



COURT OF APPEAL FOR ONTARIO

CITATION: Tolias (Re), 2018 ONCA 215

DATE: 20180302

DOCKET: C63078 and C63728

Strathy C.J.O., Simmons and Hourigan JJ.A.

IN THE MATTER OF:  Helen Tolias

AN APPEAL UNDER PART XX.1 OF THE
CODE

Christopher Hicks and Karri-Lynn Hennebury, for the
    appellant

Dena Bonnet, for Her Majesty the Queen (Ontario)

Heard: February 28, 2018

On appeal against the disposition of the Ontario Review
    Board dated June 23, 2016 (C63078) and March 7, 2017 (C63728).

REASONS FOR DECISION

[1]

The appellant appeals from dispositions of the Ontario Review Board
    dated June 23, 2016 and March 7, 2017.

[2]

Under the June 23, 2016 disposition, the appellant was detained at the
    secure forensic unit of St. Joseph's Healthcare, Hamilton, West 5th Campus. As
    the appellant has been the subject of a subsequent disposition, all parties
    agree that her appeal of the July 2016 disposition is now moot.

[3]

Under the March 7, 2017 disposition, the appellant remained detained on
    a secure forensic unit but, at her request, was transferred to Providence Care
    Centre-Mental Health Services, Kingston (Providence Care).

[4]

On appeal, the appellant argues that the Board's finding in its April 4,
    2017 disposition that she remains a significant threat to the safety of the
    public is unreasonable and that the Board erred in failing to grant her an
    absolute discharge. In the alternative, she submits that the Board erred in
    failing to grant her a conditional discharge.

Background

[5]

The appellant was found not criminally responsible in July 2005 and
    April 2006. The July 2005 finding related to four counts of criminal
    harassment; three counts of breach of recognizance and two counts of breach of
    probation. The April 2006 finding related to a further count of criminal
    harassment in relation to the victim of the 2005 criminal harassment charges, a
    psychiatrist at the Centre for Addiction and Mental Health with whom the
    appellant had become infatuated. The harassment consisted largely of persistent
    harassing telephone calls and other efforts to contact the psychiatrist.

[6]

The appellant is diagnosed as suffering from schizoaffective disorder,
    bipolar type and polysubstance abuse, in remission. She has been treatment
    capable and medication compliant since the Fall of 2016.

[7]

The March 2017 Board hearing was convened under s. 672.81(2) of the
Criminal
    Code
to consider the appellant's request, made in November 2016, that she
    be transferred to Providence Care. However, at the hearing, the appellant
    requested a conditional discharge, or, in the alternative, that she be
    transferred to Providence Care.

[8]

Evidence at the March 2017 Board hearing indicated some improvement in the
    appellant's mental status and behaviour since her July 2016 hearing as well as
    in her insight into her mental illness.

[9]

However, the appellant's treating psychiatrist, Dr. Nagari, testified
    that she still suffers from transient delusions, mainly paranoia and some
    degree of grandiosity. He also said that she exhibits some challenging
    behaviour from day to day  consisting of 10 to 15 incidents per week, or less
     but acknowledged that this was a huge improvement from previous occurrences.

[10]

When
    asked how the appellant might act in the community, Dr. Nagari responded that
    while at present the appellant is being treated under her own consent, her
    history of lack of insight into her illness and non-compliance indicates she is
    likely to want to discontinue her treatment. Her decision making fluctuates,
    she has poor judgment and often changes her mind. Once she goes off her
    medication, the appellant might become preoccupied with the victim of the index
    offences again, leading to repeated contact which might end up in harassment.
    Further, the appellant may misperceive other peoples intentions, which might
    lead to verbal outbursts.

The Boards Reasons

[11]

In
    finding the appellant continues to pose a significant threat to the safety of
    the public the Board stated that it relied on the Hospital Reports that had
    been filed as well as the evidence of the Dr. Nagari. It noted that she suffers
    from a major (treatment resistant) mental illness and concluded that, without
    the Board's supervision, she would discontinue her medication and cause
    psychological harm to members of the public. It also noted that she has a
    history of non-compliance with medication and that while she has recently shown
    some moderate improvement, her treatment is far from optimal.

