



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Nelson v. British Columbia (Adult Forensic Psychiatric
  Services),









2017 BCCA 40




Date: 20170120

Docket:
CA43723

Between:

Eric Konrad
William Nelson

Appellant

And

Director of Adult
Forensic Psychiatric Services

Respondent

And

The Attorney
General of British Columbia

Respondent

Corrected judgment: The
text of the front cover was corrected on January 31, 2017.




Before:



The Honourable Chief Justice Bauman

The Honourable Mr. Justice Frankel

The Honourable Madam Justice Dickson




On appeal from: An
order of the British Columbia Review Board,
dated April 4, 2016, in the matter of Eric Konrad William Nelson

Oral Reasons for Judgment




Counsel for the Appellant:



M.B. Rankin

M. Putnam (A/S)





Counsel for the Respondent, Director of Adult Forensic
  Psychiatric Services:



D.K. Lovett, Q.C.





Counsel for the Respondent, Attorney General of British
  Columbia



L.D. Hillaby





Place and Date of Hearing:



Vancouver, British
  Columbia

January 13, 2017





Place and Date of Judgment:



Vancouver, British
  Columbia

January 20, 2017








Summary:

Mr. Nelson appeals the Review
Boards disposition finding that he poses a significant threat to public safety
and imposing a conditional discharge. He argues the Board erred in interpreting
the significant threat standard and in misapprehending the expert evidence
and Directors position at the hearing. Held: appeal dismissed. The Boards
decision was reasonable and supported by the evidence. While the Board
misstated the Directors position, this error was inconsequential because it
fully considered the evidence and legal test to determine the appropriate
disposition. The Board did not misinterpret the significant threat standard
or misapprehend the expert evidence, which supported a finding that he poses a
significant threat to public safety.

Introduction

[1]

DICKSON J.A.
: Mr.
Nelson came under the jurisdiction of the British Columbia Review Board after
being found not criminally responsible on account of mental disorder on
December 19, 2014 on eight criminal offences. A few months later, the Board
conducted an initial hearing pursuant to s. 672.47 of the
Criminal Code
,
R.S.C. 1985, c. C-46 and imposed a conditional discharge. Following a review
hearing on April 4, 2016, the Board concluded that Mr. Nelson continues to pose
a significant threat to public safety and ordered another conditional discharge
on the same terms as the previous disposition (the "Order"). He
appeals from the Order, contending the Board's conclusion was unreasonable,
speculative and based on a misapprehension of the evidence.

[2]

On appeal, Mr. Nelson seeks an order from this
Court quashing the Order and remitting the matter back to the Board for a fresh
determination. For the reasons that follow, I would dismiss the appeal.

Background

[3]

Mr. Nelson committed the index offences while in
a prolonged state of acute mania. The index offences include assault, attempted
murder, theft, firearms offences, and mischief, all committed over the course
of several days in May 2013. In summary, Mr. Nelson engaged in a series of rash
and violent acts in which he damaged property and repeatedly fired a shotgun at
a stranger, seriously injuring him. He also harassed employees at an Indian
Band office, stole a truck and drove it erratically, and behaved bizarrely
following his arrest.

[4]

Mr. Nelson is 57 years old. Prior to these
events, he had no criminal record and no formal contact with mental health
professionals. However, he had long experienced mood problems, including
depression and occasional episodes of mania. In October 2014, he was diagnosed as
suffering from Bipolar Disorder Type 1 by Dr. George Wiehahn, the forensic psychiatrist
charged with treating him in connection with the Order.

[5]

Mr. Nelson's bipolar disorder presents in an
unusual manner. Most individuals with the diagnosis experience a manic episode
about once every 18 months, but Mr. Nelson experiences them only once
every 10 years or so. However, the exact periodicity of his manic episodes is
unknown, and, when they occur, they may be accompanied by psychosis. None of
his prior episodes involved violence and all subsided spontaneously, without
medical intervention.

