Pickering (Re), 2022 ONCA 26

Court of Appeal for Ontario

Date: 2022-01-18 Docket: C69472

Before: Paciocco, Nordheimer and Sossin JJ.A.

In the Matter of: Sarah Pickering

An Appeal Under Part XX.1 of the Code

Counsel: Jeff Marshman, for the appellant Nicholas Hay, for the respondent, Attorney General of Ontario Gavin S. MacKenzie, for the respondent, Ontario Shores Centre for Mental Health Sciences

Heard: January 12, 2022 by video conference

On appeal from the disposition of the Ontario Review Board, dated March 4, 2021 with reasons dated March 31, 2021.

Reasons for Decision

Overview

1Ms. Pickering appeals from the disposition of the Ontario Review Board that continued the detention order against her. The appellant submits that the Board erred in not awarding an absolute discharge. In the alternative, the appellant submits that the Board erred in not awarding her a conditional discharge. In the further alternative, the appellant asks for a new hearing. For the following reasons, the appeal is dismissed.

Background

2The appellant has been under the jurisdiction of the Board since February 2020 when she was found not criminally responsible (“NCR”) with respect to offences of assault with a weapon and possession of a weapon dangerous to the public peace.

Analysis

3At this most recent review, the Board found that the appellant continues to pose a significant threat to the safety of the public. The appellant challenges that conclusion. However, in our view, there was a sufficient evidentiary basis for it. The evidence establishes that the appellant suffers from a schizophrenic illness which requires medication to control it. Unfortunately, the appellant does not yet fully accept that she has such an illness. This lack of acceptance poses a concern regarding the appellant’s willingness to continue medication for her illness absent supervision. Without that medication, the appellant is likely to decompensate quickly and become a danger to others. We note, on this point, that the appellant is currently unable to consent to treatment on her own. Rather, her aunt operates as her substitute decision maker for such purposes.

4There is also a concern that, without proper supervision, the appellant will commence using substances, such as drugs and alcohol, that will accelerate the decompensation of her mental state. It was the use of such substances that contributed to the conduct underlying the index offences. There is also evidence that the appellant continues to harbour some level of persecutory delusions regarding her parents, who were the subjects of the assaults that led to the appellant’s convictions. Her lack of insight into her condition greatly increases the risk that she poses if she does not maintain her medication.

5In our view, many of the submissions made on behalf of the appellant fail to recognize that her progress, which she relies upon as indicative of her potential conduct if she is in the community, occurred while she was under the direct supervision and control of the hospital. The appellant has not, as yet, had the experience of living in the community in a controlled setting that could be used as an introduction to assessing how she will cope under indirect supervision. Along with her underdeveloped insight into her mental illness, the risks associated with substance abuse, and what may well be the continued delusions she maintains relating to her parents, the absence of a record of success in the community materially weakens her challenge to the reasonableness of the Board’s decision.

6These considerations also undercut the appellant’s request for a conditional discharge. Among other things, there is no evidence as to where the appellant would reside if she was permitted to live in the community that would have the requisite control and supervision. For example, it is not clear that she could return to her parent’s home, given that they were the victims of the original offences, notwithstanding that they continue to support her.

7The Board appreciated the steps that the appellant has taken to address her illness and we would commend her on the progress she has made. However, the Board agreed with the psychiatrist that, at the time the disposition now under review was made, it was premature to permit the appellant unsupervised and unrestrained access to the community. The appellant has failed to establish that the decision of the Board in this regard is an unreasonable one. We note, on this point, that the detention order granted provides for the appellant to enjoy privileges as recommended by the hospital.

8We also note that the next annual review for the appellant is in February. The Board will have that opportunity to further evaluate the progress of the appellant and the continuing need for a detention order. The Board will also be in a better position to decide, if the opportunity for community living is appropriate at that point, what the best terms and conditions are to permit that step to be taken while ensuring the safety of the public.

9In the end result, the Board’s conclusion was a reasonable one based on the evidence. It is entitled to deference from this court.

Disposition

10The appeal is dismissed.