Court of Appeal for Ontario
Date: 2025-03-12
Docket: COA-24-CR-0913
Before: van Rensburg, Huscroft and Copeland JJ.A.
In the Matter of: Jerome Williams
An Appeal under Part XX.1 of the Code
Appearances:
Kevin Gray, for the appellant
Dena Bonnet, for the respondent Attorney General of Ontario
Julia Lefebvre, for the respondent Person in Charge of Waypoint Centre for Mental Health Care
Heard: February 10, 2024
On appeal from the disposition of the Ontario Review Board, dated July 17, 2024, with reasons dated August 29, 2024.
Reasons for Decision
Introduction
1The appellant appeals from the most recent disposition of the Ontario Review Board (the “Board”), ordering his continued detention in the High Secure Provincial Forensic Programs Division (the “Provincial Division”) at Waypoint Centre for Mental Health Care (“Waypoint” or the “Hospital”), with certain hospital and grounds privileges and conditions.
2The appellant contends that the Board erred in concluding that he continues to pose a significant threat to the safety of the public, and he seeks an absolute discharge from the jurisdiction of the Board. In the alternative, he submits that the Board erred in concluding that the current disposition is the least onerous and restrictive disposition necessary to protect public safety, and he seeks a transfer to a medium secure facility.
3For the following reasons we dismiss the appeal.
Brief History
4The appellant, who is 37 years old, has been under the jurisdiction of the Board since he was found not criminally responsible on account of mental disorder in December 2011 on various charges of robbery, uttering threats to cause death or bodily harm, assault causing bodily harm, possession of property obtained by crime, and disguise with intent. The index offences occurred within a 24-hour period from December 31, 2008 to January 1, 2009.
5The appellant was initially detained at the Centre for Addiction and Mental Health (“CAMH”). In 2014, after multiple acts of aggression against co-patients, he was transferred to the Provincial Division at Waypoint, the province’s highest security psychiatric hospital. Over the next year the appellant made good progress, without any violent incidents, and he was transferred to a medium secure forensic unit at St. Joseph’s Healthcare Hamilton (“St. Joseph’s”). During the next six years, the appellant had periods of stability, including a period during most of 2019 when he lived in the community. In February 2021, as a result of a successful appeal to this court of the Board’s May 2020 disposition, [1] the appellant was conditionally discharged to live in the community with a friend. Unfortunately, what followed was a period where the appellant stopped taking his medication, resumed substance use, and engaged in violence, including assaults on his then-girlfriend, with whom he was living contrary to the residence condition in his conditional discharge. After the appellant was charged with various offences, and in compliance with his bail terms, he returned to St. Joseph’s, where, in November 2021, he assaulted a nurse and three other staff members in two separate incidents. Following an early review by the Board in December 2021, the appellant was ordered detained in the Provincial Division at Waypoint. The appellant pleaded guilty to various charges in respect of the 2021 incidents and in November 2022 he received a 12-month conditional sentence that prohibited him from living in the community for the duration of the sentence, unless in a supervised mental health care facility. At his review hearing in June 2023 the appellant’s detention at the Waypoint Provincial Division was continued.
6The appellant has longstanding diagnoses of schizophrenia, moderate intellectual disability, antisocial personality disorder, and cannabis use disorder. While at CAMH, after he repeatedly refused recommended antipsychotic medication, he was determined to be incapable with respect to treatment with antipsychotic medication, and his mother agreed to act as his substitute decision-maker (“SDM”). This determination was reconfirmed by the Consent and Capacity Board in January 2024. While the appellant and his mother initially opposed treatment with antipsychotic medication, eventually a low dose oral antipsychotic regimen was accepted. The appellant generally adhered to the medication consented to, with periodic exceptions in recent years.
