Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240314 DOCKET: COA-23-CR-0914

Gillese, Thorburn and Gomery JJ.A.

IN THE MATTER OF: Anthony D. Heinekamp

AN APPEAL UNDER PART XX.1 OF THE CRIMINAL CODE

Counsel: Anita Szigeti, for the appellant Dana Achtemichuk, for the respondent, Attorney General of Ontario John McIntyre, for the respondent, Ontario Shores Centre for Mental Health Sciences

Heard: March 1, 2024

On appeal from the decision of the Ontario Review Board, dated July 20, 2023, with reasons dated August 11, 2023.

Reasons for Decision

[1] On July 19, 2023, the Ontario Review Board held a Restriction of Liberty hearing pursuant to section 672.81(2.1) of the Criminal Code, R.S.C. 1985, c. C-46 (the “ROL hearing”), to review the decision of the Ontario Shores Centre for Mental Health Science (the “Hospital”) to significantly increase the restrictions of liberty of Anthony Heinekamp under s. 672.56 of the Code. Following the ROL hearing, the Board concluded that the ongoing restrictions on Mr. Heinekamp’s liberty were warranted and in the circumstances of this case represented the least onerous and least restrictive measure commensurate with public safety. Mr. Heinekamp appeals the Board’s decision.

Background

[2] The appellant is 54 years old and has been diagnosed with schizophrenia, substance abuse disorder, and antisocial personality disorder. From 1993 to 2001, he served a prison sentence for manslaughter. In March 2003, he was charged with possession of a weapon, uttering death threats and assaulting a police officer with a weapon. He was determined not criminally responsible due to a mental disorder (NCR) and remanded to a secure hospital facility.

[3] The appellant remained in forensic hospitals from 2003 to 2022. Until late 2019, he occasionally assaulted and threatened staff and fellow patients, particularly when he discontinued his antipsychotic medications or consumed alcohol or drugs. He was charged and pled guilty to assault causing bodily harm following one of these incidents.

[4] In 2019, the Board recommended that the appellant be permitted to reside in supervised accommodation in the community with approval from the person in charge at the Hospital. In February 2022, with the Hospital’s approval, he moved to Ballantyne House, a 24-hour supervised residence.

[5] The appellant’s first year at Ballantyne House went well. At his annual review in January 2023, all parties agreed that he still represented a significant threat to public safety such that he could not be discharged. They jointly recommended, however, that the appellant would be ready to transition to housing with less supervision. The Board accepted this recommendation. The person in charge at the Hospital would nonetheless retain the power to have the appellant readmitted if his condition deteriorated, notably due to medication noncompliance or substance use.

[6] In March 2023, the appellant began exhibiting changes in behaviour and breakthrough psychotic symptoms. He denied using illicit drugs but tested positive for amphetamine and methamphetamine on May 30, 2023. After meeting with the appellant on June 1, 2023, his treating psychiatrist, Dr. Pytyck, decided he should be readmitted to the Hospital for further assessment. The appellant reacted angrily and fled. He remained at large for five days, missing a scheduled injection of long-acting anti-psychotic medication. The police located him, and he was readmitted to the Hospital on June 6, 2023. He acknowledged taking amphetamines but denied using other substances. Drug screening showed that he had crystal methamphetamine, amphetamine, and cocaine in his system.

[7] Sometime on or before June 28, 2023, the Hospital advised Ballantyne House that the person in charge had withdrawn approval for the appellant’s placement in community housing. As a result, the appellant’s bed at Ballantyne House was assigned to another patient.

The Board’s decision

[8] At the ROL hearing, the appellant did not contest that the initial restriction of his liberty on June 6, 2023, through his readmission to Hospital, was necessary and appropriate. He contended, however, that admission in Hospital was no longer the least onerous and restrictive option commensurate with public safety, and that he should be permitted to return to live in supervised housing in the community. The appellant further took the position that the Hospital should have deferred the cancellation of his housing at Ballantyne House for three to six months.

[9] The Board disagreed.

