



COURT OF APPEAL FOR ONTARIO

CITATION: Williams (Re), 2021 ONCA 90

DATE: 20210212

DOCKET: C68492

Feldman, Tulloch and Nordheimer JJ.A.

IN THE MATTER OF:  Jerome Williams

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti & Maya Kotob for the appellant

Adam Wheeler, for the respondent, Attorney General of
    Ontario

Heard: February 5, 2021 by videoconference

On appeal from the disposition of the Ontario Review
    Board, dated May 27, 2020, with reasons dated May 27, 2020.

Nordheimer
    J.A.:

[1]

Mr. Williams appeals from the disposition of the Ontario Review Board
    that continued the detention order against him. The appellant submits that the
    Board erred in not awarding a conditional discharge. For the following reasons,
    I would allow the appeal and direct a conditional discharge.

[2]

The Board found that the appellant poses a significant threat to the safety
    of the public. The sole issue on appeal is whether that risk can be adequately addressed
    through the imposition of a conditional discharge rather than a detention order.

[3]

The appellant has been under the auspices of the Board since January
    2012. He is currently 33 years old. In 2009, the appellant was charged with certain
    robberies and related offences. On December 22, 2011, he was found not
    criminally responsible (NCR) with respect to these offences.

[4]

The appellant was admitted to the Centre for Addiction and Mental Health
    in a psychotic state. He was declared incapable of consenting to treatment. A
    substitute decision maker was appointed. Once the appellant received
    medication, there was a noticeable improvement in his mental state and, after
    dose increases, he was free of psychotic symptoms.

[5]

Over the years, the appellant has experienced certain setbacks in terms
    of his treatment. He has also had some issues regarding his use of cannabis and
    cocaine  issues that appear to continue. However, for at least the past five
    years, there have been few behavioural problems, and the ones that have
    occurred have been minor in nature.

[6]

In January 2019, the appellant was discharged into the community, but he
    remained under a detention order. He was discharged to the home of his then girlfriend
    and her parents. Mr. Williams girlfriend was nearly full term in her pregnancy
    with their son at the time of discharge. Mr. Williams son was born on January
    17, 2019.

[7]

On March 2, 2019, the appellant had a verbal argument with his
    girlfriend and as a result, left her residence. Notably, however, the appellant
    returned to hospital, as he knew that he had to inform the hospital of his
    absence from the residence. The appellants readmission to hospital was a short
    one: he was able to resolve the differences in his relationship and return to his
    girlfriends home on March 21, 2019. Pursuant to his annual disposition review
    hearing on April 1, 2019, the Board issued a disposition dated April 11, 2019, maintaining
    the appellant on a general detention order with community living. On December
    2, 2019, the appellant readmitted himself to hospital because he no longer
    wished to be in a relationship with his girlfriend.

[8]

The appellants detention in hospital became markedly more restrictive
    in March 2020, as a result of hospital wide COVID policies and restrictions. As
    of March 12, 2020, the appellant lost all of his indirectly supervised and
    community privileges. He was only allowed to access the secure yard on hospital
    grounds, while accompanied, for thirty minutes up to six times a day. The
    appellant was otherwise restricted to his unit. No one was allowed to visit the
    hospital  which meant that the appellant had not been able to see his eighteen-month-old
    son or his mother from mid-March up until the date of the hearing.

[9]

At his review hearing in May 2020, the appellant sought to be released so
    that he could live in the community. He offered the homes of both his mother
    and a friend as two places at which he could live.

[10]

The
    hospital felt that the appellant should only live in a place that provided
    supportive services. The preferred location, from the hospitals perspective,
    was Baldwin House, but it was not accepting new patients because of COVID-19. The
    hospital itself was not conducting assessments of potential alternative living
    places, also because of COVID-19. As a result, the appellant was left in limbo
    because, while the hospital would have agreed with him living in the community
    if they could approve the living arrangements, the hospital was not conducting
    any such assessments.

[11]

The
    hospital also resisted a conditional discharge on the basis that, if the
    appellant stopped taking his medication, he might experience a rapid
    decompensation and the hospital would not be able to take action to bring him
    back into the hospital in a sufficiently short timeframe.

[12]

The
    Board accepted the hospitals position. They rejected the appellants request
    for a conditional discharge. In doing so, however, they made significant errors
    which resulted in their decision being unreasonable.

[13]

First,
    the Board concluded that the appellants stay in the community was not
    successful. That finding is not borne out by the evidence. Indeed, the
    evidence suggests the opposite. There were no apparent problems while the
    appellant was living in the community. Indeed, as noted above, when problems
    developed between the appellant and his girlfriend, the appellant returned to
    the hospital.

[14]

Second,
    is that the Board made no inquiries regarding the hospitals stated position
    that it was not conducting any housing assessments because of COVID-19. The
    Board did not inquire into why such assessments were not being conducted in any
    form nor did the Board inquire how long it would be before the hospital resumed
    doing assessments. The appellant was simply left to wait.