The Board Decision
7At his annual review hearing in June 2024, the appellant sought an absolute discharge on the basis that he no longer posed a significant threat to public safety. In the alternative he requested a transfer to a less secure facility. The Hospital and the Attorney General recommended the appellant’s continued detention at Waypoint’s Provincial Division, with hospital and grounds privileges beyond the secure perimeter escorted by staff and the addition of substance use, substance testing, and weapons prohibition conditions.
8The Board considered the evidence of the Hospital Report and the testimony of Dr. Craig Hudson, a forensic psychiatrist who had been treating the appellant since November 2023. The Board accepted the evidence that the appellant’s risk of violence is low when he is compliant with antipsychotic medication and not using substances. Although the appellant had not engaged in violence in the past two years and had made positive steps, including demonstrating remorse and showing kindness to co-patients, his mental status had fluctuated. There were ongoing concerns about medication non-compliance and substance use based on the Hospital Report, which highlighted instances of non-compliance, including an incident in 2023 when the appellant admitted that he may not have taken his medications for a week.
9The Board considered and accepted Dr. Hudson’s opinion that the appellant had been inadequately treated on a first-generation oral medication at a sub-optimal dose, and that he would benefit from long-acting injectable (“LAI”) antipsychotic medication administered monthly. Dr. Hudson explained that effective antipsychotic medication was the key to managing the appellant’s risk, and that an LAI would not only be more effective, but there would also be fewer side effects and the appellant’s compliance would be easier to monitor. While the appellant had agreed to (and had in fact proposed) switching to an LAI, Dr. Hudson was working with the appellant’s mother to obtain her consent. He explained some of the challenges of communicating with the SDM by mail and phone, but he noted that her questions were appropriate, and he was optimistic that her consent would be forthcoming.
10At para. 54 of its reasons, the Board explained that, if the appellant were not under its jurisdiction, there was a real risk of a scenario where the appellant would leave hospital and fall away from treatment and supervision including prescribed antipsychotic medication; relapse in his schizophrenic illness, with symptoms he would not recognize and report or seek appropriate care for; face inevitable stressors in the community, and not being able to cope or manage well would return to using substances, which would exacerbate his symptoms and distressed behaviours; with the result that he would engage in seriously harmful criminal conduct similar to that in the index offences and other violent incidents that occurred in 2014 and 2021.
11As for the appropriate disposition, the Board found that there was a “good deal of evidence” indicating the need for and benefits of the more extensive secure structure and resources and higher levels of staff at Waypoint, than at a less-secure setting as the appellant engaged in his next steps. Accordingly, the Board concluded that the necessary and appropriate disposition was to continue the detention order at the Provincial Division at Waypoint with the additional terms requested by the Hospital.
Issues on Appeal
(1) The appellant continues to meet the “significant threat to public safety” threshold
12The appellant submits that the Board’s decision that he continues to pose a serious threat to public safety was unreasonable. He asserts that the Board overstated his risk, relying on past episodes of violence and a dated criminal record, and ignoring the evidence of his ability to abstain from violence and to obtain help when needed. He submits that the Board focused on his historical factors, rather than the current evidence, and engaged in speculation and exaggeration with respect to his risk.
13In oral argument the appellant’s counsel also submitted that the Board had not critically engaged with the evidence of Dr. Hudson, who had been treating the appellant for only a period of a few months, both with respect to his overstating the importance of LAI medication and in not doing enough in his dealings with the SDM. He proposed that, in the event that the appellant is not absolutely discharged, this court should remit the matter to the Board for a proper assessment of Dr. Hudson’s evidence.
14We do not agree with these submissions.
15First, the Board did not overstate the appellant’s risk of violence. The Board acknowledged that, from the outset of the appellant coming under the Board’s jurisdiction, his symptoms of psychosis had been managed quite well by antipsychotic medication, as long as he accepted and adhered to it. Indeed, the appellant’s counsel acknowledged in his factum that, “so long as [the appellant] maintains compliance with his medical regimen there is not a large risk of violent recidivism.” Contrary to the appellant’s submission, the Board did not rely on a dated criminal record. In addition to the index offences in 2014, there were episodes of violence that occurred as recently as 2021 that resulted in criminal convictions, when the appellant had not been taking his medication consistently and had been using substances.