[6]

Because of the long intervals between his manic episodes,
Mr. Nelson does not take medication to help control his bipolar disorder. Dr. Wiehahn
recommends this treatment approach. Since being diagnosed, he has regained his mental
stability and suffered no further mania or psychosis. He has also demonstrated good
insight into his illness and cooperated with his treatment team by attending
appointments and abiding by their recommendations. His likely response to
symptom development and intervention is unknown because he has not experienced
a manic episode since his illness was diagnosed.

Review Board Hearing

[7]

As is common at its hearings, the Board received
a large volume of written and oral evidence for its review and consideration.
This included several medical-legal reports, community case management reports,
and documents concerning the index offences. The Board also heard
viva voce
testimony
from three witnesses: Dr. Wiehahn, Mr. Nelson's case worker, Lisa Daily, and
Mr. Nelson. The Director of Adult Forensic Psychiatric Services, the Crown and
Mr. Nelson were represented by counsel at the hearing.

[8]

Mr. Nelson described his current circumstances
and future plans in his
viva voce
testimony. He explained that he has a
supportive new partner who hopes to move with him to Grand Forks, where he
plans to take up a new job and rebuild his life. Although he had not contacted
mental health professionals in the area, he told the Board that he has their contact
information and does not believe he would ever go without a meaningful
relationship with a counsellor. He expressed uncertainty as to what pushed him
to violence in 2013, but noted that he was subject to a myriad of stressors at
the time.

[9]

Mr. Nelson also acknowledged that, due to his
illness, he is not the best judge of when he is in a manic state.

[10]

Dr. Wiehahn testified regarding his opinion on
Mr. Nelson's condition and responded to the Board's questions. He confirmed that
Mr. Nelson suffers from Bipolar Disorder Type I which presents with infrequent
manic episodes of unknown periodicity, although they seem to occur only once
every 10 years or so. Dr. Wiehahn also noted that more collateral information
from family and friends might help determine the periodicity of Mr. Nelson's
manic episodes, but said he had not yet made any such inquiries. He
characterized the present lack of information in Mr. Nelson's case as "the
strongest fact here".

[11]

Given the infrequency of his manic episodes, Dr.
Wiehahn explained that psychiatric medications are inappropriate for treating Mr.
Nelson. This is so despite the fact that medication is typically prescribed to
disrupt the natural course of bipolar disorder for most individuals who suffer
from the disease. If Mr. Nelson had more frequent manic episodes, Dr. Wiehahn
said, the cornerstone for treatment would have been mood stabilizing medication.
However, in the unusual circumstances of his case, the "sovereign treatment"
for risk management purposes over the long term is psychiatric supervision and
monitoring.

[12]

Dr. Wiehahn told the Board that his treatment
focus is longitudinal tracking to help understand Mr. Nelson's baseline
functioning so that any mood changes can be detected early. However, it is not
presently possible to predict how effectively Mr. Nelson could handle a
manic episode without professional supervision and strong community ties. According
to Dr. Wiehahn, had Mr. Nelson experienced manic symptoms since committing the
index offences, it would have tested whether his enhanced knowledge and the
treatment teams assessment of his baseline would enable early detection and mitigating
interventions. As matters have transpired, that has not yet occurred.

[13]

Based on a risk management assessment tool
called the HCR20, Dr. Wiehahn told the Board that Mr. Nelsons likelihood
for engaging in violent behaviour in the next year was low. He also explained
that the HCR20 does not assist in predicting Mr. Nelson's long-term risk given
the infrequency of his manic episodes. He went on to say there is a risk Mr.
Nelson could cause serious harm if his mental state deteriorates and he suffers
another severe manic episode: a prospect he described as "very possible"
but not necessarily "probable". He said further that people suffering
from mania may act impulsively and violently, and those who suffer psychosis
during a manic episode, like Mr. Nelson, represent a heightened risk for
violence.

