Court of Appeal for Ontario

Date: July 9, 2018 Docket: C64598

Justices: Watt, Pepall and Fairburn JJ.A.

In the Matter of: Robert Ellis

An Appeal Under Part XX.1 of the Code

Counsel:

• Frank Bernhardt, for the appellant, Robert Ellis
• Luke Schwalm, for the respondent, the Attorney General of Ontario
• Janice E. Blackburn, for the respondent, the Person in Charge of Waypoint Centre for Mental Health Care

Heard: June 15, 2018

On appeal from the disposition of the Ontario Review Board, dated September 19, 2017, with reasons dated October 26, 2017.

Reasons for Decision

Overview

[1] On March 11, 2009, the appellant was found not criminally responsible on account of mental disorder (NCRMD). He is currently detained at Waypoint Centre for Mental Health Care – Provincial Forensic Programs Division (Waypoint or the Hospital). The appellant wishes to transfer from Waypoint to a less secure hospital closer to the Guelph area where his parents reside. Although the parties agreed at the annual review hearing that a transfer to a less secure hospital was appropriate, a majority of the Board disagreed, ordering that the appellant remain detained at Waypoint.

[2] The appellant claims that the Board erred in two ways: (1) in holding a procedurally unfair hearing by failing to give notice that it was considering rejecting a joint submission; and (2) by failing to grant the least onerous and least restrictive disposition available. The appellant urges this court to set aside the disposition and order that he be transferred to the Centre for Addiction and Mental Health (CAMH) in Toronto or St. Joseph's Healthcare (St. Joseph's) in Hamilton, or order a new hearing.

[3] The respondents maintain that the review hearing was procedurally fair. The respondent Attorney General for Ontario also contends that the Board imposed the least onerous and least restrictive disposition. Accordingly, the Attorney General says that the appeal should be dismissed.

[4] In contrast to the Attorney General, although for different reasons than the appellant, the respondent Hospital contends that the Board failed to apply the least onerous and least restrictive disposition. In light of the uncertainty surrounding the appellant's current diagnosis, the Hospital maintains that the Board erred by failing to address in its reasons whether an independent psychiatric assessment should be ordered.

[5] For the reasons that follow, we agree with the Hospital.

Index Offence

[6] On October 18, 2008, the appellant forced his way into his parents' bedroom. He had a club in one hand and a sword in the other. He called his parents Satanists and yelled at them to leave the children alone (the appellant seems to have been referring to his parents' grandchildren). The appellant then attacked his parents. Although his mother was able to escape the residence, the appellant came after her and continued the attack in the driveway. Both parents incurred injuries.

General History of Detention

[7] Since March 2009 the appellant has been detained at several different hospitals. While detained at the Southwest Centre for Forensic Mental Health Care (Southwest) he threatened staff members and was found in possession of two knives. That behaviour resulted in a transfer to Oak Ridge Division of the Mental Health Centre in 2010. He was later transferred to Ontario Shores Centre for Mental Health Sciences (Ontario Shores). While at Ontario Shores, the appellant made various threats to hospital staff and was transferred to Waypoint in February 2014. In March 2015 the appellant stabbed one of his treating doctors with a pen. As of the date of his hearing, he had not engaged in any further physical violence.

[8] As a result of his past conduct, the appellant is prohibited from contacting or communicating, directly or indirectly, with numerous health care professionals and all staff at Southwest and Ontario Shores. He has remained at Waypoint since February 2014.

[9] There is general agreement that the appellant's previous violent and verbally aggressive outbursts have resulted from situations where he feels challenged, including when it is suggested to him that he is suffering from a psychotic condition or that he is in need of medication.

The Appellant's Changing Diagnosis

[10] Dr. Bergstrome became the appellant's treating psychiatrist a few months before his yearly review that resulted in the disposition appealed from. Dr. Bergstrome's opinion is based upon his own observations, as well as those of the treatment team and the appellant's previous psychiatrist, Dr. Bradford.

