



COURT OF APPEAL FOR ONTARIO

CITATION: Leuschner (Re), 2018 ONCA 398

DATE: 20180425

DOCKET: C64481

Hoy A.C.J.O., Sharpe and Nordheimer JJ.A.

IN THE MATTER OF: Ginger Leuschner

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant, Ginger Leuschner

Jennifer Epstein, for the respondent, the Attorney
    General of Ontario

Michele Warner, for the respondent, the Person in Charge
    of the Centre for Addiction and Mental Health

Heard: April 13, 2018

On appeal from the disposition of Ontario Review Board,
    dated October 10, 2017, with reasons dated October 19, 2017.

REASONS FOR DECISION

[1]

The appellant came under the jurisdiction of the
    Ontario Review Board (the Board) after being found not criminally responsible
    in May, 2008. For the most part, she has been detained at the Centre for Addiction
    and Mental Health (CAMH) since that time. At her most recent review, the
    appellant sought an absolute discharge while the Hospital sought an order
    transferring her to secure custody from the General Forensic Unit.

[2]

The appellants index offences were assault,
    failure to attend court and failure to comply with a recognizance. In February,
    2008, the appellant ordered another woman on a snowy street to get out of her
    way and then punched that person in the back of the head.

[3]

The appellant, now 33 years old, has a history
    of substance abuse and a criminal record including four convictions for assault
    and one for assaulting a police officer. She has been diagnosed with severe
    borderline personality disorder with antisocial traits and cocaine dependence
    disorder.

[4]

During the past year, while detained at CAMH, the
    appellant absconded after receiving an indirect pass into the community. The
    police returned her to the unit, describing her as agitated, aggressive,
    kicking and spitting. Other incidents included striking a co-patient and hitting
    a staff member on the nose when attempting to strike a co-patient. On another
    occasion, she absconded and was returned by the police while disorganized and
    belligerent. She assaulted the police and admitted to using cannabis and
    cocaine. Several attempts in earlier years at community living failed after
    incidents of the appellant going AWOL and using illegal drugs.

[5]

The Hospital Report filed at the appellants
    most recent Board hearing states that the appellant continues to present a
    significant risk to the safety of the public, citing numerous clinical risk
    factors combined with the appellants history of assaulting a stranger,
    physical assaults on police officers and her impulsive anti-social tendencies
    leading to a high likelihood of violent recidivism.

[6]

The Board concluded that the evidence supported
    a finding that the appellant continues to present a significant threat to the
    safety of the public and rejected her submission that the appropriate
    disposition was an absolute discharge. The Board also rejected the Hospitals
    request for increased security and refused to make any change to the terms of
    the appellants disposition.

[7]

The appellant submits that:

1.

The Boards conclusion that she continues to
    pose a significant risk to the public is unreasonable;

2.

The Board erred by failing to consider a
    conditional discharge; and

3.

The Board erred by ignoring evidence that, given
    the nature of the appellants illness, hospitalization puts the appellant at
    risk.

Analysis

1.

Significant risk to the public

[8]

We are troubled by the fact that the appellant
    has now been detained for almost ten years following an assault that would not
    have attracted a lengthy custodial sentence and that she does not appear to be
    progressing towards community living. While we will have more to say about that
    aspect of the case, we do not accept the appellants submission that the
    Boards finding that she continues to pose a significant risk to public safety
    was unreasonable. The appellant has a significant history of assaultive
    behavior including several recent assaults on fellow patients and assaults on
    police officers. In July, 2016, the appellant absconded. The police found her
    in a known drug area and she kicked one police officer in the groin and
    scratched another officer when they returned her to CAMH. In another incident,
    the appellant kicked and spat on police called to deal with her after she went
    AWOL. The Hospital Report also contains other incidents of aggressive and
    violent behaviour including in interactions with the police, hospital staff and
    other patients.

[9]

The Hospital Report highlights a number of
    criminogenic risk factors in addition to this history of assaultive behaviour.
    These include substance abuse, impulsivity, characterological style notable for
    borderline antisocial features, disregard for authority, ongoing violation of
    rules, negative peer relations, lack of meaningful engagement supports, and
    negative attitudes towards the rehabilitation process.

[10]

The appellant does not challenge her diagnosis.
    In her own evidence, the appellant indicated that she would be willing to stay
    in another hospital for periods of time and agree to a Community Treatment
    Order. She agreed that she lacked support in the community, and testified that
    if discharged, she would taper off her medication, live in a shelter and that
    her illicit drug use would really depend on, on my headspace, how I feel.

[11]

On this record, it was entirely reasonable for
    the Board to conclude that there was a high likelihood that if discharged into
    the community, the appellant would likely return to a chaotic life-style,
    illegal drugs, and violent confrontations with others, including the police.
    While there is no indication that the likely level of assaultive behaviour
    would be sufficient to attract a lengthy sentence, it is not seriously disputed
    that assaultive behaviour, including assaults on the police when called to deal
    with the appellant, are likely to recur. It was open to the Board to conclude
    that this reaches the level of posing a serious risk to the public, in the
    words of this court: a foreseeable and substantial risk of physical or
    psychological harm to members of the public that is serious and beyond the
    trivial or annoying:
R. v. Ferguson
,
2010 ONCA 810, 264 C.C.C.
    (3d) 451, at para. 8.

