McAnuff (Re), 2016 ONCA 280

In the Matter of McAnuff

[Indexed as: McAnuff (Re)]

Ontario Reports

Court of Appeal for Ontario,

Laskin, Cronk and B.W. Miller JJ.A.

April 20, 2016

130 O.R. (3d) 440 | 2016 ONCA 280

Case Summary

Criminal law — Mental disorder — Dispositions — Appellant found not criminally responsible on account of mental disorder after being charged with minor assaults — Appellant long-time user of marijuana despite term of disposition prohibiting its use — Appellant having no history of assault or aggression while being detained on minimum forensic unit for five years — Psychiatrist advocating moving appellant to medium security unit as would decrease his access to marijuana and assist him in developing insight into problems caused by drug use — Ontario Review Board finding that appellant continued to pose significant threat to safety of public and ordering that he be detained on medium forensic unit without privilege of unaccompanied access to hospital grounds and community because his ongoing use of marijuana increased his psychosis and hostility — Detention on medium forensic unit more restrictive of appellant's liberty — Transfer unnecessary and inappropriate because there was no link between appellant's marijuana use and risk to public safety while he was detained — Disposition unreasonable.

M was charged with minor assaults and was found not criminally responsible on account of mental disorder in 2011. Since then, he had been detained on the general (or minimum) forensic unit of the Centre for Addiction and Mental Health and was permitted to have unaccompanied access to the hospital grounds and the community. After M's annual review hearing in 2015, the Ontario Review Board found that he continued to pose a significant threat to the safety of the public. The psychiatrist noted that the less secure minimum security unit was "more porous" and allowed the appellant more opportunity to obtain drugs. She suggested that given the level of supervision he had received during the last several months and the frequent suspension of his privileges he would be in a less restricted setting were he moved to the medium security unit. She said that if he were detained in the more secure unit he would have an opportunity to develop insight into the way in which drugs have placed him at risk in the past [page441] and why he should stop using drugs. The board ordered that he be detained on the secure (or medium) forensic unit, without the privilege of unaccompanied access to the grounds and the community. The board found that detention on the secure unit without unaccompanied privileges was the necessary and appropriate disposition because M's ongoing use of marijuana increased his psychosis and hostility. M appealed.

Held, the appeal should be allowed.

M's detention on the secure unit was more restrictive of his liberty than his detention on the general unit because it deprived him of privileges which he enjoyed while on the general unit including unsupervised access to the grounds and community access.

Under s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46, the board is required to make a disposition that is "necessary and appropriate in the circumstances". That requirement is synonymous with the former requirement that a disposition be the "least onerous and least restrictive to the accused". The "necessary and appropriate" standard applies to the entire package of conditions imposed on the person detained. In this case, M's detention on the secure unit was not necessary and appropriate because there was no link between M's marijuana use and a risk to public safety while he was detained. During the five years of his detention, he had not assaulted anyone or engaged in any other acts of physical or verbal aggression, despite his continued use of marijuana. The board focused on M's treatment needs and on making it harder for him to obtain marijuana, but failed to adequately consider that the restrictions on his liberty had to be consistent with his level of risk to public safety. The disposition was unreasonable, the decision transferring him to the medium security unit is set aside and he is to be detained on the general unit on the same terms as were in his 2014 order.