[11] Dr. Bergstrome testified about the fact that the appellant is currently doing well. He is involved in programs, ongoing education and off-unit activities. Although the appellant's past diagnoses have included paranoid schizophrenia, requiring antipsychotic medication, at the time of the hearing, Dr. Bergstrome testified that he has doubts about whether the appellant has or has ever had a psychotic disorder. In his limited time dealing with the appellant, and based upon his review of Dr. Bradford's notes, Dr. Bergstrome testified that he has seen no evidence to support a diagnosis of schizophrenia, no bizarre delusions or hallucinations, no social withdrawal or lack of motivation.

[12] Dr. Bergstrome testified that paranoid schizophrenia does not tend to resolve on its own. If the appellant suffered from this condition, he should have decompensated without antipsychotic medication. Instead, the appellant's condition appears to have improved without any medication. This "progress" left Dr. Bergstrome somewhat skeptical about the previous diagnoses related to psychotic disorders.

The Decision Appealed From

[13] Everyone agreed that the appellant was an ongoing significant threat to the safety of the public. The question was whether the appellant should be transferred to a less secure facility. The Board split on the answer to that question, with the majority refusing to grant the transfer.

[14] Although the majority found that the appellant had not demonstrated any signs of a psychotic disorder for over a year, it was "certain" that in the past he had demonstrated signs of that type of disorder. Indeed, the Board emphasized that as recently as August 2016, the appellant's then treating psychiatrist (Dr. Danyluk) was certain that there was some form of "psychotic process at play in Mr. Ellis' presentation", specifically, schizophrenia. Dr. Bradford agreed with that diagnosis when he first dealt with the appellant, only later changing his diagnosis to a non-psychotic condition.

[15] The majority found that the appellant's history demonstrated that there is "more at play" than what his current condition presents as and that it is "difficult" to "attribute all of Mr. Ellis' behaviour over the years to grandiosity or narcissism". The majority viewed the appellant's fear of treatment and medication as a potential symptom of paranoia. The majority found that Waypoint's approach to managing the appellant has been to avoid confrontation by not discussing his mental health issues with him. The majority reasoned that these kinds of avoidance strategy may not be available in a less secure environment.

[16] The majority concluded that it is "almost inconceivable" that the appellant would not be confronted in a less secure hospital setting and react with intimidating behaviour. Returning him to a less secure environment would be a "serious mistake" as such institutions are less equipped to manage the appellant's risk factors. Accordingly, the majority found that the appellant should remain at Waypoint until his risk factors and behaviour are addressed.

[17] The minority noted that over the course of the two years preceding the hearing, and despite not receiving any antipsychotic medication, the appellant had not displayed any clear evidence of psychosis or decompensation, thus putting the diagnosis of schizophrenia in question. In the minority's opinion, the appellant could be adequately and appropriately managed in a less secure facility than Waypoint.

Analysis

Joint Position and Procedural Fairness

[18] The appellant maintains that he was denied procedural fairness when the Board rejected a joint submission without giving advance notice to the parties. We disagree.

[19] Board hearings must be procedurally fair. Where the Board is considering rejecting a joint position, it must provide notice to the parties so that they are in a position to address the relevant concerns: Osawe (Re), 2015 ONCA 280, 323 C.C.C. (3d) 405, at para. 71.

[20] Notice can be achieved in a variety of ways, including by the Board making the parties aware of the operative concerns. Notice may also be given on a more informal basis, such as where the Board's questions or comments make it clear that at least some of the Board members are having difficulty with the joint submission. Ultimately, the question is whether the NCR accused had a "meaningful opportunity to present the evidence and argument relevant to the Board's disposition": Osawe (Re), at para. 74.

[21] The appellant's procedural fairness argument fails for two reasons: (1) this matter did not proceed on the basis of a joint position; and (2) the parties were squarely on notice that at least some members of the Board were having trouble with the suggestion that the appellant be transferred to a less secure environment.

[22] This matter did not proceed on the basis of a joint submission. It commenced with Crown counsel specifically stating that he was reserving his position until after he had heard Dr. Bergstrome's evidence and formed a view about the appellant's level of risk. It was only at the conclusion of Dr. Bergstrome's evidence that Crown counsel expressed his view that the appellant was capable of being managed in a less secure environment: "I would suggest that the evidence, as presented, supports a transfer notwithstanding some very serious concerns about Mr. Ellis's risk to others around him." Accordingly, the hearing itself was not conducted on the basis of a joint submission and the parties proceeded with full knowledge of that fact.

