



COURT OF APPEAL FOR ONTARIO

CITATION: Moore (Re), 2019 ONCA 1003

DATE: 20191219

DOCKET: C66987

Feldman, Tulloch and Jamal JJ.A.

IN THE MATTER OF: Tara L. Moore

AN APPEAL UNDER PART XX.1 OF THE
CODE

Jeffrey A. Marshman, for the appellant

Jeffrey Wyngaarden, for the respondent,
    the Attorney General of Ontario

Julie A. Zamprogna Balles, for the
    respondent, the Person in Charge for the Southwest Centre for Forensic Mental
    Health Care

Heard: December 5, 2019

On appeal against the disposition of the
    Ontario Review Board dated April 24, 2019.

REASONS FOR DECISION


[1]

The appellant, Ms. Tara L. Moore, appeals from
    the order of the Ontario Review Board (the Board) requiring Ms. Moores
    continued detention at the Southwest Centre for Forensic Mental Health Care,
    St. Josephs Health Care London (the Southwest Centre or the hospital),
    with community living privileges in accommodation approved by the person in
    charge.

[2]

Ms. Moore contends that the Board erred by
    failing to consider several factors that she says justified granting her a
    conditional discharge as the least onerous and least restrictive disposition.

[3]

At the hearing of the appeal, Ms. Moore
    abandoned her alternative request that the court substitute the detention order
    with a direction that the Southwest Centre place her in transitional housing as
    soon as practicable.

[4]

For the reasons that follow, the appeal is
    dismissed. The Boards conclusion that a detention order remained necessary and
    appropriate as the least onerous and least restrictive disposition was
    reasonable and supported by the evidence.

Background

[5]

On April 19, 2016, Ms. Moore was found not
    criminally responsible on account of mental disorder (NCR) on a charge of
    aggravated assault contrary to s. 268 of the
Criminal Code
, R.S.C.
    1985, c. C-46. The index offence, which occurred on June 20, 2015, involved Ms.
    Moore stabbing her former boyfriend in the neck and shoulder with a large
    kitchen knife after she showed signs of paranoid behaviour. She has multiple
    prior criminal convictions, including for aggravated assault, assault of
    police, threats to cause bodily harm, forcible confinement, carrying a
    concealed weapon, theft, intoxication in a public place, mischief, and multiple
    failures to comply with conditions of undertakings and probation.

[6]

Ms. Moore is 43 years of age. Her current
    psychiatric diagnoses are psychoaffective disorder, borderline personality
    disorder, and substance use disorder (in remission). She has been admitted to
    psychiatric hospitals several times for substance use disorder, overdoses, and
    suicidality. She was also recently diagnosed with severe pulmonary hypertension
    which, while treatable, is irreversible and life-threatening.

[7]

At the hearing before the Board, Ms. Moore
    sought an absolute discharge and in the alternative asked to move to an
    apartment on the basis that she no longer poses a significant threat to the
    safety of the public pursuant to s. 672.54 of the
Criminal Code
. On May
    2, 2019, the Board rejected this request and continued the order it first
    imposed on May 15, 2018 for Ms. Moores detention at the Southwest Centre, with
    community living privileges in accommodation approved by the person in charge.
    To date, Ms. Moore has not been approved for community living.

Issue

[8]

The sole issue on appeal is whether the Board
    erred in issuing a detention order with community living privileges, rather
    than a conditional discharge.

Analysis

(a)

The statutory scheme

[9]

The Board is tasked first with determining
    whether an NCR accused poses a significant threat to the safety of the
    public: s. 672.54(a). If she does not, then the NCR accused must be discharged
    absolutely.

[10]

When the Board finds that this threshold is met,
    it is required to order that the NCR accused be discharged or detained in
    custody in a hospital, in either case subject to such conditions as it considers
    appropriate: ss. 672.54(b) and (c);
R. v. Lamanna
, 2009 ONCA 612, 252
    O.A.C. 280, at para. 7. The Board is required to make a disposition that is
    necessary and appropriate in the circumstances (s. 672.54), which has been
    interpreted as meaning the least onerous and least restrictive disposition
    regarding the NCR accuseds liberty interests that is consistent with public
    safety, and the NCR accuseds mental condition, other needs, and eventual
    reintegration into society:
Mazzei v. British Columbia (Director of Adult
    Forensic Psychiatric Services)
, 2006 SCC 7, [2006] 1 S.C.R. 326, at para.
    19;
Lamanna,
at paras. 8-10.

(b)

The standard of review

[11]

Section 672.78(1) of the
Criminal Code
provides
    that this court may set aside a decision of the Board when:

a)

it is unreasonable or cannot be supported by the
    evidence;

b)

it is based on a wrong decision on a question of
    law; or

c)

there was a miscarriage of justice.

