Alexander (Re), 2023 ONCA 176

Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20230316 DOCKET: COA-22-CR-0186

Hoy, Thorburn and Favreau JJ.A.

IN THE MATTER OF: Mavis Alexander

AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel: Anita Szigeti and Michael B. Schloss, for the appellant Keith Garrett, for the respondent Attorney General of Ontario Leisha Senko, for the respondent Person in Charge of the Centre for Addiction and Mental Health

Heard: March 7, 2023

On appeal from the disposition of the Ontario Review Board, dated August 5, 2022, with reasons dated August 26, 2022.

Reasons for Decision

[1]

Overview

Ms. Alexander appeals the August 5, 2022 disposition of the Ontario Review Board (the “Board”), ordering that she continue to be detained at the Women’s General Forensic Unit of the Centre for Addiction and Mental Health (the “Hospital”) and providing that the person in charge may, in his or her discretion, permit Ms. Alexander hospital and grounds privileges, escorted by staff, and to enter the community, escorted by staff.

2The Board removed the conditions of her prior disposition enabling the person in charge, in his or her discretion, to permit Ms. Alexander the following privileges: hospital and grounds privileges and to enter the community, accompanied by staff or a person approved by the person in charge or indirectly supervised; and to live in the community in accommodation approved by the person in charge. This latter condition enabled Ms. Alexander to be placed on waitlists for accommodation in the community. Counsel for the Hospital and the Crown had both requested the Board to continue the then-current disposition.

3Counsel for Ms. Alexander argues that the Board’s removal of these conditions was unreasonable on the evidence that waitlists for the highly supportive housing Ms. Alexander would need in the community were years’ long. The long wait time is compounded by the fact that she is ineligible for most housing programs because her index offence was arson. Moreover, she argues that the removal of the community living condition was contrary to this court’s decision in Kelly (Re), 2014 ONCA 269.

4Further, counsel for Ms. Alexander argues that removing the conditions permitting the person in charge to permit Ms. Alexander hospital and grounds privileges and to enter the community accompanied by staff or a person approved by the person in charge was unreasonable. She explains that an “accompanied” pass permits a single staff or approved person to enter the community with more than one patient. In contrast, a condition permitting Ms. Alexander to enter the community “escorted” by staff, requires that a staff person be with her alone. She submits that Ms. Alexander needed to have the possibility of exercising off-ward passes with decreasing levels of supervision.

5Ms. Alexander’s counsel says that the Board failed to adequately consider Ms. Alexander’s reintegration into society and that the disposition was not more protective of public safety than if these provisions had been retained, because the Hospital would only have exercised its discretion to grant passes and community living when it was safe to do so.

6Both the Crown and the Hospital submit that the Board’s decision was reasonable and not contrary to Kelly.

7The Board’s decision is entitled to deference. We are not persuaded that it was unreasonable or contrary to Kelly.

[8]

Background

Ms. Alexander is in her late forties. She was first diagnosed with schizophrenia when she was 16 years old. She committed the index offence in early 2008. She had set a couch on fire in her basement apartment. She was found a short distance away from her residence. Four other residents were in the house. She was charged with Arson, Disregard for Human Life. On November 27, 2008, she was found NCR.

9Her current diagnosis is Schizoaffective Disorder, Bipolar Type. Her disorder is highly treatment resistant. Due to her illness, she also suffers from cognitive deficits. She currently lacks the capacity to consent to treatment. Her mother is her substitute decision maker and the Public Guardian and Trustee manages her finances.

10Her treating psychiatrist, Dr. Ray, testified that her mental state is very fragile, she is at high risk of decompensation and remains a significant threat to the public. Ms. Alexander had a tendency to go “AWOL” and, in response to auditory hallucinations, disrobe.

11On January 19, 2021, Ms. Alexander eloped from the Hospital. The police returned her several days later. She had been reportedly found walking outside naked in Oshawa. In December 2021, she also attempted to run away while on an escorted pass on Hospital grounds, causing her passes to be suspended. From May 2022 onward, Ms. Alexander’s disrobing behaviour was occurring two to three times a week.

12The Board found that Ms. Alexander continued to pose a significant threat to the public not only on the basis of her disrobing behaviour itself, which can cause psychological harm to members of the public, but also on the basis of her physical aggression in the last year while acutely psychotic.

13At paras. 33 and 34 of its reasons for disposition, the Board wrote as follows:

Dr. Ray advised the Board that Ms. Alexander has had no passes since December 2021. The only privilege that she currently enjoys is access to the balcony on her unit. She has not been granted any privileges, including escorted privileges to the hospital and grounds, because of the degree of risk of disrobing and exit-seeking behaviour. Dr. Ray advised that Ms. Alexander will not be in a position to exercise any indirectly supervised passes in the upcoming reporting year, and that she will not be ready for community living. On the basis of this evidence, the Board has concluded that it is not appropriate to include directly supervised privileges or community living in the disposition. In making these changes to the disposition, the Board recognizes that there are long waitlists in placing CAMH patients in supervised community accommodation, but concludes that community living is so unrealistic that the provision should not be included in the disposition. Should Ms. Alexander’s circumstances change for the better during the reporting year, it is open to the hospital or the parties to request an early hearing to consider a more generous disposition.

In reaching these conclusions, the Board considered the paramount safety of the public, as well as Ms. Alexander’s needs, mental condition, and reintegration into the community, as required by s. 672.54 of the Code.

[14]

Analysis

The Board concluded that the conditions at issue were inappropriate because there was no air of reality to them. Its assessment is supported by the record.

15This case is different from Kelly. In Kelly, this court held that the Board mistakenly found that the hospital recommended a community living provision solely in order to place the appellant on a waitlist – when in fact the record showed that therapeutic concerns also motivated the recommendation: at para. 10. Further, the Board erred in law by refusing to consider the provision solely on the ground that the appellant would not be able to use it during the current year: at para. 11.

16In Kelly, the possibility of community living does not appear to have been “so unrealistic”. Indeed, in Kelly, placing the appellant on the waitlist was a treatment “to motivate the appellant towards achieving integration in the community and to discourage his tendency to fall back on institutionalization”: at para. 10. There was no evidence to this effect before the Board in this case. Ms. Alexander’s circumstances are far from those of the appellant in Kelly. Moreover, in this case the Board was alive to the concern about significant waitlists.

17Counsel for Ms. Alexander properly concedes that persons subject to the Board’s jurisdiction should not always be put on waitlists. In our view, the Board’s decision based on the record that Ms. Alexander should not be placed on waitlists was reasonable.

18Finally, the Board’s removal of the conditions permitting the person in charge to permit Ms. Alexander hospital and grounds privileges and to enter the community “accompanied” by staff or a person approved by the person in charge was fully supported by the record. Dr. Ray testified that given her disrobing and exit-seeking behaviours, at highest Ms. Alexander might be permitted privileges while escorted by at least two staff.

[19]

Disposition

Accordingly, the appeal is dismissed.