[15]

The
    Board has a responsibility to make such inquiries  to search out and consider
    evidence favouring [the NCR accuseds] absolute discharge or release subject to
    the minimal necessary restraints:
Winko v. British Columbia (Forensic
    Psychiatric Institute)
,

[1999] 2 S.C.R. 625, at para. 54. The Board
    does not fulfill its responsibilities by simply accepting what the hospital
    says. If the timeframe for resuming assessments was uncertain, then the Board
    ought to have adjourned the appellants hearing for a short period so the
    matter could be revisited with updated information. None of this was done.

[16]

I
    would add that I do not accept that it was appropriate for the hospital to
    simply cease undertaking such assessments with the result that individuals
    continue to be detained when they might otherwise be able to live in the
    community. More importantly, the Board ought not to have accepted that
    situation nor should it have made a disposition on that basis. Doing so results
    in a failure of the Board to ensure that the least onerous and least restrictive
    disposition is made:
Winko
, at para. 47.

[17]

Third,
    I am also troubled by the attitude that the Board took to the two offers of
    housing for the appellant. Both offers were contained in short handwritten notes
    addressed to the Board. The Boards reaction was to characterize these offers
    as having been presented in a very rudimentary and unprofessional format.
    That characterization is not only unfair, it fails to properly account for the
    lack of resources available to the appellant and the restrictions that the
    pandemic has imposed on people generally  restrictions, I note, that the Board
    was content to allow the hospital to rely upon for its cessation of
    assessments.

[18]

Fourth,
    the Board accepted that there was a need for the hospital to be able to move
    quickly if the appellant suffered a rapid decline in his condition. However,
    there was no evidence before the Board that any such decline had occurred in
    the past. Indeed, the evidence of the appellants psychiatrist was uncertain on
    this very point. When asked about this by the Board, the psychiatrist said, in
    part:

I wouldnt necessarily be certain that he would voluntarily
    come in and to advise if he was, for example, starting to use substances, and
    advised to come in just to break that cycle or stabilize. Because often, as I
    mentioned before, at least initially, Mr. Williams will deny substance use or
    what have you. So, I cant really imagine a scenario where if hes presented
    with that, then he would just say okay, I, I will voluntarily come into
    hospital.
But again, thats speculation and I, I, I dont know until that
    necessarily happens,
but.... [Emphasis added].

[19]

In
    this courts experience, the resort to detention orders as being necessary on
    the basis of a need for quick action is often relied upon by hospitals and the
    Board as justifying the rejection of a request for a conditional discharge. In
    considering this issue, I am mindful of the problems with the
Mental Health
    Act
, R.S.O. 1990, c. M.7, and the restrictions on its use, to address
    these situations. It would appear to be long past time for the government to
    review the operation of the
Mental Health Act
with respect to these,
    and other, issues that have arisen in its practical application in this context.
[1]

[20]

However,
    those failings cannot be permitted to justify the continued detention of
    individuals on the basis of expediency. Something more must be shown, and none
    is in this case. As this court said in
Valdez (Re)
,
2018 ONCA
    657, at para. 21, given the least onerous and least restrictive test,
    something more is required than mere convenience to the hospital.

[21]

I
    would add, on this point, that, in his evidence before the Board, the
    appellants psychiatrist said that, if the appellant did begin to decompensate the
Mental Health Act
would likely be sufficient  to manage the risk
    that the appellant would pose to the public. The psychiatrists concern was
    that the
Mental Health

Act
might not be sufficient
    earlier in the process where changes might be more subtle. That does not change
    the fact that while a detention order might be a better solution from the
    hospitals perspective, it is not the least onerous and least restrictive
    disposition.

[22]

It
    must also be remembered that the appellant, as with any NCR accused who is
    conditionally discharged, is subject to the conditions imposed by the Board.
    The conditions imposed are enforceable under the
Criminal

Code
,
    R.S.C. 1985, c. C-46. In particular, s. 672.91 of the
Code
allows for
    the arrest of a conditionally discharged NCR accused for the breach or
    anticipated breach of a condition, and ss. 672.92(1)(b) and 672.93(2) allow the
    Board to specify the place where the accused is to be returned.

[23]

Consequently,
    I would allow the appeal and replace the Boards disposition with a discharge
    on the following conditions (all of which were proposed by the appellant to the
    Board):

1.

You will reside with Laura Laufman,

2.

You will report to your clinical team as required,

3.

You will abstain from the non-medical use of drugs,

4.

You will submit urine samples for the purpose of drug testing as
    directed by your clinical team,

5.

With your consent, you will take all psychiatric medications as directed
    by your doctor,

6.

Upon notice being given to you, orally or in writing, by the person in
    charge of St. Josephs Healthcare Hamilton-West 5th Campus, you will
    immediately submit to attendance at and for readmission to hospital; and

7.

You will notify the Board and your clinical team upon any change of
    address.

[24]

I
    understand that the appellant is scheduled for his annual review on May 27,
    2021. I wish to make it clear that this decision does not alter the need for that
    hearing. It is to proceed as planned. If any issues arise regarding the above
    conditions, they can be addressed before the Board at that annual review, or earlier
    if required.

Released: February 12, 2021 KF

I.V.B. Nordheimer
    J.A.

I agree. K. Feldman
    J.A.

I agree. M. Tulloch
    J.A.





[1]

This is not the first time that this court has identified
    these problems: see
Davies (Re)
,
2019 ONCA 738, 380 C.C.C. (3d) 552, at
    paras. 34-39.


