



COURT OF APPEAL FOR ONTARIO

CITATION: Scalabrini (Re), 2021 ONCA 212

DATE: 20210406

DOCKET: C68776

Fairburn A.C.J.O., Miller and Zarnett JJ.A.

IN THE MATTER OF: Jean-Paul
    Scalabrini

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Anita Szigeti, for the appellant, Jean-Paul Scalabrini

Nicolas de Montigny, for the respondent, Attorney
    General of Ontario

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

Heard: March 4, 2021 by video conference

On appeal from the disposition
    of the Ontario Review Board, dated April 17, 2020, with reasons dated May 7,
    2020.

Fairburn
    A.C.J.O.:

[1]

The appellant was found not criminally responsible on account of mental
    disorder on June 10, 2013. The index offences, which occurred on March 28,
    2013, led to charges of possession of a weapon for a dangerous purpose,
    robbery, uttering a threat to cause death or bodily harm, and resisting or
    obstructing a peace officer. Since the initial disposition, the appellant has
    been under the jurisdiction of the Ontario Review Board and subject to a
    detention order.

[2]

This is an appeal from the Boards April 17, 2020 disposition requiring
    the appellant to be detained at the General Forensic Unit of the Centre for
    Addiction and Mental Health, with privileges up to and including living in the
    community in accommodation approved by the Person in Charge of CAMH. The
    appellant maintains that the Board erred by failing to grant an absolute
    discharge. In the alternative, the appellant argues that the Board erred by
    failing to grant a conditional discharge.

[3]

For the reasons that follow, I would dismiss the appeal.

I.

The Denial of an Absolute Discharge

[4]

In his factum, the appellant argues that the Boards refusal to grant
    him an absolute discharge is unreasonable. This argument cannot succeed.

[5]

Given the evidence available to the Board, and considering all of the
    circumstances, the Board came to a reasonable decision, providing reasons that
    are internally coherent and that properly reflect a rational chain of analysis,
    one that is justified in relation to the facts and law:
Canada (Minister
    of Citizenship and Immigration) v. Vavilov
, 2019 SCC 65, 441 DLR (4th) 1,
    at paras. 85, 99-103. See also:
Fotiou (Re)
, 2020 ONCA 153, at para.
    7.

[6]

The Board focussed upon the correct legal test for determining whether
    an absolute discharge was available: whether the appellant continues to present
    a significant threat to the safety of the public, meaning that there must be
    a real risk of physical or psychological harm that goes beyond the merely
    trivial or annoying:
Winko v. British Columbia (Forensic Psychiatric Institute)
,
    [1999] 2 S.C.R. 625, at paras. 57, 62. The Boards reasons for decision
    demonstrate why that test was met, leading to the reasonable conclusion that an
    absolute discharge was not available in the circumstances.

[7]

In concluding that the appellant remains a significant threat to the
    safety of the public, the Board had regard to a number of factors.

[8]

First, the Board considered the appellants current diagnoses of
    schizophrenia, paranoid type, and substance abuse, in remission in a controlled
    setting.

[9]

Second, the Board took into account the index offences, which involved
    the violent and aggressive use of weapons. The index offences were committed on
    March 28, 2013, near an underground bunker the appellant constructed in the woods
    about 20 kilometres outside of Sudbury, Ontario. Notably, he brandished a knife
    while approaching two young males in an aggressive manner, eventually placing
    one in a headlock to choke him. He then pressed an air soft pistol against the same
    victims temple and threatened the other victim.

[10]

Third,
    the Board considered the fact that, although the appellant has not caused physical
    harm to anyone since the index offences, he has been known to act in a
    threatening and aggressive manner.

[11]

Fourth,
    while the appellant is treatment capable and treatment responsive, meaning that
    his active symptoms are reduced when he is taking his medication, the Board
    accepted the view of Dr. Wilkie, the appellants treating psychiatrist, that
    the protective effect [of the medication] does not extend to times when [the
    appellant] is [consuming] cannabis. To the contrary, the Board found that the appellant
    develops psychotic symptoms when he uses cannabis. If he were to go off of his
    medication and use cannabis all at the same time, Dr. Wilkie testified that he
    would most certainly be sicker.

