Smith (Re), 2022 ONCA 286

Court of Appeal for Ontario

DATE: 20220411 DOCKET: C69775

Gillese, Brown and Coroza JJ.A.

IN THE MATTER OF: Jeffery Smith AN APPEAL UNDER PART XX.1 OF THE CODE

BETWEEN:

Jeffery Smith Appellant

and

Her Majesty the Queen Respondent

and

Person in Charge of St. Joseph’s Healthcare Hamilton Respondent

Counsel: Anita Szigeti and Maya Kotob, for the appellant Heather Fregeau, for the respondent, Her Majesty the Queen Julia Lefebvre, for the respondent, Person in Charge of St. Joseph’s Healthcare Hamilton

Heard: April 1, 2022 by video conference

On appeal from the disposition of the Ontario Review Board, dated July 26, 2021, with reasons dated August 6, 2021.

REASONS FOR DECISION

OVERVIEW

1On August 14, 2012, the appellant was found not criminally responsible (“NCR”) on account of mental disorder on two counts of assault and one count of uttering a threat to cause death or bodily harm. As a result, he came under the jurisdiction of the Ontario Review Board (the “Board”). After gradual release into the community, he was conditionally discharged in April 2018.

2This appeal arises from the appellant’s annual review board hearing on July 21, 2021 (the “Hearing”).

3At the Hearing, the appellant sought an absolute discharge. Dr. Prat, the appellant’s treating psychiatrist, opined that the appellant no longer posed a significant threat to the safety of the public and, therefore, was entitled to an absolute discharge. Dr. Chaimowitz, the head of the forensic psychiatry program at St. Joseph’s Healthcare Hamilton, took a different view. In his clinical opinion, the appellant continued to meet the test for significant threat.

4The Board found that the appellant continued to pose a significant threat to public safety. By disposition dated July 26, 2021, it ordered a continuation of the appellant’s conditional discharge (the “Disposition”).

5In this appeal, the appellant asks that the Disposition be quashed and an order substituted with an order that the appellant be absolutely discharged.

6For the reasons that follow, the appeal is dismissed.

BACKGROUND

7The appellant was found NCR in 2012 after assaulting his mother and then a neighbour who came to check on the family. He also threatened to kill the neighbour. At the time of this incident, the appellant was on a peace bond, stemming from a charge of assault and criminal harassment against his intimate partner. Several other violent but uncharged incidents also occurred before the index offences.

8The hospital report dated July 15, 2021 sets out the appellant’s current diagnoses: other specified schizophrenia spectrum and psychotic disorder; alcohol use disorder, currently in remission; and, unspecified personality disorder with strong features of paranoid personality disorder and narcissistic personality disorder (by history). The appellant has been taking an antipsychotic medication since 2016 and has been treatment compliant.

9The appellant has been found to be incapable of making his own treatment decisions. He did not challenge this finding at the Hearing (or otherwise).

10While conditionally discharged, the appellant has maintained employment, complied with his medication, and attended his medical appointments.

11On May 1, 2021, the appellant travelled to Huntsville, very near to where he had committed the index offences. While there, he was charged with stunt driving (the “Incident”).

12On May 19, 2021, his treatment team learned that the appellant had been in Huntsville and charged with stunt driving. When they asked the appellant about the Incident the following day, he said he had gone to Huntsville for a day on his own and spent the day driving around the town. He denied using substances and said he had not been within 1 km of his family cottage or the cottage of the other victims of his index offences, which would have been in breach of his disposition. He said the police claimed he had been driving 164 km/h on a highway, but he thought he was likely travelling at 140 km/h. According to the occurrence report, the appellant was driving at 165 km/h in a posted 100 km/h zone.

13After the Incident, the appellant's brother called the Crown Attorney assigned to his brother’s case. He told the Crown Attorney that, following the Incident, he picked up the appellant from the hotel in which he was staying in Huntsville and drove him back to Hamilton. He said that there was an empty bottle of vodka in his brother’s hotel room, his brother appeared mentally unstable, and he was worried about his brother’s driving habits.

14When the appellant later met with his treatment team, he admitted he had “not been entirely truthful” with them. He told them he had gone to Huntsville with his roommate and the pair stayed in a hotel there for two nights, in breach of a term of his disposition. He again denied using substances and claimed it was his roommate who had been consuming alcohol.

15At the Hearing, Dr. Prat stated his opinion that the appellant no longer constituted a significant threat to public safety. He questioned whether the diagnosis of a personality disorder continued to be valid and indicated that he did not believe the events of the Incident were attributable to symptoms of mental illness. Dr. Prat acknowledged that the appellant continued to display a lack of insight into his need for medication but noted that the appellant now says he will follow medical advice. Dr. Prat also acknowledged there was no therapeutic relationship between the appellant and the Schizophrenia Outpatient Clinic and that the appellant said his involvement in cognitive behavioural therapy would depend on his workload. Further, Dr. Prat noted that the appellant had not challenged his incapacity finding, and he still considers the appellant incapable of making his own treatment decisions.

16Dr. Chaimowitz also testified at the Hearing. Although he had not been directly involved in the appellant’s clinical care, based on the appellant’s health records and the hospital files, in his professional opinion, the appellant met the test for significant threat “to a medical certainty” and would meet that test even without considering the stunt driving Incident.

17In Dr. Chaimowitz’s opinion, absent Board supervision, the appellant would stop taking medication and revert to behaviour similar to that of the index offences. He explained that the appellant suffers from a serious mental disorder as well as a substance abuse disorder, and had frequently indicated that he is not mentally ill and does not need any antipsychotic medication. As well, the appellant has been found incapable of consenting to treatment, a determination which includes a finding that the appellant has an inability to appreciate the reasonably foreseeable consequences of a decision or lack of decision with respect to treatment. Dr. Chaimowitz stated that the appellant’s risk is “high” and well over the threshold finding required for a finding of significant risk. In Dr. Chaimowitz’s opinion, the Incident tends to support the appellant’s original diagnosis of a personality disorder.