Cases referred to

McAnuff (Re), [2014] O.R.B.D. No. 2071; Penetanguishene Mental Health Centre v. Magee (2006), 2006 CanLII 16077 (ON CA), 80 O.R. (3d) 436, [2006] O.J. No. 1926, 211 O.A.C. 95, 208 C.C.C. (3d) 365, 39 C.R. (6th) 40, 69 W.C.B. (2d) 449 (C.A.); Penetanguishene Mental Health Centre v. Ontario (Attorney General), [2004] 1 S.C.R. 498, [2003] S.C.J. No. 67, 2004 SCC 20, 237 D.L.R. (4th) 1, 318 N.R. 73, J.E. 2004-737, 185 O.A.C. 201, 16 Admin. L.R. (4th) 1, 182 C.C.C. (3d) 193, 19 C.R. (6th) 1, 116 C.R.R. (2d) 304, 129 A.C.W.S. (3d) 711, 60 W.C.B. (2d) 98; Pinet v. St. Thomas Psychiatric Hospital, [2004] 1 S.C.R. 528, [2003] S.C.J. No. 66, 2004 SCC 21, 237 D.L.R. (4th) 23, 317 N.R. 365, J.E. 2004-736, 185 O.A.C. 8, 182 C.C.C. (3d) 214, 19 C.R. (6th) 21, 60 W.C.B. (2d) 99; Ranieri (Re), [2015] O.J. No. 3201, 2015 ONCA 444, 336 O.A.C. 88, 122 W.C.B. (2d) 569; Saikaley (Re), [2011] O.J. No. 722, 2011 ONCA 136, 92 W.C.B. (2d) 643; 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, s. 672.54 [as am.]

APPEAL from the disposition of the Ontario Review Board, [2015] O.R.B.D. No. 2183. [page442]

Michael Davies and Meaghan McMahon, for appellant.

Amanda Rubaszek, for respondent Attorney General for Ontario.

Kathryn Hunt, for respondent person in charge of Centre for Addiction and Mental Health.

The judgment of the court was delivered by

LASKIN J.A.: —

A. Overview

1In January 2011, the appellant, Novar McAnuff, was found not criminally responsible ("NCR") on account of mental disorder. Since then, he has been detained at the Centre for Addiction and Mental Health ("CAMH").¹ For about three years, beginning in September 2012, he was detained on the general (or minimum) forensic unit of CAMH. He had privileges, which included being able to go on the hospital grounds or into the community without being accompanied by staff and potentially being able to live in the community.

2After his last annual hearing in August 2015, the Ontario Review Board found that McAnuff continued to pose a significant threat to the safety of the public. Instead, however, of continuing his detention on the general forensic unit of CAMH, the board ordered that he be detained on the secure (or medium) forensic unit. The board removed McAnuff's privileges of unaccompanied access to the hospital grounds and the community, and substituted access only when accompanied by staff. In the board's opinion, detention on the secure unit without unaccompanied privileges was the necessary and appropriate disposition because McAnuff's ongoing use of marijuana increased his psychosis and hostility.

3Before the board, McAnuff sought an absolute discharge, but in this court he does not challenge the board's finding that he continues to pose a significant threat to the safety of the public. He raises a single issue before us: is the board's order that he be detained on the secure forensic unit unreasonable?

4The resolution of this issue turns on the answers to two questions: first, is detention on the secure unit, in practice, more restrictive of McAnuff's liberty? And if it is, second, is it necessary and appropriate because there is a link between McAnuff's [page443] marijuana use and a risk to public safety while he is detained? I would answer these two questions yes and no. Thus, I conclude that the board's detention order is unreasonable.

5McAnuff's transfer to the secure unit is more restrictive of his liberty because it will deprive him of privileges he enjoyed while on the general unit. It is also unnecessary and inappropriate. The index offences that led to McAnuff's NCR finding were three minor assaults committed within minutes of each other. In the five years McAnuff has been detained at CAMH, he has not assaulted anyone or engaged in any other acts of physical or verbal aggression, despite his continued use of marijuana.

6I would allow the appeal, order that McAnuff be detained on the general forensic unit of CAMH and restore the privileges the board removed after his last hearing.

B. Relevant Background

(1) The appellant Novar McAnuff

7Novar McAnuff is 43 years old. He was born in Jamaica and raised by his paternal grandmother until he was ten, when he moved to Canada to live with his mother. He continues to have a relationship with his mother, and she remains his only support in the community. He has not worked since his teens.

8McAnuff has been in and out of psychiatric care for much of his life. In the nearly 20 years before he came under the jurisdiction of the board, he was admitted to hospital 11 times for reasons related to his mental health. Typically, these admissions were triggered when McAnuff acted aggressively or violently towards others, including his mother. Of significance to this appeal, these violent acts appear to have occurred when McAnuff was using drugs, was not supervised and was not taking his medication. During this time, he lived at various boarding homes and intermittently was homeless.

