



COURT OF APPEAL FOR ONTARIO

CITATION: Ranieri  (Re), 2015 ONCA 444

DATE: 20150618

DOCKET: C59183

Weiler, Tulloch and van Rensburg JJ.A.

IN THE MATTER OF: Mary Ranieri

AN APPEAL UNDER PART XX.1 OF THE
CODE

Mary Ranieri, appellant, acting in person

Anita Szigeti,
Amicus Curiae


Amy B. Rose, for the respondent Attorney General of
    Ontario

Janice Blackburn, for the respondent Person in Charge of
    St. Josephs Healthcare Hamilton

Heard: June 1, 2015

On appeal against the disposition of the Ontario Review
    Board dated July 30, 2014.

van Rensburg J.A.:

[1]

The appellant appeals the initial disposition of the Ontario Review
    Board (the Board) after she was found not criminally responsible on account
    of mental disorder (NCR) on charges of uttering threats to cause death or
    bodily harm and assaulting a peace officer with intent to resist arrest.

[2]

The index offences occurred on March 12, 2014. The appellant, reacting to
    noise in an apartment above her own, made repeated threats to kill the
    superintendent of her building and two contractors. She repeated her threats to
    the investigating police officers, saying that one of the victims should be
    concerned if it gets any worse. Dont worry about what Im going to do. If I do
    something itll be with merit. The officers told the appellant she was under
    arrest. In response to their attempt to take physical control of her, the
    appellant pulled away and made a swatting motion, causing her glasses to fall
    off and break and leaving small scratches on her. While on the ground she
    kicked an officer in the leg.

[3]

In its disposition of July 30, 2014, the Board concluded that the
    appellant posed a significant threat to public safety for two reasons: she had
    committed and threatened acts of physical violence; and she continued to have active,
    untreated persecutory delusions. The Board accepted evidence from forensic
    psychiatrist Dr. Nagari, that the appellants symptoms affect her behaviour and
    require her to be detained in the Secure Forensic Unit. The Board noted that
    the appellants own testimony at the hearing revealed the scope and intensity
    of her delusions.

[4]

The Board determined that a conditional discharge was not appropriate
    because of the clear risks involved in discharging someone with the appellants
    symptoms. The appellant had recently been declared NCR and had not been
    treated.

[5]

The Board held that detention of the appellant on the Secure Forensic
    Unit at the time of her initial disposition was necessary and appropriate
    because of her active untreated symptoms. At the time of the hearing before the
    Board, the appellant had refused treatment because she did not believe she was
    ill, and was challenging a determination that she was not capable of consenting
    to treatment.

[6]

Recognizing, however, that the appellants condition might well improve with
    treatment, the Board made a hybrid order that the appellant be detained on the
    Secure Forensic Unit until the Hospital concludes that her condition has
    improved so as to warrant a transfer to the General Forensic Unit. The order  allowed
    for privileges up to and including access to hospital grounds under indirect
    supervision and access to the community in the company of staff or an approved
    person.

[7]

The appellant contests the Boards finding that she posed a
    significant risk to public safety, and argues that the Board failed to impose
    the least onerous and least restrictive disposition. The appellant asserts
    that, in arriving at the determination of significant risk and its disposition,
    the Board relied on inadmissible hearsay.
Amicus
joins in these
    arguments and makes two further submissions. She contends that the Board, instead
    of determining the disposition that was least onerous and least restrictive, erroneously
    applied a lower standard based on recent amendments to the
Criminal Code
,
    R.S.C., 1985, c. C-46, and that the Board failed to give meaningful
    consideration to a conditional discharge for the appellant.

[8]

I would not give effect to any of the grounds of appeal.

[9]

The Boards conclusion that the appellant posed a significant threat to
    public safety was reasonable and supported by the evidence. The Board emphasized
    the importance of the evidence that the appellant had committed and threatened
    acts of physical violence and that she suffers from active persecutory
    delusions that remain untreated.

[10]

There
    were two reports in evidence at the hearing: the Hospital report co-authored by
    Dr. Ferencz, the appellants attending psychiatrist, as well as the initial
    assessment report leading to the NCR finding, which was authored by Dr. Ferencz
    and clinical fellow Dr. Nagari.

