



COURT OF APPEAL FOR ONTARIO

CITATION: Tolias (Re), 2019 ONCA 888

DATE: 20191108

DOCKET: C66798

Fairburn, Harvison Young and
    Thorburn JJ.A.

IN THE MATTER OF:  Helen Tolias

AN APPEAL UNDER PART XX.1 OF THE
CODE

Helen Tolias, acting in person

Jeff Marshman, appearing as
amicus
    curiae

Nicole Rivers, for the respondent, the
    Attorney General of Ontario

Heard: November 1, 2019

On appeal against the disposition of the
    Ontario Review Board dated March 8, 2019, with reasons for disposition dated March
    22, 2019.

REASONS FOR DECISION

A.

OVERVIEW

[1]

The appellant was found not criminally
    responsible in July 2005 and April 2006. The July 2005 finding related to
    multiple counts of criminal harassment, breaches of recognizance and probation.
    The April 2006 finding related to a further count of criminal harassment in
    relation to the same victim as the 2005 criminal harassment counts, a
    psychiatrist at the Centre for Addiction and Mental Health. The harassment
    arose largely from persistent telephone calls and other efforts to contact the
    psychiatrist. The appellant has been under the jurisdiction of the Ontario
    Review Board since July 14, 2005.

[2]

Ms. Tolias appeals from the most recent disposition
    of the Ontario Review Board (the Board) ordering that she be detained in the
    Secure Forensic Unit of the Providence Care Hospital in Kingston, Ontario. She
    seeks an absolute discharge on the basis that she is no longer a significant
    threat to the safety of the public. She is joined in that submission by
amicus
    curiae
, who also submits in the alternative that Ms. Tolias is entitled to
    a conditional discharge.

[3]

For the reasons that follow, we allow the appeal
    and refer the matter to the Board to determine whether Ms. Tolias should be
    released on a conditional discharge.

B.

BACKGROUND

[4]

The appellant has a long history of review
    hearings and appealing her dispositions. In her most recent appeal prior to
    this one, the appellant took the position that the Board had acted unreasonably
    in concluding that she remained a significant threat to the safety of the
    public. In the alternative, she argued that the Board erred in failing to
    impose a conditional discharge as the least onerous and restrictive disposition
    available.

[5]

This court dismissed that appeal, finding no
    error in the Boards approach and concluding that the disposition was not
    unreasonable:
Tolias (Re)
, 2019 ONCA 123. Even so, the court commented
    as follows, at para. 22:

[C]ases such as this one always raise a
    certain concern. The index offences involved criminal harassment. Such offences
    have a serious impact on the victim but, in the case of Ms. Tolias, the
    offences did not involve any violence. Yet, the offences occurred more than a
    decade ago, and since that time Ms. Tolias has remained in detention. Although
    the record certainly supports the Boards conclusion that Ms. Tolias continues
    to suffer from a serious mental illness,
cases such as this require constant
    vigilance and inquiry by the Board into the appropriate disposition, especially
    the appropriateness of a conditional discharge with community living
.
    [Emphasis added.]

[6]

This court expressed the view that, at the next annual
    review hearing, the Board should inquire actively into the appropriateness of
    alternative dispositions for Ms. Tolias: at para. 23.

C.

The Board Hearing

[7]

That hearing was held on February 25, 2019. A
    majority of the 3-member Board took this courts direction into account but
    concluded on the factual record before it that Ms. Tolias remains a significant
    threat to the safety of the public and that the appropriate disposition remained
    a detention order. The dissenting member would have granted Ms. Tolias an
    absolute discharge.

[8]

The majority rested its finding on the fact that
    Ms. Tolias continues to suffer from two major mental illnesses  schizoaffective
    disorder and borderline personality disorder  that have proven to be treatment
    resistant. The majority also accepted the evidence of Ms. Tolias treating
    psychiatrist that Ms. Tolias mental stability is volatile, that she threatens
    institutional staff, and that she has engaged in physical violence in respect
    of property. Finally, the majority found that Ms. Tolias delusions regarding
    the victim of the harassment complaints continue. It would appear that this
    finding is based upon the psychiatrists testimony that a nurse overheard Ms.
    Tolias asking another patient if the patient thought that Ms. Tolias could
    change her surname to correspond to the victims surname a few weeks before the
    Board hearing.

[9]

As for the necessary and appropriate
    disposition, the majority found that there was no place for Ms. Tolias to live
    in the community and as such, no basis for a conditional discharge.

[10]

The dissenting opinion found that Ms. Tolias is
    frustrated and angry about her inpatient status and, as such, poses a
    difficult management issue. The dissenting member further held that on the
    evidence adduced, the likelihood of Ms. Tolias engaging in serious criminal
    conduct was mere speculation. Accordingly, the dissenting member would have
    granted an absolute discharge, even though the member acknowledged that it may
    not be in Ms. Tolias best interests to do so.

D.

