Court of Appeal for Ontario
Date: November 27, 2019 Docket: C66790 Judges: Feldman, Gillese and Miller JJ.A.
In the Matter of: Constance Plytas
An Appeal Under Part XX.1 of the Code
Counsel:
- Anita Szigeti, for the appellant
- Natalya Odorico, for the respondent
Heard: November 22, 2019
On appeal against the disposition of the Ontario Review Board dated January 24, 2019.
Reasons for Decision
Background
[1] The appellant was found not criminally responsible on charges of dangerous operation of a motor vehicle, mischief not exceeding five thousand dollars, threatening death, and assault with a weapon. Following her fourth annual review hearing, the ORB found that she continued to constitute a significant threat to the safety of the public and ordered her continued detention in the general forensic unit of the St. Joseph's Healthcare Hamilton, with privileges that include indirectly supervised community living (the "Disposition").
[2] The appellant challenges the Disposition on the basis that the Board erred in its articulation and application of the significant risk test, and unreasonably continued her detention. She seeks an absolute discharge or, alternatively, a conditional discharge.
[3] For the reasons that follow, the appeal is dismissed.
The Finding of Significant Risk to Public Safety
No Error in the Legal Test Used by the Board
[4] The appellant points to the last two sentences in paragraph 46 of the Board's Reasons for Disposition (Reasons), to support her contention that the Board used the wrong test in finding that the appellant continues to pose a significant risk to public safety. The impugned sentences read as follows:
[46] … The Board accepts that without close supervision that Ms. Plytas would likely become noncompliant with prescribed medication and follow-up by the team as was the case in May, 2017. This could lead to a decompensation and re-emergence of behaviours similar to that of the index offence[s].
[5] This court criticized similar language in R. v. Sheikh 2019 ONCA 692, at para. 38. At para. 10 of Sheikh, the court notes that the test is not whether the appellant's behavior could lead to decompensation and therefore the risk of serious harm but whether there is evidence to support a positive finding that there is a significant threat to public safety.
[6] While the Board uses the word "could" in the impugned sentences, on a full reading of the Reasons, it is clear that the Board applied the correct test in finding that the appellant continues to pose a significant risk to public safety. Its finding was not speculative. Rather, as the discussion below of the application of the test shows, its finding of significant risk to public safety is fully supported by the evidence.
No Error in Application of the Test
[7] In terms of the Board's application of the test, the appellant says it committed three errors.
[8] First, the appellant says that non-compliance with medication is no longer an active risk factor for her and the Board erred in its use of her historical non-compliance when making its determination of significant risk.
[9] We do not agree. The Board explicitly recognized that, at the time of the hearing, the appellant was generally compliant with her oral antipsychotic and mood stabilizing medications. However, it was entitled to consider her lengthy history of medication non-compliance when concluding that, without close supervision, the appellant was likely to become noncompliant. Dr. Naidoo, the appellant's attending psychiatrist, testified that medication non-compliance is a core risk factor for future violence.
[10] Second, the appellant contends that her continued cannabis use, despite knowing that the conditions of her Disposition prohibit it, is insufficient to establish significant risk. She says that the concern about a link between the type of psychosis from which she suffers and cannabis use is only theoretical. Thus, the Board erred in relying on her cannabis use in making its finding of significant risk.
[11] The appellant's continued cannabis use in breach of the conditions of her Disposition is but one of several active risk factors on which the Board relied. The Board viewed her continued cannabis use, along with the aggressive incidents involving co-patients (discussed below), as indicative of poor impulse control and judgment. It was entitled to accept Dr. Naidoo's evidence that he anticipated that continued cannabis use would lead to destabilization, increased disinhibition, and an increase in aggressive behaviours.
[12] Third, the appellant submits that her three altercations with co-patients over the past reporting year cannot reasonably be found to demonstrate that she poses a significant risk of harm in the community.
[13] The appellant engaged in numerous behavioural incidents in the year leading up to this annual hearing, including the three incidents of aggression that the Board singled out in its Reasons. The Board did not ignore the possibility that the incidents were in response to actual or perceived inappropriate comments or behaviours: it specifically acknowledged that. Rather, it found the appellant's choice to resort to violence when confronted with perceived or actual threats was relevant to her likelihood of reoffending, if released unconditionally, because they showed ongoing mood lability and impulsivity.
Reasonableness of the Continued Detention Order
[14] The appellant makes a number of arguments in support of her claim that the Board failed to meaningfully consider conditional discharge when determining the least onerous least restrictive disposition necessary to address her risk to public safety. Consequently, she says, the Board unreasonably continued her detention.
[15] In oral argument, the appellant contended that the Reasons show that the Board required that she have a substantial period of stability in the community as a prerequisite for a conditional discharge. She relies on paragraph 52 of the Reasons for this submission. Paragraph 52 reads as follows:
- We note that [the appellant] has not yet progressed under her existing Detention Order to the point of exercising the full range of privileges offered thereunder. While all remain hopeful that [the appellant] will progress to community reintegration in the near future, this has not yet occurred. In this panel's assessment, a period of community living would be warranted before cascading [the appellant] to a less restrictive Conditional Discharge.
[16] We do not read the impugned passage as requiring a substantial period of stable community living as a prerequisite to the granting of a conditional discharge. Rather, it reflects the appellant's unique circumstances, where instability is an active risk factor. Dr. Naidoo's evidence was that the appellant was not ready to be released into the community because her risk to the public was not yet suitably managed through medication and her baseline symptoms were too severe for her to safely function in the community. The appellant's last period of living in the community, pursuant to the then-operative Detention Order, ended with the hospital requiring the police to escort the appellant to hospital after she missed several scheduled appointments and avoided contact with the outpatient treatment team. The Disposition includes orders for community living privileges that give the hospital wide latitude to re-integrate the appellant into the community once it sees that, while adequately medicated and in the absence of destabilizing factors, the appellant can behave in a non-aggressive manner in response to perceived persecution.
[17] The appellant also argued that the Board unreasonably required the hospital to have the power to rapidly readmit the appellant in the event of decompensation. On the record, given the fragile nature of her illness, this conclusion is amply supported.
[18] In her factum, the appellant also complains that the Board failed to consider the appropriateness of a Community Treatment Order (CTO) to address medication compliance issues. However, the appellant did not request a CTO as an alternative to a Board disposition and led no evidence in support of it. In any event, medication non-compliance was only one of several active risk factors the Board relied on in concluding that the appellant met the significant risk test. Even if this issue could be adequately dealt with by a CTO, the other risk factors remain.
[19] In her factum, the appellant also complains that the Board failed to inquire into the possibility of a "Young" clause. The fact that this matter was not raised before the Board is a full answer to this complaint.
Disposition
[20] Accordingly, the appeal is dismissed.
K. Feldman J.A. E.E. Gillese J.A. B.W. Miller J.A.