COURT OF APPEAL FOR ONTARIO
FELDMAN, SIMMONS and ROULEAU JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
Nelson Runnalls in person for the appellant
Michael Davies
Respondent
(amicus curiae)
- and -
NELSON RUNNALLS
Lisa Joyal for the respondent
Appellant
Heard: September 21, 2006
On appeal from the disposition order of the Ontario Review Board under s. 672.81(1) of Criminal Code, R.S.C. 1985, c. C-46 dated October 31, 2005 with reasons dated December 7, 2005.
1The appellant appeals from a disposition of the Ontario Review Board made on October 31, 2005 ordering that he be detained at the minimum secure unit of the North Bay Psychiatric Hospital (the “Hospital”).
2The appellant contends that the detention order is unreasonable and that he should have been discharged absolutely. In addition, he says that, because his October 13, 2005 hearing was held more than one year following the date of his last hearing (September 13, 2004) and more than one year following the date of his last disposition (October 8, 2004), the Board lacked jurisdiction to hold a hearing.
3Amicus curiae appointed to assist the court submits that the Board erred in failing to inquire into and make any determination concerning why the hospital had not exercised the discretion granted to it to allow the appellant to exercise various off-ward privileges. Further, amicus curiae contends that this failure resulted in a disposition that was not the “least onerous and least restrictive” as required by s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46.
4For the reasons that follow, I would dismiss the appeal.
I. Background
a) The index offences
5On August 9, 2004, the appellant was found not criminally responsible on account of mental disorder on two counts of failing to appear in court1 and on one count of resisting arrest.
b) The October 8, 2004 disposition
6Following a disposition hearing on October 8, 2004, the Board ordered that the appellant be detained at the medium secure unit of the North Bay Psychiatric Hospital, subject to various conditions. The conditions included a term requiring the person in charge of the Hospital to create a program for the detention and rehabilitation of the appellant and affording the person in charge the discretion to grant the appellant off-ward privileges.
7The available off-ward privileges included the following: hospital and grounds privileges (indirectly supervised); the ability to enter the community of North Bay accompanied by staff person or other approved person; passes for up to 16 hours to attend hospital approved programs within Ontario accompanied by staff; passes for up to one day, up to four times per year, to visit family accompanied by staff or other approved person; and the ability to attend for neurological assessment or treatment of his head injury for up to ninety days.
c) The appellant’s prior history
8The appellant was born on September 27, 1975. In June 1993, at the age of seventeen, he was involved in a motor vehicle accident and suffered a severe closed head injury that resulted in brain damage. Alcohol consumption by the appellant was a contributing factor in the accident.
9In 1998, the appellant was assessed by the Acquired Brain Injury Program in Sudbury. The results indicated decreased decision-making and problem-solving skills; poor impulse control; poor sequential reasoning; and poor social skills. It also appeared that part of his coping mechanism involved alcohol abuse.
10The appellant underwent a further assessment in 2000 by Dr. Persinger. The tests confirmed that the appellant is of average intelligence. However, a personality inventory showed “elevations on the scales which infer depression, suspiciousness, apprehension, and eccentric thinking.” Overall, the appellant’s results were consistent with “permanent dysfunctions within the pre-frontal and parietal regions of the brain.” Based on the assessment, Dr. Persinger recommended that the appellant never consume alcohol or other psychotropic drugs, as doing so would likely increase the likelihood of inappropriate behaviours and unusual thoughts.
11In the four-year period between March 2000 and June 2004, the appellant accumulated over thirty criminal convictions. The offences of which he was convicted consist primarily of assault (x6), uttering threats (x2), resisting arrest (x3) and breaches of court orders (x20). However, for the most part, any custodial sentences he received were of relatively short duration.
d) The appellant’s current diagnosis
12The appellant’s current diagnosis is “Psychotic Disorder Not Otherwise Specified.” According to Dr. Mantle, the appellant’s treating psychiatrist, the appellant believes he has been persecuted by the legal system and he is tormented by these beliefs.
13Amongst other beliefs, the appellant feels that he has been victimized by the courts, the government, the Ontario Review Board and currently, by several members of the Hospital staff, including Dr. Mantle. The appellant apparently believes that a judge was bribed in relation to his case and that he (the appellant) will receive a substantial financial settlement once the truth about his unlawful detention is discovered. In one interview, he informed Dr. Mantle that his level of distress was ten out of ten.
