Summers (Re), 2022 ONCA 758

Court Details

COURT OF APPEAL FOR ONTARIO

DATE: 20221108 DOCKET: C70303

Gillese, Nordheimer and Sossin JJ.A.

IN THE MATTER OF: Dakota Summers

AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel: Paul Socka, for the appellant Manasvin Goswami, for the respondent Attorney General of Ontario Julia L. Lefebvre for the respondent Person in Charge of St. Joseph’s Healthcare Hamilton

Heard: October 28, 2022

On appeal from the disposition of the Ontario Review Board, dated November 24, 2021, with reasons dated December 17, 2021.

REASONS FOR DECISION

Overview

1The appellant appeals from a disposition of the Ontario Review Board (“the Board”) ordering that he be detained at St. Joseph’s Healthcare Hamilton (“St. Joseph’s” or “the Hospital”), with terms permitting community living in approved accommodation.

2The appellant submits that the Board erred in finding that he continued to pose a significant threat to the safety of the public and in declining to order an absolute discharge. In the alternative, he submits that the Board erred in not granting a conditional discharge to his home community in Owen Sound, which he argues was the least onerous and least restrictive disposition consistent with public safety and Gladue principles.

3The appellant also seeks to introduce, as fresh evidence, the 2018 Report of the Hospital to the Review Board, which was not before the Board at the hearing and which he argues provides additional context. The respondent Hospital seeks to introduce fresh evidence of events subsequent to the disposition under appeal, which it argues makes the relief sought by the appellant inappropriate.

4For the reasons that follow, we grant the fresh evidence motions but dismiss the appeal.

Background

5The appellant has been under the Board’s jurisdiction since 2013. He was found not criminally responsible on account of mental disorder on various charges including robbery and possessing a weapon for a dangerous purpose.

6The appellant has been detained at the Forensic Psychiatry Program of St. Joseph’s since 2019. He is diagnosed with Schizophrenia, Cannabis Use Disorder, and Stimulant Use Disorder. At the time of the Board hearing in November 2021, he was 30 years old and subject to a detention order at St. Joseph’s with privileges, including the opportunity to live in the community in approved accommodation. He was waitlisted for community housing.

7In September 2020, while out of the Hospital on an indirectly supervised pass, the appellant absconded for 12 days, stopped taking his medications, and used illicit substances. He said he had run into some friends in the community and impulsively decided to use drugs with them, entering into a downward spiral while living transiently. He did not act violently or aggressively during this time.

8The appellant is Indigenous and his home community is in Owen Sound, just south of the Chippewas of Nawash Unceded First Nation. His family is very supportive and involved in his treatment. The appellant has regularly used his privileges to visit Owen Sound on seven-day passes, during which he stayed with his grandmother. He had negative urine screens following these visits.

9At the review hearing in November 2021, the respondents recommended that there be no change to the appellant’s disposition for the coming year. The Hospital provided an report dated October 14, 2021 and a psychological risk assessment dated August 20, 2021. Dr. Jonathan Duboff, the appellant’s attending psychiatrist, also testified at the hearing. The appellant sought an absolute discharge or a conditional discharge to Owen Sound to live with his grandmother under the care of the Southwest Ontario Aboriginal Health Access Centre (“SOAHAC”) and the local hospital. He provided a number of supporting documents including a Gladue Report.

10The Board accepted the Hospital’s evidence that an absolute discharge was not appropriate because the appellant remained a significant threat to the safety of the public. His mental state remained unstable and historically variable despite recent improvements. Several risk factors continued to exist and a series of notable incidents from the past reporting year indicated he was still susceptible to break-through symptoms.

11The Board did not specifically comment on the request for a conditional discharge. It ordered that the appellant continue to be detained at St. Joseph’s but extended his community visit privileges to up to 14 days. The Board also recommended that a pre-hearing conference be held in six months to review the appellant’s progress, allow the Hospital to investigate its ability to supervise him in the Owen Sound area, and determine if an early hearing and discharge was warranted.

Fresh Evidence Motions

12Both the appellant and the respondent Hospital have filed fresh evidence motions.

13The appellant seeks to adduce the 2018 Report of the Hospital to the Review Board, which details the appellant’s course of treatment between 2015 and 2018 (a period of time not covered in the 2021 report before the Board).

14The respondent Hospital seeks to adduce an affidavit of Dr. Yedishtra Naidoo, sworn October 14, 2022. Dr. Naidoo is presently the appellant’s treating psychiatrist. The affidavit outlines, among other things, an incident from the summer involving the appellant which has curtailed his eligibility for community passes to Owen Sound.

