



COURT OF APPEAL
    FOR ONTARIO

CITATION: Gonzalez (Re), 2017 ONCA 102

DATE: 20170208

DOCKET: C61657

Watt, Lauwers and Benotto JJ.A.

IN THE MATTER OF: Gustavo Gonzalez

AN APPEAL UNDER PART XX.1 OF THE
CODE

Gustavo Gonzalez, not present

Anita Szigeti, appearing as
Amicus Curiae

Mike Callaghan, for the Attorney General of Ontario

Janice Blackburn, for the person in charge of Waypoint
    Centre for Mental Health Care

Heard: October 17, 2016

On appeal from the disposition of the Ontario Review
    Board dated, January 6, 2016, with reasons reported at [2016] O.R.B.D. No. 163.

Lauwers J.A.:

[1]

Gustavo Gonzalez appeals the disposition of the Ontario Review Board
    that ordered him to be detained at the Waypoint Centre for Mental Health Care, Ontarios
    only maximum secure forensic psychiatric facility, where he has been held since
    January 18, 2006.

A.

Background Facts

[2]

Mr. Gonzalez was found not criminally responsible on account of mental
    disorder on a charge of attempted murder in contravention of the
Criminal Code
, R.S.C. 1985, c. C-46. The
    index offence occurred on June 7, 2001. The victim was a psychiatrist, Dr. Jun
    Bi Tu, who had treated the appellant some 10 years before.

[3]

The appellant was originally diagnosed with Schizoaffective Disorder,
    Paraphilia (Exhibitionism) and Anxiety Disorder. He is presently treatment
    capable, but has not cooperated with treating physicians for years. The
    Hospital Report filed with the Review Board lists the current psychiatric diagnoses
    as:

Axis I:                    Paraphilia  Exhibitionism, Query
    Delusional Disorder

Axis II:         Paranoid Personality Disorder with Antisocial
    and Narcissistic Traits

Axis III:        Depressed Skull Fracture (2005), Resolved

Axis IV         Psychosocial Stressors  Perceived Unjustified
    Incarceration

B.

Issues on the Appeal

[4]

There are two issues on this appeal: First, does Mr. Gonzalez pose a
    significant threat to the safety of the public as defined in s. 672.5401 of the
Criminal Code
? Second, has a treatment impasse been reached between
    Mr. Gonzalez and Waypoint and, if so, what should be done about it?

C.

The Standard of Review

[5]

The standard of review of a disposition or placement decision of the
    Board by this court is set out in s. 672.78(1) of the
Criminal Code.
This
    court can only set aside an order of the Board where it is of the opinion that:
    the decision is unreasonable or cannot be supported by the evidence; it is
    based on a wrong decision on a question of law; or there was a miscarriage of
    justice:
R. v Owen
, 2003 SCC 33, [2003] 1 S.C.R. 779, at paras. 31-37.
    See
Re Hart
2016 ONCA 277, at para. 6.

D.

Issue One: Does the Appellant Pose
a
    Significant Threat to the Safety of the Public?

[6]

Mr.
    Gonzalez provided a lengthy and closely reasoned written submission. He is
    articulate, organized and evidently highly intelligent. Mr. Gonzalez did not
    appear at the hearing of the appeal but advised that he would let his statement
    speak for him. He denies that he attempted to murder Dr. Tu. He seeks a
    removal of all psychiatric diagnoses. He asks rhetorically: Isnt fifteen
    years of psychiatry  enforced confinement, extortion, fabrications, bickering,
    vilification, and irreparable damage to my repute, enough revenge for the
    offence that is believed I committed?

[7]

The
    appellants position, as summarized briefly by court appointed
amicus
    curiae
, is this
: he is not a significant
    threat and ought to be absolutely discharged, and in the alternative, the Board
    acted unreasonably and erred in law by failing to transfer him to a medium
    security institution.

[8]

Under s. 672.54 of the Criminal Code, the Review Board must assess
    whether the NCR accused remains a significant threat to the safety of the
    public, which is the paramount consideration. See
Re Carrick
2015
    ONCA 866, 128 O.R. (3d) 209, at paras. 11-17.

[9]

Dr. A. Danyluk testified that she has been the appellants treating
    psychiatrist since August 2015. He has refused to speak to her. The appellant is
    angry, irritable and contemptuous of the people and systems that keep him in
    detention. He continues to deny he had any involvement in the index offence but
    has admitted to threatening the Crown Attorney. In June 2015, the appellant was
    reported to have attempted to hide a metal fork and spoon that could have been
    used as weapons.

