



COURT OF APPEAL FOR ONTARIO

CITATION: Pellett (Re), 2017 ONCA 753

DATE: 20170928

DOCKET: C63128

Laskin, Pepall and Trotter JJ.A

IN THE MATTER OF:  Rosemary Pellett

AN APPEAL UNDER PART XX.1 OF THE
CODE

Ken J. Berger, for the appellant Rosemary Pellet

Erica Whitford, for the respondent Attorney General of
    Ontario

Gavin S. MacKenzie, for the respondent Centre for
    Addition and Mental Health

Heard: September 15, 2017

On appeal from the disposition of the Ontario Review
    Board dated December 12 and December 29, 2016.

REASONS FOR DECISION

(1)

Introduction

[1]

The appellant, Rosemary Pellet, appeals from the November 28, 2016
    disposition of the Ontario Review Board (the Board), ordering that she remain
    subject to a conditional discharge, albeit with more relaxed conditions.

[2]

The appellant argues that the Board erred in finding that she remains a
    significant threat to the safety of the public, and claims she is entitled to
    an absolute discharge. We agree. The Boards decision that the appellant
    continues to pose a significant threat to the safety of the public is
    unreasonable.

(2)

Background

[3]

The appellant is 62 years old. She has two sons  both are in their
    30s, and both are supportive of their mother.

[4]

The appellant was diagnosed with schizophrenia many years ago, shortly
    after the birth of her second son. She has a history of hospitalization dating
    back to 1986. Between 1997 and 2010, she was admitted over a dozen times. The
    appellants hospital records show a pattern of hospitalization, treatment,
    release, de-compensation, relapse, and re-admission. The appellant has often
    been non-compliant with Community Treatment Orders under the
Mental Health
    Act
, R.S.O. 1990, c. M.7.

[5]

When psychotic, the appellant has engaged in troubling behaviour, but
    these incidents are quite dated. The incidents include: attempting to divert
    traffic on a busy street (August 2000); pushing her car into her landlords car
    (March 2001); and throwing objects out of a window, crashing her car and
    smashing cars with brooms (November 2001).

(3)

The Index Offence

[6]

On May 23, 2011, the appellant assaulted a five-year-old child. The
    child was walking along a public sidewalk with her mother. The appellant
    believed the child was sending her telepathic messages. She pushed the child to
    the ground and walked away. No physical or psychological pain to the child was
    reported. The appellant was arrested shortly afterwards.

[7]

On October 26, 2011, the appellant was found not criminally responsible
    for this assault. She was ordered detained at the Centre for Addiction and
    Mental Health (CAMH).

(4)

Previous Board Dispositions

[8]

Despite showing poor insight into her illness, the appellant has done
    well under the Boards jurisdiction. Although initially ordered detained, she
    soon gained privileges to live in the community under supervision. The Board
    granted her a conditional discharge in 2015. Since May 15, 2015, the appellant
    has lived in a house with six other people, subject to only minimal supervision.
    At her most recent hearing, the one that is the subject of this appeal, the
    Board continued her conditional discharge, but loosened her conditions. The
    appellant is currently required to report to CAMH every four weeks. She has
    been compliant and reliable in picking up her injectable medication from a
    pharmacy and bringing it to her family doctor to be administered every two
    weeks.

(5)

Is the Appellant a Significant Threat to the Safety of the Public?

[9]

The Board was required to address two interrelated issues: (1) whether
    the appellant would stop taking her medication if released from the Boards
    supervisory jurisdiction; and (2) if the appellant stopped taking her
    medication, whether she would become a significant risk to the safety of the public.

(a)

Evidence before the Board

[10]

On the first issue, there was a credible evidentiary basis for the Board
    to conclude that the appellant will become non-compliant with her medication. The
    appellant has poor insight into her illness; she is wary of her medication. She
    has been deemed incapable of consenting or refusing to consent to treatment. Until
    recently, the appellant had a poor track record of compliance. She has
    explained her recent willingness to take her medication as a means of obtaining
    an absolute discharge. She had told members of her clinical team, close in time
    to the hearing, that she would discontinue her medication.

[11]

The appellant testified before the Board and acknowledged that she would
    have to take medication for the rest of her life. However, she qualified her
    evidence by saying she would continue to take her medication as long as there
    were no side effects.

[12]

On the issue of whether the appellant is a significant risk to the
    safety of the public, the Board had the benefit of the comprehensive Hospital
    Report prepared by the appellants clinical team. Addressing the question of
    risk to the safety of the public, the authors of the report write:

[A]bsent medication monitoring, Ms. Pellett is at high risk for
    medication noncompliance. An exacerbation of her psychosis will most likely
    lead to aggressive behaviours.

. . .

[I]t is the opinion of the clinical team that Ms. Pellett
    continues to represent a significant threat to the safety of the public as
    defined in section 672.5401.

