Court of Appeal for Ontario

Date: 2019-02-08 Docket: C65415 Judges: Doherty, Miller and Trotter JJ.A.

In the Matter of: Joanne Woods

An Appeal Under Part XX.1 of the Code

Counsel:

• Anita Szigeti, for the appellant
• Caitlin Sharawy, for the Crown
• Michele Warner, for the Person in Charge of the Centre for Addiction and Mental Health

Heard: January 25, 2019

On appeal against the disposition of the Ontario Review Board dated April 26, 2018.

Reasons for Decision

[1] Ms. Woods has been subject to the jurisdiction of the Ontario Review Board ("the Board") since 2012. After her most recent review hearing, the Board continued her conditional discharge. She appeals, arguing that the Board erred in not ordering an absolute discharge pursuant to section 672.54(a) of the Criminal Code. For the following reasons, the appeal is dismissed.

A. Background

[2] Ms. Woods is 52 years old. Her primary diagnoses are schizoaffective disorder and substance abuse disorder, with differential diagnoses of schizophrenia and personality disorder not otherwise specified. Before the index offences, she had roughly 25 hospital admissions since 1998. The record reveals that the ingestion of illicit substances worsens her condition.

[3] In 2012, Ms. Woods was charged with uttering a death threat and possession of a weapon for a dangerous purpose. She boarded a TTC bus which was carrying many passengers and yelled "I am going to kill someone" and "I have a knife." She fled from the bus but was soon apprehended by police. She was in possession of a knife. Ms. Woods was found NCR of these charges.

[4] Ms. Woods was conditionally discharged in 2017. She lives in an apartment that is close to the Centre for Addiction and Mental Health ("CAMH"). Ms. Woods is currently being followed by the Enhanced Forensic Outpatient Service Team, due to her heightened need for support and supervision. She sees team members five days a week and receives medication two days a week. Ms. Woods requires this level of support and supervision because there have been medication compliance issues and her mental condition is prone to quick deterioration. Even when medicated, Ms. Woods continues to experience persecutory and somatic delusions.

[5] The sole witness at Ms. Woods' review hearing was her attending psychiatrist, Dr. R. Jones. He testified that her medication has not been "fully optimized." This is the project for the coming year. Dr. Jones is working with Ms. Woods' substitute decision maker, her daughter, to address this issue. Dr. Jones also expressed concern about medication compliance issues and Ms. Woods' lack of insight into her mental illness and the need for medication. Ultimately, he testified that Ms. Woods continues to pose a significant threat to the safety of the public.

[6] Dr. Jones testified that the treatment team has given thought to transitioning Ms. Woods out of the forensic system and managing her illness under the civil system, with the support of the Assertive Community Treatment ("ACT") Team. Dr. Jones testified that, "[w]e would want to see improvements, however, in terms of her mental state and in terms of her insight. Especially with regards to taking medication, before we would feel that she was ready to make that transition directly over to the ACT."

B. The Board's Decision

[7] The Board accepted the "uncontroverted" opinion of Dr. Jones. It characterized Ms. Woods' mental status as still "fragile." In its reasons, the Board said, at para. 29:

According to the Hospital Report, "Ms. Woods history of violence includes behaving in an agitated and threatening manner when ill." In addition to the index offences, violent incidents in the community include: holding a knife to her aunt's throat and threatening her mother. In 2012, she was reported to have yelled obscenities at children, threatened to kill people and to blow up a park. She also spat at police officers. Other incidents of aggression have occurred when she has been an inpatient in the hospital, necessitating seclusion and/or restraint. The Hospital Report indicates that she is assessed as a moderate-high risk if she were to receive an Absolute Discharge at this time. [Emphasis added.]

[8] Ms. Woods' "moderate-high" ranking was based on actuarial measures. There was also a clinical risk assessment component in the Hospital Report:

In risk assessment, one of the best predictors is a patient's history of violence. Ms. Woods' history of violence includes behaving in an agitated and threatening manner when ill. While suffering from active symptoms of psychosis and/or mania, she exhibits behavioural disinhibition, impulsivity, paranoid delusions, mood lability and irritability, which leads to aggressive behaviour that can be focused on those in close vicinity, often in a non-premeditated and unpredictable way.

[9] In its reasons, the Board twice expressed concern about Ms. Woods' lack of insight. At para. 28, the Board said: "She has very little insight into her mental illness and has expressed markedly fluctuating insight into the benefits of medications."

[10] The Board concluded that Ms. Woods still requires significant supervision and support, which involves seeing her team 5 days a week. The Board concluded, at para. 32, that, "absent this level of supervision, she would be very likely to fall away from treatment, leading to a relapse to psychosis and likely aggression in the community."