[11]

In
    conducting the initial assessment, the psychiatrists interviewed the appellant
    on two occasions, as well as her mother, her sister and the victim of the index
    offences. The psychiatrists diagnosed the appellant with Delusional Disorder, Persecutory
    type, and observed that, as a result of her condition, she suffers from delusional
    thinking about various agencies and believes that for years she has been the
    victim of various injustices. They also observed that the appellants delusions
    had expanded while in the Hospital: she claimed that the superintendent she
    threatened in the index offences had influence over people in the Hospital as
    well as the judge who determined she was NCR.

[12]

The
    psychiatrists also noted that the appellants behaviour is irate and agitated,
    and that without treatment  which the appellant continues to refuse  there is
    an ongoing risk of violence. The index offences involved violence, and the
    appellant continues to justify her actions on the basis of perceived threats. There
    have also been subsequent threats of violence by the appellant, including,
    according to her sister, a threat to her mother that she would get her when
    released from the Hospital (this was noted as having been denied by the
    appellant). Dr. Nagari noted that the appellant had more than once told him
    that she would do anything to defend herself when threatened by others. The
    appellant repeated this assertion in her evidence at the hearing.

[13]

The appellant and
amicus
assert that the Board
    proceeded on inadmissible hearsay when Dr. Nagari, and then the Board, relied
    on police occurrence reports that contained unproven allegations of previous criminal
    conduct that did not result in convictions. Despite a number of interactions
    with police and the criminal justice system, the appellant has no prior
    convictions: some interactions did not result in charges, some charges were
    withdrawn, she was acquitted on one charge, and another is noted as pending.
    In his testimony, Dr. Nagari based his assessment that the appellant, while
    untreated, posed an unpredictable risk of harm, in part on what he understood
    was a previous assault that had been resolved by way of a peace bond.

[14]

Amicus
relies on this courts decision in
R. v.
    Runnalls
, 2009 ONCA 504, as authority that criminal charges that do not
    result in a conviction are inadmissible in a Board hearing, except to the
    extent that they form part of an actuarial instrument of risk assessment. In
    the present case no actuarial instrument of risk assessment was compiled or
    tendered in respect of the appellant.
Amicus
acknowledges that
Re
    Palmer
, 2013 ONCA 475, at paras. 32 and 33, recognizes that information
    from a criminal charge not resulting in a conviction may be considered, but asserts
    that such information is admissible only where it is undisputed, and that,
    because the appellant disputed the prior incidents resulting in criminal
    charges, information about these incidents was inadmissible and ought not to
    have been considered by the Board.


[15]

I
    agree with the Crown and the Hospital that
amicus
advocates an overly
    restrictive approach to the evidence a review board may consider that is not
    mandated by the case law. In
Re Palmer
, Rosenberg J.A. concluded that
    the Board was entitled to use facts surrounding a sexual assault allegation in
    determining the least onerous and least restrictive disposition for the
    accused, notwithstanding that the appellant had been acquitted of the criminal
    charge. While the information about the offence circumstances was in fact
    undisputed in that case, I do not read the decision as saying that
only
undisputed information about prior criminal conduct may be considered by a review
    board.

[16]

It
    is true that information from a police occurrence report is a form of hearsay
    evidence. However, as this court observed in
R. v
.
Vancurenko
,
    [2006] O.J. No. 2569, at para. 2, a review board enjoys a wide latitude to
    receive hearsay evidence because of its inquisitorial rather than adversarial
    process. In
Vancurenko
, the court held that the Board was entitled to
    receive and consider a police summary of prior criminal activity. It was for
    the Board to evaluate the hearsay evidence, while aware of the dangers inherent
    in evidence of this type. See also
R. v. Wodajio
, 2005 ABCA 45, 194
    C.C.C. (3d) 133, at para. 33, where the Alberta Court of Appeal observed that,
    having regard to the nature of the proceedings and the review boards broad
    mandate to consider all relevant, reliable evidence concerning an accuseds
    mental condition and a possible nexus between that condition and the threat (in
    that case, of sexual assault), the review board was entitled to consider
    evidence of an accuseds ongoing pattern of conduct, which included complaints
    of alleged sexual assaults during his detention.

[17]

While
    the fact that an accused person has been charged with an offence not resulting
    in a conviction, without more, would be of limited assistance to the Board in
    arriving at a disposition, information about prior behaviour that led to police
    involvement can be useful in assessing whether an accused poses a significant
    threat to the safety of the public and in determining the appropriate
    disposition. Such information is hearsay and must be evaluated having regard to
    such matters as its source and context, and any contradictory information,
    including any account or explanation provided by the accused.