The parties positions on appeal

[11]

Like the last appeal, Ms. Tolias maintains that
    the majority decision was unreasonable and seeks an absolute discharge. In her
    submissions, Ms. Tolias emphasized that:

·

she is not delusional;

·

she faithfully takes her medication;

·

she has not attempted to contact the victim of
    the harassment in over five years;

·

she has made a conscious decision not to take
    Clozapine, an anti-psychotic medication that her psychiatrist suggests would be
    ideal, because she believes it has harmed her health in the past; and

·

she has only acted out in the institutional
    setting in the recent past because she is extremely frustrated and bored.

[12]

Ms. Tolias says that we should enter an absolute
    discharge. If this court does so, she will go and live with her sister
    Anastasia or rent an apartment.

[13]

Amicus curiae

supported Ms. Tolias position, arguing
    that the majoritys decision is unreasonable and that Ms. Tolias should be
    absolutely discharged. In the alternative,
amicus curiae
suggests that
    the majority erred in concluding that the least onerous and restrictive
    disposition was a detention order. He contends that, at a minimum, Ms. Tolias
    should be granted a conditional discharge.

[14]

The respondent argues that the majoritys
    reasons on both the risk assessment and disposition are reasonable and should
    be granted deference. The respondent emphasizes that this court should not be
    too quick to overturn the Boards expert opinion about how that risk is to be
    managed:
R. v. Owen
, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 69.

E.

issues

(1)

Significant threat to the safety of the public

[15]

Although the appellant appears to have made
    tremendous strides in recent years, it was open to the majority to conclude
    that the appellant remains a significant risk to the safety of the public based
    upon the evidentiary record before the Board. We see no need to review that
    evidence. It is well documented and includes certain treatment resistant
    conditions, suboptimal medication regimes, actuarial risk assessments, and
    continued delusions.

(2)

The appropriateness of a conditional discharge

[16]

At the same time, the appellants progress
    affects whether her risk can be managed in the community. Although the majority
    considered this issue, it concluded that:

With respect to
    the necessary and appropriate disposition, the Board finds that there is simply
no place for Ms. Tolias to live in the community
and as such, no basis
    for a conditional discharge. In addition, given Ms. Tolias conduct and
    delusions, it is unlikely that she would be accepted in any group home or other
    facility. [Emphasis added.]

[17]

At the time that the Board came to this
    conclusion, it had information that Ms. Tolias sister, Anastasia Tolias, was
    not prepared to have the appellant live with her. We are in receipt of fresh
    evidence, albeit in the form of double hearsay, that suggests otherwise. The
    respondent consents to the admission of this information. Pursuant to s.
    672.73(1) and (2) of the
Criminal Code
, we find it necessary to admit
    the information in the interests of justice. See also:
Owen,
at paras.
    48-49, 52.

[18]

A lawyer to the Tolias family wrote to
amicus
    curiae

explaining that the Tolias family is prepared to support Ms.
    Tolias if she is granted an absolute or conditional discharge. The family attended
    the hearing of the appeal and clearly supports the request to, at a minimum, release
    Ms. Tolias on a conditional discharge and allow her to live with her sister.

[19]

The lawyers letter states that Ms. Tolias
    father is a parish priest in British Columbia and is 100% committed to
    assisting with the integration into the community of Helen Tolias. He is
    prepared to have her live with him, but recognizes that his out-of-province
    status may create difficulties in terms of any future dealings with the ORB.

[20]

The letter also states that Ms. Tolias sister,
    Anastasia Tolias, is prepared to accept, without any reservation whatsoever,
    the role of providing housing for her sister at her own house in Mississauga,
    Ontario and also to assist with accessing psychiatric services in the community
    and helping with the monitoring of the proper usage of prescribed medication.

[21]

We note that there is no dispute that the Tolias
    family, commendably, has stayed involved with and supported Ms. Tolias over all
    of these years.

[22]

We are aware that Ms. Tolias treating
    psychiatrist testified at the hearing that he was not prepared to support a conditional
    discharge, even if Ms. Tolias could live with her sister. However, the psychiatrists
    evidence was somewhat equivocal on the point. Moreover, one of the factors
    informing the psychiatrists view was the significant stress it would cause
    to the sister and that Anastasia probably would not be able to help Helen the
    way she needs.

[23]

That evidence was given over eight months ago.
    It was also based on what now seems to have been an incorrect view that Anastasia
    Tolias would not allow her sister to live at her residence. Accordingly, the information
    that the Board was operating upon has fundamentally changed. That information
    is directly relevant to the majoritys finding that a conditional discharge was
    not the least onerous and restrictive disposition available. If that
    information were to be provided in a proper format, and it were to be accepted,
    then Ms. Tolias may well be entitled to a conditional discharge.

[24]

In the circumstances, it is critical that the Board
    reconvene a hearing to determine whether, against the backdrop of Ms. Tolias
    current condition, and in light of the new information about the possibilities
    for Ms. Tolias to live in the community, the least onerous and restrictive disposition
    is now a conditional discharge.

F.

Disposition

[25]

The appeal is allowed and the Board is directed
    pursuant to s. 672.78(3)(b) of the
Criminal Code
,
R.S.C., 1985,
    c. C-46,

to hold an expedited rehearing where this new evidence can be explored
    and considered with regard to the least onerous and restrictive disposition
    available.

Fairburn J.A.

Harvison Young J.A.

Thorburn J.A.


