



COURT OF APPEAL FOR ONTARIO

CITATION: Davies (Re), 2019 ONCA 738

DATE: 20190923

DOCKET: C66107

Watt, Tulloch and Lauwers JJ.A.

IN THE MATTER OF: Jacqueline Davies

AN APPEAL
    UNDER PART XX.1 OF THE
CODE

Anita Szigeti,

for the appellant Jacqueline
    Davies

Gavin MacDonald, for the respondent Her
    Majesty the Queen

Heard: June 25, 2019

On appeal of the
    disposition of the Ontario Review Board

dated September 10, 2018, with
    reasons released on October 9, 2018.

Lauwers J.A:

[1]

On July 3, 2007, the appellant was found not
    criminally responsible on account of mental disorder on charges of assault with
    a weapon, and aggravated assault. She has been under the Ontario Review Boards
    jurisdiction under
Part XX.1 of the
Criminal Code
since 2007. Her current diagnoses are schizophrenia, polysubstance
    abuse (cannabis, alcohol, opioids), and borderline personality disorder.

[2]

The Board imposed detention orders on the
    appellant annually until 2016, when she was conditionally discharged. She was
    conditionally discharged again on September 19, 2017. The conditions required her
    to live at Mathias Place (a group home), to report to the hospital at regular
    intervals, and to abstain from the non-medical use of alcohol or any other
    non-prescribed drugs.

[3]

In the October 2018 disposition under appeal, the
    Board did not renew the conditional discharge but instead made a detention
    order, which gave the person in charge of the hospital discretion to permit the
    appellant to live in the community in accommodation approved by the person in
    charge.

[4]

As the Board noted in its reasons, the appellant
    did not challenge the determination that she posed a significant threat to the
    safety of the public within the meaning of s. 672.54 of the
Code
.

[5]

The appellant argues that the Boards decision
    to impose a detention order on her in place of the conditional discharge was not
    necessary and appropriate, and was not the least onerous and least restrictive
    disposition, and must be set aside. The court was recently advised that the
    appellants 2019 review was heard by the Board on September 12, 2019.
    Accordingly, the appeal is not quite moot. Having heard full argument, in my
    view the issues raised merit disposition nonetheless.

[6]

For the reasons set out below I would dismiss
    the appeal.

A.

The Factual Context

[7]

The appellant absconded from the group home, Mathias
    Place on July 3, 2018, when she was under the September 2017 conditional
    discharge. Six days later, police apprehended her at a shelter in Toronto and
    returned her to the hospital. She was admitted to the hospital on a Form 1 under
    the
Mental Health Act
, R.S.O. 1990, c. M.7. This changed eventually to
    a Form 3 and then to a Form 4. She remained voluntarily until the detention
    order was made.

[8]

Staff of Mathias Place did not adequately
    supervise the appellant. She was able to gull staff and to elude drug abuse detection
    through drug tests. The appellant admitted using opioids and cannabis, and
    drinking alcohol during her elopement. Personnel found empty absinthe bottles and
    drug paraphernalia in her room at Mathias Place. The appellant admitted that
    during the previous reporting year she had been using substances, contrary to
    the conditions of her discharge. She admitted using flushes to avoid
    detection. She said she wanted to test out the effects of cessation of her
    medication.

[9]

The appellant told the Board that she wanted
    cannabis use included in her disposition because she believes that it helps
    her. She explained that she left Mathias Place because she did not like the effects
    of the long-acting injected medication; her new prescribed medications sedated
    her extremely when mixed with marijuana, which she was intent on using. The
    appellant admitted to consuming alcohol in her room at Mathias Place. She said
    that while she was absent without leave from the residence, she used opioids to
    control tremors in her hands caused by withdrawal from the prescribed
    medications. Since her return to hospital, there have been incidents that
    suggest a decline in her mental state, such as increased irritability, and
    aggressive and threatening behaviour on two occasions.

[10]

Dr. Alatishe, the appellants primary
    psychiatrist, testified that her failure to take the prescribed medications and
    her substance abuse during her elopement, increased her risk profile respecting
    public safety. She had lost insight into her illness. It was therefore essential
    for the hospital to approve her accommodation in the community and to have the
    ability to return her to hospital in a timely manner. He said this could be
    more quickly and reliably accomplished under a detention order than under the
    provisions of the
Mental Health Act
.

B.

