COURT OF APPEAL FOR ONTARIO
Weiler, Watt and Epstein JJ.A.
IN THE MATTER OF: Nelson Runnalls
Nelson Shaun Runnalls, acting in person
Michael Davies, as amicus curiae
Grace Choi, for the Minister of Attorney General
Janice E. Blackburn, for North Bay Regional Health Centre
Heard: May 2, 2012
On appeal against the disposition of the Ontario Review Board dated, July 25, 2011.
ENDORSEMENT
1The appellant appeals from a decision of the Ontario Review Board, dated June 30, 2011. The Board’s disposition maintained the appellant’s detention, with the Person in Charge empowered to grant privileges including that the appellant he lived in supervised accommodation within the community.
2The following grounds of appeal are raised: 1) misapprehension of the evidence; 2) whether the Board erred in not specifically considering a conditional discharge when it rejected an absolute discharge, and; 3) whether the Board erred in not ordering an independent psychiatric assessment.
3The background facts are contained in the decision of this court at 2011 ONCA 364 and need not be repeated here.
1. Misapprehension of the Evidence
4In its 2011 Disposition, the Board found that:
… Mr. Runnalls continues to pose a significant threat to the safety of the public and that if left to his own devices, he would likely disengage from appropriate mental health supports, discontinue taking his medication and, as he said, resume consumption of alcohol and perhaps even other intoxicants, thereby precipitating rapid deterioration in his mental state that would put himself and others at acute risk of harm.
5Amicus submits that this finding is based in part on a misapprehension of the evidence, namely, that the appellant said he would resume consumption of alcohol and perhaps even other intoxicants. Amicus submits that the record discloses that what the appellant actually said was that, if granted an absolute discharge, he would have the right to consume alcohol. The submission is that this misapprehension of the evidence entitles him to a new hearing.
6We agree that the Board misstated the appellant’s literal words. However, his words are accurately quoted earlier in the Board’s reasons. Read as a whole, therefore, the reasons support the legitimacy of the Board’s concern that the appellant, if left unsupervised, would resume consumption of alcohol and abuse of other substances. If there were a misapprehension on the part of the Board, it did not affect its conclusion.
2. Whether the Board Failed to Specifically Consider a Conditional Discharge and whether the Disposition of Detention was Unreasonable
7Amicus submits that, although the appellant did not specifically seek a conditional discharge as an alternative to an absolute discharge, the Board erred because it failed to specifically consider a conditional discharge. In support of this position our attention was directed, in particular, to two authorities of this court.
8In 2008, in respect of this same appellant, this court held that, having regard to the appellant’s evidence that he would comply with any order of the Board, the Board had a duty to expressly inquire into and consider the availability of a conditional discharge as part of its duty to impose the least onerous and least restrictive disposition: R. v. Runnalls,[2008] O.J. No. 463.
9In R. v. Breitwieser,2009 ONCA 784, this court also held that, where there was an air of reality to a conditional discharge being an appropriate disposition, it was an error for the Review Board to fail to consider whether the person detained would have consented to a condition requiring him to continue his medication regime and whether or not there was an appropriate route to accomplish an involuntary return to hospital in the event of decompensation.
10Amicus submits that there was an air of reality to the possibility of a conditional discharge and that, based on these authorities, the Board erred.
11The respondents’ position is that the Board considered and rejected a conditional discharge. In the Board’s specific comment on the appellant’s efforts to navigate around restrictions, it was implicit that it was rejecting the suitability of a conditional discharge. This comment would have been irrelevant to an absolute discharge, but highly relevant to the need for compliance with conditions. The Board also expressly mentioned the question of conditional discharge in its summary of the hospital’s recommendations. Furthermore, on the evidence, the respondent submits a conditional discharge was not a realistic option.
12In our opinion, the Board had before it both documentary and viva voce evidence as to the necessity that Mr. Runnalls reside in supervised accommodation approved by the Person in Charge of the Hospital. This requirement, that the appellant reside in approved, supervised community housing meant that a conditional discharge was not an appropriate disposition. The appropriate disposition in such instances is a continued detention order with discretion given to the hospital administrator to permit the appellant to reside outside of the hospital: Brockville Psychiatric Hospital v. McGillis, [1996] O.J. No. 3430 (Ont. C.A.).1
13While it would certainly have been better if the Board had specifically set out in its reasons that a conditional discharge was not appropriate because of the need for the appellant to reside in supervised approved accommodation in the context of the issues upon which the Board was asked to focus, the Board’s reasons satisfy the functional test of enabling us to understand why a conditional discharge was not granted. Further, the Board’s decision was not unreasonable.
3. Whether the Board erred in not ordering an independent assessment
14The Board may order an independent assessment under s. 672.121 of the Criminal Code if it has reasonable grounds to believe that it is necessary to make a disposition. The Board considered the appellant’s application for an assessment and concluded that an independent assessment was not necessary in the circumstances.
15In our opinion, this conclusion was reasonable. The Board had before it evidence from the appellant’s treating psychiatrist that the appellant failed to appreciate that any independent assessment would be carried out having regard to the information existing with respect to the appellant. It would not take place in a vacuum as the appellant wanted. Furthermore, an independent assessment may well be counterproductive in that any minor discrepancies would be seized upon by him and used to resist treatment. This was not a case of treatment “impasse” referred to in Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 206 C.C.C. (3d) 161.
16The Board had the benefit of up to date psychiatric information concerning the appellant and did not err in refusing to order an independent assessment.
17Accordingly, we would dismiss the appeal.
“K.M. Weiler J.A.”
“David Watt J.A.”
“G.J. Epstein J.A.”