[13]

Dr. R. McMaster, one of the appellants psychiatrists, testified before
    the Board. He was asked questions about what would happen if the appellant
    stopped taking her medication. He gave the following evidence:

If she were to stop taking her medication, she would likely
    have remission of her symptoms, exacerbation and this would lead to multiple
    difficulties. This would lead to psychosis, and flowing from her psychotic
    symptoms would be
aggressive
 a change in her behaviour.

While being treated, to her credit, shes been a very
    pro-social individual. Shes a very pleasant individual and shes done very
    well. We  the team and her children have concerns that if not for [her]
    medication or [were she] to stop medication,
it would lead to very serious
    consequences for her, including readmissions and possibly homelessness.

. . .

So when she has been ill in the past 
she has been more
    aggressive  quite aggressive and  which has led, led to the index offence.
And also later in hospital that was
aggressive
.
So that we see a
    direct link between her major mental illness and aggressive behaviour.


. . .

In the event of an absolute discharge, it is very likely that
    she would stop medication, [and] become psychotic and
then act out
    aggressively
. [Emphasis added.]

[14]

Dr. McMaster described the index offence as serious aggression. He
    also referred to an incident at CAMH in August of 2012 when the appellant pushed
    and threatened a nurse who was injecting her with medication.

[15]

In follow up questions by a Board member, Dr. McMaster confirmed that
    the appellants only criminal charge was the index offence. He was unable to
    indicate whether this assault resulted in any injury. Indeed, there was a
    paucity of evidence before the Board about this offence. Dr. McMaster
    acknowledged that the appellant does not have a history of serious violence,
    but relied upon some of her dated, erratic behaviour referred to in para. 5,
    above.

(b)

The Boards Decision and Reasons

[16]

On November 28, 2016, the Board made its disposition, continuing the
    appellants conditional discharge. However, it removed some of the previous
    conditions and reduced the reporting requirement from once every two weeks, to
    once every four weeks.

[17]

The Board issued two sets of reasons. In its first set, dated December
    12, 2016, the Board indicated, at para. 21:

This conclusion by the Board is not unanimous. A member of the
    Board was not able to make the positive finding that Ms. Pellett continues to
    represent a significant threat. The member chose not to write a formal dissent.

[18]

On December 29, 2016, the Board released Fresh Reasons for
    Disposition. These reasons contained the following amendment to para. 21:

One member of the panel thought this case was close to the
    line, but ultimately agreed with the positive finding that Ms. Pellett
    continues to represent a significant threat, despite the fact that the offence
    was isolated and there was little other evidence of violent or threatening
    behaviour over the years. [Emphasis omitted.]

[19]

On the issue of whether the appellant will continue to be medication-compliant,
    the Board preferred the evidence of Dr. McMaster to that of the appellant.

[20]

On the issue of the appellants risk to others, the Board referred to
    the index offence and stated the following, at para. 21:

Although the details of the index offence available to the
    Board do not disclose any physical or psychological harm, the Board finds that
    the described behaviour of pushing a young child on the sidewalk close to a
    roadway meets this threshold of significant risk.
Keeping in mind that this
    came at a time when Ms. Pellett was not optimally, if at all, medicated, then
    her lack of insight into her need for medication and her stated intention prior
    to the hearing to stop taking medication becomes an important factor.
    Non-compliance with medication has been a profound difficult for Ms. Pellett
    over the past 30 years.
The Board accepts the evidence of Dr. McMaster that
    in the event of an absolute discharge and a failure to take anti-psychotic
    medication, the residual symptoms which Ms. Pellett continues to experience
    would exacerbate with a return to her paranoia and a real risk of serious
    injury to members of the public.
[Emphasis added.]

(6)

Analysis

[21]

The scheme under Part XX.1  Mental Disorder is driven by public safety.
    When this element is absent, the
Criminal Code
ceases to have a role.
    In
Winko v. British Columbia (Forensic Psychiatric Institute)
, [1999]
    2 S.C.R. 625, McLachlin J. (as she then was) said the following, at para. 57:

To engage these provisions of the
Criminal
    Code
,
the threat posed must be more than speculative in nature; it must
    be supported by evidence. The threat must also be "significant", both
    in the sense that there must be a real risk of physical or psychological harm
    occurring to individuals in the community and in the sense that this potential
    harm must be serious. A minuscule risk of a grave harm will not suffice.
    Similarly, a high risk of trivial harm will not meet the threshold.
Finally, the conduct or activity creating the harm must be criminal in nature.
    In short, Part XX.1 can only maintain its authority over an NCR accused where
    the court or Review Board concludes that the individual poses a significant
    risk of committing a serious criminal offence. If that finding of significant
    risk cannot be made, there is no power in Part XX.1 to maintain restraints on
    the NCR accused's liberty. [Citations omitted.] [Emphasis added.]