The decision under appeal

[11]

The Board accepted Dr. Alatishes statement that
    a detention order was necessary and that continuation of the conditional
    discharge would be insufficient to manage the appellants newly increased risk.
    While the Board was positive about the appellants expressed willingness to
    re-engage in relapse prevention regarding alcohol and opioids, it also noted that
    she must address her cannabis use disorder.

[12]

The Board concluded that the appellant would not
    be able to achieve her goals to live independently and to avoid receiving
    medication by injection until she gains further insight into the harmful impact
    of cannabis on her mental health. She was refusing to take the long-acting
    injectable medication, and this refusal would shorten her time to
    decompensation. Accordingly, the Board found that a detention order was the
    necessary and appropriate disposition required to manage the appellants threat
    to the public while still meeting her needs.

[13]

It appears that Mathias Place is recognized as
    an excellent facility and the hospital wants to return the appellant there once
    she has stabilized, with the understanding that staff there would be more
    rigorous in her supervision.

C.

The Issues

[14]

The appellant seeks a conditional discharge in the same terms as the
    2017 conditional discharge. The argument set against her is that her breaches
    of the conditional discharge and her decompensation justified the Boards
    imposition of a detention order.

D.

The Governing Principles

[15]

Part XX.1 of the
Criminal Code
establishes the legislative regime for NCR accused. The Board is charged with
    the responsibility for determining the necessary and appropriate disposition
    for the NCR accused under s. 672.54, meaning the least onerous and least
    restrictive disposition necessary to protect the public:
R. v. Winko
,
    [1999] 2 S.C.R. 625, at para. 47. Despite a legislative amendment in 2014 that changed
    the language used in s. 672.54, the Board and the courts have considered that
    the new language did not change the applicable test, still commonly expressed
    as: the least onerous and least restrictive' disposition necessary to protect
    the public
:
Esgin (Re)
, 2019 ONCA 155, at para.
    16.

[16]

It is accepted that "the primary purpose of
    the legislative scheme is to protect the public while minimizing any
    restrictions on the NCR accused's liberty interests":
Mazzei v. British
    Columbia (Director of Adult Forensic Psychiatric Services)
, 2006 SCC 7,
    [2006] 1 S.C.R. 326, at para 32,

per Bastarache J. The corollary is that, [c]onsistent
    with the Board's need to safeguard liberty as much as possible, the conditions
    included in Board dispositions must also conform to the least onerous and least
    restrictive standard:
Campbell (Re)
, 2018 ONCA 140, 139 O.R. (3d) 401, at
    para. 54, per Fairburn J.A.

[17]

The court owes deference to
    the Board because it is a specialized, expert body:
R. v. Owen
,
2003 SCC 33
,
[2003] 1 S.C.R. 779
, at para. 37. Appellate courts are "'not
    to be too quick to overturn' a review board's 'expert opinion' on how best to
    manage a patient's risk to the public":
R. v.
    Conway
,
2010 SCC 22
,
[2010] 1 S.C.R. 765
,
at para. 95. See also
Owen
, at
    para. 69.

[18]

The issue is whether the Board's decision to
    impose a detention order on the appellant rather than continue the conditional
    discharge fell within a range of reasonable outcomes:
Owen
, at para. 33.
    A decision will be considered unreasonable when the reasons do not "bear
    even a somewhat probing examination":
Saikaley (Re)
, 2012 ONCA 92, 109
    O.R. (3d) 262, at para. 35;
Mazzei,
at para. 17.

[19]

This court has consistently held that, when the
    hospital is required to approve housing, a detention order is the appropriate
    disposition:
Boucher (Re)
, 2015 ONCA 135, at para. 6;
Runnalls (Re)
,
    2012 ONCA 295, at para. 12;
R. v. Simpson
, 2010 ONCA 302, at para. 4;
Runnalls
    (Re)
, 2009 ONCA 504, 251 O.A.C. 284, at para. 15;
Munezero (Re)
,
    2017 ONCA 585, at para. 9;
Ly (Re)
, 2015 ONCA 141, at para. 22.

[20]

However, a conditional discharge can contain a
    provision that obliges an NCR accused to reside in a specific place. For
    example, the 2017 conditional discharge required the appellant to 
reside at Mathias Place, 369 Main Street West, Hamilton, Ontario.

E.

The Argument

[21]

Appellants counsel
asserts that the Boards imposition of a detention order on the appellant
    was unreasonable on the evidence, given that the appellant had stable,
    supervised housing in the community and there was no proposal to change it. She
    submits that the Board did not meaningfully consider continuing the appellant
    on a conditional discharge. The carefully crafted conditions in the previous conditional
    discharge mitigated sufficiently any risk to public safety posed by the
    appellant living in the community.