[12]

Fifth,
    in the year leading up to the April 2020 annual review, the appellant had not
    complied with the detention order that was imposed on April 9, 2019. The April
    9, 2019 detention order provided privileges up to and including living in the
    community in accommodation approved by the Person in Charge of CAMH. The
    appellant had not enjoyed good success in complying with that detention order.

[13]

Within
    weeks of the April 9, 2019 disposition, the appellant started intentionally
    misrepresenting his sign-out sheet in order to be able to use more privileges.
    Eventually, the appellant admitted that he wanted to see if he could get away
    with it. During that time, he also admitted to using cannabis and, on one occasion,
    was seen to be visibly intoxicated. He acknowledged that his cannabis use in
    the past had led to increased psychotic symptoms. Those symptoms included
    thought broadcasting and paranoia.

[14]

While
    the appellant had been discharged to a community living setting in February
    2020, it only lasted for a little over a month because he tested positive for
    cannabis use. The appellant was then readmitted to CAMH on March 10, 2020. On
    March 27, 2020, just prior to the April 2020 Board hearing, the appellant was
    returned to the same community setting. As will be seen when the fresh evidence
    is reviewed later in these reasons, that arrangement did not last long, as the
    appellant returned to consuming cannabis and was readmitted to CAMH on June 10,
    2020.

[15]

Ultimately,
    the Board accepted Dr. Wilkies evidence that the appellant remains a
    significant threat to the safety of the public. Without oversight, the
    following scenario, as taken from the Hospital Report dated February 20, 2020,
    and summarized in the Boards reasons for decision, could occur:

If [the appellant] is to reoffend, it would most likely occur
    after substance use, leading to decompensation in his mental state. He would
    lose further insight into his mental illness and the need for long-term
    treatment or the need for abstinence. Although there have been major
    decompensations in his mental state after individual incidents of substance use
    while in hospital, the team has been able to intervene immediately after a
    single use, thus preventing any ongoing use and potential for further decline.
    It is likely that, with continued and sustained use, there would be a
    significant change in his mental state. This would most likely occur with
    reduced supervision. Those most at risk potentially could include anyone in his
    immediate vicinity.

[16]

The
    Boards conclusion that the appellant remains a significant threat to the
    safety of the public is reasonable and supported by the evidence.

II.

The Denial of a Conditional Discharge

[17]

Having
    found that the appellant remains a significant threat to the safety of the
    public, the Board tackled head-on the question of what constitutes the
    necessary and appropriate disposition in this case  meaning the least onerous
    and least restrictive disposition necessary to protect the public:
Winko
,
    at para. 47;
Valdez (Re)
, 2018
    ONCA 657,
at para. 17. The Board rejected the appellants
    alternative position that he should be conditionally discharged, instead
    deciding to leave a detention order in place, one that contained privileges up
    to and including living in accommodation approved by the Person in Charge of
    CAMH.

[18]

In
    coming to this conclusion, the Board relied upon Dr. Wilkies evidence that
    there were two overarching concerns that pointed toward the continuation of a
    detention order: (a) the need for CAMH to continue to have the ability to
    approve accommodation in the community; and (b) the need for CAMH to intervene
    quickly and early in the event of decompensation. Leaning heavily on these
    concerns, as expressed by Dr. Wilkie, the Board determined that the necessary
    and appropriate disposition was a detention order.

[19]

The
    appellant contends that the Board erred in coming to this conclusion. During
    oral submissions on appeal, the appellant emphasized that he had approved
    housing in the community at the time that the Board hearing was held and that the
    Board could have ordered the appellant discharged to live at that approved
    residence.

