COURT OF APPEAL FOR ONTARIO
Laskin, Feldman and LaForme JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Angelo Lamanna
Appellant
Angelo Lamanna, in person
Suzan E. Fraser, amicus curiae
Dena Bonnet, for the respondent
Barbara Walker-Renshaw, for Whitby Mental Health Centre
Heard: May 20, 2009
On appeal from the disposition order of the Ontario Review Board under s. 672.81(1) of the Criminal Code, R.S.C. 1985, c. C-46, dated October 15, 2008, with reasons reported at [2008] O.R.B.D. No. 2102.
OVERVIEW
1The appellant, Mr. Lamanna, is a 41-year-old man who, on November 17, 1999, was found not criminally responsible on charges of assault and, uttering a death threat, and on two counts of failure to comply with probation. At the time of these events, the appellant was on probation for an assault charge relating to a guilty verdict entered on April 22, 1999. One of the probation conditions was to keep the peace and be of good behaviour. The second probation condition was not to own, possess or carry any weapon.
2Mr. Lamanna appeals from a decision of the Ontario Review Board, which on October 15, 2008 ordered him detained at the Whitby Mental Health Centre in a minimum secure unit with hospital and community privileges including permission to live in the community in accommodation approved by the person in charge. The amicus curiae submits that the decision of the majority of the Board was unreasonable in that it erred in law in failing to consider meaningfully how the appellant could be discharged conditionally.
3I agree with the submissions of the amicus curiae and would allow the appeal. As I will explain, although the majority of the Review Board correctly identifies the applicable law, it failed in my view, to explain why the disposition it ordered is the least onerous and least restrictive to Mr. Lamanna.
1. The standard of review
4Section 672.78 of the Criminal Code provides that this court may set aside an order of a Review Board only where it 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.
5The standard of review for the first branch of s. 672.78 is reasonableness, while the second branch is concerned with a question of law, and thus the standard is correctness. Here the standard of reasonableness is engaged, which Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47, describes as follows:
A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
6After a review of the record, I am not able to conclude that the disposition of the majority of the Review Board was reasonable. As I have said, the majority has failed to explain why its decision to detain Mr. Lamanna, in all the circumstances, is the least onerous and least restrictive to the accused. In other words, I am unable to conclude that its decision, in respect of the facts and law applicable to this case, falls within the range of possible, acceptable outcomes.
2. The Review Board’s legal test
7Assuming that the majority of the Review Board was correct in deciding that Mr. Lamanna posed a “significant threat to the safety of the public”, it was next required to order him discharged or detained in custody in a hospital, subject to such conditions as the court or the Review Board considers appropriate: ss. 672.54 (b) and (c) of the Code.
8In arriving at its disposition for Mr. Lamanna, the Review Board was required under s. 672.54 of the Code to consider: (i) the need to protect the public from dangerous persons; (ii) Mr. Lamanna’s mental condition; (iii) the reintegration of Mr. Lamanna into society; and (iv) Mr. Lamanna’s “other needs”. While taking these factors into account, the Review Board was required to make a disposition that was the “least onerous and least restrictive” to Mr. Lamanna: see also Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326, at para. 19.
9The “least onerous and least restrictive” requirement is not free-standing and cannot be viewed in isolation from the other factors enumerated in s. 672.54. A review board is required to consider “at every step of s. 672.54” the factors outlined in that section, without segregating the “least onerous and least restrictive” requirement for different or separate consideration: Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20 (“Tulikorpi”), at para. 45. At para. 3 of Tulikorpi, Binnie J. described the requirement this way:
[T]he Criminal Code entitles the [NCR accused] to conditions that, viewed in their entirety, are the least onerous and least restrictive of his liberty consistent with public safety, his mental condition and “other needs” and his eventual reintegration into society.
10Thus, under s. 672.54, the test for arriving at a disposition order requires that the disposition, including the conditions that apply to it, be evaluated as a whole in accordance with all the requirements of s. 672.54: see Tulikorpi, at paras. 45 and 67. Moreover, at every step of this evaluation process, consideration must be given to the liberty interests of the NCR accused: Tulikorpi, at paras. 53-56.
