Johnson (Re), 2022 ONCA 660

COURT OF APPEAL FOR ONTARIO DATE: 20220923 DOCKET: C70220

Feldman, Zarnett and Copeland JJ.A.

IN THE MATTER OF: Juliet Johnson

AN APPEAL UNDER PART XX.1 OF THE CODE

Anita Szigeti, for the appellant Juliet Johnson Baaba Forson, for the respondent His Majesty the King Leisha Senko, for the respondent Person in Charge of Centre for Addiction and Mental Health

Heard: September 9, 2022

On appeal from the disposition of the Ontario Review Board, dated November 18, 2021, with reasons dated December 10, 2021.

REASONS FOR DECISION

Introduction

1In 2009, the appellant was charged with assault with a weapon and uttering a threat to cause bodily harm. The charges arose from an attack on a fellow resident of a women’s shelter. The appellant was found not criminally responsible for those offences on March 1, 2010. She has been under the jurisdiction of the Ontario Review Board (“the Board”) since that time.

2By the disposition under appeal, the Board ordered that the appellant be detained at the Forensic Service of the Centre for Addiction and Mental Health (“CAMH”). The Board’s detention order allows the appellant to live in the community, within a 50 kilometre radius of CAMH, in “supervised accommodation approved by the person in charge.” This disposition mirrored that made by the Board the previous year.

3The appellant submits that the Board erred in finding that she continued to pose a significant threat to the safety of the public, which is a precondition to a detention order. She argues that the Board ought to have granted an absolute discharge.

4In the alternative, the appellant submits that even if the Board’s finding of significant threat survives appellate scrutiny, the Board erred in not granting a conditional discharge as the least onerous and least restrictive disposition. In the further alternative, she asks the court to return the matter to the Board for a new hearing before a differently constituted panel.

5For the reasons that follow, we dismiss the appeal.

The Board Did Not Err in Granting a Detention Order Instead of an Absolute Discharge

6The appellant submits that the Board’s finding of a significant threat to the safety of the public was unreasonable, and therefore an absolute discharge should have been granted. We disagree. In our view, the finding of significant threat was based on an “internally coherent and rational chain of analysis… that is justified in relation to the facts and law”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 85.

7The appellant has a history of violent and threatening behaviour. In the five years before the index offence, she had been convicted of four counts of assault, including assault causing bodily harm, as well as failure to comply offences. The index offences involved an unprovoked attack by the appellant on a co-resident of a women’s shelter, during which she stabbed the victim on her left cheek below the eye, and threatened the victim with further bodily harm.

8Although the appellant relies on her progress since she came under the jurisdiction of the Board, the Board accepted the hospital report of CAMH and the evidence of Dr. Eid, the appellant’s treating psychiatrist. The Board found that the appellant continues to suffer from a major mental illness − treatment resistant schizophrenia − and although the appellant’s “current medications have attenuated her symptoms and facilitated an extended period of relative stability in the community,” she “continues to exhibit ongoing psychotic symptoms, and remains at a chronically elevated risk of psychologically motivated and impulsive behaviour.” On the basis of the evidence the Board found that, to manage the risk to the public, it was essential that the appellant continue to take antipsychotic medication, and reside in a highly structured living environment with treatment, medications, monitoring for abstinence from substances, and enhanced supervision, as recommended by her treatment team. However, the Board found that the appellant lacks insight into her illness, the offences she committed, and the importance of medication and close supervision. Instead, a review of her time under the Board’s jurisdiction revealed “a continuous and unchanging desire on her part to cease taking medications, and to be free and clear of the overview of the [Board], and to live independently.”

9The Board concluded that the evidence established that:

[Were the appellant] to cease taking her antipsychotic medications, even to the extent of one or two missed doses, by reason of the very brittle, treatment resistant nature of her illness, the result would cause rapid decompensation of her mental health, and re-emergence of behaviours similar to that which occurred at the time of the index offence, and other acts of violence and aggression referred to in the evidence….