9Also during this period, McAnuff was charged with three criminal offences. On the first two charges -- possession of a dangerous weapon and criminal harassment -- he was found unfit to stand trial; on the last charge, assault, he was convicted in September 2009 and placed on probation for 18 months.

10McAnuff's current diagnoses are schizophrenia, substance disorders (cannabis and crack cocaine) and an unspecified personality disorder with anti-social traits. [page444]

(2) The index offences

11The index offences consisted of three minor assaults committed within five minutes of each other during the evening of September 2, 2010.

12At 8:30 p.m., two women left their apartment building to walk their dog. McAnuff approached the women and lunged at the dog, trying to take it. One of the women swung at McAnuff with her keys; McAnuff tried to grab her and take her keys away but she pushed him off. He then grabbed the shirt of the other woman. The two women got away and called the police.

13Five minutes later, about a block away, a mother and her daughter were walking down the street. McAnuff was on the other side of the street but suddenly crossed over, approached the women and grabbed one of them by the waist. The other woman dropped her belongings and started hitting McAnuff with an umbrella. McAnuff released the first woman, grabbed the items the second woman had dropped and fled. The two women then called the police.

14None of the women suffered any injuries and none of McAnuff's acts were sexual in nature.

(3) McAnuff's marijuana use

15McAnuff first used marijuana when he was seven years old. He smoked it daily from the age of 16 up to the time of the index offences.

16While he has been at CAMH, McAnuff has been able to obtain marijuana and continues to use it regularly. The hospital report documents numerous incidents of McAnuff's failure to comply with conditions prohibiting his use of the drug.

17McAnuff claims that he has a right to smoke marijuana and that it makes him feel better, both physically and mentally. He denies that it adversely affects his mental state. The hospital doctors, on the other hand, say that McAnuff's insistence on using marijuana shows that he has little or no insight into his mental illness.

(4) McAnuff's detention on the general forensic unit and the board's 2014 disposition

18McAnuff's detention on the general forensic unit of CAMH from September 2012 until the board's 2014 disposition can be summarized as follows:

• McAnuff did not assault anyone; nor did he engage in any aggressive or confrontational behaviour towards staff or patients. [page445]
• He continued to smoke marijuana, thus demonstrating to his treatment team that he had little or no insight about how its use affected his mental health.
• He generally complied with his medication regime.
• He regularly used his privileges to go on the hospital grounds unaccompanied by staff. When exercising these privileges, he often used marijuana. As a result of doing so, his privileges were suspended and eventually reinstated many times.
• In late January 2013 and again in February 2013, he was discharged into the community, but each time he had to be readmitted to CAMH because of his substance abuse and mental decompensation.

19In its reasons following McAnuff's August 2014 hearing, the board noted [[2014] O.R.B.D. No. 2071] Dr. Ramshaw's evidence that [at para. 23] "McAnuff is doing well at the moment and that he is thoughtful, delightful, has a sense of humour, and is involved in activities." But Dr. Ramshaw was concerned that McAnuff [at para. 23] "has been unable to maintain stability . . . [W]henever indirectly supervised hospital and grounds privileges were re-introduced he tested positive for drugs soon after." Dr. Ramshaw testified that "marijuana use has negative effects on Mr. McAnuff's mental stability: he becomes angry, hostile, irritable, and suspicious".

20The board concluded that McAnuff could not safely be discharged into the community until he demonstrated that he could exercise his privileges without using drugs. The board ordered that McAnuff continue to be detained on the general forensic unit with the same privileges of unaccompanied access to the hospital grounds and the community that he had enjoyed previously.

C. The Board's 2015 Disposition was Unreasonable

(1) The "necessary and appropriate" standard

21In determining the proper disposition to impose on a person who, like McAnuff, represents a significant threat to the safety of the public, the board must consider the four factors in s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46: the need to protect the public from dangerous persons; the mental condition of the person; the reintegration of the person into society; and the other needs of the person. The board must then [page446] arrive at a disposition that is "necessary and appropriate in the circumstances".

