



COURT OF APPEAL FOR ONTARIO

CITATION: Esposito
    (Re), 2019 ONCA 847

DATE: 20191025

DOCKET: C66704

Strathy C.J.O., Doherty
    and Tulloch JJ.A.

IN THE MATTER OF:
    Edda Esposito

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Anita Szigeti and Maya Kotob, for the appellant Edda
    Esposito

Gavin MacDonald, for the respondent Her Majesty the
    Queen

Kathryn Hunt, for the respondent Centre for Addiction
    and Mental Health

Heard: October 4, 2019

On appeal against the disposition of
    the Ontario Review Board dated December 27, 2018, with reasons reported on
    January 17, 2019.

REASONS FOR DECISION

Overview

[1]

The appellant, Ms. Edda Esposito, appeals from the order of the Ontario
    Review Board dated December 27, 2018 that she be detained in the General
    Forensic Unit at the Centre for Addiction and Mental Health (CAMH) in Toronto.

[2]

Ms. Esposito came under the Boards jurisdiction on September 20, 2017,
    when she was found not criminally responsible on account of mental disorder on
    charges of possession of a weapon for dangerous purposes, assault with a
    weapon, and aggravated assault. She continues to be detained following two
    subsequent Review Board orders.

[3]

On November 14, 2017, the Board rendered a Hybrid Order with initial
    detention in the Secure Forensic Unit at CAMH, with an array of privileges as
    well as the ability to be transferred to the General Forensic Unit. A
    subsequent Review Board hearing was convened on December 13, 2018, which
    resulted in the current detention order which is the subject of this appeal.

[4]

Ms. Esposito appeals the decision of the Board on the following bases:

a.

That the Board erred in fact and in law by failing to render a
    disposition that is necessary, appropriate and least restrictive;

b.

That the disposition ordered is unreasonable on the evidence.

Facts

[5]

Ms. Esposito is a 63-year-old woman, and the mother of four adult
    children. She was originally diagnosed with schizophrenia in 1990.

[6]

The index offence occurred on September 11, 2016, when Ms. Esposito, in
    a delusionary state, believed her father to be the devil and attacked him while
    he was asleep in his bed. At the time, Ms. Esposito and her father had resided
    together for two years. At approximately 7:30 a.m., Ms. Espositos father awoke
    to her entering his room while brandishing a fork. She approached him while he
    laid in his bed and began stabbing him with the fork. Ms. Esposito stopped her
    attack only after her father was able to escape by running outside their condo,
    and a concerned neighbour intervened.

[7]

As a result of the altercation, the appellants father sustained
    numerous cuts and lacerations to his face and nose and required hospitalization
    as a result of a piece of metal being lodged in his eye.

The Ontario
    Review Board Hearing

[8]

Following the appellants NCR verdict, the Board concluded that she
    represented a significant threat to the public safety, and that the necessary
    and appropriate, least onerous and restrictive disposition available on the
    evidence was a detention order on a general level, with privileges up to and
    including residence in the community in accommodation approved by the Person in
    Charge of CAMH.

[9]

At the last Board hearing, the hospital recommended that Ms. Espositos
    detention continue as she is still a significant threat to the public. Ms.
    Esposito sought an absolute discharge, or in the alternative, a conditional
    discharge. The Board rejected her position and accepted the submissions of the
    hospital and the Crown and found that Ms. Esposito continued to pose a
    significant threat to the public.

[10]

The
    hospitals recommendation was supported by the evidence of the attending
    psychiatrist, Dr. Shaheen Darani. The evidence indicated that Ms. Esposito was
    still experiencing active symptoms of her illness, which included beliefs that
    her co-patients were molesters and/or murderers and that her mother was a
    witch. She also continued to harbour a belief that her son-in-law was a
    molester. The evidence also indicated that, while Ms. Esposito accepted the
    fact that she suffers from schizophrenia, she stated that she will cease taking
    her medication if she is released, because she believes that the disease was
    inflicted on her through an electrical shock or a witchs spell and she plans
    to seek out a priest so he can perform an exorcism.

[11]

According
    to Dr. Darani, Ms. Esposito is especially vulnerable to the use of prescribed
    opiate-based medications to alleviate her pain. Dr. Darani noted that the use
    of narcotics has exacerbated Ms. Espositos symptoms in the past, and that the
    use of narcotics was an exacerbating factor at the time of the index offence,
    as it led to her non-adherence to medication and rendered her a real risk to
    the public. Ms. Esposito has specifically stated to Dr. Darani that once in the
    community, she will seek out any doctor who will be prepared to prescribe her
    pain medication.

[12]

Two
    of Ms. Espositos children were in support of the hospitals recommendation for
    a detention order on the General Forensic Unit with the ability to reside in
    the community in approved accommodation, and they both agreed with the hospital
    and the treatment team that it would be best for their mother to be placed in
    supportive housing. One of Ms. Espositos sons indicated that he would be
    willing to have his mother reside with him and that he was prepared to
    supervise her with respect to her medication and her mental status, but he also
    resides with Ms. Espositos elderly mother who is the subject of one of Ms.
    Espositos delusionary beliefs that her mother is a witch.