[20]

As
    well, the appellant maintains that the Board erroneously thought that a
    detention order gave the hospital powers for early intervention that exceeded
    those available under a conditional discharge. While the appellant accepts that
    readmission to the hospital in the event of decompensation is one such power,
    he maintains that it is the only one. Therefore, he argues that the Boards
    reasoning was flawed, as reflected in the following passage from the Boards
    reasons for decision:

As stated by Dr. Wilkie, there are many factors to consider in
    a decision to readmit a person such as [the appellant] to the hospital. As
    pointed out by Dr. Wilkie, early intervention does not necessarily mean
    readmission to the hospital. The panel accepts this important distinction.
    Instead, early intervention by the treatment team would allow them to mitigate
    the factors behind any apparent decompensation and prevent [the appellants]
    decline to reach the point where he is a danger to himself or others as would
    be required under [the
Mental Health Act
, R.S.O. 1990, c. M.7
].

[21]

I
    see no error in the Boards reasoning. The impugned passage set out above must
    be read in context. It is nothing more than a recognition that, despite the
    existence of a detention order, and the ability to bring a decompensating
    person back to the hospital, many factors will be taken into account before readmitting
    an individual to the hospital. Importantly, mitigation strategies may be
    invoked to determine whether readmission is necessary. The Board was simply
    acknowledging that if those other attempts at early intervention strategies
    fail, a detention order ensures that the appellant need not decompensate to the
    point where he is a danger to himself or others before steps can be taken to
    readmit him to the hospital.

[22]

The
    need for CAMH to approve of the appellants accommodation and the need to
    intervene early in the event of decompensation were entirely appropriate
    factors for consideration in rejecting a conditional discharge:
Jackson (Re)
,
    2018 ONCA 560, at para. 7;
Munezero (Re)
, 2017 ONCA 585, at para. 9;
Ontario
    Shores Centre for Mental Health Sciences v. Boehme
,
2016 ONCA 706,
    at paras. 9-11.

[23]

As
    for the housing consideration, the Board heard evidence that the appellants
    placement at that time was only intended to be a transitional residence, as it offered
    a maximum stay period of 11 months. In other words, even if everything had gone
    perfectly, the community housing where the appellant was staying at the time of
    the Boards disposition would not have continued to the next annual review
    pursuant to s. 672.81(1) of the
Criminal Code
.
This created
    clear concerns about where the appellant would reside after his term at that
    location had come to an end.

[24]

The
    Board also heard evidence that it was the appellants treatment teams view
    that it was imperative with regard to community risk management that the
    hospital remain integrally involved in approving accommodation.  In Dr.
    Wilkies view, the appellants preference would likely be to live alone in the
    community, without any support or supervision, but he has demonstrated that he requires
    a high degree of support and supervision.

[25]

As
    for the need for early intervention, Dr. Wilkie addressed the fact that it was
    critically important to be able to do so early in a decompensation scenario.
    In her view, the criteria for intervention under the
Mental Health Act
would be insufficient to manage the real and present risk factors that would
    arise from the appellants potential substance abuse. In other words, it would
    compromise the public to have to wait for the appellant to decline to the
    point that the [
Mental Health Act
]
would be available before meaningfully intervening.

[26]

It
    was open to the Board to accept Dr. Wilkies evidence about the need for timely
    action should the appellant start to decompensate. It was also open to the
    Board to conclude, on the evidence available, that the risk posed by cannabis
    to the appellants mental condition could not be adequately managed under a
    conditional discharge. This was particularly true given his history of cannabis
    use, including use that took place not long before the Board hearing.

[27]

In
    light of all of the evidence in this case, including the appellants track
    record in breaching his community privileges by consuming the very drug that
    causes his psychosis, and on the strength of Dr. Wilkies evidence, it cannot
    be said that the Boards decision to impose a detention order was unreasonable.

III.

The Intersection Between COVID-19 and a Conditional Discharge

[28]

The
    appellant raises one final submission as to why it was wrong to impose a
    detention order: the COVID-19 pandemic.

[29]

The
    Board rejected the appellants argument that COVID-19 changes the way in which the
    Board considers a detention order and a conditional discharge. The appellant
    argued that because of COVID-19, hospitalization at CAMH would be dangerous. He
    argued before the Board that, during the global pandemic, the hospital should
    not be in a position to exercise discretion for his readmission and, rather,
    there should be some kind of objectively measurable criteria thats a higher
    threshold for [his] return to hospital. Those criteria were said to be in the
Mental
    Health Act
.