22The "necessary and appropriate" standard came into force on July 11, 2014. Before then, the Criminal Code required that the disposition be the "least onerous and least restrictive to the accused". This court has endorsed the board's view that the two standards are synonymous -- in other words, the "necessary and appropriate" disposition is also the "least onerous and least restrictive" disposition: Ranieri (Re), [2015] O.J. No. 3201, 2015 ONCA 444, 336 O.A.C. 88, at paras. 20-21. The change in language was meant to clarify the standard and make it easier to understand, not to modify it. Thus, the jurisprudence developed under the least onerous and least restrictive standard continues to apply to dispositions under the necessary and appropriate standard.

23Two features of this jurisprudence are especially relevant to this appeal. First, the "necessary and appropriate" standard applies to the entire "package" of conditions imposed on the person detained: see, for example, Penetanguishene Mental Health Centre v. Ontario (Attorney General), [2004] 1 S.C.R. 498, [2003] S.C.J. No. 67, 2004 SCC 20, at para. 71.

24Second, the standard is constitutionally justifiable because "[i]t ensures that the NCR accused's liberty will be trammelled no more than is necessary to protect public safety": Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31, at para. 71. As I will discuss, the board's failure to link the more restrictive conditions it imposed on McAnuff to the protection of public safety justifies this court's intervention.

(2) The August 2015 hearing before the board

25The board hearing took place in late August 2015. Its disposition was made on September 4, 2015 and its reasons were given on October 2, 2015. McAnuff was represented by counsel but did not testify. Dr. Ramshaw testified for the hospital, as she did at the 2014 hearing. She was the only person to give evidence.

26Dr. Ramshaw asserted, as she did the previous year, that McAnuff posed a significant threat to public safety. But her opinion on the conditions of his detention changed. She now recommended that McAnuff be detained on the secure forensic unit of CAMH, which in her opinion would be less restrictive of McAnuff's liberty than his detention on the general unit.

27The parties took starkly different positions before the board. McAnuff sought an absolute discharge. The hospital, [page447] relying on Dr. Ramshaw's opinion, maintained that McAnuff still posed a significant threat to public safety and had to be detained. It sought his detention on the secure forensic unit instead of the general forensic unit and the removal of his unaccompanied grounds and community privileges. The Crown supported the hospital's position.

28The board accepted the hospital's position on significant threat and on the necessary and appropriate conditions of detention. It did not expressly say why continued detention on the general forensic unit was inappropriate. Nor did it adopt Dr. Ramshaw's opinion that detention on the secure forensic unit would be less restrictive of McAnuff's liberty. Its reasons for ordering McAnuff's detention on the secure unit with only accompanied grounds and community privileges focused on McAnuff's marijuana use.

The Board unanimously finds that the most necessary and appropriate Disposition necessary to manage the risk posed to the public while still meeting Mr. McAnuff's needs pursuant to s. 672.54 of the Criminal Code is that he be detained in the Secure Forensic Unit at CAMH with limited privileges into the community. In coming to this conclusion the Board notes the continuing ongoing use of substances by Mr. McAnuff even while he has been confined to a general unit and the resulting deleterious effect on his mental status. The Board is hopeful that a move to a secure unit will make access to substances extremely difficult for Mr. Mcanuff and will allow him to develop some significant insight around the effect of such substances on his mental illness. In the circumstances, this Disposition is the most necessary and appropriate.

(3) Analysis

29In his factum, McAnuff submitted that the board erred because it did not refer to the "least onerous and least restrictive" standard. Wisely, he did not pursue this submission during oral argument. The board correctly stated the current standard -- "necessary and appropriate". It cannot be faulted for not referring to the previous standard, which, as I have said, is synonymous with the current standard.

30The only question before us is whether the board erred in its application of the necessary and appropriate standard. In recognition of its expertise, this court must give deference to the board's disposition. The standard of appellate review is reasonableness. The board's view of "how best to manage the risk posed by a particular NCR accused should not be interfered with so long as the conditions of detention lie within a range of reasonable judgment": Pinet v. St. Thomas Psychiatric Hospital, [2004] 1 S.C.R. 528, [2003] S.C.J. No. 66, 2004 SCC 21, at para. 22.