C. Issues on Appeal

[11] Ms. Szigeti, amicus curiae, argues that the Board erred in concluding that Ms. Woods continues to pose a significant risk to the safety of the public. She argues that the Board placed too much emphasis on the lack of insight exhibited by Ms. Woods. As Ms. Szigeti argues, this is a common characteristic of those who come before the Board. Moreover, she argues that the Board's reasoning falls short of finding that Ms. Woods poses a significant threat to the safety of the public. She submits that although there may be a risk that Ms. Woods will discontinue her medication and her mental status will deteriorate, the Board's finding of a significant threat to the safety of the community is speculative. In these circumstances, Ms. Woods should be discharged and her mental well-being managed under the Mental Health Act, R.S.O. 1990, c. M.7.

[12] The respondents argue that there was an evidentiary basis for the Board's disposition. The reasons of the Board go beyond speculation about the threat posed by Ms. Woods to the safety of the public. The respondents further submit that the Board did not give undue weight to Ms. Woods' enduring lack of insight into her condition.

D. Analysis

[13] We consider this case to be a close call. However, after careful consideration, we have reached the conclusion that the appeal must be dismissed.

[14] Appellate review of the Board's decisions does not involve a search for a single, "correct" answer to the complex and multifactorial decision that the Board is tasked with making: see Carrick (Re), 2015 ONCA 866, 128 O.R. (3d) 209, at para. 24. Instead, the question is whether the Board, in the exercise of its specialized knowledge and expertise, rendered a decision that falls within the range of reasonable outcomes. As Huscroft J.A. said, at para. 26:

This court does not make its own judgment on the significant threat question and use that judgment as the benchmark for assessing the reasonableness of the board's decision. Nor does this court re-weigh the considerations before the board. The reasons for the board's decision and the substantive decision reached by the board must be considered together to determine whether an acceptable and defensible outcome has been reached.

See also Medcof (Re), 2018 ONCA 299, at paras. 44-46; and R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 764, at para. 95.

[15] In our view, the Board's disposition was within the range of reasonable outcomes available based on the record before it. There was an evidentiary basis to support the Board's conclusion that the significant threat standard was met in this case. Despite the very high level of supervision and support that Ms. Woods receives, her mental state remains precarious. The disordered thought processes that she currently experiences (even while medicated) are similar to those that were active at the time of the index offences. There was evidence before the Board that, in this state, Ms. Woods becomes threatening and aggressive. As noted in para. 7 above, the Hospital Report explained the downward spiral that will almost inevitably occur when Ms. Woods falls away from treatment, which, on this record, also seems very likely.

[16] The Board was also entitled to rely on the actuarial assessment of Ms. Woods which placed her at moderate to high risk of reoffending. We acknowledge that results on risk assessment tests such as the HCR-20 V3 are only capable of predicting the likelihood of future violence, and not its nature or magnitude: see Krivicic (Re), 2018 ONCA 535, at para. 60. As such, standing alone, these measures cannot satisfy the requirements of s. 672.541. However, in this case, the Board considered the actuarial testing alongside the clinical risk assessment in the Hospital Report and the evidence of Dr. Jones.

[17] Accordingly, it cannot be said that the Board's decision was unreasonable. Nor do we find that the Board committed any legal errors in reaching its ultimate decision. However, Ms. Szigeti's submissions about the Board's reliance on Ms. Woods' lack of insight deserve consideration. Lack of insight has its place in the overall clinical picture; however, it must not dominate the significant threat analysis. This is important in Ms. Woods' situation. As Ms. Szigeti submitted, Ms. Woods will likely never gain any real insight into her situation. However, this alone cannot form the basis for indeterminate detention under Part XX.1 of the Criminal Code.

[18] Despite Ms. Szigeti's helpful submissions, we are satisfied that the Board's decision was not overwhelmed by this factor; it was one, albeit an important one, of many components of analysis. Still, it bears repeating the words of Hoy A.C.J.O. in Kalra (Re), 2018 ONCA 833, at para. 52:

As I have said, the Board's Disposition was rooted in its concern that Mr. Kalra lacked insight into his illness and therefore would not continue to take his medication if he received an absolute discharge. It bears stating that lack of insight is not of itself a basis to deny an absolute discharge. As the Supreme Court instructs, the mentally ill are not inherently dangerous: Winko, at para. 35. Whether an NCR accused has insight into his or her mental illness, and the extent of that insight, is only part of the analysis in determining if there is a significant threat to the safety of the public. While insight is a treatment goal, it is one some persons living with mental illness may be unable to fully achieve. In some instances, particularly where the contemplated harm falls at the lower end of the spectrum, it may be unreasonable to require, as the Board did here, that an NCR accused's insight into his or her illness be "entrenched on his consciousness" in order to obtain an absolute discharge. [Emphasis added.]

[19] In conclusion, we reiterate that we consider this case to be a close call. Deference prevents us from interfering. However, there appears to be a path forward. As Dr. Jones testified, the current plan is to "optimize" Ms. Woods' medication. The prospect of transitioning Ms. Woods out of the forensic system is clearly on his radar. It is hoped that Ms. Woods' progress in the coming year will allow this to happen or at least move her closer to this goal.

E. Disposition

[20] The appeal is dismissed.

"Doherty J.A."

"B.W. Miller J.A."

"G.T. Trotter J.A."