10The Board’s findings were not simply that a detention order would be in the appellant’s best interests, or that without one, there would be a risk of decompensation alone. Rather, the Board identified both the significant risk that the appellant would, if granted an absolute discharge, cease taking her medication as required, and the significant risk to the safety of the public in the form of violence and aggressive behaviour that would follow. The preconditions to a detention order were met: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at paras. 57, 62.

The Board Did Not Err in Refusing to Grant a Conditional Discharge

11The Board gave a number of reasons why the detention order it made was what was required for public safety. It stressed the need for CAMH to be able to approve where the appellant would reside, as that was necessary to ensure her medication and other needs were supervised, and that return to CAMH could be effected efficiently, if necessary:

The Board finds that a detention order is necessary and appropriate to manage [the appellant’s] risk in the community. It is absolutely essential that the hospital have the ability to approve the accommodation necessary to adequately supervise and support her needs, including ensuring that she takes her medications and that her medical needs are properly addressed. In addition, it is essential for the hospital to be able to readmit [the appellant] quickly to the hospital in the event of the decompensation of her mental state, or loss of her housing, in order to provide the hospital and support staff sufficient time to address the concerns presented by those developments.

12Before the Board, the appellant requested a conditional discharge and submitted that there was no need for any condition that would restrict or monitor where she would live. The Board held that in light of its findings there was “no air of reality” to the request for a conditional discharge. Allowing the appellant to simply live on her own without supervision would risk public safety, no viable plan for her placement had been put forward, and her substitute decision maker had limited insight into the benefit of medication and supervision. It added that resort to the Mental Health Act, were it necessary to return the appellant to the hospital, was likely to be ineffective.

13Before this court, the appellant submits that the Board has an inquisitorial function, including a duty to search out and consider all evidence that favours the least restriction on the accused’s liberty. To discharge this duty, the Board had to consider whether the appellant’s risk could be managed under a conditional discharge. She submits that the Board failed to consider conditions beyond those proposed by the appellant at the hearing, such as a residence condition and additional terms that would better ensure her return to CAMH, if necessary. We reject this submission.

14At the hearing, a Board member directly questioned Dr. Eid about whether a conditional discharge, with terms additional to those proposed by the appellant, would be appropriate. The Board member asked about a condition that would control where the appellant could reside, by stipulating that it must be the residence in which she currently was placed (which had previously been approved by CAMH), and about terms that might facilitate return to hospital for assessment (a “Young clause”). Dr. Eid testified that even with these terms a conditional discharge would not be appropriate. There would be the risk of the appellant becoming homeless if things did not work out at her current housing, and an inability to detain her and readmit her to hospital, such that it would just be a matter of time until things became very difficult for the appellant to manage.

15In light of these inquiries the Board fulfilled its inquisitorial function. It was entitled to consider this evidence, the appellant’s consistent position at the hearing that there should be no restriction or control at all over where she lived, and the absence of any placement plan put forward on her behalf, in deciding that a conditional discharge was not appropriate. It was not required to find, in the face of Dr. Eid’s evidence, that detention and readmission to the hospital could adequately occur without a detention order. As this court has noted in Davies (Re), 2019 ONCA 738, 380 C.C.C. (3d) 552, at para. 34:

[The] Mental Health Act does not offer sufficient utility in all reasonably foreseeable situations affecting… NCR accused. [If] she had been returned to the hospital by a peace officer for breaching a condition of the conditional discharge, but she was otherwise showing no signs of psychosis, the hospital would have had no authority to detain her under the Mental Health Act even though she was in breach of the conditional discharge. The hospital would have been obliged to release her outright even if her treating doctor was of the view that the breaches were the beginning of a cascade of negative effects leading to her inevitable decompensation, reviving the threat to public safety… In short… there are situations involving an NCR accused in which [the Mental Health Act] would not work.

16Although we were asked to consider how additional conditions might be crafted and how they might work, those submissions are better left to the appellant’s next annual hearing, when they can be addressed by the Board in light of the evidence presented before the Board.

Conclusion

17For these reasons, we dismiss the appeal.