[23] The record also demonstrates that many of the Board members had a strong discomfort with the proposal to transfer the appellant. The majority reasons for disposition specifically refer to the fact that at the hearing, "Dr. Bergstrome was challenged with respect to his opinion that Mr. Ellis does not suffer from schizophrenia or a major mental disorder". One Board member expressed the view that it was "almost mind boggling that a diagnosis of schizophrenia wasn't contemplated". Accordingly, the parties were squarely on notice that at least some members of the Board were having difficulty with the idea of transferring the appellant to a less secure environment.

[24] In these circumstances, the appellant was afforded procedural fairness.

Least Onerous and Least Restrictive Disposition

[25] The appellant maintains that the majority erred by preferring historical findings about the appellant's diagnosis to his present one. He argues that the emphasis on the historical diagnosis led to an unreasonable decision to keep him at Waypoint. We do not agree with the appellant's characterization of the majority's decision.

[26] The majority reasons do not prefer a historical diagnosis over a present one. Rather, the reasons demonstrate the majority's concern about what diagnosis should be attributed to the appellant. There was evidence upon which the majority could find that the inability to pin down the appellant's diagnosis meant that it was too risky to transfer him to a less secure environment. This was a decision that was open to the Board to make. It fell within the range of reasonable outcomes. We see no error in the Board's approach in that regard.

[27] This leaves for consideration the Hospital's position that the Board erred by failing to order an independent psychiatric assessment.

[28] The issue of an independent assessment was raised at the hearing. The presiding chair stated that a "main issue" for him was the possibility that the appellant's good behaviour in the past year was a result of the treatment staff "skirt[ing]" discussions with the appellant about whether he had a major mental disorder. The presiding chair specifically asked Dr. Bergstrome about whether an outside assessment might be of some assistance. Dr. Bergstrome stated that he would find it "[r]efreshing to have a new opinion."

[29] Although the majority concluded that the appellant's adverse reaction to discussions about his potential condition and medication should be explored as a "symptom of paranoia", it did not follow up and order as part of the disposition that an independent assessment occur. Nor did it mention the possibility of ordering one. The Hospital argues that, in the circumstances of this case, by failing to order an independent psychiatric assessment, the Board failed to impose the least onerous and least restrictive disposition.

[30] The appellant contends that there is no need to consider the appellant's actual diagnosis, as only his current behaviour should govern where he is detained. We do not agree. It was open to the majority to conclude that pinning down his current diagnosis is an essential first step toward better predicting any reaction he may or may not have in a less secure environment, particularly when confronted with conversations about diagnosis and treatment.

[31] Accordingly, we agree with the Hospital that, in the unusual circumstances of this case, the Board should have considered ordering an independent psychiatric review. In fairness to the Board, closing submissions were very brief and no one made submissions on this particular point. Even so, the matter was raised by the Board; Dr. Bergstrome expressed his view that it would be "refreshing" to have another opinion; and the majority found that more exploration of the appellant's psychiatric condition is required, particularly his condition that appears to be triggered by discussions about diagnosis and medication.

[32] Right now the appellant's condition lacks a clear diagnosis. Without a diagnosis, his risk in a less secure environment remains elusive. The lack of diagnosis is a serious impediment toward advancing the appellant closer to the ultimate goal of reintegration into the community: R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, at paras. 89.

Conclusion

[33] The appeal is allowed and the matter is remitted to the Board for a hearing as soon as practicable so that the issue regarding an independent assessment may be addressed prior to the next annual review, scheduled for September 10, 2018.

"David Watt J.A."

"S.E. Pepall J.A."

"Fairburn J.A."

Footnote

[1] Although the wording of s. 672.54 has been modified to use a "necessary and appropriate" test, this court has interpreted that test as requiring that the Board impose the least onerous and least restrictive disposition available: Osawe (Re), 2015 ONCA 280, 125 O.R. (3d) 428, at para. 45; and Ranieri (Re), 2015 ONCA 444, 336 O.A.C. 88, at paras. 19-21. As the parties use "least onerous and least restrictive" language, these reasons will do the same.