[14]

Given the potential severity of Mr. Nelson's
manic response, Dr. Wiehahn highly recommended that he remain under the
supervision of a professional treatment team "probably for the rest of his
life". He went on to say "I will not describe exactly how that team
must look" and had the following exchange with the Board Chair:

Q.        . And in terms of preparing Mr.
Nelson for reintegration into the community, an essential component of that
would be hooking him up with a non-forensic treatment team. Now, all we know
about Mr. Nelson's plans are that they involve the Kootenays or Boundary area. We
don't know that he has any friends there. We don't know that he has any
employment lined up there. We don't know that he's made any effort to be
referred to a treatment team or that any steps are underway currently to hook
him up with a community-based treatment team or, indeed even if there is one
available - -

A:         I agree with all of that.

Q         - - as opposed to a forensic team.

A          Yes.



Q          So then the crucial aspect  is
the introduction of  Mr. Nelson to some kind of community-based professional
treatment team?

A.         Correct.

Q.        And then secondarily  so as to
minimize stressors, determining what employment is available, because  you've
indicated that employment is a significant protective factor for him?

A.         Yes.

Q.        Okay. So  all of those things not
having occurred, would it be fair for me to say that you're probably tilting
towards not having an absolute discharge without those things being in place?

A.         Purely
as Mr. Nelson's  treating psychiatrist, I would prefer to have some of those
professional ties before I bid my goodbyes.

[15]

At the conclusion of the hearing, Mr. Nelson
sought an absolute discharge. The Director took no position. The Crown sought a
conditional discharge.

Reasons for Disposition

[16]

The Board began its reasons by reviewing Mr. Nelsons
personal circumstances, the index offences, and his diagnosis. After
summarizing the procedural history of the case, it outlined the evidence, the
statutory framework and the relevant principles to be applied. In describing
Mr. Nelson's experience with mania, the Board stated:

[11]      When
manic, Mr. Nelsons occupational, interpersonal and social functioning are all
severely impaired. His most recent episode of mania involved bizarre ideation,
bizarre behaviour, paranoia, dangerous attitudes, grandiose and unusual
thinking and possible suicidal ideation. When he is manic, he can become
psychotic and then is quite capable of extremely dangerous and life-threatening
behaviour. It would appear that these symptoms have become worse over time and
that the index offences represent his most serious episode to date.

[17]

The Board described its understanding of Dr. Wiehahns
evidence regarding Mr. Nelson's risk of committing significant harm in the
future and appropriate risk management. At paras. 29 and 32, the Board stated:

[29]      In cross-examination, Dr. Wiehahn
stressed that any risk analysis based on HCR 20 V3 protocols is in general
considered valid only for a period of approximately one year. The prime factor
in Mr. Nelsons presentation is the paucity of manic episodes over his life. It
is therefore difficult to project his risk over a lengthy period of time using
this assessment tool. The unusual nature of his presentation suggests that risk
management must be long term. The only effective treatment, in view of his
unusual presentation, is supervision and observation.



[32]      In
summary, Dr. Wiehahn agreed that he would describe Mr. Nelson'[s] risk of
committing significant harm in the future as significant, even though when that
risk would eventuate is unknown due to the lack of information respecting
periodicity and the manner in which Mr. Nelson might handle such an episode.

[18]

The Board
concluded that
Mr. Nelson represents a significant threat to public safety despite his good insight,
cooperative attitude, lack of symptoms, and social support, and notwithstanding
Dr. Wiehahns testimony that he presents a low risk of committing serious harm
in the next year. In explaining its conclusion, the Board stated:

[46]       The onset and periodicity of Mr.
Nelsons episodes of mania, with or without psychosis, are unpredictable and
unknown. They cannot be controlled by long term administration of medication
because of the lengthy periods between episodes. In Dr. Wiehahns opinion,
prescribing medications during the lengthy periods between manic episodes would
not be responsible. Because there have been no further episodes since the index
offence[s], it is not possible to predict how a manic episode will eventuate or
whether Mr. Nelson, his community supporters, if any, or his treatment team
will be able to recognize the onset of his symptoms and deal with them
appropriately. As he himself stated candidly in his testimony, he is not the
best person to recognize mania when it occurs.

