Court of Appeal for Ontario

Date: 2019-12-11 Docket: C66819

Justices: Lauwers, van Rensburg and Hourigan JJ.A.

In the Matter of: Angela Campbell

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• Meaghan McMahon, for the appellant
• Amy Alyea, for the respondent, the Attorney General of Ontario
• Marie-Pierre T. Pilon, for the respondent, the Person-in-Charge for the Royal Ottawa Mental Health Centre

Heard: November 8, 2019

On appeal from: the disposition of the Ontario Review Board, dated November 15, 2018, with reasons dated December 10, 2018.

Reasons for Decision

Background and Procedural History

1The appellant, Angela Campbell, appeals the disposition of the Ontario Review Board, dated November 15, 2018. Ms. Campbell says that, in concluding that she continues to pose a significant threat to the safety of the public, and thus refusing an absolute discharge, the Board reached an unreasonable decision, and made improper use of two unproven allegations against her.

2Ms. Campbell was found not criminally responsible on account of mental disorder (NCR) in June 2004 as a result of an offence on March 3, 2004. She was 20 years old at the time. The index offence involved the theft of a motor vehicle and assault on police officers that occurred after she was taken into custody. Ms. Campbell had a history of mental illness, having been first diagnosed with schizoaffective disorder, alcohol abuse disorder and conduct disorder at age 18.

3After her NCR verdict, Ms. Campbell was initially detained at the Brockville Psychiatric Hospital. There were a number of unsuccessful attempts to place her in the community in 2006 and 2007. In 2014, after ten years in Brockville, she was transferred to the Royal Ottawa Hospital (the "Hospital"). In November 2017, Ms. Campbell was discharged with conditions to a group home in Ottawa. After an incident at the group home, she was readmitted to the Hospital in February 2018.

Board Proceedings

4The Board convened in March 2018 for a restriction of liberties hearing. On that occasion, Ms. Campbell's treating psychiatrist, Dr. Joel Watts, raised the issue of whether she continued to represent a significant threat to the safety of the public. The Board determined that it did not have enough information to hold an early hearing on the issue of significant threat and adjourned the matter to August 24, 2018.

5Following the March 2018 hearing, Ms. Campbell was discharged back to the group home. On May 29, 2018, she had a verbal altercation with a co-resident of the home who reported that Ms. Campbell had threatened to kill him, and he felt unsafe (the "May 29 incident"). She was also reported to have been verbally and physically aggressive with staff and other co-residents.

6At the hearing on August 24, 2018, Dr. Watts again expressed the opinion that Ms. Campbell, although not complying with the conditions of her disposition (she was using substances and was no longer taking her mood stabilizer and one of her two anti-psychotic drugs), did not show evidence of behaviour that meets the threshold of significant threat. Dr. Watts had not confirmed whether Ms. Campbell would continue her injectable anti-psychotic medication if she received an absolute discharge. The Crown had filed the 2014 and 2015 Hospital reports and sought to call other evidence. The hearing was adjourned to November 13, 2018.

7On October 23, 2018, Ms. Campbell was dropped off at the group home by police who did not explain why. After showing bizarre and disruptive behaviour, Ms. Campbell was persuaded by a staff member to attend the Hospital where she was admitted. In the interim, it was determined that Ms. Campbell had been charged with assault after she allegedly kicked and spat on a fellow passenger on an OC Transpo bus on October 23rd (the "OC Transpo incident").

8At the November 13, 2018 hearing (which was both an annual review and a restriction of liberties hearing), Dr. Watts advised that the Hospital's position had changed. He and the treatment team now took the position that Ms. Campbell was a significant threat to the safety of the public and that she should be maintained on her current disposition order (which required her detention at the Secure Forensic Unit of the Hospital, with privileges up to and including to live within the community in accommodation approved by the person-in-charge).

9The Board concluded that Ms. Campbell continued to represent a significant threat to the safety of the public. The Board also concluded that Ms. Campbell's return to the Hospital was necessary, appropriate and justified. The Board confirmed the continuation of her current disposition as the least onerous and least restrictive in the circumstances.

Evidence Before the Board

10At the November 2018 hearing, the Board had additional evidence with respect to the May 29 incident. It had summonsed Emily Armstrong, an employee of the group home to give evidence at the hearing, and had notes from the group home. With respect to the OC Transpo incident, the Board had the Crown brief, the police summary, and a victim statement.

11The Board also had evidence about Ms. Campbell's behaviour after the August 2018 hearing, including the events precipitating her readmission to the Hospital and her conduct while in the Hospital, both before and after her readmission. This information was detailed in an updated Hospital report and set out in the evidence of Dr. Watts. Ms. Campbell did not testify at the hearing, although she interjected comments at various times.

12In concluding that Ms. Campbell continued to represent a significant threat to the safety of the public, the Board noted that until this particular hearing, the panel had struggled with trying to assess the degree of risk that Ms. Campbell presented. This was due to the lack of detailed descriptions in the Hospital reports and in viva voce evidence of the physical and verbal aggression attributed to her over the years in the Hospital. It was difficult to ascertain from the Hospital records whether Ms. Campbell's conduct went beyond what was only trivial or annoying or whether there was a risk of serious physical or psychological harm.

Board's Analysis of the May 29 Incident

13The Board turned to the information about the May 29 incident that was recorded by the group home residential worker, Ms. Armstrong. The notes set out details of threats that Ms. Campbell made to Ms. Armstrong and two co-residents, and that one co-resident called the police. Ms. Armstrong testified that Ms. Campbell said nothing had happened. Although Ms. Armstrong had not heard the threats to the other residents, she had spoken to them and was aware that one co-resident feared for his safety. She acknowledged that Ms. Campbell was not physical towards her, but had made a kicking motion to warn her not to come too close.