14Dr. Mantle expressed the opinion at the 2005 Board hearing that “there has not been much change” in the appellant’s “mental state” since the 2004 hearing.
e) The Hospital Report prepared for the 2005 Board hearing
15According to the Hospital Report prepared for the 2005 Board hearing, the appellant’s behaviour since his detention has not presented any management problems. The following comments were made in anticipation of the 2004 and 2005 Review Board hearings respectively:
Since [the appellant’s] admission to hospital in early July, his behaviour has been exemplary. He is a very pleasant and cooperative individual. He presents no management problems and is compliant in following the ward program. He socializes well with co-patients and actively participates in the recreational activities offered…. There have been absolutely no incidents or physical aggression or violence, nor have there been any altercations in his dealings with others.
In terms of his behaviour on the ward, [the appellant] has presented no management problems. He is co-operative and compliant with the ward program…. He is pleasant and appropriate in his dealings with most staff unless his beliefs are challenged. He interacts well with the co-patients and has a regular routine of playing cards in the dayroom in the evening with others. He makes use of the activity room on a regular basis, and he also helps out with other co-patients when he can.
16However, the Hospital Report also includes the following information:
in October 2004, the psychiatrist completing the appellant’s forensic assessment received a telephone call from the Crown Attorney in Gore Bay indicating that the appellant had been making telephone calls to the courthouse and that the workers there were frightened and intimidated by his calls;
although Dr. Mantle and other Hospital staff attempted to educate the appellant about his illness and treatment options, their efforts were to no avail and caused the appellant to become increasingly hostile to Dr. Mantle, who he referred to as “that tramp”, “idiot”, “clown” and “mental Mantle”. He also referred to other members of the treatment team as “clowns” and to nursing staff as “guards” and “Dr. Mantle’s groupies”;
in December 2004, Dr. Mantle found the appellant incapable of making treatment decisions. That finding was subsequently upheld by the Consent and Capacity Review Board;
in December 2004, the appellant’s parents provided a substitute consent for treatment with anti-psychotic medication. However, treatment was delayed for a number of reasons2 and did not commence until July 2005;
in February 2005, on the day before the appellant was to attend an MRI appointment in Sudbury, an individual from the Crown Attorney’s office in Toronto advised the Hospital that he had received a call from the appellant in which the appellant expressed an intention to elope while on the MRI appointment and the view that he would be justified in harming others if necessary;
after a police escort was arranged, the appellant refused to attend the MRI appointment. He subsequently refused to attend various other referrals for further investigation of his brain injury (e.g. the Movement Disorders program in Toronto, neuropsychological testing, the Acquired Brain Injury Program in Hamilton)3;
following commencement of treatment with the anti-psychotic medication, the appellant continued to express the same delusional beliefs as he did at the time of his admission. However, as of the date of the Hospital Report, the stress regarding his delusions of persecution “appeared to have lessened somewhat”; and
over the course of the preceding year, the appellant was “not well enough to be granted any of the provisions contained in his current custodial order.”
17The Hospital report concluded with the opinion that the appellant is a significant threat to the safety of the public essentially for the following reasons:
he suffers from a serious mental disorder;
he remains actively psychotic;
he has a history of alcohol and cannabis abuse and of becoming increasingly aggressive while under the influence;
he lacks insight into his mental disorder and into his substance abuse problems;
he has a prior criminal record, which includes a history of violence and non-compliance with court orders; and
he remains un-accepting of attempts to assist him and would not likely remain compliant with medications if left to his own devices.
18Although the Hospital treatment team agreed that the least onerous and least restrictive alternative was a custodial disposition, they were split as to the necessary level of security. Some members thought a medium security disposition was necessary while others felt a minimum security disposition would be appropriate:
Some of the team members were of the view that as [the appellant] has not displayed any incidents of violent or aggressive behaviour while detained on the medium secure unit and has been compliant in following the ward program, that he could be managed quite easily in a minimum secure unit. However, there were other members of the team that were of the view that as he has been detained on the medium secure unit over the course of the past year with no opportunity to have privileges off the ward due to the incident in which he voiced his intent to elope while out on a medical appointment, those members did not feel it would be appropriate to reduce the level of security.
f) Dr. Mantle’s testimony at the October 13, 2005 Board hearing
19At the October 13, 2005 Board hearing, Dr. Mantle confirmed her view that the appellant continues to pose a significant risk to the public. However, while she had some reservations about whether the appellant would like the minimum security setting because of the different mix of patients, she also expressed the opinion that based on his behaviour, he should have the opportunity of going to a less restrictive setting in the hospital.