[47]      There
is little doubt that Mr. Nelson will experience further manic episodes. The
only form of mitigation of risk that is available is supervision and support on
a consistent and ongoing basis. This would be provided generally in the first
instance by professional counsellors and psychiatrists; and in the second
instance by knowledgeable members of family and knowledgeable friends who can
assist Mr. Nelson in monitoring his own state of mind and mood. His ability to
apply the strategies and insight he has learned and gained to mitigate his own
risk can only be tested when such an episode occurs.

[19]

The Board also expressed concern that Mr.
Nelson's discharge plan was not sufficiently detailed to justify a conclusion
that he would receive the support and supervision necessary to mitigate the
risk he would otherwise pose and thus to protect the public. It referred to
various unknown factors, including where he would live, any psychiatric support
and follow-up in that location, and the ability of his new partner to cope and
assist with his mental disorder. The Board acknowledged counsels submission
that this conclusion might lead to long-term supervision despite Mr. Nelson's
mental stability, and cause him financial hardship. However, it found these submissions
were not relevant to the question of risk, stating:

[49]       Neither
of these points address the question of risk that we must consider in
determining the threshold question of jurisdiction. Neither point renders the
risk he poses insignificant and in any event, we are mandated to firstly consider
the safety of the public

[20]

Having found that Mr. Nelson represents a
significant threat, the Board turned to the question of an appropriate disposition.
It concluded that a conditional discharge was needed to protect the public and
made an order in the same terms as the previous disposition. These include a
term that Mr. Nelson reside and report as directed, remain at the Forensic
Psychiatric Hospital when his mental condition requires assessment, and not
possess firearms or have any contact with the victims. The Order is reviewable
within 12 months.

On Appeal

[21]

Mr. Nelson appeals to this Court pursuant to s.
672.72 of the
Code
, which provides that a Review Board disposition may
be appealed on a question of law, fact or mixed fact and law. Pursuant to s.
672.78(1),

this Court may allow such an appeal if: the disposition is
unreasonable or cannot be supported by the evidence; the disposition is based
on a wrong decision on a question of law; or there was a miscarriage of
justice.

[22]

Counsel for Mr. Nelson contends that the Board
erred in two separate, but related, ways: (i) concluding that he presents a
significant threat to the safety of the public; and (ii) misapprehending Dr.
Wiehahn's evidence as to his risk to public safety and the position of the
Director at the hearing. In consequence, he submits, the Order should set aside
and the matter remitted for a fresh determination by the Board.

Discussion

Standard of Review

[23]

The standard of review on appeal from a decision
of the Review Board is reasonableness. Mr. Justice Harris described the applicable
standard in
Calles v. British Columbia (Adult Forensic Psychiatric Services)
,
2016 BCCA 318:

[14]      The
standard of review for this appeal is reasonableness:
R. v. Owen
, 2003
SCC 33, [2003] 1 S.C.R. 779 at para. 33. Courts recognize that the
assessment of whether the mental condition of an NCR accused renders him a
significant threat to public safety calls for significant expertise:
Owen,
at para. 30
.
As stated in
Winko v. British Columbia
(Forensic Psychiatric Institute),
[1999] 2 S.C.R. 625 at para. 61,
[a]ppellate courts reviewing the dispositions made by a court or Review Board
should bear in mind the broad range of these inquiries, the familiarity with the
situation of the specific NCR accused that the lower tribunals possess, and the
difficulty of assessing whether a given individual poses a significant threat
to public safety.