[22]

Although the appellant breached her discharge
    disposition terms by absconding, failing to report as required, and consuming
    illicit substances, the police were able to readily apprehend her and return
    her to the hospital. Once she was transported there, the provisions of the
Mental
    Health Act
were used to manage her detention adequately and to address any
    potential concern for public safety.

[23]

The appellants
    counsel thus presented as positive what the Board saw as negative. She argued
    that t
he evidence the Board relied on to justify a
    detention order actually shows that the conditional discharge functioned
    adequately and should have been retained.

The
    additional reduction in the appellants liberty was therefore not necessary and
    appropriate.

[24]

Accordingly, counsel for the appellant urged this
    court to return this matter to the Board for re-hearing on the issue of whether
    appropriately crafted conditions of a discharge disposition could safeguard the
    public, similar to this courts approach in
Tolias (Re)
, 2018 ONCA 215,
    at para. 20, and
Collins (Re)
, 2018 ONCA 563, at paras. 39-50.

[25]

The hospitals position, as adopted by the
    Board, is that a detention order was necessary to manage the appellants newly
    increased risk because she could more be quickly be returned to the hospital
    and admitted under a detention order than under a conditional discharge
    utilising the provisions of the
Mental Health Act
, so that continuation
    of the conditional discharge would not be appropriate. The mechanics of the
    quicker return under a detention order were explained by Doherty J.A. in
Centre
    for Addiction and Mental Health v. Young
, 2011 ONCA 432,

278 O.A.C. 274, at para. 26. The
    hospital also emphasized the need for the person in charge of the hospital to
    have the ability to approve the appellants accommodation in order to properly
    manage her risk.

F.

The Principles Applied

[26]

On the facts of this case, I would not give
    effect to the appellants argument, for two reasons. First, on the date of the
    hearing, the Board considered that the appellant was not yet ready to be
    released conditionally. She needed to be in the hospital until the person in
    charge determined that she was ready to be placed in the community in an
    approved residence. This disposition could only be imposed under a detention
    order, as noted earlier.

[27]

Second, although the
Mental Health Act
was able to play a useful role in this instance, at the date of the hearing the
    appellant was not ready to be released, and was not yet ready to be returned to
    Mathias Place on a conditional discharge.

[28]

Given the concession that the appellant poses a
    significant threat and risk to public safety, the Board focused its decision on
    whether a conditional discharge or a detention order was the appropriate
    disposition in light of the twin goals of public safety and treatment. The
    Board explicitly addressed the appellants submission that a conditional
    discharge was the appropriate disposition and rejected it. The appellant ceased
    taking prescribed medications and actively used substances in breach of the
    terms of her previous conditional discharge during her elopement. She also
    demonstrated diminished insight into her illness and an ongoing need for
    treatment. These factors led the Board to find that the appellants risk
    profile with regard to the safety of the public had increased. This justified
    the need for a detention order.

[29]

The Board underlined the need for the hospital
    to be able to return the appellant to hospital in a timely manner, and relied
    on Dr. Alatishes evidence about the change in the appellants risk profile and
    the inadequacy of the
Mental Health Act

regime to ensure
    readmission in the event of decompensation.

[30]

The approach taken by the Board in this case is
    not unusual. For example, in
Valdez (Re)
, 2018 ONCA 657, this court
    noted, at para. 21, the limits to relying on ease of readmission to hospital to
    justify a detention order:

[W]e have
    difficulty with the majority's cursory consideration of whether Mr. Valdez's
    risk to the public could be managed under a conditional discharge. The majority
    reasoned that "it is substantially easier to bring about a return to the
    hospital for individuals who are under a Detention Order" and that a
    warrant will always be acted upon to bring a person back to the hospital if necessary.
    However, this would always be true and could always be used to justify the
    refusal of a conditional discharge. But, given the least onerous and least
    restrictive test, something more is required than mere convenience to the
    hospital.

[31]

The mere fact of convenience and expediency is
    not enough to justify a detention order. However, in determining that a
    detention order was the appropriate disposition in this case, the Board reasonably
    accepted Dr. Alatishes evidence that the appellants risk profile had increased.
    The need for the hospital  to have the flexibility provided by a detention
    order was justified by the appellants actions during the reporting year: her
    substance use leading to her pronounced failure of insight, elopement, and
    decompensation.