15Neither fresh evidence motion is seriously contested. In our view, these documents should be admitted, as they assist in providing a complete account of the appellant’s historical and present status. The motions are granted.

Analysis

16The standard of review for Board decisions is reasonableness. With respect to the reasonableness standard, the Supreme Court of Canada explained in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 85, that “a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker.”

(1) The Board’s refusal to grant an absolute discharge was reasonable

17The Board refused to grant an absolute discharge because it found that the appellant remained a significant threat to the safety of the public. The Board concluded, at para. 45:

Having heard the evidence and considered the many exhibits and the submissions of the parties, the panel concludes for the reasons stated in the hospital report and adopted by Dr. Duboff in his evidence that the accused remains a significant threat to the safety of the public. His mental state remains unstable and, although recently improved, has historically been variable. Several risk factors have continued to exist as stated in Dr. Moulden's psychological risk assessment. The several notable incidents set out in the hospital report that occurred in the past reporting year indicate Mr. Summers is still susceptible to breakthrough symptoms. [Emphasis added.]

18The appellant argues this finding is unreasonable because there is no link in the reasons of the Board or the record between the cited “risk factors” and the conclusion that the appellant poses a significant threat to public safety.

19The appellant relies on case law from this court establishing that risk factors alone are insufficient to justify the conclusion that a person represents a significant threat to public safety: see, for example, Hammoud (Re), 2018 ONCA 317, at para. 9; Krivicic (Re), 2018 ONCA 535, 362 C.C.C. (3d) 490, at para. 65; and Marmolejo (Re), 2021 ONCA 130, 155 O.R. (3d) 185, at para. 47.

20According to the appellant, the psychiatric evidence relied upon by the Board supports some risk of psychological harm if the appellant were to stop taking medication or begin using substances, but does not provide a basis to conclude there is a substantial and foreseeable risk of violent or criminal activity (as the significant threat standard requires).

21The respondents submit that the Board had ample evidence in the record to conclude that the significant threat standard was met and to deny the appellant’s request for an absolute discharge as a result.

22The Board relied on the Hospital’s report which concluded that if discharged, the appellant would likely stop his medications and relapse into substance abuse. The Board stated, at para. 25:

The authors of the hospital report opine that absent significant supervision from a forensic psychiatric team Mr. Summers is likely to stop his medications and/or relapse into substance use, as has been the case in the past (most recently in September 2020), which would lead to rapid decompensation in his mental status and significantly increase his risk to reoffend in the same manner as that extant at the time of the index offences. The treatment team therefore expresses the unanimous opinion that he continues to pose a significant threat to the safety of the public and a detention order remains the necessary and appropriate disposition to manage his level of risk. [Emphasis added.]

23Counsel for the appellant notes that the appellant did not act violently even when he had eloped from hospital, used substances, and deteriorated. The risk assessment found him to be at a “moderate” risk of re-offending on a detention order and at an “acutely elevated risk” if he discontinued medication and resumed substance use but did not relate this “acutely elevated risk” to the significant threat standard.

24The appellant argues that the language of “elevated risk” fits uncomfortably with the significant threat test, which requires an assessment of the probability of harm. A finding of “elevated risk” is a relative standard, depending on a baseline level of risk, and therefore is not necessarily associated with any particular risk of harm.

25The appellant relies on Negash (Re), 2021 ONCA 280, where this court held that a finding of “elevated risk” and a possibility of harm was insufficient to support a finding of significant threat to public safety, at paras. 11-12:

First, it is not clear from the majority’s reasons that they applied the correct test of real, foreseeable risk. Rather, they appear to have concluded that the possibility of a change in medications could cause instability and that there was an “elevated risk” associated with Mr. Negash’s transition to a non-forensic team. The majority’s reasoning relies heavily on Mr. Negash’s history of difficulty with changes in medications, non-compliance with medications and treatment recommendations, substance abuse, and transitioning to living in the community.

By determining that Mr. Negash was a significant risk to public safety because of the possibility rather than the probability of harm, the majority descended into the realm of speculation and applied the wrong test: Kassa (Re), 2019 ONCA 313, at paras. 34-35. Moreover, the Board made no effort to weigh the seriousness of the potential harm against the likelihood that it would materialize.

26The respondents argue that Negash is distinguishable because here, the Board concluded it was “likely” the appellant would cease taking his medications and/or resume substance use, which in turn would lead to “rapid decompensation in his mental status” and “significantly increase” his risk to reoffend in the manner of the index offences.