20Dr. Mantle described a belief held by the appellant that many of his problems stem from wrongdoing in relation to a court transcript, and that if Hospital staff could listen to the tape from the court hearing they would understand much of what he has been going through. She said his belief is so strong that he has made numerous contacts to the Gore Bay court, the Human Rights Commission and others in relation to his plight.
21In response to a question from appellant’s counsel at the Board hearing, Dr. Mantle expressed the view that more could be done in terms of creating a less-restrictive environment for the appellant. In doing so, she noted that the appellant had been restricted to the unit and to a yard that is an extension of the unit. She commented on the Hospital’s failure to grant the appellant discretionary off-ward privileges as follows:
Unfortunately the envelope of privileges that are available to us have not been used in the last year, and this has been a source of considerable upset and concern for various members of the staff.
I think the primary concern that has gotten in the way of [the appellant’s] use of these privileges are concerns about the potential for elopement. That being said, he said he was planning to elope; he hasn’t, to my knowledge, made any attempts to elope. We have patients on less secure units that actually do elope and remain on minimum secure units. He has opportunity to leave right now, and he’s sitting quietly and calmly.
And he has re-assured us quite—in no uncertain terms he has told us that he would not elope at this point. He believes he is entitled to a huge settlement once it is determined that he has been wrongfully detained here, and he can’t leave and have no address. There needs to be somewhere, in his—his mind, to—to send that money.
So, unfortunately, no we haven’t gotten very far with the use of privileges, but I really feel that there is a way that we can do things to make things less restrictive for [the appellant].
g) Positions of the parties before the Board
22At the Board hearing, counsel for the Hospital posited the likelihood that, without a custodial order, the appellant would leave the Hospital, discontinue his medication, and revert to a pattern of substance abuse and aggressive behaviour. However, because the Hospital team was split concerning the appropriate level of security, counsel left that issue to the Board. Counsel for the Crown supported the Hospital’s position.
23In addition to setting out the appellant’s request for an absolute discharge, appellant’s counsel noted that the appellant was already entitled to discretionary off-ward privileges. Counsel urged that the “Hospital be given the latitude” to place the appellant in minimum security “to get him moving, to get him realizing that the Hospital is trying to help him.”
II. The Board’s Decision
24The Board began its decision by noting the appellant’s current disposition ordering his detention in a medium secure unit of the Hospital “with privileges that include, ‘attending any facility for a period not to exceed 90 days for … assessment of his head injury”.
25After reviewing the appellant’s diagnosis, the circumstances of the index offences, the appellant’s criminal record and his prior psychiatric history, the Board turned to his course of treatment at the Hospital. In that respect, the Board noted that the appellant had blocked or refused various assessments and treatment efforts, but said that as the appellant had not engaged in any violence or aggressive behaviour, the treatment team was divided as to the level of security he requires.
26The Board concluded that the appellant is a significant risk to the safety of the public. It noted that the diagnosis that he suffered from a serious mental disorder was “not really questioned” and said: “[h]is lengthy record of criminal conduct after the head injury, together with beliefs that those about him seek to hurt him and plot against him, convince us that this is so.” The Board went on to find that in the light of the appellant’s mental state and “his other needs,” the least onerous and least restrictive alternative would be “no change in the current Disposition except that his detention is to be in the minimum-secure unit of the hospital.”
27Finally, the Board expressed the hope that the appellant would take advantage of the special provision allowing a transfer for assessment purposes.
III. Analysis
a) Standard of Review
28This Court may set aside a Board disposition only where it is of the opinion that:
i. the Board disposition is unreasonable or cannot be supported by the evidence;
ii. the Board disposition is based on an error in law (unless no substantial wrong or miscarriage of justice has occurred); or
iii. there has been a miscarriage of justice.4
29While the first branch of this test involves application of a standard of review of reasonableness simpliciter, the second branch involves application of a standard of correctness.
b) Did the Board have jurisdiction to hold a hearing?
30Section 672.81 of the Criminal Code requires that a Review Board “hold a hearing not later than twelve months after making a disposition and every twelve months thereafter for as long as the disposition remains in force, to review any disposition that it has made in respect of an accused, other than an absolute discharge…”
31Since the appellant’s 2005 Board hearing was held more than twelve months after his 2004 disposition, it is apparent that the mandatory requirements of s. 672.81 were not complied with in this case.
32However, I do not accept the appellant’s submission that the failure to comply with s. 672.81 deprived the Board of the jurisdiction to hold a hearing. No authorities were submitted in support of this position. In my view, while the failure to comply with s. 672.81 may have afforded the appellant certain remedies in terms of compelling a hearing to be held, it did not deprive the 2005 Board of jurisdiction to hold a hearing and make a further disposition. I would not give effect to this ground of appeal.
c) Was the detention order unreasonable?