[24]

This Court does not make its own judgment on the
significant threat issue when evaluating whether a Review Board decision under
review was reasonable. Rather, it considers the Board's reasoning and
substantive decision to determine whether an acceptable and defensible outcome
was reached:
Carrick (Re)
, 2015 ONCA 866 at paras. 24-26

Significant Threat to Public Safety

[25]

Where a verdict of NCRMD has been rendered, the
Board must grant an absolute discharge if, in its opinion, the accused does not
pose a significant threat to public safety:

s. 672.54(a) of the Code. A
"significant threat to public safety" is defined in s. 672.5401 of
the
Code
. Its meaning was explained in
Calles
:

[15]      A
significant threat to public safety is defined in s. 672.5401 of the
Criminal
Code
to mean a risk of serious physical or psychological harm to members
of the public  including any victim of or witness to the offence, or any
person under the age of 18 years  resulting from conduct that is criminal in
nature but not necessarily violent. The threat posed must be more than
speculative and be supported by the evidence. It must 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 minuscule risk of grave harm will not suffice, nor
will a high risk of trivial harm:
Winko
, at para. 57.

[26]

There is no legal or evidentiary burden on an accused
to establish that he or she does not pose a significant threat to public safety.
Nor is there any presumption that such an individual is dangerous. Rather, there
must be
evidence
of a significant risk to the public before the Board may
restrict an accused's liberty:
Winko v. British Columbia (Forensic
Psychiatric Institute)
, [1999] 2 S.C.R. 625 at paras. 46, 49, 54. If the
Board concludes that he or she poses a significant threat, it must fashion a disposition
which is necessary and appropriate, meaning the least onerous and least
restrictive available in the circumstances:
Carrick (Re)
at para. 15; s.
672.54 of the
Code
.

[27]

The Board has expert members and broad
inquisitorial powers to assist in making these difficult assessments:
R. v.
Owen
, 2003 SCC 33 at para. 29. In assessing the nature and gravity of risk,
it may accept some, all or none of the evidence, including the expert evidence,
provided that it explains and justifies its decision:
Carrick (Re)
at
para. 38. However, the Board may not engage in speculation or impose a
conditional discharge out of an abundance of caution based merely on a desire
to "wait and see" what might happen when an accused moves into an untested
environment. Its decision must be based on the accepted evidence, considered in
light of the legal test that applies:
Marzec (Re)
, 2015 ONCA 658 at
paras. 27-33.

[28]

The Board may have recourse to a broad range of
evidence in determining the significant threat issue. This includes the past
and expected course of treatment, the accused's present condition, future plans
and community supports, and the expert assessments. A past offence committed by
the accused while suffering from mental illness is not,
by itself
,
evidence of a continued significant threat to public safety, but it may be
considered together with the other circumstances where it is relevant to
identifying a behavioural pattern and thus to the issue of significant threat:
Winko
at paras. 61-62.

[29]

In
Marzec (Re)
, the Ontario Review Board
imposed a conditional discharge despite the uncontroverted expert evidence that
the index offence was likely an isolated event, it was speculative to suspect
the accused might act out in a harmful manner, and the significant threat
threshold was no longer met in the opinion of the expert. The Ontario Court of
Appeal set the Board's disposition aside and substituted an absolute discharge.
In doing so, the Court noted the Board's apparent concern that the accused was
untested in the community since his post-index offence hospitalization and
stated:

[30]      Such an approach, however, would
erroneously place the onus on the appellant to prove that he is not a risk
before he is entitled to an absolute discharge.

[31]      The current disposition allows the
appellant to resume living in his home, next to the same neighbours with whom
he had the initial conflict. The only restrictive measures in place are the
requirement that he have no contact with his neighbours and that he report to
the hospital on a weekly basis.

[32]      If the appellant poses a serious
risk of harm to the public, it is difficult to see how it could be safe to
return him to his home on these conditions. The Board would essentially be
leaving the appellant's neighbours to protect themselves. The Board's
disposition is at odds with its reasoning.

[33]      The
only reasonable conclusion -- one that is supported by the totality of the
evidence -- is that the appellant does not pose a significant risk of harm. The
Board appears to have ordered a conditional discharge out of an abundance of
caution. That is not the legal test. As per
Winko
, if the appellant does
not pose a significant risk to the public, the Board must order an absolute
discharge.

Was the Board's decision unreasonable
or unsupported by the evidence?