Analysis

[13]

Ms.
    Esposito asks this court to set aside the Boards detention order, and instead
    order an absolute discharge, or, in the alternative, order a conditional
    discharge. Failing that, she asks for a new hearing before a differently
    constituted panel.

[14]

We
    find no error in the Boards reasoning or disposition. As such, there is no
    basis for this court to intervene.

[15]

The
    Board was obliged to determine the necessary and appropriate disposition for
    Ms. Esposito, given her particular circumstance, pursuant to s.  672.54 of
    the
Criminal Code
. This meant the Board had to determine, in light of
    the evidence, what was the least onerous and least restrictive disposition that
    was appropriate for Ms. Esposito. This entailed conducting a risk assessment to
    determine whether she continued to pose a significant threat to the safety of
    the public as outlined in
Winko v. British Columbia (Forensic Psychiatric
    Institute)
, [1999] 2 S.C.R. 625. To find significant threat, there must be
    a foreseeable and substantial risk of physical or psychological harm that is
    serious and beyond trivial or annoying:
R. v. Ferguson
,

2010 ONCA 810, 264 C.C.C. (3d) 451.

In the words of the court in
Winko,
a miniscule risk of even
    grave harm will not suffice.

[16]

In
    applying the test in
Winko
, the Board made the following observations
    at para. 62 of its decision:

The Board regards the recentness
    of the index offence; the severity of the harm and physical danger of the index
    offence as well as the current continuation of active symptoms of her major
    mental illness that include similar themes of that in the index offence as
    going beyond the test as set out in
Winko
to establish significant
    threat. Add to this the stated intention of Ms. Esposito to cease taking
    medication when discharged, leads inextricably to the conclusion of significant
    threat.

[17]

The
    Board then considered what was the least onerous and least restrictive
    disposition that would be appropriate for Ms. Esposito, based on the evidence,
    and concluded that nothing short of a detention order would mitigate the risk.
    The Board specifically addressed Ms. Espositos submissions regarding her
    request for a conditional discharge and articulated why such a disposition was
    inappropriate. At para. 66 of its decision, the Board noted that it must
    consider whether the risk to the public can be safely managed under terms
    imposed as part of a conditional discharge and not simply focus on the risk
    that Ms. Esposito will breach any term of the order. The Board then set out
    its reasons for rejecting Ms. Espositos request, and outlined the evidence
    that militates against a conditional discharge:

the evidence establishes that Ms.
    Esposito will view a discharge as a license to stop taking medication and she
    will absolutely experience an exacerbation of her symptoms, which will put her
    at very real risk to her family members as well as to members of the community
    who could be brought into her delusional system. Terms of a discharge will not
    sufficiently provide adequate incentive for Ms. Esposito to adhere to
    medication and psychiatric follow up. As well intentioned and loving as her
    family is, given the gravity of the recent index offence in the face of years
    of chronic use of illicit substances and medication non-adherence, at this
    critical time, the family is not in a position to manage the risk, and expose
    her mother to that risk as well and the community.

[18]

The
    Board noted that Ms. Espositos counsel had raised the possibility of a
    conditional discharge including a term of consent to treatment. However, it
    found that Ms. Espositos stated intention to discontinue her medication if she
    were discharged rendered this an unworkable solution.

[19]

The
    Board also considered whether the risk management provisions under the
Mental
    Health Act
, R.S.O. 1990, c. M.7, which would apply if it ordered a
    conditional discharge, would adequately mitigate any threat to society from the
    appellants release. It concluded that the
Mental Health Act
was not
    sufficient to manage the risk, due to the level of structure and supervision
    Ms. Esposito required. This included risks from any event of non-compliance
    with conditions.

[20]

The
    Board therefore concluded that a conditional discharge was not appropriate. It
    considered Ms. Espositos possible consent to treatment, the implausibility of
    her actual compliance with treatment, and the inadequacy of the
Mental
    Health Act
provisions to manage the risk. This conclusion was reasonable:
R.
    v. Breitwieser
, 2009 ONCA 784, 99 O.R. (3d) 43.

[21]

Based
    on all these factors, the Board found that Ms. Esposito continues to pose a
    significant threat to the safety of the public as defined by the Supreme Court
    of Canada in
Winko
. A conditional discharge would not be sufficient to
    manage this risk.

Conclusion

[22]

In
    our view, based on the overwhelming evidence before the Board, this was a
    reasonable disposition, and there is no basis to interfere. The evidence which
    was presented before the Board clearly indicates that the appellant continues
    to pose a significant threat to the safety of the public, and as such, a detention
    order was necessary. Neither an absolute or a conditional discharge would
    mitigate the present risk of significant threat pose by Ms. Esposito, given her
    current psychological state. The Boards decision is owed a significant degree
    of deference and we have not been persuaded that it was unreasonable.

[23]

The
    appeal is dismissed.

G.R. Strathy C.J.O.

Doherty J.A.

M. Tulloch J.A.


