
    discharge. In
Winko v. British Columbia (Forensic Psychiatric Institute)
,
    [1999] 2 S.C.R. 625, the Supreme Court of Canada discussed the meaning of a
    significant threat to the safety of the public, at para. 57:

[T]he threat posed must be more than speculative in nature; it
    must be supported by evidence. The threat must also be significant, both in
    the sense that there must be a real risk of physical or psychological harm
    occurring to individuals in the community and in the sense that this potential harm
    must be serious. A miniscule risk of a grave harm will not suffice. Similarly,
    a high risk of trivial harm will not meet the threshold. Finally, the conduct
    or activity creating the harm must be criminal in nature. [Citations omitted.]

[25]

The
    Board can thus only maintain jurisdiction over an NCR accused if the person
    poses a significant risk of committing a serious criminal offence:
Winko
,
    at para. 57.

[26]

Ms.
    Reisher submits that the Board misapplied this test in two ways: first, by
    failing to consider whether she can be managed under the civil mental health
    system; and second, by failing to focus on the test from
Winko
, and
    instead focusing on her history of failing to take her medication, her lack of
    insight into her mental illness, and her lack of a concrete plan if absolutely
    discharged. For the reasons that follow, I do not agree with either branch of
    Ms. Reishers submission.

(a)

Did the Board err by failing to
    consider whether Ms. Reisher could be managed under the civil mental health
    system?

[27]

Ms.
    Reisher submits that the terms of her conditional discharge could be replicated
    by a Community Treatment Order (CTO) under s. 33.1 of the
Mental Health Act
.
    She contends that the Board erred by failing to consider this option. In
    support of her submission she relies on this courts decision in
R. v.
    Stanley
, 2010 ONCA 324, 100 O.R. (3d) 81, where this court substituted an
    absolute discharge for the conditional discharge ordered by the Board on the
    ground the appellant could be managed under a CTO.

[28]

I
    do not accept Ms. Reishers submission for four reasons. First, Ms. Reisher did
    not raise the possibility of a CTO before the Board. She led no evidence in
    support of CTO and she did not ask for one in her submissions. And it is the
    Board, not this court, that should consider whether Ms. Reisher can be managed
    under a CTO.

[29]

Second,
    even though the possibility of a CTO was not expressly raised before the Board,
    I think it is safe to assume the Board implicitly rejected a CTO as an alternative
    to a conditional discharge. The Board is an expert tribunal and is well aware
    of the mechanisms under the
Mental Health Act
. Indeed, in its 2013
    disposition, the Board averted to the possibility of involuntary admission to a
    hospital under the
Mental Health Act
as one way to manage Ms.
    Reishers risk under a conditional discharge.

[30]

Third,
    although, as counsel for the Hospital acknowledged, one could craft a CTO that
    closely replicates the terms of Ms. Reishers conditional discharge, Ms.
    Reisher would have to consent to a CTO.  The Board has no jurisdiction to order
    an absolute discharge and then to require that the accused enter into a CTO.
    The Hospital report and Dr. Duffs evidence before the Board show that Ms.
    Reisher is resistant to monitoring and to any form of compulsion. Thus, it is
    unlikely she would consent to a CTO, and, even if she did, a CTO has to be
    renewed every six months, giving her periodic opportunities to opt out.

[31]

Fourth,
    Ms. Reishers psychiatric history weighs against the appropriateness of a CTO
    for her. When she misses only one or two doses of her required medication, she
    tends to decompensate very quickly. When she experiences symptoms of her
    illness, she can be returned to a secure treatment unit more quickly under the
    terms of a conditional discharge than under any of the
Mental Health Act
provisions.

[32]

Ms.
    Reishers situation differs from that of the appellant in
Stanley
in
    two important ways. First, Mr. Stanley had a track record of consistently complying
    with his medication regime for several years. Second, on his appeal, the
    Hospital led fresh evidence from Mr. Stanleys psychiatrist, who testified that
    he had issued a CTO for Mr. Stanley and that he was satisfied Mr. Stanley would
    adhere to its terms. On the basis of the fresh evidence, this court concluded
    that Mr. Stanley no longer posed a significant threat to the safety of the
    public and it thus ordered that he be discharged absolutely. This sort of
    evidence is lacking in the present case. Although recently Ms. Reisher has done
    much better in taking her medication, Dr. Duff remains concerned Ms. Reisher has
    only done so under Hospital supervision. And we have no evidence from Dr. Duff
    that Ms. Reisher would adhere to a CTO. Rather, the evidence suggests the
    contrary.