16The appellant’s risk of re-offence scenario described by the Board at para. 54 of its reasons was not speculative or exaggerated. The Board reasonably concluded, based on the evidence before it, that the safety of the public rests largely on his effective treatment through consistent dosages of antipsychotic medication. In the year prior to the Board’s decision, although there had been no episodes of violence, the appellant’s mental status had fluctuated, which, according to Dr. Hudson, could indicate that he had not been taking his prescribed medications consistently. The appellant’s continuing risk of violence relates to ongoing concerns about his compliance with medication, as well as the exacerbating effects of substance use. That said, the Board concluded that there is reason for optimism for control of the appellant’s risk and improvement in his level of insight should he transition to LAI medication.
17As for the Board’s treatment of the testimony of Dr. Hudson, we are satisfied that his evidence was appropriately tested and considered. Dr. Hudson was examined by Hospital counsel and counsel for the Attorney General and then cross-examined by the appellant’s counsel. He responded to a number of questions from Board members. The focus of the appellant’s counsel at the hearing (not Mr. Gray) was not to question Dr. Hudson’s recommendation that the appellant be treated with an LAI or to challenge his dealings with the SDM but instead to suggest that such treatment could be administered at a medium secure hospital, and that the SDM’s consent was imminent. Ultimately the Board accepted Dr. Hudson’s opinion that it would take some time to stabilize the appellant on LAI medication, and his explanation that, while he was continuing to work with the appellant’s mother to obtain her consent to the LAI medication, she was aware that he was considering other legal avenues if the SDM was no longer able to make decisions in the appellant’s best interests.
18Accordingly, the conclusion that the appellant continued to meet the threshold test of “significant risk to public safety” was reasonable and supported by the evidence, which was fully considered by the Board.
(2) The current disposition is the least onerous disposition necessary to ensure public safety
19The appellant submits in the alternative that the Board erred in refusing to transfer him to a less secure facility where his risk of violent reoffence was capable of being managed. The appellant contends that if the concern is that he is not taking his medication this could be as easily accommodated in a medium secure facility.
20The Board’s conclusion that a transfer to a medium secure facility was premature and the decision to continue the appellant’s detention at the Provincial Division at Waypoint were reasonable and properly grounded in the evidence. That evidence included Dr. Hudson’s testimony that the appellant had ongoing problems with non-compliance with medication, and that the Hospital’s staff were specially trained and resourced to monitor and address his compliance with medications. The Hospital Report stated that in November of 2021, following the appellant’s period of non-compliance with medication in the community, one of the appellant’s assaults against hospital staff was precipitated by his refusal to take his regular medications. This was one of the incidents that led to the appellant’s transfer to Waypoint. By contrast, in 2023 when there were serious concerns about non-compliance with medication at Waypoint, the appellant was placed on medication watch, and when concerns persisted, his previous attending psychiatrist ordered his medications crushed and administered in that form. Dr. Hudson highlighted these measures in his testimony, saying that this supervision and support, available at Waypoint, made it better suited for the appellant’s needs.
21At the date of the hearing the appellant had not yet commenced treatment with an LAI medication, although it was anticipated that he would begin such treatment soon. In the meantime, the concerns about the appellant’s compliance with medication required the extra attention and staff that would be available at Waypoint and not at a less secure facility. It was anticipated that, once the appellant began to receive the LAI, his risk would be reduced, which would in turn reduce the number of staff and attention he required to ensure compliance. Accordingly, the Board reasonably concluded that the management of the appellant’s risk currently requires the structure, supervision, and staffing levels at Waypoint’s high secure program.
Conclusion
22For these reasons, the appeal is dismissed.
“K. van Rensburg J.A.”
“Grant Huscroft J.A.”
“J. Copeland J.A.”
[1]: The reasons are reported at Williams (Re), 2021 ONCA 90.