31McAnuff submits that the board's disposition is unreasonable. His submission has two branches: in practice, detention on [page448] the secure forensic unit is more restrictive of his liberty than detention on the general forensic unit; and it is neither necessary nor appropriate because of the absence of evidence that his marijuana use poses a risk to public safety. The hospital and the Crown rely on Dr. Ramshaw's opinion that detention on the secure forensic unit will be less restrictive of McAnuff's liberty. And they submit that the board's finding on the effects of McAnuff's marijuana use is reasonable and should be upheld on appeal. I agree, however, with both branches of McAnuff's submission.

(a) Detention on the secure forensic unit is more restrictive of McAnuff's liberty

32The secure forensic unit of CAMH has a higher level of security than the general forensic unit. On its face, a transfer from the general to the secure unit is more restrictive of McAnuff's liberty. Of course, the level of security by itself does not always conclusively determine the extent of a detained person's liberty. This very issue was canvassed by the Supreme Court in Penetanguishene and by my colleague Cronk J.A. in Penetanguishene Mental Health Centre v. Magee (2006), 2006 CanLII 16077 (ON CA), 80 O.R. (3d) 436, [2006] O.J. No. 1926 (C.A.). In some cases, a detained person may have access to more programs and amenities in a more as opposed to a less secure setting.

33In the present case, however, the hospital and the Crown do not appear to claim that McAnuff will have more access to programs and other amenities on the secure forensic unit. Dr. Ramshaw gave a different explanation for why McAnuff's detention on the secure unit would be less restrictive of his liberty.

So, based upon that, we -- he has been very restricted over the past, particularly six months, confined to the unit when he uses and then more -- only able to enjoy accompanied privileges because of his use with indirectly supervised privileges. So, it is our opinion that he is actually more restricted on a general forensic unit, which is very porous, and which clearly, there is a lot of substances, substance availability, at least to Mr. McAnuff somehow he manages to get those and it is for these reasons that we would recommend a secure unit. It would be less restricted, it would be less porous, it would be -- it would put the public at a decreased risk.

So, it is our opinion that he will not do better on the general forensic unit, given how he's done over the last couple of years and that he's doing worse, rather than better, unfortunately, and that it is quite likely that on a more secure unit, without opportunity, he would have a better chance to potentially gain some insight and recognize that substances have created difficulties for him and placed him at greater risk and so, it's for those reasons that we have made such recommendations at this juncture and with that, I will leave it open to questions. [page449]

34This passage seems to suggest that McAnuff will find it harder to obtain marijuana while on the secure unit, will therefore use it less often and will eventually gain better insight into his illness. Even accepting Dr. Ramshaw's opinion, it does not take into account that the necessary and appropriate disposition must have regard to the entire package of conditions to which McAnuff will be subjected.

35On the general unit, McAnuff could go on the hospital grounds and into the community unaccompanied by staff. He even had the potential of living in the community, and was on the waiting list for 24-hour supervised accommodation. All of these privileges have been taken away by the board's disposition. Neither the hospital nor the Crown contends that these privileges can be maintained if McAnuff is on the secure forensic unit. On the secure unit, McAnuff can go onto the hospital grounds or into the community only when accompanied by staff. And he no longer has even the possibility of living in the community. Thus, McAnuff's detention on the secure forensic unit is more restrictive of his liberty than his detention on the general forensic unit.

36Admittedly, his unaccompanied privileges on the general unit can be suspended, as they have been in the past, when he used marijuana while exercising them. But these privileges have also typically been reinstated and, under his previous conditions of detention, would still remain available to him. In the light of the differences in the privileges available to McAnuff on the general unit and the secure unit, the board ought at least to have addressed whether it viewed a transfer to the secure unit as more or less restrictive of McAnuff's liberty. It did not do so.

