Court of Appeal for Ontario

Date: 2020-02-26 Docket: C66678

Before: Simmons, Watt and Miller JJ.A.

In the Matter of: Sharon Atkinson

An Appeal Under Part XX.1 of the Code

Counsel: Mercedes Perez, for the appellant Sean Horgan, for the Attorney General of Ontario Michele Warner, for the Person in Charge of the Centre for Addiction and Mental Health

Heard: October 25, 2019

On appeal against the disposition of the Ontario Review Board, dated January 10, 2019.

Reasons for Decision

1On May 2, 2000 Sharon Atkinson (the appellant) was found not criminally responsible on account of mental disorder (NCRMD) on a single count of arson. She set her bed on fire and left the home in which she lived. No one was injured. The fire caused property damage of about $5,000.

2During the first decade of her supervision by the Ontario Review Board, the appellant was detained at CAMH. From the outset, she was found treatment incapable. Her mother has served and continues to serve as her substitute decision-maker (SDM).

3In early 2010, the appellant was discharged from CAMH to reside at Christian Horizons Group Home (CH), a locked facility with 24-hour supervision. To this day the appellant remains a resident of that facility.

The Background Facts

4For our purposes, the essential background may be recounted briefly.

The Pre-Board History

5The appellant's mental health issues became apparent in her behaviour as she progressed through elementary school. There were incidents of self-harm, theft and property damage. Her behaviour was impulsive. At times, she was physically and verbally abusive towards her parents. In school, the appellant had problems in all academic areas. She was at least two years below age expectation. Her impairments compromised her ability to assimilate non-verbal social cues and the other information needed for good social judgment.

6At age 15, the appellant was diagnosed with Prader-Willi syndrome. Behavioural problems associated with this syndrome include impulsivity, stubbornness and temper tantrums. Those afflicted are often manipulative, perseverative, egocentric and demanding. The appellant's behavioural problems escalated at age 16. She frequently ran away from her parents' home. Out of fear, her parents locked their bedroom door at night.

7In 1997, at age 17, the appellant was placed in a group home.

The CAMH Years

8After she was found NCRMD, the appellant was placed in a group home. Shortly after this placement, she stole a van, tried to leave the group home and crashed the van into a tree. She was then transferred to CAMH where she remained until her discharge to CH in 2010.

9In her early years at CAMH, the appellant was a management problem. She set fires. She harassed and stalked male co-patients. Her conduct was oppositional, her behaviour, sexually inappropriate. She was assaultive, abusive, manipulative and threatening with staff and co-patients.

The Discharge to Supervised Housing

10On January 12, 2010 the appellant was discharged from CAMH to reside at CH in Brampton. This is a secure residence with 24-hour supervision and 12 hours of daily programming.

The CH Residency

11In the early years at CH, behavioural problems persisted. Elopements, sometimes requiring police assistance. Physical altercations with staff and other patients. Overnight visits with her parents terminated prematurely because the appellant became unmanageable.

12As her tenure at CH continued, the appellant's conduct fluctuated between adherence to the behavioural plan put in place for her and disobedience of it. Aggressive and assaultive behaviour occurred, usually when the appellant felt that her needs had not been met. From time to time, the appellant expressed her desire for an absolute discharge. Her proposals included living with her family or moving elsewhere, perhaps to Ireland. None of these proposals were viable.

The Diagnosis and Risk Assessment

13To understand and evaluate the appellant's current and future risk, it is important to understand the condition or conditions that contribute to that risk.

14Although actuarial testing has not been carried out with respect to the appellant because it is considered inapplicable to her situation, her score on an instrument designed to assess the likelihood of violent recidivism disclosed that she is a moderate-high risk of violent recidivism. She scored full points for historical items like previous violence, personality disorder and prior supervision failure. Clinical items included impulsivity and risk items, plans lacking feasibility and exposure to destabilizers.

15Behavioural difficulties and emotional lability are characteristics of Prader-Willi syndrome. The appellant is stubborn, impulsive and prone to temper tantrums.

16The appellant suffers from a mild intellectual disability which makes it difficult for her to learn new skills, and access appropriate social judgment. She also suffers from certain maladaptive personality characteristics of the borderline, narcissistic and antisocial personality spectrum. She displays a pervasive pattern of having little regard for the rights of others and little empathy or remorse for her actions. In her interactions with others, she is self-serving and egocentric.

The Current Disposition

17The current disposition issued by the Board about 13 months ago is a conditional discharge including residency and reporting conditions.