[12]

We do not accept the submission that the Board
    erred by distinguishing the appellants case from
Wall
(Re)
, 2017 ONCA 713, 417 D.L.R. (4th) 124. That case involved an
    individual who continued to use illicit drugs and display rude and verbally
    abusive behaviour but had not committed an act of violence since 2004.
    Regrettably, the appellants history includes recent assaultive behavior.

[13]

Accordingly we reject the submission that the
    Boards finding that the appellant continues to pose a significant threat to
    public safety was unreasonable.

2.

Conditional discharge

[14]

Although the appellant did not seek a
    conditional discharge, it was incumbent upon the Board to consider the least
    onerous and restrictive disposition consistent with ensuring public safety.
    However, in the circumstances the Boards failure to specifically address the
    possibility of a conditional discharge is not material. We see no air of
    reality to the suggestion that the risk the appellant poses to the public could
    be managed on a conditional discharge. Previous attempts at community living
    have failed and the appellant has an established pattern of returning to drug
    use and violent conflict with the police.

3.

Risk of harm to the appellant

[15]

In oral argument, counsel for the appellant
    emphasized that prolonged hospitalization is counter-therapeutic for the
    appellant, and that the risk of harm of detaining the appellant in the hospital
    exceeded the risk of harm to the public if she were released. In
    cross-examination, the treating physician agreed that there was some support in
    the literature for the proposition that continued hospitalization of
    individuals suffering from borderline personality disorder could do more harm
    than good. The appellant complains that when the psychiatrist board member
    tried to explore this issue further, he was cut off by the Alternate Chair.

[16]

The appellant is clearly very frustrated with
    her treatment in the Hospital and the Hospital is also frustrated with the
    appellants behaviour and lack of progress. The record reveals one serious
    incident of self-harm that nearly led to the appellants death. The appellant
    appears to have made no progress after ten years of detention, and the prospect
    of her returning to health and the community remains elusive.

[17]

We agree with the Crown that, as a matter of
    law, the
Criminal Code
s NCR regime does not permit the Board or this
    court to engage in the kind of risk balancing exercise suggested by the
    appellant as a way of justifying an absolute discharge. If the appellant poses
    a significant risk to public safety, her detention is legally justified even if
    there appears to be a risk that her continued detention will cause her some
    harm.

[18]

On the other hand, it is very concerning that
    continued detention may be doing the appellant more harm than good. We agree
    with the Boards statement that some effort should be taken to break the cycle
    of a situation that has been frustrating to all:

The Board would like to see the Hospital work
    with Ms. Leuschner more closely and develop a one to one customized plan that
    meets her particular needs and her particular diagnosis. It may be that
    consultation with other professionals could assist, and it may be that a move
    to a more secure unit would be in her interest; however, other than containing
    her and preventing future AWOL attempts, it is unclear to us on this record how
    such a move at this time would assist in her reintegration or meet her other
    clinical needs. We appreciate the difficulty from all perspectives in finding
    the balance of freedom, structure and supervision for Ms. Leuschner.

Ms. Leuschner has had an inconsistent course
    on a variety of Dispositions and it is clear that everyone is frustrated at
    this point in time; however, the Board would like to see renewed effort at a
    clinical program that might break the cycle, short of placing Ms. Leuschner in
    a smaller locked unit.

[19]

We recognize that the issue of treatment impasse
    was not put to the treating physician in cross-examination before the Board. The
    Board is directed by the
Criminal Code
, s. 672.54 to take into account
    the mental condition of the accused, the reintegration of the accused into
    society and the other needs of the accused in addition to the paramount
    consideration of the safety of the public. The Board has a broad supervisory
    and inquisitorial role to search out and consider evidence favouring the
    accused:
Winko v. British Columbia (Forensic
    Psychiatric Institute),
[1999] 2 S.C.R. 625 at
    para. 54.


[20]

In our view, given the appellants ten year
    history of detention, the lack of progress the Hospital has made in improving
    her situation, and the risk that continuing down the same road may actually
    pose a risk of harm to the appellant, the Board erred by failing to make its
    recommendation mandatory.

[21]

Accordingly, we allow the appeal but only to this extent. The Person
    in Charge is directed to retain one or more appropriate independent
    professionals to review the appellants situation and to prepare a report in
    consultation with the appellants treatment team recommending the best course
    of treatment with a view to her eventual reintegration into the community. Such
    report is to be presented to the Board when completed to be considered on a
    fresh review and no later than the date of the appellants next annual review.

Alexandra Hoy A.C.J.O.

Robert
    J. Sharpe J.A.

I.V.B.
    Nordheimer J.A.