[18]

In
    this case, the Hospital, and in turn the Board, did not simply rely on the fact
    that the appellant had been charged criminally on prior occasions. Nor is there
    any indication that the Board accepted without question all of the facts
    alleged in the occurrence reports. The relevant facts concerning the
    appellants pattern of conduct and behaviour were not really at issue, having
    been largely confirmed by the appellant, her mother and sister, and the
    complainant in the index offences, who had observed the appellants behaviour
    leading to some of the other incidents when the police attended. Importantly, the
    appellant did not deny her pattern of aggressive conduct. Rather, she offered a
    justification, rooted in her mental illness, that she was responding to threats
    and persecution.

[19]

With
    respect to disposition,
amicus
argues that the Board failed to
    determine the least onerous and least restrictive disposition, and erroneously
    interpreted the amended language in s. 672.54 of the
Criminal Code
as
    importing a lower threshold. While previously the section directed a review
    board to make a disposition that is the least onerous and least restrictive to
    the accused, the section now refers to a disposition that is necessary and
    appropriate in the circumstances.

[20]

This
    court noted in
Re Osawe
, 2015 ONCA 280, at para. 45, FN 3, that since
    the amendment, the Board has held that the necessary and appropriate
    disposition is also the least onerous and least restrictive disposition
    (citing
Re Ahmed-Hirse
, [2014] O.R.B.D. No. 1876, at para. 36). Indeed,
    in her factum, the Attorney General, referring to the legislative history of
    Bill C-14,
[1]
acknowledges that the amendments to s. 672.54, as well as related amendments,
    are clarifications as opposed to modifications of the law, and that the
    prevailing jurisprudence still applies.

[21]

In
    our view, the Board, in referring to the necessary and appropriate
    disposition, simply tracked the language of the amended provision, and there is
    no reason to believe that a lesser standard was applied.

[22]

The
    Boards hybrid disposition was reasonable and represented the least onerous and
    least restrictive option for the appellant at the time of her initial
    disposition. The Board ruled out a conditional discharge because of the clear
    risks involved in discharging an individual with [the appellants] symptoms
    into the community. There was ample evidence before the Board that a detention
    order was necessary in circumstances where the appellant lacked insight into
    her illness and was refusing treatment. The hybrid disposition  involving
    detention in the Secure Forensic Unit, where her privileges would be limited to,
    at most, indirectly supervised access to the hospital and grounds and
    accompanied access to the community, with the discretion of the Hospital to
    move her to a less secure unit  was supported by the evidence. Dr. Nagari
    testified that the appellant posed some elopement risk and that there was
    some concern that an incident might occur in a General Unit where there is less
    supervision.

[23]

Finally,
    there is no merit to the argument that the Board failed to give meaningful
    consideration to the option of a conditional discharge.
Amicus
argues
    that the Board relied on the fact that the appellant had only recently been
    found NCR and unreasonably failed to consider that a no-contact provision would
    have been sufficient to protect public safety. I disagree. At the time of the
    Boards initial disposition, the appellant denied her mental illness, was
    refusing treatment, suffered from active and expanding persecutory delusions,
    and continued to believe that her aggressive responses to perceived threats
    were justified. In these circumstances, there was no air of reality to the
    appropriateness of a conditional discharge.

[24]

For
    these reasons, I conclude that the Boards finding that the appellant poses a
    significant risk to public safety and its disposition by way of hybrid order
    were reasonable. I would accordingly dismiss the appeal.

Released: K.M.W.  June 18, 2015

K. van Rensburg
    J.A.

I agree K.M. Weiler
    J.A.

I agree M. Tulloch
    J.A.





[1]
Referring to the phrase necessary and appropriate in the circumstances, the
    Honourable Peter McKay, Minister of Justice and Attorney General of Canada,
    stated that the amendment is not intended to eliminate the requirement that a
    disposition be the least onerous and least restrictive, but rather to make
    the concept easier to understand:
Standing Senate Committee on Legal and
    Constitutional Affairs
, Proceedings, 41
st
Parl., 2
nd
Sess., No. 3 (27 February 2014), at pp. 32-33.