[30]

Mr. Nelson contends that, as in
Marzec (Re)
,
the Board ordered a conditional discharge out of an abundance of caution where
the evidence did not support a finding that he poses a significant threat to public
safety. On the contrary, he says, the evidence unequivocally indicated that he poses
a low present risk of violence and there was no evidence of a future risk of
violence if and when he has another manic episode. Accordingly, he says, the Board's
conclusion on the significant threat issue was speculative and based on a misapprehension
of Dr. Wiehahn's evidence and the Director's position. It was also based on a
misinterpretation of the significant threat standard, which does not permit a
conditional discharge where, as here, the potential risk to public safety is
unknown or unclear.

[31]

In support of his submission, Mr. Nelson
emphasizes the fact that he has no history of violence other than the index
offences, which occurred in highly unusual circumstances that no longer prevail
and are unlikely to be repeated. He also emphasizes his good insight into his
illness, cooperative attitude and strong coping skills. He characterizes any
risk of future violence as minuscule and says the Board is not entitled to
adopt a "wait and see approach without evidence of a legitimate concern
for public safety. In addition, he challenges the Board's statements in its
reasons that Dr. Wiehahn agreed he posed a significant threat to public safety in
the future (para. 32) and that the Director argued in favour of a conditional
discharge (para. 42). In his submission, both statements are inaccurate, misapprehend
the record and go to the root of the Board's decision.

[32]

Given all of the foregoing, Mr. Nelson submits
that the Board's decision is unreasonable and unsupported by the evidence. In
consequence, he says, the Order should be quashed and the matter remitted back
to the Board for a fresh determination.

[33]

I would not accede to these submissions.

[34]

The Board did misstate the Director's position
at the hearing in its reasons. The Director did not advocate in favour of a
conditional discharge, as stated by the Board. Rather, the Director took no
position on the appropriate disposition. However, in my view, the error was
inconsequential as the Board went on fully to consider the evidence and applied
the proper legal test in reaching its own conclusion on an appropriate disposition.

[35]

Importantly, the Board did not misapprehend Dr. Wiehahns
evidence on the significant threat issue, or any other, in undertaking this
exercise. The impugned statement at para. 32 of the reasons was not a purported,
but erroneous, quote from his testimony. It was a summary of its overall
import, as reasonably interpreted by the Board, expressed in the language of
the applicable legal test.

[36]

A "significant threat to public safety"
is a real risk of serious harm to others resulting from criminal conduct. Dr. Wiehahn
testified that it is "very possible", though not necessarily
"probable", that Mr. Nelson could suffer another severe manic episode
and discussed the relationship between mania, impulsivity and violence. He also
noted that psychosis, which Mr. Nelson experienced during his most recent manic
episode, represents a heightened risk for violence and that his unusual
presentation means that standard risk mitigation through medication is
unavailable. Although he testified that Mr. Nelson presents a low risk of
acting violently in the short term, he also opined that psychiatric supervision
and monitoring are required for long-term risk management and noted the current
absence of an informed community-based treatment team to fulfill this important
role.

[37]

Dr. Wiehahns testimony, considered as a whole,
may be reasonably interpreted to mean that Mr. Nelson poses a real, not minuscule,
risk of causing serious harm to others in the future. The Board did not misapprehend
his evidence by interpreting and describing it in this way. Nor did it
misinterpret the significant threat standard as mandating a conditional
discharge where the potential risk to public safety is unknown or, as in
Marzec
(Re)
, speculative and ungrounded in the evidence. As the Board concluded, although
it is presently unknown
when
another manic episode will eventuate, it is
likely that such an episode will occur and there is a real possibility that it
will involve serious violence.

[38]

Given the foregoing, in my view the Board's
decision is reasonable, supported by the evidence and entitled to deference. Its
conclusion is fully explained and the outcome is defensible on the evidence and
the law. Accordingly, I would dismiss the appeal.

[39]

BAUMAN C.J.B.C.
:
I agree.

[40]

FRANKEL J.A.
: I
agree.

[41]

BAUMAN C.J.B.C.
:
The appeal is dismissed.

The
Honourable Madam Justice Dickson