[12]

The
    Board also concluded there was no air of reality to the appellant's request for
    a conditional discharge. It said:

It is clear that [the appellant] requires the structure and
    supervision of a secure unit in order to manage her risk to the public, which
    is paramount. She eloped from the hospital for a period of four days less than
    two months ago and at this point cannot be trusted to follow the rules.

Discussion

[13]

The
    appellant argues that the Boards finding that she continues to pose a
    significant threat to the safety of the public is unreasonable. She contends
    that to meet the threshold of significant threat there must be a real risk of
    conduct that goes beyond being annoying. Under s. 672.54.01 of the
Criminal
    Code
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. She
    asserts that her recent behavioural challenges have been limited to verbal
    outbursts that have not been criminal in nature.

[14]

Further,
    she submits that in finding her a significant threat to the safety of the
    public, the Board placed undue weight on her recent elopement. She argues that,
    in fact, her elopement demonstrates that she is not a significant threat.  After
    being medication non-compliant for four days, she sought re-entry into the
    hospital to obtain her medication. While away from the hospital, there were no
    displays of criminal behaviour and no attempts to contact or harass any of the
    previous complainants.

[15]

In
    the alternative, the appellant argues that the Board erred in failing to grant
    her a conditional discharge. She submits that the Board erred in placing undue
    weight on rule compliance and that, if anything, the appellants recent
    elopement signifies insight into her mental illness and commitment to her
    mental health that has not been present in the past.

[16]

We
    reject the appellants argument that the Boards finding that she poses a
    significant threat to the safety of the public was unreasonable. This finding
    was premised largely on the nature of the appellants mental illness, its
    manifestations in the index offences, her history of medication non-compliance
    and the need to ensure ongoing medication compliance.

[17]

In
    this regard, we note that, in its June 2016 decision relating to a prior appeal
    by the appellant, this court observed that a prior attempt to reintegrate the
    appellant into the community resulted in a well-documented deterioration in
    the appellants mental state and behaviour: (
Tolias, Re
, 2016 ONCA
    436, at para. 30). This deterioration included incidents involving destruction
    of property, verbally and physically threatening and assaultive behaviour
    towards others and continued delusions about and attempts on many occasions to
    contact the victim of the index offence. On the whole of the evidence, we are
    satisfied that the Boards conclusion that the appellant continues to pose a
    significant threat to the safety of the public was reasonable.

[18]

In
    our view, however, the Board erred in failing to inquire further into the appellants
    current behavioural status, in summarily concluding there is no air of reality
    in her request for a conditional discharge and in failing to consider whether
    her risk could be adequately managed through a conditional discharge that would
    include a consensual treatment order.

[19]

In
    his evidence, Dr. Nagari did not elaborate on what he meant when he testified that
    the appellant exhibits challenging behaviours on a day-to-day basis. Although
    the Hospital Reports reveal incidents involving destruction of property, as
    well as verbally and physically threatening behaviour in the past, our review
    of the Hospital Reports does not reveal any repetition of such behaviours for a
    significant period of time prior to the March 2017 hearing. Verbal outbursts
    that are no more than annoying, which may occur when the appellant is
    medication compliant, do not rise to the level of creating a risk of
    psychological harm to members of the public or endangering public safety.

[20]

Given
    that the appellant is now treatment capable and medication compliant, in our
    view, it was incumbent on the Board to inquire further into the appellants
    current behavioural status, and depending on the result of that inquiry, to
    also determine: i) whether the appellant would consent to a treatment order
    under s. 672.55 of the
Criminal Code
, ii) whether conditions
    could be crafted to release the appellant into the community, and iii) whether
    mechanisms would be available to return the appellant to the hospital in the
    event of non-compliance.

[21]

The
    appellants appeal of the June 23, 2016 disposition is dismissed as moot.
    Concerning the March 7, 2017 disposition, we were informed that the appellants
    next annual disposition review hearing is imminent. In the circumstances, the
    appeal is allowed and we remit the matter to the Board to further consider the
    appropriate disposition.

G.R. Strathy C.J.O.

Janet Simmons J.A.

C.W. Hourigan J.A.