[12]

Ms. Moore relies on s. 672.78(1)(a). She no
    longer contests the Boards finding that she remains a significant threat to
    the safety of the public. Instead, she argues that the Boards disposition is
    unreasonable or cannot be supported by the evidence, because the Board failed
    to consider several factors, considered in detail below, that she claims justified
    granting her a conditional discharge.

[13]

In this case, by virtue of s. 672.78(1)(a), the
    standard of review of the Boards decision is reasonableness. This court accords
    a high level of deference to the Board on review pursuant to s. 672.78(1)(a)
    in light of the nature of the inquiries before the Board, the familiarity of
    the Board with the statutory regime and the specific NCR accused persons before
    the Board, as well as the difficulty in assessing whether a given individual
    poses a significant threat to public safety:
Re Collins
, 2018 ONCA 563,
    at para. 26.

[14]

Under a review for reasonableness, the court
    reviews for the existence of justification, transparency and intelligibility
    within the decision-making process and as to whether the decision falls
    within the range of possible, acceptable outcomes which are defensible in
    respect of the facts and law:
R. v. Ferguson
, 2010 ONCA 810, 271
    O.A.C. 104, at para. 11, citing
Dunsmuir v. New Brunswick
, 2008 SCC 9,
    [2008] 1 S.C.R. 190, at para. 47.

(c)

The Boards finding that the appellant remains a
    significant threat to the safety of the public

[15]

Ms. Moore no longer challenges the Boards
    finding that she poses a significant threat to the safety of the public. The
    Board made this finding for the following reasons:

·

Ms. Moores diagnoses include schizoaffective
    disorder, borderline personality disorder, and substance use disorder (in
    remission in a controlled environment). Her behaviour is currently
    dysregulated.

·

She has a lengthy criminal record, including
    convictions for assaults, failing to appear in court, and failing to comply
    with other courts orders.

·

The index offence, which she continues to
    minimize, is a serious offence that could have resulted in the death or serious
    injury of her former boyfriend.

·

Medication for both her physical and mental
    illnesses must be adjusted. This must be done with close supervision by the
    treatment team in the hospital.

·

Ms. Moore has very poor insight into her mental
    illness, her need for rehabilitation, the index offence, and her need for
    medication. She is often non-compliant with her medications when she leaves
    hospital.

·

Although Ms. Moore has not used substances while
    in hospital, she would be vulnerable to relapse if living in the community
    because she has no community supports, other than the forensic outpatient team.

(d)

The Boards disposition of a detention order remains
    necessary and appropriate

[16]

The Board also rejected Ms. Moores request for
    a conditional discharge so that she could move to an apartment and concluded that,
    having regard to the paramount concern for the safety of the public, a
    detention order remained necessary and appropriate for the following reasons:

·

Ms. Moore remains symptomatic for both mental
    and physical illnesses. As a consequence, a detention order would permit the
    hospital to return Ms. Moore to hospital quickly should she be exercising
    community privileges and would give the hospital the authority to approve her
    residence in the community. A conditional discharge would therefore not be
    appropriate.

·

The Board supported the desire of Ms. Moores
    attending psychiatrist, Dr. Roopchand, and Ms. Moores treatment team to
    continue to develop and optimize a therapeutic relationship with her.

·

While Ms. Moore is not currently ready to
    transition to community living, and it is possible though not likely that this
    could occur over the next year, it is necessary and appropriate to maintain
    community living privileges subject to the approval of the person in charge
    because it addresses Ms. Moores other needs, current mental status, and
    reintegration into society.

[17]

On appeal, Ms. Moore claims that the Boards
    disposition was unreasonable because the record before the Board did not
    support a detention order as necessary and appropriate. She claims the Board failed
    to consider five factors that cumulatively suggested that a conditional
    discharge was available in the circumstances pursuant to s. 672.54.

[18]

We disagree. In our view, the Board did not fail
    to consider the five factors, and did not act unreasonably by rejecting a
    conditional discharge as the appropriate disposition at the time.

[19]

As a preliminary matter, it is evident that the
    Board considered the record as a whole. The Boards reasons reveal that the
    Board accepted the testimony of Dr. Roopchand and the comprehensive
    121-page hospital report that supported continuing a detention order. The Board
    was not required to address the evidence in fine detail:
Re Foote
,
    2019 ONCA 731, at para. 3.

[20]

Nor do any of the factors raised by Ms. Moore
    suggest that the Board ignored any relevant considerations.

[21]

First, Ms. Moore asserts that the Board ignored the
    fact that her history of criminal conduct occurred while she was suffering from
    serious substance abuse and addiction and that she has been sober for the past
    three years.

[22]

We do not agree with this submission. The
    Boards reasons twice specifically recognized Ms. Moores recent sobriety and acknowledged
    that she never intends to use substances again, but also included the Boards
    finding that [g]iven her history she is vulnerable to relapse should she be
    living in the community. This finding was based on Dr. Roopchands expert
    testimony that in a setting other than a hospital, where [Ms. Moore] is
    exposed to any kind of stressors, she will become vulnerable again.