[32]

The Board is an expert tribunal and is well
    aware of the mechanisms under the
Mental Health Act
, and its
    disposition is entitled to deference. In the circumstances, the Boards
    disposition appears reasonable.

G.

Part XX.1 of the
Criminal Code
and the
Mental
    Health Act

[33]

The appellants argument that the
Mental
    Health Act
provides a good vehicle for making conditional discharges more
    readily available is one this court often hears, and it merits closer
    consideration.

[34]

T
here
is, in my view, a troublesome lack of congruency between the
Criminal
    Code
and the
Mental Health Act
, which shows that the
Mental
    Health Act
does not offer sufficient utility in all reasonably foreseeable
    situations affecting the appellant or a similarly situated NCR accused. On the
    appellants argument, if she had been returned to the hospital by a peace
    officer for breaching a condition of the conditional discharge, but she was
    otherwise showing no signs of psychosis, the hospital would have had no
    authority to detain her under the
Mental Health Act
even though she was
    in breach of the conditional discharge. The hospital would have been obliged to
    release her outright even if her treating doctor was of the view that the
    breaches were the beginning of a cascade of negative effects leading to her inevitable
    decompensation, reviving the threat to public safety. Releasing her in such
    circumstances would defeat the purpose of her being under the aegis of the
    Board and the hospital by delegation, which is to protect both the accused and
    public safety. In short, while the
Mental Health Act
seems to have
    worked in this instance, there are situations involving an NCR accused in which
    it would not work.

[35]

As Doherty J.A. noted in
Young
, at
    paras. 13, 19-21, the provisions of the
Mental Health Act
were designed
    for other purposes than clumsily but fortuitously reinforcing Part XX.1 of the
Criminal
    Code
. The
Code
itself is clumsy, as I note below, and it appears
    that a detention order is becoming somewhat of a default for the Board in order
    to avoid that clumsiness. This has the counterproductive effect under the
Code
of reducing the use of conditional discharges, which is regrettable given the
    hope of progressive improvement that actuates Part XX.1.

[36]

Justice Doherty noted in
Young
, at para.
    32:

As with any breach of
    a provision of a conditional discharge, CAMH would have available to it the
    provisions of ss. 672.91, 672.92 and 672.93. None of those provisions gives
    CAMH the power to have Mr. Young arrested, brought back to CAMH against his
    will and confined there. While the two new terms imposed by the Review Board
    could properly be attached as conditions to a conditional discharge, a breach
    of those conditions triggers the breach provisions and does not give CAMH the
    power to detain Mr. Young.

[37]

To this Doherty J.A. added that Mr. Young could only be confined in
    CAMH following a breach if so ordered by a justice pursuant to s. 672.93(2),
    and attached the following footnote: 
Section
    672.92(1)(b) allows a peace officer who has decided to release a person subject
    to a disposition order to deliver the person to the place specified in that
    order. It does not appear to me, however, that the section gives the hospital
    any authority to hold the person so delivered against his or her will.

[38]

In my view, this framework is not particularly functional.  Under s.
    672.92(1), a peace officer can release an accused to the place specified in the
    disposition,
namely the hospital cited in the conditional
    discharge. Yet the
Code
does not permit the
    hospital to do anything with the accused short of talking her into a voluntary
    admission or proceeding under the
Mental Health Act
should that happen
    to be possible. Alternatively, under s. 672.92(3), if a peace officer does not
    release the accused, the distressed NCR accused, who is not yet in so much
    distress as to be eligible to be held under the
Mental Health Act
, would
    need to be brought to temporary perhaps overnight incarceration while awaiting
    a hearing before a justice of the peace under s. 672.93. At the hearing, the
    justice of the peace could then order the accused detained in the hospital.

[39]

From a functional perspective, it would make good sense for the accused
    who is in breach of a conditional discharge to be delivered to the hospital specified
    in the disposition and for the hospital to have the ability to assess and treat
    an accused in breach without having to resort to the
Mental Health Act
. Under
    the current framework, as it has been interpreted, there is a serious gap in
    the legislation: while a peace officer is permitted to release an accused to
    the hospital, unless the
Mental Health Act
fortuitously intervenes, the
    hospitals authority to readmit, even pending a hearing before a justice of the
    peace, is limited. Surely Parliament can do better for people in the position
    of the appellant.

H.

Disposition

[40]

I would dismiss the appeal.

RELEASED: D.W. September 23, 2019

P.
    Lauwers J.A.

I
    agree. David Watt J.A.

I agree.
    M. Tulloch J.A.