[10] The Board found that the appellant’s relapse into illegal drug use while at Ballantyne House and while AWOL had destabilized his psychiatric condition and worsened his psychotic symptoms such as hallucinations and paranoia. This increased the risk that the appellant would act aggressively to others. The Board also found that the appellant’s “anger, upset and contrariness” was an ongoing concern.

[11] The Board rejected the appellant’s argument that the deterioration of his behaviour and mood was due solely to his hospitalization and the revocation of his housing at Ballantyne House. It acknowledged that the Hospital could have deferred the cancellation of his housing for three to six months, but found that, as of the ROL hearing date, six weeks after readmission, the appellant was “nowhere near being ready for release”, and it would be premature for there even to be a discussion about when a release might eventually occur. The Board concluded that, while it was open to the Hospital to consider not taking steps to withdraw support from the appellant’s housing, it could not say that the decision was “in error”.

Grounds of appeal

[12] The appellant contends that: (1) the Board erred in concluding that the least onerous and least restrictive measure commensurate with public safety was his continued detention in the Hospital; and (2) he was denied a meaningful ROL hearing.

Standard of review

[13] This court’s review of a Board’s decision “does not involve a search for a “single, ‘correct’ answer to the complex and multifactorial decision that the Board is tasked with making”: Woods (Re), 2019 ONCA 87, at para. 14, citing Carrick (Re), 2015 ONCA 866, 128 O.R. (3d) 209, at para. 24. The court must instead determine whether the Board, in the exercise of its specialized knowledge and expertise, rendered a decision that falls within the range of reasonable outcomes. In evaluating whether the decision was reasonable, the court must consider the evidence and the context in which the decision was made: Wall (Re), 2017 ONCA 713, 417 D.L.R. (4th) 124, at para. 22.

Is the Board’s decision reasonable?

[14] We find that the Board’s decision is reasonable.

[15] The Board adopted the lengthy account of the appellant’s personal and psychiatric history set out in its reasons for its January 2023 disposition and reviewed the events of March to July 2023. Based on all the relevant history and Dr. Pytyck’s evidence, it found that the appellant would pose a public safety risk if returned to supervised community housing. When the appellant consumed psychogenic drugs in the past, he became physically violent. The Board found that the appellant had “no accountability or desire to avoid substances” and was in denial about the link between his drug use and his psychosis. These findings were amply supported on the record.

[16] The appellant has not been physically violent in recent years. The mental disorder provisions under part XX.1 of the Criminal Code are intended to protect public safety by preventing violence, however. The appellant has a long history of violent behaviour resulting in bodily harm and even death. In late June and early July 2023, he warned that Dr. Pytyck should “watch herself” as he would “knock her fucking head off”. Given the evidence before it, the Board reasonably concluded that the appellant’s detention in the Hospital was the least restrictive and onerous measure commensurate with public safety.

[17] The appellant says he is angry because the Hospital revoked its approval for his placement at Ballantyne House. As observed in Sim (Re), 2020 ONCA 563, at para. 86: “[p]eople with mental illness are entitled to become irritated, upset, impatient and angry without their conduct being pathologized as symptomatic.”

[18] The Board accepted Dr. Pytyck’s evidence that she went into her meeting with the appellant on June 1, 2023, with an open mind. She decided that he had to be readmitted based on his positive drug screen, his presentation, and his lack of candour. She observed that the appellant was hostile, swearing, threatening, paranoid and more disinhibited. In her view, this showed that the appellant was not merely angry but “off his baseline”. Her assessments of the appellant after his readmission supported her initial impression.

[19] It was open to the Board to accept this evidence. Dr. Pytyck has been the appellant’s treating psychiatrist for several years.

[20] The appellant argues that, in reaching its decision, the Board inappropriately took into account that there were other patients on a wait list for community housing. The Board referred to other patients only in the context of its discussion of whether the Hospital prematurely advised Ballantyne House that it was revoking its approval of the appellant’s community housing placement. The demand for supervised community housing beds explained, in part, why the Hospital took this step prior to the hearing.

