Katzav (Re), 2013 ONCA 627

In the Matter of Katzav

[Indexed as: Katzav (Re)]

Ontario Reports

Court of Appeal for Ontario,

Doherty, Tulloch and Lauwers JJ.A.

October 18, 2013

118 O.R. (3d) 192 | 2013 ONCA 627

Case Summary

Criminal law — Mental disorder — At first hearing after being found NCR, appellant ordered discharged on conditions that included regular visits with outpatient service at Centre for Addiction and Mental Health — Both hospital and Crown had sought detention order but neither appealed Ontario Review Board's ("ORB") disposition — Hospital's request two months later for review of disposition not amounting to abuse of ORB process despite failure to appeal — Evidence showing appellant breaching conditions of disposition and ORB accepting evidence that [page193] his mother feared for her safety and appellant involuntarily committed — Evidentiary foundation for ORB conclusion that appellant posed significant threat to safety of public based on his volatile relationship with his mother — Appeal from ORB disposition dismissed.

Criminal law — Mental disorder — Disposition — Appellant seeking absolute discharge or discharge with conditions — Ontario Review Board ("ORB") not erring in ordering him to be detained at hospital on conditions allowing to live in community at place approved by hospital — ORB concluding that was crucial that hospital be able to control where he resided especially given volatile relationship with his mother — ORB's conclusion that least restrictive means of ensuring that hospital could control appellant's residence was a detention order not unreasonable — Appeal from ORB disposition dismissed.

The appellant was charged with eight counts of pulling a fire alarm without reasonable excuse and was found not criminally responsible on account of mental disorder. At the first hearing of the Ontario Review Board ("ORB"), the majority concluded that the appellant posed a significant threat to the safety of the public and that he should be discharged from custody on conditions that included regular visits with the outpatient service at the Centre of Addiction and Mental Health ("CAMH"). Although the Crown and the hospital had sought a detention order, neither party appealed the disposition order. Two months later, CAMH requested an early review of the disposition pursuant to s. 672.81(2) of the Criminal Code, R.S.C. 1985, c. C-46. After hearing evidence of the appellant's volatile relationship with his mother and events that led to his involuntary committal under the Mental Health Act, R.S.O. 1990, c. M.7, the ORB directed that the appellant should be detained at CAMH on conditions which allowed him to live in the community at a place approved by CAMH. The appellant appealed.

Held, the appeal should be dismissed.

CAMH did not abuse the ORB's process by requesting an early review of the conditional discharge order in circumstances where the Crown had not appealed that order. Section 672.81(2) of the Code expressly gives hospital personnel responsible for individuals under the jurisdiction of the ORB the authority to require an early hearing before the ORB. The scheme set out in Part XX.1 of the Code is clearly intended to allow the ORB to respond quickly to changing circumstances relevant to both the individual's best interests and public safety concerns. The evidence at the hearing showed that the appellant had breached the conditions of his disposition and had been involuntarily committed because his mother was afraid of him. There was nothing to suggest that CAMH sought the early hearing for any improper purpose.

The ORB did not fail to apply the "significant threat to the safety of the public" criterion. The appellant suffered from schizophrenia and had consistently refused medication. His relationship with his mother was volatile and potentially toxic. At the hearing, the appellant's family downplayed the incidents before his involuntary committal and implied that they were not afraid of the appellant. The ORB preferred the evidence of hospital staff who had made contemporaneous notes of conversations with family members indicating their fear of the appellant. In light of evidence that the appellant's mother feared for her safety, the finding that the appellant posed a significant threat to the safety of the public was not unreasonable.

The ORB's determination that a detention order was the least onerous and least restrictive disposition was not unreasonable. The ORB determined that [page194] adequate control over the appellant's housing was crucial to his management in the community and could only be achieved by giving CAMH the power to control where he lived in the community. That control could only be achieved by a detention order. There was no suggestion before the ORB that the terms of a conditional discharge could be fashioned in such a way that would give CAMH the necessary control over the appellant's place of residence.

To the extent that the ORB's reasons for disposition suggested that another factor justifying a detention order was to enhance the possibility that the appellant would agree to take anti-psychotic medication, this was an error. Restrictions on the appellant's liberty were not an appropriate means by which to encourage him to take medication. However, that error had no effect on the ORB's decision. The detention order was fully justified on the basis that it was necessary to give CAMH adequate control over the appellant's housing in the community.