[23]

Second, Ms. Moore asserts that the Board erred
    in placing weight on an actuarial assessment, known as HCR-20, which indicated
    that Ms. Moore had a high risk to reoffend violently within the next 12 months,
    even on a detention order. Ms. Moore accepts that HCR-20 is nominally
    predictive of the risk of violence, but asserts that it has limited value in assessing
    significant risk because it: (i) does not reflect the fact that violence tends
    to decrease with age; (ii) tends to exaggerate risk because it overemphasizes
    historical information; and (iii) cannot offer any insight into the seriousness
    or magnitude of any potential reoffending behaviour.

[24]

We do not accept this submission. This court has
    acknowledged that actuarial assessments such as HCR-20 are only capable of
    predicting the likelihood of future violence, and not its nature or magnitude:
Re Woods
, 2019 ONCA 87, at para. 16; see also
Re Krivicic,
2018 ONCA 535, 362 C.C.C. (3d) 490, at para. 60. However, the court has also
    accepted that, in arriving at a disposition, the Board may consider such actuarial
    assessments, alongside the clinical risk assessment in a hospital report and
    the evidence of a treating physician:
Re Woods
, para. 16. That is
    exactly what the Board did here. The actuarial risk assessment was simply one
    factor that the Board weighed, alongside other evidence regarding Ms. Moores
    mental health status, lack of community supports, and the opinions of her attending
    psychiatrist and treatment team.

[25]

Third, Ms. Moore asserts that the Board failed
    to consider that being in a hospital has had a negative effect on her mental
    and emotional state and that even her treatment team acknowledged that her
    stressors would diminish in the community. She notes that she successfully
    resided on her own for many years and that her attitude and illusions improved
    when there was a real possibility of her being transferred into the community,
    but that she regressed when she lost that opportunity.

[26]

We also reject this submission. The Board
    expressly considered the evidence regarding the impact of ongoing detention on
    Ms. Moores emotional state. While Dr. Roopchand acknowledged that Ms. Moores
    fear of being in hospital might diminish to some degree if she were well
    supported in the community, the issue was that she was not eligible for the
    available community living programs and otherwise lacked the necessary
    community supports. The Board was well aware of Ms. Moores need to have hope,
    as reflected in its decision to include a discretionary community living
    condition.

[27]

Fourth, Ms. Moore asserts that she has not
    engaged in any violent behaviour while under the Boards jurisdiction, and that
    her physical functioning has been significantly reduced as a result of her
    declining physical health, reducing the threat she poses to public safety.

[28]

However, the record reveals that Ms. Moore has
    recently engaged in threatening behaviour and both verbal and physical
    aggression, including threatening to punch Dr. Roopchand in the face. The
    record also reveals that Ms. Moore has made numerous comments to the
    effect that her former boyfriend was lucky that she did not injure him more
    seriously in the course of the index offence.

[29]

Fifth, Ms. Moore asserts that the Board
    overlooked the fact that she has shown sincere commitment to continued
    compliance with her treatment.

[30]

Again, we disagree that the Board overlooked Ms.
    Moores commitment to treatment compliance. Although the Board acknowledged
    that Ms. Moore had cooperated to some extent with her ongoing treatment, it also
    noted Dr. Roopchands evidence that Ms. Moores insight regarding her
    mental illness waxes and wanes. Dr. Roopchand testified that in her opinion
    Ms. Moore would not be able to continue treatment without ongoing monitoring.
    The Board also noted that Ms. Moore had refused to take her mood-stabilizing medication
    in January 2019. In our view, the Board was entitled to conclude that Ms. Moore
    had cooperated with her ongoing treatment because of the controls associated
    with being under the Boards supervision.

[31]

We therefore conclude that the Board properly considered
    each of the items of evidence that Ms. Moore claims it overlooked.

[32]

In the circumstances, we see no basis to impugn
    the reasonableness of the Boards conclusion that a detention order was
    necessary and appropriate. The crafting of the specific terms of a disposition
    is properly left to the Boards specialized knowledge and expertise in
    assessing the NCR accuseds level of risk and how best to manage that risk:
Winko
    v. British Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625,
    175 D.L.R. (4
th
) 193, at paras. 59-61;
Pinet v. St. Thomas
    Psychiatric Hospital
, 2004 SCC 21, [2004] 1 S.C.R. 528, at para. 22. Here,
    the Boards disposition fell within the range of reasonable options.

Disposition

[33]

The appeal is dismissed.

[34]

In closing, we wish to acknowledge Ms. Moores
    understandable desire to be released from the hospital under conditions. It is hoped
    that, with ongoing treatment under the supervision of her attending
    psychiatrist and the treatment team, she will improve sufficiently that this
    may become a realistic prospect in the future.

K. Feldman J.A.

M. Tulloch J.A.

M. Jamal J.A.


