Court of Appeal for Ontario

Date: February 19, 2019 Docket: C65400

Justices: Sharpe, Benotto and Brown JJ.A.

In the Matter of: Helen Tolias

An Appeal Under Part XX.1 of the Code

Counsel:

• Jeff Marshman, for the Appellant
• Manasvin Goswami, for the Respondent

Heard: February 8, 2019

On appeal against the disposition of the Ontario Review Board dated March 14, 2018, with reasons for disposition dated April 9, 2018, with reasons reported at [2018] O.R.B.D. No. 794.

Reasons for Decision

I. Overview

[1] The appellant, Ms. Helen Tolias, appeals from the March 14, 2018 disposition of the Ontario Review Board (the "Board") ordering that she be detained on the secure forensic unit at the Providence Care Hospital, Kingston (the "Hospital").

[2] Ms. Tolias submits that the Board's finding that she remains a significant threat to the safety of the public is unreasonable and the Board erred in failing to grant her an absolute discharge. In the alternative, she submits that the Board erred in failing to grant her a conditional discharge or transfer to the Centre for Addiction and Mental Health ("CAMH") in Toronto.

[3] For the reasons that follow, we dismiss her appeal.

II. Background

The Index Offences

[4] Ms. Tolias is 46 years old. She suffers from schizoaffective disorder, with persecutory delusions.

[5] Ms. Tolias originally was charged in 2003 with uttering threats and criminal harassment of her ex-boyfriend, together with breach of recognizance. She was admitted to CAMH to be assessed for criminal responsibility on those charges. There, Ms. Tolias became infatuated with, and developed erotomanic delusions about, Dr. Colleton, the CAMH staff psychiatrist who conducted her assessment. She began to send him letters and repeatedly called him on the telephone. As a result, Ms. Tolias was charged with criminal harassment and with making harassing telephone calls.

[6] On November 14, 2003, she was convicted of the charges relating to her ex-boyfriend.

[7] Despite recognizances containing conditions that she abstain from direct or indirect communication with Dr. Colleton, Ms. Tolias persisted with her communications and was again charged.

[8] On July 14, 2005, Ms. Tolias was found not criminally responsible on account of mental disorder ("NCR") of four charges of making harassing phone calls to Dr. Colleton, three charges of failure to comply with a recognizance, and two charges of failure to comply with probation. She received a conditional discharge and was required to report to the Whitby Mental Health Centre.

[9] Ms. Tolias continued in her efforts to communicate with Dr. Colleton. She was again charged and again found NCR in 2006. Since that time, Ms. Tolias has remained under the jurisdiction of the Board.

Places of Treatment

[10] Since the disposition of the index offences in April 2006, Ms. Tolias has been detained and treated at several hospitals: she was at the Whitby Mental Health Centre from 2006 until her transfer to the Hospital in August 2009, where she remained until May 2011 when she was transferred to St. Joseph's Healthcare in Hamilton. Ms. Tolias's family had requested that move to facilitate visits as they lived in the GTA.

[11] The Board held an early review hearing in March 2017 to consider a request by Ms. Tolias for a transfer from Hamilton to the Hospital in Kingston, which it granted. Since that time, Ms. Tolias has remained at the Hospital.

[12] The capacity of Ms. Tolias to consent to treatment has fluctuated since the disposition of the index offences. At the time of the 2018 Board hearing, she had been found incapable of consenting to treatment.

III. First Issue: Significant Threat to the Safety of the Public

[13] The Board found that Ms. Tolias continued to pose a significant threat to the safety of the public because of the severe nature of her schizophrenic illness, including continued delusions of being assaulted by her treating psychiatrists, Hospital staff, and co-patients.

[14] Ms. Tolias submits that the Board's conclusion was unreasonable, for two main reasons: (i) her continued verbal misconduct was not reasonably capable of causing serious criminal harm; and (ii) she has not had any contact with Dr. Colleton who was the complainant in the index offences.

[15] We do not agree. The Board's finding was reasonable given the evidence of: the nature of Ms. Tolias's mental illness; her continuing persecutory delusions, which have led to aggressive oral outbursts, including threats; her limited coping abilities; and the need to ensure ongoing medication compliance and optimization.

[16] As well, there was evidence before the Board of a strong link between certain acts of Ms. Tolias during the review period and the conduct underlying the index offences involving her former treating psychiatrist, Dr. Colleton. Significantly, Ms. Tolias continued to voice the belief that she has a husband and, in June 2017, submitted a written request to have her name changed to Michelle Colleton, the name she used during the commission of the second index offence. As well, Ms. Tolias requested a transfer to CAMH. While that facility certainly would move her closer to family members, the evidence before the Board was that Dr. Colleton still practised there.

[17] Taken together, the evidence reasonably supported the Board's conclusion that Ms. Tolias remained a significant threat to the safety of the public.

IV. Second Issue: Conditional Discharge

[18] The Board rejected the alternative request by Ms. Tolias for a conditional discharge. The Board described her request as "premature" for several reasons: (i) a reduction in her delusions and sometimes aggressive behaviours was needed before she could progress to grounds and community living privileges; (ii) her requests to change her name and transfer to CAMH indicated that "the delusionary thoughts regarding the victim of the index offences … remain active"; and (iii) optimization of her medications was required given the current severity of her symptoms.

[19] Ms. Tolias contends that the Board failed to impose the least onerous and restrictive disposition, especially given: the lack of any violent conduct by Ms. Tolias; the existence of a strong family support network; and the lack of any attempt by her to contact Dr. Colleton when she was absent without leave from the Hospital for four days, which she spent in Toronto.

[20] In its decision dismissing the appeal of Ms. Tolias from the 2016 and 2017 Board dispositions, this court directed the Board to inquire into whether conditions could be crafted to release Ms. Tolias into the community: Re Tolias, 2018 ONCA 215, at para. 20.

[21] We have reviewed the transcript of the Board hearing. We are satisfied the Board made such inquiries. We are also satisfied that the evidence elicited by those inquiries support, as reasonable, the Board's conclusion that a conditional discharge would be premature. We would also note that at the hearing Ms. Tolias, who was represented by counsel, did not present any concrete plan concerning alternative living and treatment arrangements.

[22] That said, cases such as this one always raise a certain concern. The index offences involved criminal harassment. Such offences have a serious impact on the victim but, in the case of Ms. Tolias, the offences did not involve any violence. Yet, the offences occurred more than a decade ago, and since that time Ms. Tolias has remained in detention. Although the record certainly supports the Board's conclusion that Ms. Tolias continues to suffer from a serious mental illness, cases such as this require constant vigilance and inquiry by the Board into the appropriate disposition, especially the appropriateness of a conditional discharge with community living.

[23] We note that the next review hearing for Ms. Tolias will be held on February 25, 2019. We expect the Board to inquire actively into the appropriateness of alternative dispositions for Ms. Tolias.

V. Third Issue: Transfer to CAMH

[24] As her final ground of appeal, Ms. Tolias submits that the Board erred by failing to grant her request for a transfer to CAMH.

[25] We are not persuaded by this submission. First, only a year before the hearing the Board had acceded to Ms. Tolias's request for a transfer from Hamilton to Kingston. Second, the information from CAMH placed before the Board showed that there was an extensive waiting list for secure beds at CAMH, which would delay any ordered transfer. Finally, the Board had reason to be concerned about Ms. Tolias's request for the transfer against the background of her name change request.

VI. Disposition

[26] For these reasons, the appeal is dismissed.

"Robert J. Sharpe J.A." "M.L. Benotto J.A." "David Brown J.A."