



COURT OF APPEAL FOR ONTARIO

CITATION: Plytas (Re), 2019 ONCA 931

DATE: 20191127

DOCKET: C66790

Feldman, Gillese and Miller JJ.A.

IN THE MATTER OF:  Constance Plytas

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Natalya Odorico, for the respondent

Heard: November 22, 2019

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

REASONS FOR DECISION

[1]

The appellant was found not criminally responsible on charges of
    dangerous operation of a motor vehicle, mischief not exceeding five thousand
    dollars, threatening death, and assault with a weapon. Following her fourth
    annual review hearing, the ORB found that she continued to constitute a
    significant threat to the safety of the public and ordered her continued
    detention in the general forensic unit of the St. Josephs Healthcare Hamilton,
    with privileges that include indirectly supervised community living (the
    Disposition).

[2]

The appellant challenges the Disposition on the basis that the Board
    erred in its articulation and application of the significant risk test, and
    unreasonably continued her detention. She seeks an absolute discharge or,
    alternatively, a conditional discharge.

[3]

For the reasons that follow, the appeal is dismissed.

The Finding of Significant Risk to Public Safety

No error in the legal test used
    by the Board

[4]

The appellant points to the last two sentences in paragraph 46 of the
    Boards Reasons for Disposition (Reasons), to support her contention that the
    Board used the wrong test in finding that the appellant continues to pose a
    significant risk to public safety. The impugned sentences read as follows:

[46]  The Board accepts that without close supervision that
    Ms. Plytas would likely become noncompliant with prescribed medication and
    follow-up by the team as was the case in May, 2017. This could lead to a
    decompensation and re-emergence of behaviours similar to that of the index
    offence[s].

[5]

This court criticized similar language in
R. v. Sheikh
2019
    ONCA 692, at para. 38. At para. 10 of Sheikh, the court notes that the test is
    not whether the appellants behavior could lead to decompensation and therefore
    the risk of serious harm but whether there is evidence to support a positive
    finding that there is a significant threat to public safety.

[6]

While the Board uses the word could in the impugned sentences, on a
    full reading of the Reasons, it is clear that the Board applied the correct
    test in finding that the appellant continues to pose a significant risk to
    public safety. Its finding was not speculative. Rather, as the discussion below
    of the application of the test shows, its finding of significant risk to public
    safety is fully supported by the evidence.

No error in application of the
    test

[7]

In terms of the Boards application of the test, the appellant says it
    committed three errors.

[8]

First, the appellant says that non-compliance with medication is no
    longer an active risk factor for her and the Board erred in its use of her
    historical non-compliance when making its determination of significant risk.

[9]

We do not agree. The Board explicitly recognized that, at the time of
    the hearing, the appellant was generally compliant with her oral antipsychotic
    and mood stabilizing medications. However, it was entitled to consider her
    lengthy history of medication non-compliance when concluding that, without
    close supervision, the appellant was likely to become noncompliant. Dr. Naidoo,
    the appellants attending psychiatrist, testified that medication
    non-compliance is a core risk factor for future violence.

[10]

Second, the appellant contends that her continued cannabis use, despite
    knowing that the conditions of her Disposition prohibit it, is insufficient to
    establish significant risk. She says that the concern about a link between the
    type of psychosis from which she suffers and cannabis use is only theoretical.
    Thus, the Board erred in relying on her cannabis use in making its finding of
    significant risk.

[11]

The appellants continued cannabis use in breach of the conditions of
    her Disposition is but one of several active risk factors on which the Board
    relied. The Board viewed her continued cannabis use, along with the aggressive
    incidents involving co-patients (discussed below), as indicative of poor
    impulse control and judgment. It was entitled to accept Dr. Naidoos evidence
    that he anticipated that continued cannabis use would lead to destabilization,
    increased disinhibition, and an increase in aggressive behaviours.

[12]

Third, the appellant submits that her three altercations with
    co-patients over the past reporting year cannot reasonably be found to
    demonstrate that she poses a significant risk of harm in the community.

[13]

The appellant engaged in numerous behavioural incidents in the year
    leading up to this annual hearing, including the three incidents of aggression
    that the Board singled out in its Reasons. The Board did not ignore the
    possibility that the incidents were in response to actual or perceived
    inappropriate comments or behaviours: it specifically acknowledged that.
    Rather, it found the appellants choice to resort to violence when confronted
    with perceived or actual threats was relevant to her likelihood of reoffending,
    if released unconditionally, because they showed ongoing mood lability and
    impulsivity.

Reasonableness of the Continued Detention Order

[14]

The appellant makes a number of arguments in support of her claim that
    the Board failed to meaningfully consider conditional discharge when
    determining the least onerous least restrictive disposition necessary to
    address her risk to public safety. Consequently, she says, the Board
    unreasonably continued her detention.

[15]

In oral argument, the appellant contended that the Reasons show that the
    Board required that she have a substantial period of stability in the community
    as a prerequisite for a conditional discharge. She relies on paragraph 52 of
    the Reasons for this submission. Paragraph 52 reads as follows:

52. We note that [the appellant] has not yet progressed under
    her existing Detention Order to the point of exercising the full range of
    privileges offered thereunder. While all remain hopeful that [the appellant]
    will progress to community reintegration in the near future, this has not yet
    occurred. In this panels assessment, a period of community living would be
    warranted before cascading [the appellant] to a less restrictive Conditional
    Discharge.

[16]

We do not read the impugned passage as requiring a substantial period of
    stable community living as a prerequisite to the granting of a conditional
    discharge. Rather, it reflects the appellants unique circumstances, where
    instability is an active risk factor. Dr. Naidoos evidence was that the appellant
    was not ready to be released into the community because her risk to the public
    was not yet suitably managed through medication and her baseline symptoms were too
    severe for her to safely function in the community. The appellants last period
    of living in the community, pursuant to the then-operative Detention Order,
    ended with the hospital requiring the police to escort the appellant to
    hospital after she missed several scheduled appointments and avoided contact
    with the outpatient treatment team. The Disposition includes orders for
    community living privileges that give the hospital wide latitude to
    re-integrate the appellant into the community once it sees that, while
    adequately medicated and in the absence of destabilizing factors, the appellant
    can behave in a non-aggressive manner in response to perceived persecution.

[17]

The appellant also argued that the Board unreasonably required the
    hospital to have the power to rapidly readmit the appellant in the event of
    decompensation. On the record, given the fragile nature of her illness, this
    conclusion is amply supported.

[18]

In her factum, the appellant also complains that the Board failed to
    consider the appropriateness of a Community Treatment Order (CTO) to address
    medication compliance issues. However, the appellant did not request a CTO as
    an alternative to a Board disposition and led no evidence in support of it. In
    any event, medication non-compliance was only one of several active risk
    factors the Board relied on in concluding that the appellant met the
    significant risk test. Even if this issue could be adequately dealt with by a
    CTO, the other risk factors remain.

[19]

In her factum, the appellant also complains that the Board failed to
    inquire into the possibility of a Young clause. The fact that this matter was
    not raised before the Board is a full answer to this complaint.

Disposition

[20]

Accordingly, the appeal is dismissed.

K.
    Feldman J.A.

E.E.
    Gillese J.A.

B.W.
    Miller J.A.