3. The Review Board’s application of the test
11The majority of the Review Board, after a consideration of the evidence presented at the hearing, accepted the hospital’s recommendation that there be no change to the current disposition order Mr. Lamanna was under. This means that Mr. Lamanna was ordered detained at the minimum secure unit of the Whitby Mental Health Centre. Also, he is to have hospital and community privileges including permission to live in the community in accommodation approved by the person in charge.
12In reaching its decision, the majority of the Review Board, at paragraph 23, found that “Mr. Lamanna does continue to represent a significant threat to safety (sic) of the public”. Regarding the least onerous and least restrictive disposition, the majority first observed that:
Within the last year, Mr. Lamanna was discharged to the community to reside in a supervised group home. That discharge was quite short lived. Upon Mr. Lamanna’s readmission to hospital he was quite agitated when interviewed by Dr. Chapman. Mr. Lamanna’s behaviour at the time of that interview was such that a code white was called. Also Dr. Chapman said Mr. Lamanna was clearly suffering from positive symptoms of persecutory and grandiose delusions.
13The majority’s reasons then go on to conclude, essentially in the words of s. 672.54 of the Code, that a detention order was required: (i) because Mr. Lamanna posed a threat to the safety of the public; (ii) because he has a mental condition that needs to be addressed; and (iii) for his reintegration into society and “his other needs”. They found that the detention order was required:
… such that if he is moved back to community living within the next year and once again required readmission to hospital, the hospital can react and readmit Mr. Lamanna quickly. It is important that they can do so in a timely manner such that he does not decompensate to the point where he becomes aggressive or violent putting the public at risk. Also it is in his best interest in that as Dr. Chapman pointed out the earlier the hospital can intervene the shorter any readmission is likely to be.
14It is clear to me from the reasons that the disposition of the majority of the Review Board is grounded almost exclusively in its concern for Mr. Lamanna’s possible decompensation — referring to the progressive worsening of a patient’s mental disorder. Its reasons are directed at the remedies available and the speed with which authorities can respond if Mr. Lamanna were to decompensate. Although the majority articulates the correct test in its reasons, it fails to explain why the disposition it ordered is the least onerous and least restrictive to Mr. Lamanna. I reach this conclusion for two reasons.
15First, the Review Board’s majority reasons do not address Mr. Lamanna’s willingness to agree to a condition specifying that he take medication under a discharge. It provides no reasons by which this court can assess whether the Board’s disposition is defensible in respect of the facts and law.
16Recent amendments to the Criminal Code permit the Board to specify a place of return in the event of a discharge. Section 672.91 of the Criminal Code allows for the arrest of a conditionally discharged NCR accused for the anticipated breach of a condition, and s. 672.93(2) allows the Board to specify the place where the accused is to be returned. The failure to take medication as ordered would be a breach of one of the Review Board’s conditions and would justify a return to the hospital, even if there was no decompensation.
17Second, although the majority of the Review Board acknowledged, at para. 22, the Mental Health Act, R.S.O. 1990, c. M.7, as amended, as a means for bringing a person into hospital, it did not address the adequacy of the relevant provisions, namely ss. 15(1), (1.1) and (5), in this context. For example, should Mr. Lamanna decompensate, the provincial Mental Health Act could arguably be used to return him to custody if the requirements pursuant to s. 672.91 of the Criminal Code for a warrantless arrest, including a breach of conditions or an anticipated breach of conditions, were not met.
4. Conclusion
18As a final matter, I would grant leave to the Whitby Mental Health Centre to adduce the fresh evidence filed. However, after considering it, my opinion of the proper disposition of this appeal is not altered.
19For these reasons, I would allow the appeal. I would set aside the disposition order of the Review Board and refer the review of the Board’s October 24, 2007 disposition back to the Review Board for a new hearing in accordance with these reasons.
RELEASED:
“AUG 14 2009” “H.S. LaForme J.A.”
“JL” “I agree John Laskin J.A.”
“I agree K. Feldman J.A.”