minicounsel

Date: December 19, 2019

Docket: C66987

Judges: Feldman, Tulloch and Jamal JJ.A.

An Appeal Under Part XX.1 of the Code

Counsel:

Jeffrey A. Marshman, for the appellant
Jeffrey Wyngaarden, for the respondent, the Attorney General of Ontario
Julie A. Zamprogna Balles, for the respondent, the Person in Charge for the Southwest Centre for Forensic Mental Health Care

Heard: December 5, 2019

On appeal against the disposition of the Ontario Review Board dated April 24, 2019.

Reasons for Decision

[1] Introduction

The appellant, Ms. Tara L. Moore, appeals from the order of the Ontario Review Board (the "Board") requiring Ms. Moore's continued detention at the Southwest Centre for Forensic Mental Health Care, St. Joseph's Health Care London (the "Southwest Centre" or the "hospital"), with community living privileges in accommodation approved by the person in charge.

[2] Grounds of Appeal

Ms. Moore contends that the Board erred by failing to consider several factors that she says justified granting her a conditional discharge as the least onerous and least restrictive disposition.

[3] Abandonment of Alternative Request

At the hearing of the appeal, Ms. Moore abandoned her alternative request that the court substitute the detention order with a direction that the Southwest Centre place her in transitional housing as soon as practicable.

[4] Disposition

For the reasons that follow, the appeal is dismissed. The Board's conclusion that a detention order remained necessary and appropriate as the least onerous and least restrictive disposition was reasonable and supported by the evidence.

Background

[5] The Index Offence and Criminal History

On April 19, 2016, Ms. Moore was found not criminally responsible on account of mental disorder ("NCR") on a charge of aggravated assault contrary to s. 268 of the Criminal Code, R.S.C. 1985, c. C-46. The index offence, which occurred on June 20, 2015, involved Ms. Moore stabbing her former boyfriend in the neck and shoulder with a large kitchen knife after she showed signs of paranoid behaviour. She has multiple prior criminal convictions, including for aggravated assault, assault of police, threats to cause bodily harm, forcible confinement, carrying a concealed weapon, theft, intoxication in a public place, mischief, and multiple failures to comply with conditions of undertakings and probation.

[6] Medical and Psychiatric History

Ms. Moore is 43 years of age. Her current psychiatric diagnoses are psychoaffective disorder, borderline personality disorder, and substance use disorder (in remission). She has been admitted to psychiatric hospitals several times for substance use disorder, overdoses, and suicidality. She was also recently diagnosed with severe pulmonary hypertension which, while treatable, is irreversible and life-threatening.

[7] Board Hearing and Disposition

At the hearing before the Board, Ms. Moore sought an absolute discharge and in the alternative asked to move to an apartment on the basis that she no longer poses a "significant threat to the safety of the public" pursuant to s. 672.54 of the Criminal Code. On May 2, 2019, the Board rejected this request and continued the order it first imposed on May 15, 2018 for Ms. Moore's detention at the Southwest Centre, with community living privileges in accommodation approved by the person in charge. To date, Ms. Moore has not been approved for community living.

Issue

[8] Sole Issue on Appeal

The sole issue on appeal is whether the Board erred in issuing a detention order with community living privileges, rather than a conditional discharge.

Analysis

(a) The Statutory Scheme

[9] Threshold Test for Discharge

The Board is tasked first with determining whether an NCR accused poses a "significant threat to the safety of the public": s. 672.54(a). If she does not, then the NCR accused must be discharged absolutely.

[10] Disposition Requirements

When the Board finds that this threshold is met, it is required to order that the NCR accused be discharged or detained in custody in a hospital, in either case subject to such conditions as it considers appropriate: ss. 672.54(b) and (c); R. v. Lamanna, 2009 ONCA 612, 252 O.A.C. 280, at para. 7. The Board is required to make a disposition that is "necessary and appropriate in the circumstances" (s. 672.54), which has been interpreted as meaning the "least onerous and least restrictive" disposition regarding the NCR accused's liberty interests that is consistent with public safety, and the NCR accused's mental condition, other needs, and eventual reintegration into society: Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326, at para. 19; Lamanna, at paras. 8-10.

(b) The Standard of Review

[11] Grounds for Setting Aside Board Decision

Section 672.78(1) of the Criminal Code provides that this court may set aside a decision of the Board when:

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.

[12] Appellant's Argument

Ms. Moore relies on s. 672.78(1)(a). She no longer contests the Board's finding that she remains "a significant threat to the safety of the public". Instead, she argues that the Board's disposition is "unreasonable or cannot be supported by the evidence", because the Board failed to consider several factors, considered in detail below, that she claims justified granting her a conditional discharge.