Did the appellant get a meaningful hearing?

[21] The appellant contends that the ROL hearing was meaningless because the Hospital had already revoked its approval for his placement at Ballantyne House. Had the Board found that his detention in Hospital was no longer justified, the result would have been the same because no supervised community housing placement would have been available.

[22] In cross-examination, Dr. Pytyck explained how and why the Hospital revoked its approval for a community housing placement for the appellant in late June 2023:

[W]e had a meeting with the outpatient team, the inpatient team, and the administration of the forensic program, including the person in charge. We've reviewed all of the factors involved in the readmission, the fact that [the appellant] had been using substances and was not being forthcoming about this or taking responsibility. Then, then the fact that he had AWOLed and been AWOL for a period of days without any effort to get in touch with the hospital and missed his injection and continued to use substances. And we thought that in light of all of that and the fact that he was not at his baseline and was not engaging meaningfully with us, it was not realistic that he would be able to return to the community within that type of timeframe, three to six months, that he would need a longer period of time observation in hospital and a review of the housing as well.

[23] Counsel for the Hospital conceded at the oral hearing of this appeal that approval of the appellant’s placement at Ballantyne House should not have been revoked prior to the ROL hearing. He emphasized, however, that the revocation decision was not made lightly or maliciously. He pointed out that, on the evidence accepted by the Board, the appellant would not realistically be ready for a transition back to community housing for at least six months, past the maximum time that a bed at Ballantyne House could remain reserved for him in his absence.

[24] While we accept that the Hospital acted in good faith, its revocation of its approval of the appellant’s community housing placement before the Board hearing undermined the appellant’s right to procedural fairness.

[25] As noted in the Board’s reasons for its January 2023 disposition, the person in charge at the Hospital retained the authority to readmit the appellant if his situation deteriorated. Pursuant to s. 672.81(2.1) of the Code, however, the Hospital was required to give notice to the Board of any increase in restrictions on the appellant’s liberty so that an ROL hearing could be held “as soon as practicable”. The purpose of an ROL hearing “is to act as a final liberty safeguard, allowing for a second-look at those hospital decisions that have such serious ramifications for the liberty of the NCR accused, that they should be examined ahead of the next yearly review”: Campbell (Re), 2018 ONCA 140, 139 O.R. (3d) 401 at para. 64.

[26] At an ROL hearing, a person whose liberty has been restricted has the right to be represented by counsel, submit evidence, make submissions, and enjoy other procedural protections set out in ss. 672.5 to 672.53 of the Code. These procedural guarantees are undermined if, prior to the hearing, the Hospital, unilaterally and without notice, takes steps that make the person’s reduced liberty a foregone conclusion from a practical perspective.

[27] We are satisfied that the appellant ultimately got a fair and meaningful hearing in front of the Board. We nonetheless understand why the appellant feels otherwise. The premature revocation decision may have ruptured his therapeutic relationship with Dr. Pytyck. This is particularly unfortunate since the assignment of a new psychiatrist may delay the therapy necessary to contemplate another community placement.

[28] The appellant asks this court to issue an order like the order made in Woods (Re), [2021] O.R.B.D. No. 104, aff’d 2023 ONCA 657. In that case, a treatment team revoked approval for Woods’ placement in community housing when her mental state appeared to be deteriorating. The Board held that this decision was premature and unreasonable, and directed that the decision be reconsidered when Woods’ condition had stabilized.

[29] The facts in Woods differ from those here. Woods’ placement was revoked more than four years after she began living in community housing and before she was even readmitted to hospital. Here, the Hospital’s revocation of approval for the appellant’s community placement was made only after he was assessed by Dr. Pytyck over a period of several weeks, and only after it became apparent that his overall condition had deteriorated and that he was in denial about both his substance abuse and the need for treatment.

[30] In the circumstances of this case, there is no basis for appellate intervention with the Board’s decision.

Disposition

[31] The appeal is dismissed.

“E.E. Gillese J.A.”

“Thorburn J.A.”

“S. Gomery J.A.”