18Dr. Chaimowitz also stated that he agreed with Dr. Sheridan’s clinical opinion of the appellant. Dr. Sheridan and Ms. Katrina Bouchard prepared a psychological risk assessment report of the appellant prior to his annual Board hearing in 2019 (the “2019 Report”). In the 2019 Report, the authors state that the appellant represents a high risk of reoffence, well over the threshold finding required for a finding of significant risk. Because the appellant had refused to participate in the assessment that underlay the 2019 Report, the authors’ opinion was formed based on the appellant's health records. In a further report dated February 25, 2021, Dr. Sheridan updated the 2019 Report. He noted that in the prior year, the appellant had enjoyed a period of stability, in large part because of the monitoring and support of the Forensic Outpatient Program (“FOP”). He affirmed that the appellant’s long-term risk for future violence is high, absent the oversight of the ORB and support of the FOB or other intensive case management program. Dr. Sheridan said that, given his limited insight, the appellant would likely discontinue psychiatric follow-up, become nonadherent to medication, and/or resume regular substance use if granted an absolute discharge. In such a scenario, the appellant would experience a significant deterioration in his mental status and the recurrence of his psychotic symptoms. Ultimately, the coalescence of risk factors might prompt the appellant to act out violently, as he did at the time of the index offences, with the potential victims likely to be those closest to him, including family members.

ANALYSIS

19The sole issue on this appeal is whether the Board erred in finding that the appellant is a significant threat to public safety (the “Board finding”).

20We remind ourselves of the standard of review applicable to the Board finding. Section 672.78(1) of the Criminal Code, R.S.C. 1985, c. C-46 provides that an appeal against disposition may be allowed only where the court is of the opinion that:

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.

21Guidance on the application of that provision by a reviewing court is found at paras. 29-37 of R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779. In those paragraphs, the Supreme Court begins by observing that to make the difficult assessments of mental disorders and attendant safety risks, the Board is provided with expert membership and broad inquisitorial powers: at para. 29. The assessment of whether an NCR individual’s mental condition renders him or her a significant threat to public safety calls for significant expertise: at para. 30. The Board’s medical expertise, specialized knowledge, and advantage in observing witnesses, commands deference: at para. 37. A Board decision on significant threat is reviewed on a reasonableness standard; such a decision is unreasonable if not “supported by reasons that can bear even a somewhat probing examination”: at paras. 33, 37.

22Our examination of the Board’s reasons leads us to conclude that there is no basis on which to interfere with the Board finding of significant threat. That finding is reasonable based on:

• The Board’s acceptance of Dr. Chaimowitz’s clinical opinion that absent Board oversight, the appellant would likely fall away from treatment and experience psychotic symptoms like those he experienced at the time of the index offences;
• The risk assessment report and the assessor’s opinion that the appellant’s risk for future violence remains high, without Board oversight;
• The appellant’s treatment hesitancy and family concerns that the appellant might not remain treatment compliant. Although the appellant has recently indicated he would follow medical advice, his treatment adherence has been entirely externally motivated, and he has historically denied his mental illness and need for medication;
• The appellant’s incapacity to consent to treatment, which entails a finding of an inability to appreciate the reasonably foreseeable consequences of treatment decisions;
• The lack of an established therapeutic relationship between the appellant and the Schizophrenia Outpatient Clinic;
• The appellant’s significant history of psychosis, including delusions and paranoia, which has led him to act out and cause significant harm to members of his family and others;
• The appellant’s history of being able to appear “normal” despite his experiencing psychotic symptoms;
• The Board’s acceptance of Dr. Chaimowitz’s opinion that the stunt driving Incident supports the appellant’s personality disorder diagnosis; and
• The appellant’s dishonesty regarding the Incident.

23We conclude on this matter by addressing two points pressed by the appellant.

24First, the appellant stressed the significance of Dr. Prat’s opinion, as his treating psychiatrist, that he no longer poses a significant threat to public safety. We appreciate the significance of that evidence. However, it was for the Board to decide which of the clinical opinions it would accept: that of Dr. Prat or of Dr. Chaimowitz. Its reasoned acceptance of Dr. Chaimowitz’s evidence fell squarely within its expertise and was amply supported by the evidence. It is entitled to deference by this court.

25Second, the appellant contended that the Board erred in law in finding that the civil mental health system was inadequate to manage any risk that he might pose if granted an absolute discharge. This contention rests on the words in the second sentence of para. 61 of the Board’s reasons that a “higher threshold” is required for continued hospitalization under the Mental Health Act, R.S.O. 1990, c. M.7. Assuming that those words are incorrect, it does not derogate from the Board’s overall finding that the civil mental health system could not adequately manage the appellant’s risk on an absolute discharge should he discontinue treatment and decompensate. The Board finding on this matter is reasonable, given its findings that: at the time of the Hearing, the appellant had not yet established a therapeutic relationship with the Schizophrenia Outpatient Clinic, participation in which is voluntary in any event; while the appellant benefits from strong family support, his family had expressed concern about the possibility of an absolute discharge and their reluctance to rely on a Form 2 to return him to hospital; the appellant’s decompensation when unmedicated would likely be gradual, making it more difficult to detect; and, his history of appearing “normal” while experiencing the symptoms of psychosis.

DISPOSITION

26Accordingly, the appeal is dismissed.