[10]

Dr. Danyluk testified that while
Mr. Gonzalez
had not been physically
    threatening in the last year (in fact, for many years), she did not consider it
    advisable to transfer him to a less secure facility because the staff and
    others would be unfamiliar with his excessive verbal aggression.

[11]

In Dr. Danyluks opinion the appellant continues to pose a significant
    threat to the safety of the public. He has very poor, if any, insight into his
    illness and his need for treatment. He has persecutory ideas. The appellant
    scores at the medium to high range on the PCL-R and VRAG.

[12]

The Review
    Boards unanimous conclusion, expressed at para. 47 of its reasons, is that Mr.
    Gonzalez poses a significant threat to the safety of the public as defined at
    s. 672.5401 of the
Criminal
    Code
. The
    Board added, at para. 50, that if he were to be discharged absolutely, 
there
    is a risk of serious physical or psychological harm to members of the public
    resulting from conduct that is criminal in nature and would also be violent.
    The Board accepted the Crowns suggestion that Mr. Gonzalez is a "ticking
    time bomb".

[13]

The
    Board relied on the evidence of Dr. Danyluk, who endorsed the Hospital Report,
    and gave the following reasons, at para 48:

(a) Mr. Gonzalez continues to suffer from a major mental
    illness; (b) that illness is currently untreated; (c) notwithstanding the
    absence of recent physical assaultiveness, he continues to harbour the same
    view of mental health workers generally that appears to have motivated the
    index offence; (d) he has a history of patient premeditation for an extended
    period leading up to an act of extreme violence; (e) he has recently attempted
    to take metal utensils that were potential weapons; (f) he scores relatively
    high on both actuarial tools on which he has been scored; (g) he continues to
    refuse to engage with any treatment team members making it difficult for them
    to assess the risk he presents and to suggest treatment that will assist him;
    and (h) the seriousness and level of violence of the index offence.

[14]

Mr. Gonzalez continues to
pose a significant threat to the safety of the public
    as defined by s. 672.5401 of the
Criminal Code
. The Boards decision is plainly reasonable and is
    amply supported by the evidence. On the evidence, there is no support for an
    absolute discharge. I would not give effect to this ground of appeal.

E.

Issue Two: Has a Treatment Impasse been Reached?

[15]

Mr.
    Gonzalezs submission shows he is passionately opposed to psychiatry and to
    psychiatrists. He has no faith whatsoever in Waypoint staff, including his
    current attending psychiatrist, Dr. Danyluk, with whom he has had no
    therapeutic contact.

[16]

Amicus
supports the appellants position that the Board
    erred in not transferring him to a medium security psychiatric facility. In
    particular, she
argues that
    such a transfer is necessary in order to facilitate an independent assessment
    of Mr. Gonzalez, which she asserts is necessary


to break the treatment impasse manifestly reached now
    at Waypoint.
Amicus
contends that
it was legally
    incumbent on the Review Board,
with a view to
    ending the impasse,
to address it remedially by
ordering some form of alternative assessment
. She
observes: Staff at Waypoint
    had not managed to provide the appellant with any real treatment for 10 years.
    Undeniably, as Dr. Danyluk noted, there has been an utter lack of progress.

[17]

Treatment impasse was a live issue before the Review Board; this court
    raised the issue directly when it dismissed Mr. Gonzalezs appeal from the last
    disposition of the Review Board (with reasons reported at 2015 ONCA 650). The
    court found merit in the argument that a treatment impasse might have been
    reached, and signalled its expectation for the next hearing, at para. 4: 
The Board will no doubt give careful consideration to
    exercising the jurisdiction described at para. 42 of
Mazzei

[
Mazzei v. British Columbia (Director
    of Adult Forensic Psychiatric Services)
, 2006
    SCC 7, [2006] 1 S.C.R. 326]. The court added:
The hospital should be
    prepared to assist the Board in that regard.

(1)

The Governing Principles

[18]

As part of its inquisitorial function, where the evidence suggests
    a treatment impasse has been reached, the Board is obliged to consider that
    possibility.
The principles
    related to the determination of a treatment impasse were set out by the Supreme
    Court in
Mazzei.
S
ee also
R. v. LePage
,
    [2006] O.J. No. 4486 (C.A.), at paras. 23-26, and
R. v. Conway
, [2008]
    O.J. No. 1588 (C.A.), at paras. 29-34,
per
Armstrong J.A., and at paras.
    67, and 83-85,
per
Lang J.A.