The Grounds of Appeal

18The appellant seeks an absolute discharge, in the alternative, a new hearing before a differently constituted Board. She advances two grounds of appeal, contending that the Board erred:

i. in finding that the appellant was a significant threat to the safety of the public; and

ii. in finding the civil mechanisms available, together with an absolute discharge, inadequate to control the risk to public safety.

19In our view, this appeal fails.

Ground #1: The Significant Threat Finding

20The appellant challenges the Board's finding of “significant threat" as unreasonable and unsupported by the evidence. According to the appellant, the Board failed to focus on the fundamental issue – “significant threat" – instead rested their conclusion on their concern about the consequences of an absolute discharge. In the result, the Board failed to consider the core question of whether there was a serious likelihood that the appellant would commit an offence involving serious harm. The conclusion of “significant threat" was speculative, not the product of reasonable inference drawn from the evidence adduced before the Board.

21The appellant says that the evidence adduced, considered as a whole, cannot support a reasoned conclusion that the appellant remained a significant threat to the safety of the public almost 20 years after her index offence. In two decades, the appellant has not been involved in any assaultive behaviour resulting in serious physical or psychological harm. In the year under review, the appellant had made significant improvements clinically, in particular, in the areas of self-regulation and de-escalation. She has not been returned to a psychiatric facility since her discharge in 2010. Any problematic behaviour is associated with the Prader-Willi syndrome and did not reach the level of significant threat. She made no attempt to elope from her residence permanently.

22Satisfied that the finding of significant threat was within the range of reasonable outcomes available on the evidence adduced at the hearing, we reject this ground of appeal.

23In its assessment of whether the “significant threat" threshold had been established, the Board was entitled to examine a range of evidence. The circumstances of the index offence. The past and expected course of the appellant's treatment. The appellant's current condition and future plans. The availability of support services in the community. And, perhaps most importantly, the recommendations of those who have examined the appellant: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 1 S.C.R. 625, at paras. 57, 61, 69.

24In this case, the Board was considering a person who had a genetic condition – Prader-Willi syndrome – that will never change and causes her to be impulsive, stubborn and subject to emotional dysregulation. In addition, she suffers from a significant mental disorder – personality disorder not otherwise specified – and a mild intellectual disability that results in her functioning at the level of an elementary school child. Her personality disorder involves a pervasive pattern that includes little regard for the rights of others, little empathy or remorse for her conduct and a self-serving and egocentric approach to her interactions with others. She has a robust history of elopement and of violence, threats and inappropriate behaviour when her needs are not met.

25The Board also had evidence that the appellant was a moderate-high risk to recidivate. She has an extensive history of violence, albeit not severe violence, more likely than not to occur when her demands are not met immediately. Absent the significant support and supervision provided under her current disposition, the appellant would most likely revert quickly to inappropriate behaviour which would place not only herself, but also the community at risk.

26Beyond the fervent hope for an absolute discharge, the record before the Board reveals no realistic plan for the appellant were an absolute discharge ordered. Her tenure at CH would be over, so too its supervision and the administration of vital medication. Left to her own devices and unmedicated, recidivism would be likely to occur. Not only did the evidence before the Board satisfy the “significant threat" threshold, it put paid to any claim of an absolute discharge as a necessary and appropriate disposition.

Ground #2: The Sufficiency of Civil Mechanisms

27The appellant also argues that the Board misapprehended the sufficiency of civil mechanisms, available together with an absolute discharge, to reduce the risk of recidivism below the “significant threat" threshold. This error, the appellant says, is linked to the Board’s antecedent finding of substantial threat.

28In large measure, this argument fails once the Board's core finding of “significant threat" is sustained. For a finding of “significant threat” excludes any prospect of an absolute discharge under s. 672.54(a) of the Criminal Code. In any event, we are not persuaded that any such error appears in the reasons of the Board.

29The record before the Board is barren of any evidence that would give an air of reality to the submission that civil mechanisms available under provincial legislation, coupled with an absolute discharge, would reduce the risk of recidivism below the significant threat threshold.

30The appellant conceptualizes an absolute discharge as removing legal barriers to doing as she wishes to do. None of her plans for accommodation have any basis in reality. She made it clear by interjections at the hearing that she would not return to CAMH. She was not eligible for a Community Treatment Order. Even if she were to become eligible, her SDM, her mother, would not consent to such an order. Once out of CH, thus the supervision of the Board, the mechanisms available under provincial legislation would not assist in alleviating the risk.

Disposition

31The appeal is dismissed.