[13] Standard of Review: Reasonableness

In this case, by virtue of s. 672.78(1)(a), the standard of review of the Board's decision is reasonableness. This court accords a high level of deference to the Board on review pursuant to s. 672.78(1)(a) "in light of the nature of the inquiries before the Board, the familiarity of the Board with the statutory regime and the specific NCR accused persons before the Board, as well as the difficulty in assessing whether a given individual poses a 'significant threat' to public safety": Re Collins, 2018 ONCA 563, at para. 26.

[14] Reasonableness Review Standard

Under a review for reasonableness, the court reviews for "the existence of justification, transparency and intelligibility within the decision-making process" and as to whether "the decision falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law": R. v. Ferguson, 2010 ONCA 810, 271 O.A.C. 104, at para. 11, citing Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.

(c) The Board's Finding that the Appellant Remains a Significant Threat to the Safety of the Public

[15] Board's Reasoning

Ms. Moore no longer challenges the Board's finding that she poses a significant threat to the safety of the public. The Board made this finding for the following reasons:

Ms. Moore's diagnoses include schizoaffective disorder, borderline personality disorder, and substance use disorder (in remission in a controlled environment). Her behaviour is currently dysregulated.
She has a lengthy criminal record, including convictions for assaults, failing to appear in court, and failing to comply with other courts orders.
The index offence, which she continues to minimize, is a serious offence that could have resulted in the death or serious injury of her former boyfriend.
Medication for both her physical and mental illnesses must be adjusted. This must be done with close supervision by the treatment team in the hospital.
Ms. Moore has very poor insight into her mental illness, her need for rehabilitation, the index offence, and her need for medication. She is often non-compliant with her medications when she leaves hospital.
Although Ms. Moore has not used substances while in hospital, she would be vulnerable to relapse if living in the community because she has no community supports, other than the forensic outpatient team.

(d) The Board's Disposition of a Detention Order Remains Necessary and Appropriate

[16] Board's Reasoning for Detention Order

The Board also rejected Ms. Moore's request for a conditional discharge so that she could move to an apartment and concluded that, having regard to the paramount concern for the safety of the public, a detention order remained necessary and appropriate for the following reasons:

Ms. Moore remains symptomatic for both mental and physical illnesses. As a consequence, a detention order would permit the hospital to return Ms. Moore to hospital quickly should she be exercising community privileges and would give the hospital the authority to approve her residence in the community. A conditional discharge would therefore not be appropriate.
The Board supported the desire of Ms. Moore's attending psychiatrist, Dr. Roopchand, and Ms. Moore's treatment team to continue to develop and optimize a therapeutic relationship with her.
While Ms. Moore is not currently ready to transition to community living, and it is possible though not likely that this could occur over the next year, it is necessary and appropriate to maintain community living privileges subject to the approval of the person in charge because it addresses Ms. Moore's other needs, current mental status, and reintegration into society.

[17] Appellant's Claim on Appeal

On appeal, Ms. Moore claims that the Board's disposition was unreasonable because the record before the Board did not support a detention order as necessary and appropriate. She claims the Board failed to consider five factors that cumulatively suggested that a conditional discharge was available in the circumstances pursuant to s. 672.54.

[18] Court's Disagreement

We disagree. In our view, the Board did not fail to consider the five factors, and did not act unreasonably by rejecting a conditional discharge as the appropriate disposition at the time.

[19] Board's Consideration of Record

As a preliminary matter, it is evident that the Board considered the record as a whole. The Board's reasons reveal that the Board accepted the testimony of Dr. Roopchand and the comprehensive 121-page hospital report that supported continuing a detention order. The Board was not required to address the evidence in fine detail: Re Foote, 2019 ONCA 731, at para. 3.

[20] Relevant Considerations

Nor do any of the factors raised by Ms. Moore suggest that the Board ignored any relevant considerations.

[21] First Factor: Sobriety and Substance Abuse History

First, Ms. Moore asserts that the Board ignored the fact that her history of criminal conduct occurred while she was suffering from serious substance abuse and addiction and that she has been sober for the past three years.

[22] Court's Response to First Factor

We do not agree with this submission. The Board's reasons twice specifically recognized Ms. Moore's recent sobriety and acknowledged that "she never intends to use substances again", but also included the Board's finding that "[g]iven her history she is vulnerable to relapse should she be living in the community." This finding was based on Dr. Roopchand's expert testimony that "in a setting other than a hospital, where [Ms. Moore] is exposed to any kind of stressors, she will become vulnerable again."