33In my view, the Board’s decision to detain the appellant in a minimum secure setting was not unreasonable. As noted by the Board, the fact that the appellant suffers from a serious mental disorder is not really in dispute. Further, in my view, the Board’s conclusion that the appellant poses a significant threat to the safety of the public requiring a custodial disposition was justified based on the appellant’s criminal record and the evidence concerning his lack of insight into his mental disorder, his attitude to medication and treatment and his history of substance abuse and resulting aggressive behaviour.
34Accordingly, I would not give effect to this ground of appeal.
d) Did the Board err in failing to inquire into and make any determination concerning why the Hospital had not exercised the discretion granted to it to allow the appellant to exercise off-ward privileges and did it fail to order the least onerous and least restrictive disposition as a result?
35As already noted, as the result of not being afforded various discretionary off-ward privileges during the one-year period following the October 2004 disposition, the appellant was confined completely to his Hospital unit and a yard that is an extension of the unit. The Board made no mention of this issue in its reasons.
36Amicus curiae submits that the failure of the Board to inquire into and make a determination concerning the Hospital’s exercise of its discretion concerning the off-ward privileges is a breach of its duty to supervise its prior order. Further, because the discretionary off-ward privileges go to the core of the appellant’s liberty interest, if the Hospital’s actions were unreasonable, the Board erred by failing to impose the least onerous and least restrictive disposition when it failed to take any remedial steps. Amicus curiae therefore asks that the October 31, 2005 disposition be quashed and that a new hearing be ordered.
37In my view, on the facts of this case, the future implementation of the appellant’s discretionary off-ward privileges was a matter going to his core liberty interests and the Board was therefore required to address the issue. However, while I agree that it would have been preferable for the Board to address this issue explicitly, in my view, the Board’s intention that such privileges be implemented is implicit in its decision to change the level of security at which the appellant was being detained. In these circumstances, any ongoing failure to implement the discretionary off-ward privileges is a matter that can be addressed at the next annual review hearing. I reach these conclusions for several reasons.
38First, on the facts of this case, I agree that implementation of the discretionary off-ward privileges was a matter going to the core of the appellant’s liberty interests. In this regard, it is important to note the specific provisions of s. 672.54 of the Criminal Code setting out the dispositions that may be made concerning an NCR accused and in particular, the conditions that may be attached:
672.54 Where a court or Review Board makes a disposition … it shall, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is the least onerous and least restrictive to the accused:
a) where a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused and, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely;
b) by order, direct that the accused be discharged subject to such conditions as the court or Review Board considers appropriate; or
c) by order, direct that the accused be detained custody in a hospital, subject to such conditions as the court or Review Board considers appropriate. [Emphasis added.]
39In Penetanguishene Mental Health Centre v. Ontario (Attorney General) (2004), 2004 SCC 20, 182 C.C.C. (3d) 193 (S.C.C.), the Supreme Court of Canada made it clear that any disposition that is made with respect to an NCR accused under s. 672.54 (b) and (c) of the Criminal Code includes the conditions that are attached to it. Moreover, the court also made it clear that the requirement in s. 672.54 that any disposition be “the least onerous and least restrictive to the accused” extends to the conditions.
40The issue in Penetanguishene was whether, as part of its mandate to determine the least onerous and least restrictive disposition, the Board had jurisdiction to direct that an NCR accused be transferred from a maximum security setting to a minimum security setting. In Penetanguishene evidence was adduced indicating that “the level of security of the institution in which an NCR accused is detained is not, standing alone, the best measure of the relative liberty available to the individual”. Moreover, the Crown stated in its factum:
The commonly used security level classifications are not defined and there are many other conditions relating to the freedom of movement provided to the patient within the facility that will determine the relative liberty available to the NCR accused.
41At para. 32 of Penetanguishene, the Supreme Court of Canada said, “[a]part from hospital selection, there are other conditions routinely considered by Review Boards that also affect the liberty interest”. By way of example, the court referred to privileges affording access to hospital grounds and the community.
42While it is undoubtedly not the intention of the legislation that the implementation of a condition affording discretionary off-ward privileges be micromanaged by the Board, where there is a complete failure to implement all, or important aspects of, such a condition, in my view, that is a matter that can call into question whether “the least onerous and least restrictive” disposition has been carried out.