14The Board noted that Ms. Campbell's reported conduct in threatening to kill a co-resident could have resulted in criminal charges, but because of her disposition, it was likely the case that the police had left it to Ms. Campbell's hospital worker to determine what steps should be taken. The Board concluded that the circumstances involving a threat to a fellow resident and his fear for his safety provided evidence of the threat of serious psychological harm by Ms. Campbell.

Board's Analysis of the OC Transpo Incident

15The Board also considered the OC Transpo incident and relied on the Crown brief. The Board noted that, on her readmission to the Hospital on October 24th, Ms. Campbell reported that she had "accidentally hit a Chinese girl with her foot" and had been arrested. The evidence in the Crown brief was largely unchallenged. After acknowledging that the charges were still before the court (they have since been resolved with Ms. Campbell entering into a peace bond), the Board concluded on a balance of probabilities that the assaultive event on the OC Transpo bus occurred. It took this into consideration in determining that Ms. Campbell's conduct met the significant threat threshold. Further, the Board noted that the OC Transpo incident should be viewed in the context of certain bizarre text messages Ms. Campbell sent around October 22, 2018, the conduct precipitating and following her readmission to the Hospital, and Dr. Watts' opinion that there had been an escalation of Ms. Campbell's manic behaviour consistent with hypomania associated with schizoaffective disorder.

Court of Appeal Decision

The Appellant's Arguments

16On appeal, counsel argues that the Board's determination that Ms. Campbell continues to pose a significant threat is unreasonable and that, in arriving at its conclusion on significant threat, the Board improperly relied on unproven allegations with respect to the May 29 incident and the OC Transpo incident. In particular, Ms. Campbell submits that the Board ought not to have given the weight that it did to the May 29 incident or the OC Transpo incident because the information it had was hearsay. Ms. Campbell had denied the OC Transpo incident and the charges had not been resolved.

17We disagree.

The Correct Legal Test

18The Board identified and applied the correct test for whether Ms. Campbell continued to pose a significant threat: there must be a real risk of physical or psychological harm from conduct that is criminal in nature and must go beyond what is only trivial or annoying: See Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 57.

Hearsay Evidence in Board Proceedings

19The Board acknowledged that there had been doubt on this question before, and it ensured that it had all of the necessary information to be able to make a fully informed decision on this important question. Contrary to the appellant's submission, the Board was entitled to consider the two incidents that resulted in the police being called, notwithstanding that both incidents involved hearsay evidence.

20It is settled law that the Board is entitled to receive hearsay evidence, in part because its proceedings are more inquisitorial than adversarial: Re Conway, 2016 ONCA 918, 135 W.C.B. (2d) 147, at para. 31. Information from a police occurrence report is a form of hearsay evidence and may be received and considered by the Board. Indeed"[i]nformation about prior behaviour that led to police involvement can be useful in assessing whether an accused poses a significant threat to the safety of the public and in determining the appropriate disposition": Re Ranieri, 2015 ONCA 444, 336 O.A.C. 88, at para. 17.

21Of course"some hearsay evidence will require greater scrutiny before the Board can accept it": Re Conway, at para. 31. It is for the Board to evaluate the hearsay evidence while being aware of the dangers inherent in evidence of this type: Re Ranieri, at para. 16. The Board must evaluate the evidence "having regard to such matters as its source and context, and any contradictory information, including any account or explanation provided by the accused": Re Ranieri, at para. 17.

Board's Proper Scrutiny of the Evidence

22Contrary to the submissions made on Ms. Campbell's behalf, the Board did not accept the May 29 incident and OC Transpo incident without the proper level of scrutiny. With respect to the threat to kill a co-resident, the co-resident had called the police. There was a note that the group home employee and police officer, together with the group home owner, determined that Ms. Campbell, while a threat, should stay at the group home for the night. This was a better alternative than taking her to a shelter because she had a history of substance abuse and that environment might lead her to use again. While Ms. Armstrong had not witnessed the threats, she testified that the co-resident felt unsafe, remained uncomfortable, and was persuaded by staff to tolerate Ms. Campbell's presence in the home that night. Moreover, Ms. Armstrong had witnessed similar threats in the past.

23As for the OC Transpo incident which led to an assault charge, the Board noted that Ms. Campbell's explanation was that she had hit the victim accidentally. The Board concluded on a balance of probabilities that the assaultive event on the OC Transpo bus had occurred. Although Ms. Campbell had not been convicted of an offence, and the charges had not been resolved at the time of the hearing, it was appropriate for the Board to consider the evidence that was available to it concerning the OC Transpo incident. The issue for the Board was not to determine whether she was guilty of an offence, but to consider her conduct on that occasion as part of its evaluation of whether she continued to pose a significant threat to public safety: see Re Ranieri, at paras. 16-18.

24Moreover, as noted above, the Board did not rely on the OC Transpo incident in isolation. The Board considered this in the context of Ms. Campbell's bizarre text messages around October 22, 2018, her presentation at the group home preceding this event, and her behaviour after she was readmitted to the Hospital—threatening to spit at staff, kick a staff member, and strike an orderly with a baseball bat. On one occasion, she required four-point restraints.

Conclusion

25We see no error here. The Board was required to consider all the evidence that was available to make an informed determination about whether Ms. Campbell continued to pose a significant threat of harm to the safety of the public. The Board approached its task carefully, as is demonstrated by the repeated adjournments to obtain more information. It considered the two reports that were based on hearsay and concluded reasonably that the incidents had occurred. When these incidents were considered in the context of Ms. Campbell's history and recent behaviour, it was reasonable for the Board to accept Dr. Watts' opinion and to find that Ms. Campbell continued to pose a significant risk.

26The appeal is therefore dismissed.