Cases referred to

Katzav (Re), [2012] O.R.B.D. No. 1274; Katzav (Re), [2013] O.R.B.D. No. 426; Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, [2003] S.C.J. No. 64, 2003 SCC 63, 232 D.L.R. (4th) 385, 311 N.R. 201, J.E. 2003-2108, 179 O.A.C. 291, [2003] CLLC Â220-071, 17 C.R. (6th) 276, REJB 2003-49439, 120 L.A.C. (4th) 225, 59 W.C.B. (2d) 334; Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31, 175 D.L.R. (4th) 193, 241 N.R. 1, J.E. 99-1277, 124 B.C.A.C. 1, 135 C.C.C. (3d) 129, 25 C.R. (5th) 1, 63 C.R.R. (2d) 189, 42 W.C.B. (2d) 381

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 672.54 [as am.], 672.72 [as am.], Part XX.1 [as am.], ss. 672.81(2) [as am.], 672.82 [as am.]

Mental Health Act, R.S.O. 1990, c. M.7 [as am.]

APPEAL from the disposition of the Ontario Review Board, [2013] O.R.B.D. No. 425.

Jill R. Presser, for appellant as amicus curiae.

Yehonatan Katzav, appearing in person.

Michael Medeiros, for Ministry of the Attorney General.

Janice Blackburn, for person in charge, Centre for Addiction and Mental Health.

The judgment of the court was delivered by

DOHERTY J.A.: —

I

1On May 6, 2011, the appellant was captured on video pulling the fire alarm at the apartment building where he lived. There had been a rash of false fire alarms at the building. The appellant was subsequently charged with eight counts of pulling a fire alarm without reasonable excuse. He was released on [page195] bail. On January 31, 2012, the appellant was found not criminally responsible on account of mental disorder ("NCR") on all counts.

2In June 2012, at the first hearing of the Ontario Review Board ("ORB"), the majority concluded that the appellant posed a significant threat to the safety of the public and that he should be discharged from custody on certain conditions. The dissenting member of the ORB would have given the appellant an absolute discharge as, in his view, the evidence did not show that the appellant posed a significant threat to the safety of the public [[2012] O.R.B.D. No. 1274].

3The appellant was released into the community. The conditions of his discharge included regular visits with the outpatient service at the Centre for Addiction and Mental Health ("CAMH").

4Neither the hospital nor the Crown appealed from the initial disposition of the ORB, although they had requested a detention order at the hearing. The appellant did not appeal the initial disposition until November 2012, when he filed an application for an extension of time within which to appeal and a notice of appeal. My resolution of this appeal renders that appeal moot.

5In August 2012, two months after the ORB's initial order, counsel for CAMH wrote to the ORB requesting an early review of the disposition that the ORB had made in June 2012. The request was made pursuant to s. 672.81(2) of the Criminal Code, R.S.C. 1985, c. C-46. Under that provision, the ORB is required to hold a hearing reviewing a disposition order "as soon as practicable" after receiving the hospital's request for a review of a disposition order. For a variety of reasons, the second hearing before the ORB did not begin until late November 2012.

6A different panel of the ORB, save one member, conducted the review. The ORB heard two days of evidence. That evidence focused on the appellant's living arrangements, his volatile but close relationship with his mother and sister, and the events in early November 2012 that had led to the appellant's involuntary committal under the terms of the Mental Health Act, R.S.O. 1990, c. M.7.

7In February 2013, the ORB unanimously directed that the appellant should be detained at CAMH on certain conditions. One condition allowed the appellant to live in the community at a place approved by CAMH. The appellant is presently living in the community. [page196]

II

Grounds of Appeal

8The appellant, ably assisted by amicus, makes four arguments. First, he submits that the review proceeding before the ORB was an abuse of the ORB's process. The appellant contends that the Crown was clearly dissatisfied with the conditional discharge ordered after the initial hearing. The appellant submits that the Crown should have appealed that disposition and that by attacking the initial order by way of an early review, the Crown abused the process of the ORB.

9Second, the appellant argues that the ORB failed to apply the "significant threat to the safety of the public" criterion in s. 672.54 [of the Criminal Code] in deciding whether any limitation on the appellant's liberty was appropriate. Third, the appellant submits that the ORB's finding that the appellant posed a significant risk to the public was unreasonable on the totality of the evidence before the ORB. Fourth, the appellant submits that the ORB's finding that a detention order was the "least onerous and least restrictive" disposition was unreasonable.

III

The Abuse of Process Argument

10The appellant submits that if CAMH believed that the conditional discharge ordered at the initial ORB hearing was inappropriate, CAMH should have appealed that order to this court pursuant to s. 672.72 rather than require an early review of the initial order by another panel of the ORB. Counsel draws an analogy to a well-established line of civil cases that describe various forms of relitigation of final orders as potentially constituting an abuse of process: see, e.g., Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, [2003] S.C.J. No. 64, 2003 SCC 63.