[30]

The
    appellant put it this way in his closing submissions before the Board:

[COVID-19] within CAMH changes the analysis in terms of what
    the necessary and appropriate disposition is from how you would have gone about
    making that decision about this accused person if we were meeting [before the global
    pandemic].

[Given the appellants] risk profile,  he is only capable of
    being readmitted to the hospital  when either he is prepared to come in
    voluntarily,  or when he meets the
Mental Health Act
criteria or
    serious bodily harm to others, for  the risk  likelihood. So Box A [of the
Mental
    Health Act
] criteria are mental disorder leading to the likelihood of
    serious bodily harm to himself, to others, or serious physical impairment of
    himself. [When COVID-19], which could kill [the appellant], is in the
    institution on the other side of the equation which is early admission,  its
    completely fine and manages [the appellants] risk to the public effectively if
    he can only be brought in when he does meet the
Mental Health Act
criteria.

[31]

In
    rejecting that argument, the Board emphasized that there are multiple factors
    that go into determining whether to have someone such as the appellant
    readmitted to the hospital. In other words, just because a person can be
    readmitted to the hospital under a detention order, does not mean that they
    will be readmitted to the hospital.

[32]

The
    Board also emphasized Dr. Wilkies acknowledgment that the COVID-19 factor
    would certainly be a consideration in any decision made by the treatment team.
    Notably, Dr. Wilkie was specifically asked whether she agreed that the presence
    of COVID-19 in an institution is a factor that would have to be weighed in the
    decision to readmit someone to the hospital, to which Dr. Wilkie replied:

I would agree that there are many factors that need to be taken
    into account with regard to this pandemic, both with regard to where people are
    living in the community and any changes in that, so with regard to readmission.
    So I think these are all factors that would need to be taken into account with
    regard to admission to hospital.

[33]

Ultimately,
    the Board concluded that it would be an abrogation of the Boards duty to
    impose a conditional discharge in these circumstances, as the appellant would
    have to decompensate to the point where he was, in fact, a risk to himself or
    to others before the
Mental Health Act
would permit a readmission to
    CAMH. As the Board said, any such approach would compromise the safety of the
    public.

[34]

The
    appellant contends that the Board erred by rejecting his submission that the danger
    of the global pandemic should have dictated a conditional discharge as being
    the necessary and appropriate disposition. He argues that the appellants fresh
    evidence on appeal demonstrates the wisdom of his position before the Board.

[35]

The
    fresh evidence was admitted on consent of the parties. The proffered affidavits
    are necessary to admit in the interests of justice and touch on the issue of
    risk to public safety:
Criminal Code
, R.S.C. 1985, c. C-46, s. 672.73(1);
R. v. Owen
, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 71.

Notably,
    the fresh evidence of CAMH demonstrates that, following the disposition that is
    under review, the appellant again confronted some difficulties in the
    community. On June 10, 2020, almost two months after the April 17, 2020
    disposition under appeal, the appellant had to be readmitted to CAMH. Among
    other things, that decision was made because of his continued use of cannabis.

[36]

Given
    that he was placed back into the hospital, a restriction of liberty hearing was
    required pursuant to s. 672.81(2.1) of the
Criminal Code
. That hearing
    was conducted on July 10, 2020, and the Board found that the restriction was
    warranted as the least onerous and least restrictive alternative in the
    circumstances: see
Scalabrini (Re)
,

[2020] O.R.B.D. No. 2089.
    Accordingly, the appellant continued to reside at CAMH up to the time of the present
    appeal.

[37]

Unfortunately,
    according to the fresh evidence of the appellant and the fresh evidence of the
    Person in Charge of CAMH, the unit that the appellant has been residing in
    experienced a COVID-19 outbreak just prior to this appeal being heard. The
    fresh evidence of the Person in Charge of CAMH suggests that the outbreak would
    move into a resolved status on March 6, 2021, two days after the hearing of
    this appeal. The appellant did not contract COVID-19, but a number of the
    patients around him and some staff members had contracted the virus. This
    created more difficult living circumstances, with less privileges being
    extended to the appellant than normal.