43In addition, I note that in Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] S.C.J. No. 7 at para. 22, the Supreme Court of Canada made it clear that the Board has a supervisory role to play concerning the implementation of conditions:
By specifying that Review Boards are mandated to “direct” what happens to an NCR accused, rather than “ordering” a conditional discharge or hospital detention, the wording of s. 672.54 suggest that Parliament intended that Review Boards should supervise the process of implementing a disposition order or condition.
44While the issue in Mazzei was the scope of the Board’s authority to impose conditions relating to the provision of medical treatment that are binding on hospital authorities, it seems to me that Parliament’s intentions concerning the Board’s role in implementing a disposition order or condition is also significant where there has been a complete failure to implement important aspects of a condition providing for discretionary off-ward privileges.
45In this case, the Hospital did not, for example, afford the appellant any hospital or grounds privileges in the one-year period subsequent to October 2004. As already noted, during that period, he was essentially confined to his Hospital unit and a yard that is an extension of the unit as a result. In these circumstances, in my view, the appellant’s core liberty interests were engaged.
46Second, in my view, the Hospital report made it clear that there were two reasons why the appellant’s discretionary off-ward privileges were not more fully implemented following the October 2004 disposition. The first reason was that the appellant was not considered well enough to exercise any of the privileges. The second reason was that at least some portion of the Hospital treatment team believed that the appellant should not be afforded any discretionary privileges because of “the incident in which he voiced his intent to elope while out on a medical appointment”.
47As I read the Hospital report, the reference to the appellant not being well enough to exercise discretionary off-ward privileges relates to the fact that the appellant remained actively psychotic throughout the one-year period following the October 2004 disposition, was resistant to treatment and experienced limited improvement once treatment with anti-psychotic medication began. Further, based on the Hospital report and Dr. Mantle’s evidence, in my view, it is clear that, while the Hospital team was divided, some members of the team felt it necessary that the appellant remain in a medium security environment and not be afforded off-ward privileges because he had expressed an intention to elope on a specific occasion and the view that he would be justified in harming others in order to do so.
48Third, although the Board’s reasons appear to focus on the appellant’s lack of violence or aggressive behaviour in the preceding year, it is implicit in the Board’s reasons that it rejected the view held by at least some members of the Hospital team that the appellant’s mental status and threat of elopement required a medium security setting. Viewed in this light, in my view, the Board’s decision to change the appellant’s detention status from medium to minimum security and, at the same time, to maintain all of the discretionary off-ward privileges included in the previous year’s disposition is a clear signal that the Board intended that the concerns cited by some members of the Hospital team should not operate as a bar to the future implementation of discretionary off-ward privileges.
49Given this conclusion, I see no error in the Board’s disposition and I consider that any ongoing failure to implement the discretionary off-ward privileges is a matter that is properly raised at the next annual review hearing5.
III. Disposition
50Based on the foregoing reasons, I would dismiss the appeal.
Released: January 31, 2007 “KNF”
“Janet Simmons J.A.”
“I agree K. Feldman J.A.”
“I agree Paul Rouleau J.A.”
Footnotes
- On June 14, 2004, the appellant was sentenced in absentia to 6 months imprisonment plus three years probation on one count of uttering threats. Subsequently, on June 21, 2004, he was sentenced in absentia to a further period of imprisonment and probation on one count of uttering threats and one count of resisting arrest. As a result of these convictions and the subsequent NCR finding, the appellant became a dual status offender in accordance with s. 672.1 of the Criminal Code.
- The treatment was delayed initially because the appellant appealed the finding that he was incapable of consenting to treatment. After that finding was upheld, the appellant’s parents decided to have the potential impact of anti-psychotic medication on the appellant’s cervical dystonia investigated further. This delay was prolonged by the appellant’s refusal to attend for testing. When the appellant’s parents consented to treatment without further investigations in May 2005, Dr. Mantle was on a leave absence until mid-July. Upon her return, Dr. Mantle obtained a second opinion concerning the effect of the anti-psychotic medication on the appellant’s dystonia and thereafter commenced treatment on July 22, 2005.
- In her testimony at the hearing, Dr. Mantle indicated that the appellant does not accept that the goal of the Hospital is to help him and appears to think that further assessment information may be used against him.
- Section 672.78 of the Criminal Code; R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779 at para. 31; Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528 at para. 24.
- The appellant’s annual review hearing for this year was scheduled for October 10, 2006. However, we were informed by letter dated October 17, 2006 from amicus curiae that the hearing has been adjourned pending our decision.```