11The analogy between the civil process and ORB proceedings under Part XX.1 of the Criminal Code is not apt. Unlike the civil process that contemplates final orders at first instance that are subject to appellate review, Part XX.1 gives the ORB an ongoing supervisory role over persons who are subject to the jurisdiction of the ORB. The supervisory role is apparent in s. 672.82, which permits the ORB to reconsider any of its orders at any time either on its own initiative or at the request of any party to the order.

12Not only can the ORB, in the exercise of its discretion, reconsider an earlier decision at any time, but s. 672.81(2) also expressly gives hospital personnel responsible for individuals [page197] under the jurisdiction of the ORB the authority to require an early hearing before the ORB.

13The scheme set out in Part XX.1 is clearly intended to allow the ORB to respond quickly to changing circumstances relevant to both the individual's best interests and public safety concerns. The ongoing assessment of the status of those under the jurisdiction of the ORB and the restrictions on the liberty interests of those persons is a central feature of the Part XX.1 scheme. Flexibility, not finality, is a hallmark of orders made under Part XX.1. Changes in circumstances or in an accused's condition are more effectively addressed by the ORB process than by the appellate process.

14In my view, CAMH cannot be said to have abused the ORB's process solely by seeking the early review contemplated in s. 672.81(2). Nor was there anything in the evidence before the ORB to suggest that CAMH sought the early hearing for any improper purpose. There was evidence that, before CAMH sought the early review, the appellant had failed to comply with some of the conditions set out in the initial order of the ORB. There was also evidence of comments made by the appellant indicating significant tension between the appellant and his family members. Certainly, by the time that the second ORB hearing commenced in November, the events involving the appellant and his mother in October and early November fully justified a reconsideration of his status. I would not give effect to the abuse of process argument.

IV

Did the ORB Apply the "Significant Threat to the Safety of the Public" Criterion?

15Section 672.54 requires that, before the ORB can make any disposition other than an absolute discharge, the ORB must determine that the accused poses a "significant threat to the safety of the public". While the ORB referred expressly to the language of s. 672.54 at the outset of its analysis, the appellant submits that the ORB in fact applied some other criterion in determining that an absolute discharge was inappropriate. I cannot agree.

16After referring to the language of s. 672.54 and the difficulty that the determination required by that language can pose, the ORB proceeded to review the evidence, particularly as it related to the interactions between the appellant and his mother. The key question was whether the appellant's conduct toward his mother was merely "blowing off steam", as testified to by his mother, or whether it presented a real threat to his [page198] mother. The ORB ultimately concluded [[2013] O.R.B.D. No. 426, at para. 172]:

The accused has returned to his mother's home, and under a conditional discharge he is free to do that. It is clear, however, that living in his mother's apartment is a mixed blessing for both the accused and his mother. When the accused's behaviour is under control they seem to get along reasonably well. However, when out of control, the Board finds that he is a serious risk to his mother's psychological and perhaps physical safety. The accused is capable of violence with property and his mother has said that she needs to lock herself in her room because "I was afraid he might do something." The risk is real and serious and it is predictable that it will happen again given the chronic nature of the dysfunctional relationship between Mr. Katzav and his family, in particular his mother.

(Emphasis added)

17The conclusion set out above reflects the descriptors used in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31 to describe a "significant threat to the safety of the public". I am satisfied that the ORB applied the proper test in determining whether a disposition other than an absolute discharge should be made under s. 672.54.

V

Was the ORB's Finding that the Appellant Posed a "Significant Threat to the Safety of the Public" Unreasonable?

18The nature of the inquiry dictated by the reasonableness standard of review is well known and need not be repeated here. The ORB heard a great deal of evidence about the appellant's relationship with his mother and the events in late October and early November 2012 that led to his involuntary committal under the Mental Health Act. In their testimony, the appellant's mother and sister described these events as more in the nature of temper tantrums by the appellant and downplayed any real threat that he may have posed to them. However, the appellant's mother's description of those events to the hospital staff indicated that she was afraid of the appellant and took his threats seriously.

19In considering what to make of the events of late October and early November 2012, the ORB had regard to the appellant's medical and behavioural history. The appellant suffers from schizophrenia, a major mental illness with chronic symptoms that include paranoia, delusions and hallucinations. Various behavioural problems referable to his mental illness have manifested since at least 2000. The appellant has consistently refused medication, except for one brief time period when he took the prescribed medication. It seemed to help. In this [page199] proceeding, no one challenges the appellant's capacity to make his own decisions with respect to his treatment.