[22]

The Boards mandate is set out in s. 672.54 of the
Criminal Code
,
    which identifies the safety of the public as the paramount consideration. If
    the individual is not a significant threat to the safety of the public, the
    Board
shall
order that the person be discharged absolutely. Parliament
    recently (2014, c. 6, s. 10) refined the definition of safety of the public
    in s. 672.5401, which provides:

For the purposes of section 672.54, a significant threat to the
    safety of the public means a risk of serious physical or psychological harm to
    members of the public  including any victim of or witness to the offence, or
    any person under the age of 18 years  resulting from conduct that is criminal
    in nature but not necessarily violent.

[23]

Dangerousness is not presumed in this context; it is the other way
    around: see
Winko
, para. 46. As Huscroft J.A. said in
Re Carrick
,
    2015 ONCA 866, 128 O.R. (3d) 209, at para. 17:

In short, the "significant
    threat" standard is an onerous one.
An NCR
    accused is not to be detained on the basis of mere speculation. The Board must
    be satisfied as to both the existence and gravity of the risk of physical or
    psychological harm posed by the appellant in order to deny him an absolute
    discharge. [Emphasis added.]

See also
Re Wall
, 2017 ONCA 713, at para. 26.

[24]

The jurisdiction of an appellate court in reviewing decisions of the
    Board is contained in s. 672.78(1) of the
Criminal Code
, which
    provides:

The court of appeal may allow an appeal against a disposition
    or placement decision and set aside an order made by the court or Review Board,
    where the court of appeal is of the opinion that

(a)      it is unreasonable or cannot
    be supported by the          evidence;

(b)      it
    is based on a wrong decision on a question of law; or

(c)      there
    was a miscarriage of justice.

[25]

In considering whether the decision of the Board is reasonable,
    deference is required, given the expertise of its members: see
R. v. Owen
,
    2003 SCC 33, [2003] 1 S.C.R. 779, at paras. 29-30; and
Pinet v. St. Thomas
    Psychiatric Hospital
, 2004 SCC 21, [2004] 1 S.C.R. 528, at para. 22.

[26]

The Boards conclusion that the appellant will likely discontinue her
    medication was a finding that it was entitled to make on the evidence before
    it. However, in our view, the evidence does not support the Boards conclusion
    that the appellant is a significant threat to the safety of the public.

[27]

At its highest, all Dr. McMaster could say was that, if the appellant
    stops taking her medication, it will result in de-compensation, and
could
lead to aggressive behaviour or cause the appellant to act out
    aggressively. He placed the index offence, as well as the pushing incident
    with the CAMH nurse, in this category of behaviour. However, he failed to
    measure these incidents, along with his conception of aggressive behaviour,
    against the standard of a risk of serious physical or psychological harm.

[28]

The Board improperly extrapolated from Dr. McMasters evidence to
    conclude that the standard had been met. I repeat part of the statement from
    the Boards Reasons, contained in para. 20, above: Although the details of the
    index offence available to the Board do not disclose any physical or
    psychological harm, the Board finds that the described behaviour of pushing a
    young child on the sidewalk close to a roadway meets this threshold of
    significant risk.

[29]

The question of what happened to the child does not engage the question
    of risk; it is a historical fact. The question the Board seemed focused on was
    whether the index offence involved serious physical or psychological harm.
    This was an issue that arose in submissions. Counsel for the Attorney General
    (through no fault of her own) was unable to provide information on this issue.
    There was no evidence before the Board that would allow it to determine whether
    the index offence caused
serious
physical or psychological harm. It is
    always a matter of concern when a child is assaulted. However, this does not
    automatically translate into a finding of serious physical or psychological
    harm.

[30]

Assuming that the index offence met this threshold, the question the
    Board had to face was whether the appellant posed a significant
risk
of repeating conduct of a similar nature. The Board did not address the fact
    that the index offence appears to have been a one-off incident. There is
    nothing in the appellants records, either before or after the index offence,
    which would suggest she is pre-occupied with children, let alone at any real
    risk of harming them, or anyone else for that matter. It is completely
    speculative.

[31]

The Board speculated when it concluded that the appellant poses a
    significant threat of serious harm to others. The appellant is now 62 years old.
    She has no criminal record. The Boards conclusion is based on the index
    offence and dated incidents during which the appellant engaged in behaviour
    that resulted in damage to property, and placed her in harms way.

(7)

Conclusion

[32]

The appellant has benefitted from her time under the Boards
    supervision. We acknowledge that imposing an absolute discharge may not be in
    the appellants best interests. However, this is not relevant to the
    determination under s. 672.54 of the
Code
: see
R. v. Ferguson
,
    2010 ONCA 810, 271 O.A.C. 104, para. 45; and
Re Wall
, para. 30.

There
    is a risk that the appellant will cease taking her medication, and that her
    condition will worsen, perhaps quite quickly. However, the appellant is
    entitled to be discharged unless she constitutes a significant threat to the
    safety of the public.

[33]

The evidence failed to meet the onerous standard under s. 672.54. The
    appeal is allowed. The decision of the Board is set aside. In its place, and
    pursuant to s. 672.78(3)(a), we order an absolute discharge.

John Laskin J.A.

S.E. Pepall J.A.

G.T. Trotter J.A.