Mazzei


[19]

Mr. Mazzeis
diagnosis was chronic
    paranoid schizophrenia, a serious antisocial personality disorder, organic
    brain damage and the after-effects of chronic substance abuse. He had been in
    the justice system since 1986, under British Columbias Review Board since 1992,
    and had been reluctant to cooperate with his treatment team for many years. At
    the Board hearing in 2002, Mr. Mazzei expressed a wish to attend a First
    Nations residential rehabilitation centre to receive culturally appropriate
    treatment for his drug and alcohol addictions.

[20]

The Review
    Board ordered that Mr. Mazzei continue to be held in custody at the Hospital,
    but expressed its concern that clinical progress and reintegration prospects
    had reached a troubling crossroads or impasse, and that he was
stuck in an untenable and unlikely-to-resolve situation. The Board
    ordered the Hospital to: undertake a comprehensive global review of Mr.
    Mazzeis diagnostic formulations, medications and programs with a view to
    developing an integrated treatment approach which considers the current
    treatment impasse and the accuseds reluctance to become an active participant
    in his rehabilitation. The Board added a requirement that it be provided with
    an independent assessment of the accuseds risk to the public in consideration
    of the above refocussed treatment plan at the next hearing.

[21]

The
    Hospital appealed.

[22]

The careful wording of the Supreme Courts
    decision in
Mazzei
, in
    dismissing the appeal,
pays close attention to the
    legislative division of powers in the
Criminal Code
.
The Supreme Court noted, at
    para. 42, that the Board is obliged to identify and address treatment impasses,
    
where no progress has been made or is likely to be made, on the
    evidence before it, in light of the Boards responsibility: to provide
    opportunities for appropriate and effective medical treatment with a view to
    controlling and reducing that risk, to work towards the ultimate goal of
    rehabilitation and reintegration, and to safeguard the liberty interests of the
    accused in this process. In doing so, the Board may require the hospital
    authority to justify their position regarding any treatment impasse.

[23]

Where the Board finds a treatment impasse has been reached, it is
    entitled to order a re-evaluation of current or past treatment approaches, and
    an exploration of alternatives as part of its supervisory powers. It may
    supervise a medical treatment provided thus far and suggest or explore
    alternative approaches. In doing so, it is necessary and essential for a
    review board to form its own independent opinion of the accuseds treatment
    plan and clinical progress.

[24]

The legal
    finding in
Mazzei
is set out in para. 7, where Bastarache J., for the
    Supreme Court, stated:  
Review Boards have the
    power to bind hospital authorities and to impose binding conditions regarding
    or supervising (but not prescribing or imposing) medical treatment for an NCR
    accused. He added, at
para. 39: 
The
    scope of this power would arguably include anything short of actually
    prescribing that treatment be carried out by hospital authorities.


The court concluded that the
    impugned conditions were within the Review Boards power, and dismissed the
    Hospitals appeal.

LePage


[25]

R. v. LePage
[2006] O.J. No. 4486 (C.A.)
    resembles this case, although

Mr. LePages inclination
    to violence was more pronounced than that of Mr. Gonzalez.
Mr.
    LePage had refused treatment and had languished for 28 years. His psychiatrist
    testified that he had had zero interaction with Mr. LePage. He explained:
    the reason the appellant is receiving no treatment is because he has been
    completely unwilling to participate in any therapeutic treatment for many years.
    (para. 14).
Justice Juriansz stated at para. 24:

In this case, after 28 years it is clear that the high level of
    danger the appellant poses to the public is unchanging, he is receiving no
    treatment, his attending psychiatrist describes his role as theoretical, and
    the institution has no treatment plan with prospects of leading to a different
    situation. Rather than simply recapitulating the static situation and ordering
    that the appellant continue to be detained, an exercise of the Boards
    inquisitorial role may have resulted in the appellants continued detention
    being subject to a condition ordering a comprehensive review of his situation
    as in
Mazzei
.

[26]

This court concluded at para. 22:

In this case the appellant is not receiving treatment and there
    is no prospect that he will receive treatment or that his situation will change
    on the basis of the information currently before the Board. It is not clear
    what specific actions might conceivably lead to a break in the impasse, or even
    that the impasse can be broken. However, after 28 years, this case had reached
    the point where it was incumbent on the Board to consider making further
    inquiry.

The court allowed the appeal, ordered a new hearing,
    and required the Review Board to appoint
amicus curiae
to assist.