20Although the appellant had avoided conflict with the law and functioned quite well in many respects in the community, his relationship with his mother was volatile and potentially toxic. By September 2012, he was living full-time with his mother. He advised his caseworkers that he was "completely frustrated" with her behaviour and would "kill her" if there were no laws against homicide. However, the appellant did not do anything to physically harm his mother. He described his outbursts towards her as "venting".

21In late October or early November, the appellant's mother reported a verbal altercation with the appellant during which he threw a telephone. The telephone struck the couch and then hit the appellant's mother on the leg. Further altercations followed. In early November, the appellant's mother called a member of the treatment staff at CAMH asking that her son be removed from her home. She later reported that she had locked herself in the bedroom for most of a weekend because she was afraid of the appellant.

22The appellant was removed from his mother's residence and committed to CAMH under the Mental Health Act. He had a very difficult time in the hospital while involuntarily committed primarily because a shortage of beds led to his confinement in an entirely inappropriate unit. He was subsequently released when, at the Mental Health Act hearing, his mother insisted that she was not afraid of the appellant and that he would not hurt her.

23After an extensive review of the evidence, particularly as it related to the events described above and the very different attitude towards those events taken by the hospital staff and the appellant's family, the ORB concluded that it preferred the version of events described in the evidence and notes of the hospital staff over the testimony of the appellant's mother and sister. The ORB described the evidence of the mother and sister as an attempt to downplay the appellant's behaviour and support his desire to be out from under the control of the ORB. It was open to the ORB to prefer the evidence of the hospital treatment staff, as supported by the records, over the evidence of the appellant's mother and sister.

24The ORB concluded that [[2013] O.R.B.D. No. 426, at para. 171]:

[T]he accused's past history, the nature of his mental illness, his lack of insight, refusal to take medication, lack of cooperation with caregivers and the behaviour exhibited towards his mother in the few days prior to his involuntary hospitalization on November 5th all supports [sic] that the [page200] accused is a significant threat to the safety of the public and he must be subject to a Review Board warrant.

25Given the ORB's expressed preference for the evidence of the hospital staff over the evidence of the appellant's mother and sister, the ORB's conclusion that the appellant posed a significant threat to the safety of the public was not unreasonable.

VI

Was the ORB's Determination that a Detention Order was the "Least Onerous and Least Restrictive" Disposition Unreasonable?

26By way of alternative, the appellant submits that even if the finding that he posed a "significant threat to the safety of the public" was a reasonable one, the ORB was obliged under the terms of s. 672.54 to impose the disposition that was "the least onerous and least restrictive to the accused". The appellant submits that a conditional discharge would have met the "least onerous and least restrictive" criterion.

27The ORB declined to impose a conditional discharge for two reasons. First, the ORB determined that a conditional discharge would not provide the control over the appellant's placement in the community that was necessary to adequately protect the public. The ORB determined that adequate control over the appellant's housing was crucial to his management in the community and could only be achieved by giving CAMH the power to control where the appellant lived in the community. That control could only be achieved by a detention order. Second, the ORB observed that the treatment of the appellant through the appropriate medication was not possible "with the liberties associated with a conditional discharge".

28In my view, the ORB was justified in concluding that an appropriate residence was central to the appellant's ability to function in the community and that any order the ORB should make must give CAMH the ability to ensure that the appellant was living in a suitable residence. There was no suggestion before the ORB that the terms of a conditional discharge could be fashioned in a way that would give CAMH the necessary control over the appellant's place of residence. There was some discussion in oral argument before this court of the conditions attached to a conditional discharge which might achieve adequate control over the appellant's residence. However, this court is in no position to judge the efficacy of those terms. The ORB's need to control the appellant's place of residence, a crucial factor in his ongoing management in the community, was sufficient to [page201] render a detention order the "least onerous and least restrictive" disposition available.

29The second reason advanced by the ORB for justifying the detention order is more problematic. If I understand the ORB's reasoning correctly, it viewed the making of a detention order as somehow enhancing the possibility that the appellant would agree to take anti-psychotic medication. Assuming, as one must, that the appellant is entitled and able to make up his own mind about taking medication, restrictions on his liberty are not an appropriate means by which to encourage the appellant to take the medication proposed by the staff at CAMH. The detention of the appellant with the added restriction on his liberties, as opposed to his release on a conditional discharge, could not be justified on the basis that he would be more likely to agree to take the anti-psychotic medication if subject to a detention order. However, this error had no effect on the ORB's decision. In my view, the detention order was fully justified on the basis that it was necessary to give CAMH adequate control over the appellant's housing in the community.

30I would dismiss the appeal.