



COURT OF APPEAL FOR ONTARIO

CITATION: Trudel (Re), 2019 ONCA 759

DATE: 20190930

DOCKET: C66735

Juriansz, Pepall and Roberts JJ.A.

IN THE MATTER OF:  Chantal
    Trudel

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Meaghan McMahon, for the appellant

Clive Ewan, for the respondent, Attorney General of
    Ontario

Marie-Pierre T. Pilon, for the respondent, Royal Ottawa
    Health Care Group

Heard:  September 20, 2019

On appeal from the November 14, 2018 disposition of the
    Ontario Review Board, with Reasons for Disposition dated December 19, 2018.

REASONS FOR DECISION

[1]

The appellant appeals from the Ontario Review Boards November 14, 2018
    disposition that she be detained in the secured forensic unit of the Brockville
    Mental Health Centre of the Royal Ottawa Health Care Group.

[2]

The appellant has been under the supervision of the Board and subject to
    a series of detention orders since December 10, 2008, when she was found not
    criminally responsible (NCR) for the offence of aggravated assault. The index
    offence consisted of the appellant stabbing another person in a paranoid and
    psychotic state after having consumed crack cocaine and while non-compliant
    with her medications. The appellant has struggled with addiction to crack
    cocaine and mental illness since she was a teenager.

[3]

The appellants current diagnoses are schizoaffective disorder  bipolar
    type, manic with residual psychosis; stimulant (cocaine, amphetamines) and
    alcohol use disorders  in remission in a controlled environment; adult ADHD 
    in partial remission; nicotine dependence; and antisocial personality disorder.

[4]

The appellant submits that the Board erred in failing to grant her an
    absolute discharge because there was no evidence that she poses any significant
    risk of physical or psychological harm to the public. In particular, the appellant
    relies on the absence of any criminal or violent behaviour since 2015 and her abstention
    from substance abuse since 2016. She argues further that the Board erred in
    erroneously considering whether a detention order was in her best interests.

[5]

We do not accept these submissions.

[6]

We start with the well-established principle that there is no
    presumption that  NCR accused pose a significant threat to the safety of the
    public and that restrictions on their liberty can only be justified if, at the
    time of the hearing, the evidence before the Board shows that they actually
    constitute such a threat:
Winko v. British Columbia (Forensic Psychiatric
    Institute),
[1999] 2 S.C.R. 625, at para. 62. In our view, there was evidence
    to support the Boards finding that the appellant poses a significant threat to
    the safety of the public.

[7]

The Board summarized its conclusion at p. 9 of its reasons:

Although [the appellant] has not been violent for some time,
    this is in the context of living in a structured and well supervised
    environment. Left to her own she would very likely use substances and become
    non-compliant with her medication. This would lead to an exacerbation of her
    already serious chronic illness that will feature severe psychotic symptoms. Such
    an exacerbation of symptoms will, in all likelihood, pose a high risk of
    violent acts, including behaviour comparable to what occurred in the index
    offence.

[8]

In determining that the appellant poses a significant threat to the
    safety of the public, the Board conducted the broad inquiry required under s.
    672.54 of the
Criminal

Code
, R.S.C. 1985, c. C-46. 
    This included the myriad factors suggested by the Supreme Court in
Winko
,
    at para. 61:

the circumstances of the original offence, the past and
    expected course of the NCR accuseds treatment if any, the present state of the
    NCR accuseds medical condition, the NCR accuseds own plans for the future,
    the support services existing for the NCR accused in the community and, perhaps
    most importantly, the recommendations provided by experts who have examined the
    NCR accused.

[9]

The Board did not focus on one single factor. Its examination included
    the appellants serious and long history of mental health and substance abuse issues,
    her previous constant elopements from the hospital and concomitant relapses into
    drug abuse, the index offence, as well as the other recorded serious assaults
    and violent behaviour in the secured forensic unit involving co-patients and
    staff, her cognitive impairments, her poor insight into the index offence, her present
    condition and her need for treatment, and her inability to self-medicate. It weighed
    these considerations with the appellants positive interactions and progress,
    including the absence of any violent or aggressive acts on her part and her
    abstention from illicit drugs.

[10]

The
    Board accepted the unequivocal opinion of the appellants treating psychiatrist,
    Dr. Sanjiv Gulati, that the appellant poses a significant threat to public
    safety based on these factors. As Dr. Gulati explained, while the appellant has
    shown progress, there is still relative instability in her mental health, even
    when on medication:

[The appellant] does continue to exhibit signs
    and symptoms of the illness and remains a risk of relapse.  In the absence of a
    structured, safe, secure environment and adequate follow-up, shes likely to
    relapse, become non-compliant with medication and pose a risk to herself as
    well as others.

[11]

We
    do not accept the appellants submission that the absence of violent behaviour
    on her part since 2015, while laudable, by itself eliminates the risk of
    significant harm to the public.

[12]

First,
    s. 672.5401 of the
Criminal

Code
provides that a
    significant threat to the safety of the public means a risk of serious physical
    or psychological harm to members of the public  resulting from conduct that is
    criminal in nature but not necessarily violent.

[13]

Further,
    as Dr. Gulati testified, the appellants psychotic and paranoid symptoms that
    appear, even with medication, are appreciably mitigated in the secure, controlled
    setting of the hospital where the appellant receives considerable support. As
    he opined, without such structure and supervision, if the appellant were out in
    the community and indulged in substance misuse, became non-compliant with medication,
    with a return of her psychotic symptoms, as was the case for the index offence
    and the instances of violent behaviour in the unit, then there would be a
    significant risk to public safety.

[14]

In
    support of her second submission that the Board erred in considering her best
    interests, the appellant relies on an isolated sentence towards the end of the
    Boards reasons that [t]he Board would be very concerned that discharging Ms.
    Trudel at this time would jeopardize the progress she has been able to make
    since her transfer to Brockville.  As the appellant correctly points out, whether
    an absolute discharge is in the appellants best interests, is not relevant to
    the determination under s. 672.54 of the
Criminal

Code
:
Pellett

(Re)
, 2017 ONCA 753, 139 O.R. (3d) 651, at para.
    32;
R. v. Ferguson
, 2010 ONCA 810, 264 C.C.C. (3d) 451, at para. 45;
    and
Wall (Re)
, 2017 ONCA 713, 417 D.L.R. (4th) 124, at para. 30. However,
    when the impugned sentence in the Boards reasons is read in the context of the
    reasons in their entirety, we do not agree that it represents a reason for the
    Boards detention order. Rather, it relates to the benefits of the hospitals
    treatment plan for the appellant earlier described in the reasons.

[15]

It
    is clear that the hospital has taken serious steps to prepare the appellant to
    make such a transition and that the appellant is responding well to these
    efforts and progressing towards that goal. In particular, the plan is to move
    the appellant into the FITT house on the grounds of the Brockville Mental
    Health Centre and, if she were successful in that accommodation and her mental
    state stabilizes, consider alternative accommodation for her in the community. To
    that end, the hospital requested and was granted a condition allowing it to
    approve 24-hour per day supervised accommodation within a 250km radius of the
    hospital.

[16]

In
    conclusion, we find no error in the Boards finding that the appellant poses a
    significant risk to public safety. The Boards disposition to maintain a
    detention order was necessary and appropriate and the least onerous and least
    restrictive to the appellant in the circumstances of this case. We see no basis
    to interfere with this disposition.

[17]

Accordingly,
    we dismiss the appeal.

R.G.
    JurianszJ.A.
S.E. Pepall J.A.
L.B. Roberts J.A.