Conway


[27]

The circumstances in
R. v. Conway
, 2008 ONCA 326, 90 O.R. (3d)
    335 are similar to this case. The Review Board found the accused to be
    responsible for any lack of progress, as Armstrong J.A. noted for the majority,
    at para. 30: The Board refused to attribute Mr. Conways lack of progress
    since 2005 to his treatment team, suggesting instead that progress was more
    likely impeded by Mr. Conways incessant harassment and his obstructionistic
    tactics. Justice Lang agreed, stating at para. 67: It was both an error of
    law and unreasonable for the Board not to impose conditions in light of the
    uncontradicted evidence that, despite 24 years of detention, Mr. Conway had
    received no effective treatment.
[1]
This court concluded that the Boards failure to address the impasse, in light
    of the 24 year detention, was unreasonable, and remitted the matter back to the
    ORB for a new hearing to consider what conditions, if any, should be imposed in
    order to break the impasse.

[28]

I extract several principles from the cases: First, a long period of
    incarceration without treatment or progress can constitute a treatment impasse.

[29]

Second, an accuseds stubborn refusal to engage with the treatment team
    can also constitute a treatment impasse.

[30]

Third, although the Review Board has no power to prescribe
    medical treatment, where the Board finds there to be a treatment impasse, it is
    entitled, under its supervisory powers, to order a re-evaluation of current or
    past treatment approaches and an exploration of alternative approaches. The Board
    must form its own independent opinion about the accuseds treatment plan and
    clinical progress, and in doing so, it may order an independent assessment in
    some form under s.672.121 of the
Criminal Code
, and may order the
    accuseds transfer to another facility for that purpose.

(2)

The
    Review Boards Decision

[31]

The Review Board characterized this courts endorsement on Mr.
    Gonzalezs appeal from his last disposition as 
obiter dicta,
 at
    para. 51. The Board concluded, at para. 53: Having carefully considered the
    evidence and those submissions, the Board finds that, with all due deference to
    that honourable court, treatment impasse of the kind contemplated in the
Mazzei
case has not been reached.

[32]

The Boards reasoning is set out at para. 54:

This is not a situation where the hospital has tried every
    avenue of treatment (pharmacological or otherwise) that its staff thinks
    reasonable, nor has the treatment team given up on helping Mr. Gonzalez improve
    his mental condition or reintegration into society. Rather, forward progress
    has been stopped by Mr. Gonzalez's obstinate refusal to engage in any discourse
    or treatment whatsoever. Such an impasse, if it can be called that, is not one
    that can be resolved by the Board exercising its discretion as contemplated in
Mazzei
.
    Forward progress can only be achieved by either Mr. Gonzalez abandoning his
    resolute rejection of all Canadian psychiatrists in every aspect of the
    Canadian forensic mental health system; or by a finding of incapacity to
    consent to treatment that is upheld by the bodies whose responsibility it is to
    review such decisions.

[33]

In declining to order Mr. Gonzalezs transfer to another facility, the
    Review Board observed, at para. 55: the disdain that he demonstrates for
    psychiatrists and the mental health system is not limited to a particular
    individual or hospital, and there is no reason to believe that any other
    psychiatrist or hospital would be any better able to get past the blank wall of
    his resistance.

(3)

The
    Principles Applied

[34]

There is no real treatment plan in place at
    Waypoint, as acknowledged by the Board at para. 35: 
Dr. Danyluk
    testified in response to questions from the Board that the only way she
    currently can see for Mr. Gonzalez to move forward, if he continues to refuse
    to engage with the team, is to explore the possibility of a finding of
    incapacity for treatment decisions. The purpose for pursuing a finding of
    incapacity is so that he could be involuntarily treated with psychotropic
    medications, which he has steadfastly refused.

[35]

The Crown and the Hospital take the
    position that when a capable NCR accused simply declines treatment, no
    treatment impasse has been reached and point to several of this courts
    decisions, mostly endorsements, in support.

[36]

I reject this argument, for two
    reasons. First, it is inconsistent with the approach taken by the Supreme Court
    in
Mazzei
, and by this court in
LePage
and
Conway
. In
    these cases, each of the NCR accused, like Mr. Gonzalez, had been refusing
    treatment for a long time and had made no progress. The standoffs were
    longstanding and unlikely to resolve.

[37]

Second, this courts decisions
    offered in support by the Crown and the Hospital are distinguishable on several
    bases. None of the standoffs were as longstanding or as intractable as the one
    with Mr. Gonzalez, at 10 years. There is no basis for optimism that the
    treatment plan in place will gain traction with Mr. Gonzalez, unlike in
Re
    ODonnell
2014 ONCA 18, where Feldman J.A. noted, at para. 33, that: 
Although
    the appellant had not made any significant progress at Oak Ridge by the time of
    the hearing, it was not unforeseeable that he could progress in the future. It
    is also unlike
Re Armstrong
2015 ONCA 326, where the Board noted that
    the accuseds father had agreed to assist in persuading him to consent to
    medication.