27Additionally, the respondents underscore six uncontested facts in the record which supported the Board’s conclusion: 1) the appellant experienced significant delusions that outside agents were in his body and/or controlling him and in conflict with him; 2) these hallucinations have been a significant source of risk for the appellant and gave rise to the index offences; 3) drug use and medication non-compliance worsens the appellant’s symptoms of mental illness and decompensation; 4) the appellant has limited insight into his mental illness and the ways in which drug use can worsen his symptoms; 5) if the appellant is granted an absolute discharge, then drug use, medical non-compliance, and decompensation are likely; and 6) in this event, the appellant would be at risk of re-offending.

28The respondents further emphasize that abstention from violence while under a detention order is not determinative of whether a person poses a significant threat to public safety, relying on Krist (Re), 2019 ONCA 802, at para. 14, where this court held:

[T]he appellant’s abstention from criminal or violent acts is not singularly determinative of whether he poses a significant threat to the safety of the public. As the Supreme Court observed in R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 65: “Part XX.1 of the Criminal Code is designed to take measures to protect the public safety before violence occurs, not (as in the ordinary case) to punish the offender afterwards.”

29The Hospital’s report also recounted a series of incidents where the appellant had engaged in “aggressive” and “intimidating” behaviour towards others, displayed signs of delusions and paranoia, and damaged property. The Board found this demonstrated that the appellant remained susceptible to break-through symptoms.

30The psychological risk assessment report relied upon by the Board confirmed that the appellant’s risk for violence was “moderate,” and that he posed a risk of physical and psychological harm based on a combination of psychiatric, substance abuse, and personality factors.

31While it would have been preferable if the Board had set out the precise reasons for its conclusion, that the appellant continued to pose a significant threat to the safety of the public, rather than simply referencing the Hospital report and the record, we are satisfied that there was sufficient evidence to support that conclusion. The Board’s decision to deny an absolute discharge was reasonable.

(2) The Board’s refusal to grant a conditional discharge was reasonable

32The Board did not specifically explain why it rejected the appellant’s request for a conditional discharge. However, it set out the parties’ submissions and evidence on this issue before concluding that extending the appellant’s community passes was appropriate in the circumstances and would facilitate progress towards a future conditional or absolute discharge.

33In his evidence, Dr. Duboff opined that a conditional discharge was not appropriate. He testified that because Owen Sound was outside the Hospital’s catchment area, there would be no way to ensure follow-up, observation, and monitoring if the appellant were discharged to live there. Dr. Duboff did not believe that the SOAHAC could manage the appellant as its team had not liaised with St. Joseph’s to discuss his treatment. Furthermore, the Mental Health Act, R.S.O. 1990, c. M.7, would be insufficient to manage the appellant as subtle changes in his mental state may not be identified or meet the criteria for hospitalization. Finally, the appellant could not live with his grandmother because she was not yet an approved person and the Hospital had not vetted her housing.

34The appellant argues that Gladue factors were not given serious enough attention in determining the sufficiency of the conditional discharge plan, and that Gladue factors may justify a departure from the Hospital’s usual protocols in terms of assessing a conditional discharge plan.

35We disagree that the Board failed to appropriately consider Gladue factors. The Board specifically referenced the appellant’s Gladue Report in its conclusion, at para. 48:

The panel has considered the contents of the Gladue Report filed as an exhibit and acknowledges that Mr. Summers would benefit considerably from increased contact with his family and his culture. We recommend the hospital investigate its ability to supervise. Mr. Summers in the Owen Sound area and liaise with services available in that locality. It may be possible for St. Joseph's Healthcare outpatient staff to visit him once per month in the Owen Sound area. The extension of indirectly supervised community passes and their grant with increasing frequency will assist Mr. Summers in securing employment in the Owen Sound area, where, due to his extensive family connections, employment opportunities are expected to be far more available than in the Hamilton area.

36As the respondents emphasized, the Board had a strong basis in the record to conclude that the appellant had not progressed yet to the proposed level of indirectly supervised release. In addition to his fragile mental state, the Board referred to the appellant’s earlier absence without permission which resulted in drug use and decompensation near the start of the review period. Moreover, there was no community treatment plan actually in place for Owen Sound at the time of the Board’s review, which is a prerequisite to a Community Treatment Order under the Mental Health Act.

37While it would have been preferable for the Board to address its decision not to grant a conditional discharge directly, its reasons for this conclusion are clear from the disposition as a whole and were rooted in the record. In our view, the Board’s decision to deny a conditional discharge in the appellant’s case was reasonable.

Disposition

38For the reasons set out above, we grant the motions for the admission of fresh evidence but dismiss the appeal.