[38]

The
    fresh evidence also demonstrates that forensic patients at CAMH have been
    prioritized to receive vaccinations. At the time of the appeal, it was anticipated
    that patients in the appellants unit who consented to receive the vaccination
    would be able to do so during the week following the hearing of this appeal,
    after the outbreak status had lifted.

[39]

The
    fresh evidence of the Person in Charge of CAMH also suggests that the appellant
    has continued to use cannabis while at CAMH, and there is some evidence suggesting
    the appellant has tampered with his urine samples. Accordingly, substance use
    remains a concern from a risk management perspective.

[40]

On
    a more positive note, at the time of the appeal, the appellant was considered a
    strong candidate for a transitional rehabilitation housing program, one that
    has staff on-site 24 hours a day. This was being actively advocated for by CAMH
    on the appellants behalf, and the hope was that it would be resolved soon
    after the hearing of the appeal. It may be that by the time of the next annual
    Board hearing, scheduled for April 15, 2021, this housing situation will have
    been resolved, and the appellant will have been moved from CAMH to the
    transitional housing.

[41]

The
    appellant argues that his fresh evidence demonstrates that his worst fears,
    that he would be returned to CAMH and potentially exposed to COVID-19 in a
    congregate setting, have come true. He maintains that this reality underscores
    the strength of his position before the Board: that he should have been given a
    conditional discharge so that it would have been more difficult to readmit him
    to the hospital.

[42]

I
    am not persuaded by this argument.

[43]

The
    Board is charged with a very specific statutory mandate. At an annual review,
    that mandate is informed by s. 672.54 of the
Criminal Code
, requiring
    the Board to consider the safety of the public, the mental condition of the
    accused, the reintegration of the accused into society, and the other needs of
    the accused. Of course, by virtue of statute, the safety of the public is the
    paramount consideration:
Criminal Code
,

s. 672.54.

[44]

To
    accede to the appellants submission would mean that, because of the pandemic, the
    Review Board would have to put aside its clearly articulated and considered
    view as to how to best manage the appellants risk to the community, in favour
    of what the appellant admits is a far less effective risk management tool  the
Mental Health Act
.

[45]

The
    risk of COVID in congregate settings is well known at this stage of the
    pandemic. Nothing in these reasons should be understood as taking that risk
    lightly. It is a very serious and sometimes deadly disease that is particularly
    insidious in group settings. Even so, I do not accept that because of the
    pandemic, a conditional discharge should be imposed in circumstances where a
    detention order is called for, only to make it more difficult for the appellant
    to be returned to the hospital in circumstances where he is decompensating and
    in need of stabilization. To accede to this submission would be to turn the
    statutory scheme on its head.

[46]

This
    is not to say that the existence of COVID-19 is entirely irrelevant to whether
    someone should be taken into the hospital. Dr. Wilkie clearly acknowledged this
    fact when she said that it was a factor to be taken into account.  In my view,
    that is exactly the time that the factor should be taken into account. Rather
    than have the Board impose a conditional discharge, where a detention order is
    called for, it is for the health care professionals to keep COVID-19 in mind at
    the time that decisions are being made about whether to intervene in the
    context of decompensation and, if so, how. It may be that in this time of
    COVID-19, as acknowledged by Dr. Wilkie, the status of the disease may well
    inform strategies used to address decompensation, some of which fall short of
    re-hospitalization.

[47]

The
    Boards reasons properly accepted that, while COVID-19 is a factor for the
    treatment team to take into account when exercising its powers under a
    detention order, the existence of the global pandemic did not justify a
    conditional discharge. Indeed, the Board expressed the view that to have
    accepted that position, it would be required to abrogate its statutory duty. I
    agree. This was particularly true in this case where the appellant, who was
    known to deteriorate with drug use, would be required to deteriorate to the
    point where he was a risk to himself or others, compromising public safety,
    before consideration could be given to invoking the
Mental Health Act
to require his readmission to CAMH. There is nothing wrong with the Boards conclusion.

IV.

Disposition

[48]

The
    appeal is therefore dismissed.

Released: APRIL 6 2021 JMF

Fairburn A.C.J.O.

I agree B.W. Miller
    J.A.

I agree B. Zarnett
    J.A.