(b) The record does not show a link between McAnuff's marijuana use and a risk to public safety

37The only other basis on which the board's disposition can be supported is if the evidence shows a link between McAnuff's marijuana use and a risk to public safety, the paramount consideration under s. 672.54. The hospital and the Crown contend the evidence of Dr. Ramshaw and the hospital report establish this link. I do not accept the respondents' contention. The record demonstrates that while on the general unit, even though he continued to use marijuana, McAnuff posed no real risk to the safety of patients, staff or the public.

38Dr. Ramshaw did testify that she saw an increase in McAnuff's hostility, which in her view was linked to his marijuana use. [page450]

We do see a direct link between an increase in psychosis and the substance use and an increase in hostility and substance use.

39But Dr. Ramshaw conceded that Mr. McAnuff did not engage in any acts of violence or aggression.

Q. But there was no overt acts of violence or aggression?

A. No.

Q. And we can say the same in the September 2013 to July 2014 period as well. Page 17 at the bottom and Page 18 at the top. A whole year basically . . .

A. Yes.

Q. . . . without violence?

A. That is correct.

40Dr. Ramshaw also said that over the course of the year leading up to his August 2015 hearing, McAnuff became agitated from time to time. But she again acknowledged that his agitation stopped short of physical aggression.

Q. Okay. So, that's again, for a full year period and intermittent can mean a wide variety of things. Do you know how many times he was said to be agitated?

R. No. It could be quite frequent. I don't have the exact number of times. It's difficult to count because he can have different levels of agitation within one day, but it is intermittent because there are also periods when he is very pleasant, he appears to be in good spirits, he appears to be future oriented again, wants to gain stability, but then reverts to these, to the more decompensated mental state intermittently. So, again, I really don't have numbers, but it has been for a large part of the year. I'd say particularly in the last six months.

S. You couldn't say, though, he's, he's been agitated every day?

A. No, he has not.

Q. Not at all?

A. No.

Q. And, certainly, intermittent agitation is quite distinct from any, sort of, verbal or aggression or physical aggression?

A. He has not been physically aggressive.

41The hospital report states that in the year leading up to his August 2015 hearing, McAnuff's marijuana use increased and "he became increasingly psychotic over time with intermittent agitation associated with marijuana use".

42But the hospital report does not document any incident where McAnuff has been physically or even verbally aggressive on the general forensic unit. Despite his increased use of marijuana [page451] and the fluctuations in his mental state, he posed no risk to the safety of other patients or the staff. In her testimony before the board, Dr. Ramshaw did say: "It's my opinion that some of his behaviours potentially contribute to safety issues of patients on the ward because of the somehow encouraging, at least, the bringing in of more substances." But this opinion, without any evidence to support it, cannot justify McAnuff's detention on the secure forensic unit.

43In my opinion, the hospital and the board focused on McAnuff's treatment needs and on making it harder for him to obtain marijuana,² but failed to adequately consider that the restrictions on his liberty must be consistent with his level of risk to public safety: Winko, at para. 70; Saikaley (Re), [2011] O.J. No. 722, 2011 ONCA 136, at para. 7. The link between his marijuana use and public safety on which the respondents rely to support the board's disposition does not exist. Indeed, there has been no link for the entire time McAnuff has been at CAMH.

44The evidence on McAnuff's conduct before and after his detention on the general forensic unit at CAMH is telling. In the years leading up to his NCR finding and his detention, McAnuff could act violently towards others, even his own mother. Then, too, he used drugs, but he was not supervised and was not regularly taking the medication prescribed for him. At CAMH, he is in a structured, supervised environment and he takes his medication.³ Under these conditions of detention, he has not acted violently despite his continued use of marijuana.

45I conclude that the board's disposition is unreasonable. I would allow McAnuff's appeal and order that he be detained on the general forensic unit of CAMH on the conditions in the board's August 2014 disposition.

Appeal allowed.

[page452]

Notes

Footnotes

1. 1Except for a brief period of one and a half months in early 2013 when he was living in the community.
2. 2The hospital was unable to explain from where and how McAnuff obtained his marijuana.
3. 3On March 30, 2015, McAnuff was found incapable of consenting to anti-psychotic medication. The Public Guardian and Trustee is his substitute decision-maker.