[38]

The
    other cases advanced by the Crown and the Hospital are also distinguishable. In
Re Shaikh
2008 ONCA 114, the NCR accused was held in a minimum security
    facility and the dispute was over conditions for community living.

[39]

Finally, in the
Robertson
sequence of cases, (2009 ONCA 860, 2012 ONCA 889, 2015 ONCA
    417), this court noted in 2009, at para 3, that: 
The appellant
    was continuing treatment at the time of the Board hearing and there were other
    treatment alternatives the appellant could pursue at Oak Ridge. This suggests
    that the standoff was not as longstanding, although there is little information
    on this issue in the endorsements. Short endorsements of this court on ORB
    appeals fall squarely within the caution expressed in
R. v. Singh
, 2014 ONCA 293, 120 O.R. (3d) 76
,
    at para. 12:  While all decisions of this court are binding, care must be
    taken to avoid reading unwarranted jurisprudential principles into a decision
    of the court rendered in [a brief] endorsement.

[40]

It is clear on the evidence that
    the appellants mental illness has posed a serious obstacle to treatment. If
    the only way forward for the appellant is for him to consent to treatment or be
    declared incapable, and the appellants mental illness precludes his consent to
    treatment, but the team has not declared him incapable, then a treatment
    impasse plainly exists. W
hile the accuseds attitude might assist in
    explaining why a treatment impasse exists, it does not justify the Review Boards
    refusal to recognize the treatment impasse, throwing up its hands and
    complacently leaving any future progress up to the accused.

[41]

While a treatment impasse might
    well be tolerable for a while as the situation ripens, when it reaches the
    duration of this case, a decade, the Review Board is obliged to go further, as
Mazzei,
    LePage and Conway
insist.
Both the Boards
    interpretation of the term treatment impasse, and its approach in determining
    whether an impasse exists in this case, were wrong in law. Accordingly, no
    deference is due.

(4)

Remedy

[42]

Amicus

seeks a disposition
    transferring the appellant to a medium secure facility for the purpose of an
    independent assessment.

[43]

The
    Crown and the Hospital point to the Review Boards reasons to resist such a
    placement. The Board said
, at para. 55, given Mr. Gonzalezs view
    of psychiatry: there is no reason to believe that any other psychiatrist or
    hospital would be any better able to get past the blank wall of his
    resistance. Neither the
Criminal Code
, nor
Mazzei, LePage
and
Conway
,
    permit the Board to yield to that counsel of despair, without another
    concerted effort to break the impasse.

[44]

While
    I agree with
amicus
that an independent assessment is required, I would
    be reluctant to specify the modality, and would leave that to the Review
    Boards expertise. The Board has authority to order an independent assessment
    under s. 672.121 of the Criminal Code:
Mazzei
, para. 39,
Re Runnalls
2012 ONCA 295, at para. 14.

[45]

I
    make several observations. First, it seems quite evident that
an order addressed to Waypoint requiring it to
undertake a comprehensive assessment of Mr. Gonzalezs diagnostic
    formulations with a view to developing an integrated treatment approach that
    considers the current treatment impasse and his reluctance to become an active
    participant in his treatment, would meet with no success there.
Mr. Gonzalez has no faith
    whatsoever in Waypoint staff, including his current attending psychiatrist, Dr.
    Danyluk. An assessment by Waypoint staff would not be seen by him as
    independent.

[46]

Second,
    the idea put forward by Dr. Danyluk that Mr Gonzalez should not be transferred
    to a
less secure facility, because the staff and others would be
    unfamiliar with his excessive verbal aggression, is unpersuasive.

[47]

Nor
    is this a situation in which a fly-in psychiatrist would be able to undertake
    the assessment. Counsel for the Hospital conceded in oral argument that a
    comprehensive assessment is a multi-disciplinary exercise requiring a team of
    professionals and some time. Such an undertaking does not seem to be feasible
in situ
at Waypoint.

F.

Disposition

[48]

I would allow the appeal, and would order the Board to conduct a new
    hearing under s. 672.82 in accordance with these reasons as soon as practically
    possible.

P. Lauwers J.A.

I agree David Watt
    J.A.

I agree M.L. Benotto
    J.A.

Released: February 8, 2017





[1]

The difference between the majority and the
    minority in
Conway
turned on the application of the
Canadian Charter
    of Rights and Freedoms
, a matter on which the Supreme Court of Canada
    ruled at [2010] 1 S.C.R. 765 without commenting on the treatment impasse issue.