[23] Second Factor: HCR-20 Actuarial Assessment

Second, Ms. Moore asserts that the Board erred in placing weight on an actuarial assessment, known as HCR-20, which indicated that Ms. Moore had a high risk to reoffend violently within the next 12 months, even on a detention order. Ms. Moore accepts that HCR-20 is "nominally predictive of the risk of violence", but asserts that it has limited value in assessing significant risk because it: (i) does not reflect the fact that violence tends to decrease with age; (ii) tends to exaggerate risk because it overemphasizes historical information; and (iii) cannot offer any insight into the seriousness or magnitude of any potential reoffending behaviour.

[24] Court's Response to Second Factor

We do not accept this submission. This court has acknowledged that actuarial assessments such as HCR-20 "are only capable of predicting the likelihood of future violence, and not its nature or magnitude": Re Woods, 2019 ONCA 87, at para. 16; see also Re Krivicic, 2018 ONCA 535, 362 C.C.C. (3d) 490, at para. 60. However, the court has also accepted that, in arriving at a disposition, the Board may consider such actuarial assessments, alongside the clinical risk assessment in a hospital report and the evidence of a treating physician: Re Woods, para. 16. That is exactly what the Board did here. The actuarial risk assessment was simply one factor that the Board weighed, alongside other evidence regarding Ms. Moore's mental health status, lack of community supports, and the opinions of her attending psychiatrist and treatment team.

[25] Third Factor: Negative Effects of Hospitalization

Third, Ms. Moore asserts that the Board failed to consider that being in a hospital has had a negative effect on her mental and emotional state and that even her treatment team acknowledged that her stressors would diminish in the community. She notes that she successfully resided on her own for many years and that her attitude and illusions improved when there was a real possibility of her being transferred into the community, but that she regressed when she lost that opportunity.

[26] Court's Response to Third Factor

We also reject this submission. The Board expressly considered the evidence regarding the impact of ongoing detention on Ms. Moore's emotional state. While Dr. Roopchand acknowledged that Ms. Moore's fear of being in hospital "might diminish to some degree" if she were "well supported in the community", the issue was that she was not eligible for the available community living programs and otherwise lacked the necessary community supports. The Board was well aware of Ms. Moore's need to have hope, as reflected in its decision to include a discretionary community living condition.

[27] Fourth Factor: Absence of Violent Behaviour and Physical Decline

Fourth, Ms. Moore asserts that she has not engaged in any violent behaviour while under the Board's jurisdiction, and that her physical functioning has been significantly reduced as a result of her declining physical health, reducing the threat she poses to public safety.

[28] Court's Response to Fourth Factor

However, the record reveals that Ms. Moore has recently engaged in threatening behaviour and both verbal and physical aggression, including threatening to punch Dr. Roopchand in the face. The record also reveals that Ms. Moore has made numerous comments to the effect that her former boyfriend was lucky that she did not injure him more seriously in the course of the index offence.

[29] Fifth Factor: Commitment to Treatment Compliance

Fifth, Ms. Moore asserts that the Board overlooked the fact that she has shown sincere commitment to continued compliance with her treatment.

[30] Court's Response to Fifth Factor

Again, we disagree that the Board overlooked Ms. Moore's commitment to treatment compliance. Although the Board acknowledged that Ms. Moore had cooperated to some extent with her ongoing treatment, it also noted Dr. Roopchand's evidence that Ms. Moore's insight regarding her mental illness "waxes and wanes". Dr. Roopchand testified that in her opinion Ms. Moore would not be able to continue treatment without ongoing monitoring. The Board also noted that Ms. Moore had refused to take her mood-stabilizing medication in January 2019. In our view, the Board was entitled to conclude that Ms. Moore had cooperated with her ongoing treatment because of the controls associated with being under the Board's supervision.

[31] Conclusion on Factors

We therefore conclude that the Board properly considered each of the items of evidence that Ms. Moore claims it overlooked.

[32] Reasonableness of Board's Conclusion

In the circumstances, we see no basis to impugn the reasonableness of the Board's conclusion that a detention order was necessary and appropriate. The crafting of the specific terms of a disposition is properly left to the Board's specialized knowledge and expertise in assessing the NCR accused's level of risk and how best to manage that risk: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, 175 D.L.R. (4th) 193, at paras. 59-61; Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528, at para. 22. Here, the Board's disposition fell within the range of reasonable options.

Disposition

[33] Appeal Dismissed

The appeal is dismissed.

[34] Closing Remarks

In closing, we wish to acknowledge Ms. Moore's understandable desire to be released from the hospital under conditions. It is hoped that, with ongoing treatment under the supervision of her attending psychiatrist and the treatment team, she will improve sufficiently that this may become a realistic prospect in the future.

K. Feldman J.A.

M. Tulloch J.A.

M. Jamal J.A.