[33]

I
    would not give effect to this ground of appeal.

(b)

Did the Board err by failing to focus on the test from
Winko
?

[34]

Ms.
    Reisher submits that, instead of focusing on whether she poses a significant
    risk to commit a serious criminal offence, the Board focused on her history of
    failing to comply with her medication regime, her limited insight into her
    mental illness, and her lack of a concrete plan if absolutely discharged. I do
    not agree with this submission.

[35]

Ms.
    Reishers history of non-compliance, her limited insight, and her lack of a
    concrete plan were all considerations that led the Board to conclude she
    remains a significant threat to public safety.  In reaching this conclusion,
    the Board relied on the evidence of Dr. Duff, who testified about Ms. Reishers
    limited insight and her potential to act violently if freed from Board
    supervision:

I guess you can see in her -- in the history of the index
    offence in particular that she was, that it was violent, obviously serious,
    and, and, and, and, and so shes got the potential to act on delusions and to
    act in a very dramatic and violent way. She continues not to have full insight
    about that and as soon as she becomes paranoid, what insight she has is worse.
    Theres, theres less insight; she gets angrier. And, and if she were not under
    the ORB I, I think that her -- it would become very difficult to follow her in
    a safe manner in, in the community. Shed be a challenge to, to, to care for in
    a safe way.



Shes very defensive. I think, so without the oversight of, of,
    of the ORB I think that probably she would go back to being unstable the way
    she was before and now we know for sure that there is this potential for
    serious violence when shes ill. So I think theres that risk is always there.

[36]

Dr.
    Duff also expressed concern about Ms. Reishers lack of a concrete plan, a
    consideration that is relevant in assessing an accuseds risk to public safety:
    see
Winko
, at para. 61. Dr. Duff testified:

Well, I would be very concerned about what would happen if she
    had an absolute discharge. if she had an absolute discharge what kind of
    follow up would she think was reasonable and, and that I thought she should
    have a team of, at least, of people who could come and visit her; an ACT team
    preferably. And she got very upset with that. So she does not think that she
    really needs any oversight. She doesnt really think shes at any risk of, of
    relapse.



So I, I would be very concerned about, about her ability to
    keep to -- to maintain the monitoring that she needs and to maintain the
    medication that she needs to stay well.

[37]

In
    the light of this evidence from Ms. Reishers psychiatrist, which the Board was
    justified in relying on, I see no error in its application of the test for
    significant threat to public safety. I would therefore not give effect to this
    ground of appeal.

(ii)

Was the Boards finding
    unreasonable?

[38]

A
    review boards finding that an NCR accused is a significant threat to public
    safety is entitled to deference on appeal. An appellate court asks not whether
    the Boards finding was correct, but whether it was reasonable. Ms. Reisher
    submits that the Boards finding was unreasonable. I do not accept her
    submission.

[39]

Although
    the Boards reasons are brief, they reasonably justify its finding that Ms.
    Reisher remained a significant threat to the safety of the public. The evidence
    of Dr. Duff, which I quoted earlier, supports the Boards finding.

[40]

Ms.
    Reisher committed the index offences  serious and violent offences  when she
    experienced paranoid delusions after failing to take her medication. And Dr.
    Duff testified that her paranoia is under the surface and could resurface fairly
    quickly. Yet Ms. Reisher continues to believe she is not at risk to act
    violently and she does not require any monitoring.

[41]

Thus,
    while acknowledging that Ms. Reisher is more stable than she has been in the
    past, the Board was justifiably concerned that, without its supervision, Ms.
    Reisher was at risk of going off her medication, of decompensating, and of
    violent recidivism. The Board summed up its assessment of Ms. Reishers risk as
    follows, at para. 15:

Ms. Reisher must be commended, as the last two years have been
    the most stable under the jurisdiction of the ORB. However, she requires the
    treatment team to ensure that she is compliant with medication, and that she is
    not experiencing paranoia or acting out aggressively. Therefore, the
    Conditional Discharge remains the necessary and appropriate Disposition.

[42]

On
    the evidence before it, the Boards conclusion was reasonable. I would not give
    effect to this ground of appeal.

D.

Conclusion

[43]

The
    Board did not misapply the test for significant threat to the safety of the
    public. Nor was its finding that Ms. Reisher remains a significant threat
    unreasonable. I would therefore dismiss her appeal.

Released: December 31, 2015 (JL)

John
    Laskin J.A.

I
    agree C.W. Hourigan J.A.

I
    agree G. Pardu J.A.


