Her Majesty the Queen v. Brunczlik [Indexed as: R. v. Brunczlik]

61 O.R. (3d) 321

[2002] O.J. No. 3351

Docket No. C38456

Court of Appeal for Ontario

Charron, Simmons and Armstrong JJ.A.

September 5, 2002

Criminal law -- Mental disorder -- Disposition -- Reasons for disposition by Ontario Review Board -- Sufficiency of reasons when Review Board rejecting expert evidence -- Parties agreeing that accused posed significant threat of violence if he consumed alcohol -- Experts testifying that risk could be managed safely if accused took antabuse while overseen during visits to mental health facility and lived with family in community -- Review Board ordering accused detained within facility with limited supervised access to community and ordering him not to drive -- Neither evidence before Board nor reasons disclosing why Board rejected evidence of experts and why conditions imposed by Board satisfied criteria set out in s. 672.54 of Criminal Code -- Not clear from reasons that Board considered needs of accused when imposing conditions -- Appeal allowed and new hearing before Review Board ordered -- Criminal Code, R.S.C. 1985, c. C-46, s. 672.54.

The appellant appealed a disposition of the Ontario Review Board ("ORB") directing that he be detained at the medium secure unit of the Centre for Addiction and Mental Health ("CAMH") on terms including that he refrain from driving a motor vehicle and that his access to the community be limited to eight hours per week, supervised by hospital staff, for the purpose of family visits. That disposition was made despite expert evidence adduced at the hearing which indicated that the appellant's risk to the community because of a potential for violence arising from alcohol abuse could be managed through supervised administration of antabuse while the appellant lived in the community.

Held, the appeal should be allowed.

The ORB failed to make clear its reasons for rejecting the expert evidence and recommendations for appropriate conditions for detention. While it was open to the ORB to reject this evidence and to depart from the recommendations of all parties, it was not apparent from the record why it did so. Moreover, the ORB did not explain why the impugned conditions were appropriate within the meaning of s. 672.54 of the Criminal Code. In particular, the purpose of supervising community access as opposed to requiring that the CAMH supervise the administration of antabuse as a condition of permitting community access was not apparent. Section 672.55 of the Code does not prohibit the imposition of such a condition. The rationale for a driving prohibition was also not clear. Finally, it was not apparent that the ORB considered the needs of the appellant as one of the factors set out in s. 672.54 when it imposed the impugned conditions.

APPEAL from a disposition of the Ontario Review Board.

Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 672.54, 672.55

Jamie Klukach, for respondent. Mara Greene, for appellant. [page322]

Reasons for Decision

[1] BY THE COURT: -- The appellant appeals against a disposition of the Ontario Review Board dated April 30, 2002 directing that he be detained at the medium secure unit of the Centre for Addiction and Mental Health ("CAMH") on terms including that he refrain from driving a motor vehicle and that his access to the community be limited to eight hours per week, supervised by hospital staff, for the purpose of family visits. He contends that these conditions are unreasonable and not supported by the evidence. He requests that the detention order be quashed and that a new disposition incorporating the conditions contained in a disposition made on February 19, 2001 be imposed.

[2] The February 19, 2001 disposition required that the appellant be detained on terms that permitted him to live in the community at the discretion of the person in charge of the CAMH. Following that disposition, he did, in fact, live in the community with his family on condition that he take antabuse, an alcohol deterrent medication. The administration of the appellant's medication was self-monitored with frequent follow- ups by the CAMH staff. As a result of an episode of non- compliance that resulted in violence in November 2001, the appellant's community privileges were revoked and he was detained at the CAMH. Several weeks later, the appellant was allowed to resume living in the community on condition that he attend the CAMH daily so that staff could monitor the administration of his medication.

[3] It was common ground at the April 22, 2002 review hearing that the appellant continues to pose a significant risk to the community because of a potential for violence arising from alcohol abuse and from a non-specific personality disorder that limits his insight into his alcohol abuse. However, the expert evidence adduced at the hearing indicated that this risk could be managed through supervised administration of antabuse.

[4] At the April 22, 2002 review hearing, the CAMH recommended that the appellant continue to be permitted to reside in the community at the discretion of the person in charge of the CAMH on the understanding that the appellant's community privileges would be revoked if he stopped attending the CAMH daily for supervised administration of antabuse. The appellant, through counsel, agreed with this recommendation. Crown counsel was not opposed to the CAMH's recommendation but asked that the disposition contain a specific condition that the CAMH supervise the administration of antabuse. However, Crown counsel subsequently acknowledged, in response to a comment from the panel chair, that the ORB has no power to direct treatment.

[5] In written Reasons for Disposition dated May 7, 2002, the ORB concluded as follows: [page323]

[6] ". . . The Board is of the view, given all of the circumstances, that it is unreasonable to assume that the accused will refrain from the consumption of alcohol if left unsupervised for any period of time. The Board is also of the view that given the accused's personality, the members of his family, business associates or employers cannot be counted upon to supervise the activities of the accused with respect to the consumption of alcohol or to report any resort to alcohol by the accused."

[7] "It is the opinion of the Board that the extent to which the accused has been permitted to be in the community for the past while must end until a significant change in the accused's outlook upon and insight into his history of a 'long standing pattern of inner experience and behaviour which have, at times, deviated markedly from the expectations of society'. In this respect, an answer must be found for [his treating psychiatrist's] rhetorical question, 'when will this ever end?'."

[8] Appellate courts afford considerable deference to Review Board decisions in recognition of the Board's expertise. Moreover, we agree with the Crown's submission that it was open to the ORB to reject the expert evidence and recommendations adduced at the review hearing, and that the evidence of relapse may have justified the imposition of more restrictive conditions of detention. Nevertheless, in our view, the impugned conditions cannot stand for two reasons.

[9] First, the ORB failed to make its reasons clear for rejecting the expert evidence and recommendations for appropriate conditions of detention. While it was open to the ORB to reject this evidence and to depart from the recommendations of all parties, it is not apparent from the record why it did so.

[10] Second, the ORB did not explain, nor is it apparent from the record, why the impugned conditions are appropriate within the meaning of s. 672.54(c) of the Criminal Code, R.S.C. 1985, c. C-46.

[11] In particular, the purpose of supervising community access as opposed to requiring that the CAMH supervise the administration of antabuse as a condition of permitting community access is not apparent. In our view, s. 672.55 of the Criminal Code does not prohibit the imposition of such a condition. In any event, s. 672.55 of the Criminal Code permits the imposition of a treatment condition if it is made with an accused's consent and the appellant, through counsel, has now expressly consented to a treatment condition requiring that he take antabuse.

[12] In so far as the driving prohibition is concerned, other than a reference to convictions in Hungary in 1986 for impaired driving and failing to remain at the scene of an accident, and a [page324] further reference to the fact that the appellant drove to the CAMH daily to facilitate supervised administration of his medication, we see no mention of the appellant's driving in the evidence. Hence we do not understand the rationale for a driving prohibition provided that the appellant is required to take antabuse.

[13] Finally, although the ORB is not required to apply "the least onerous, least restrictive" [disposition] in imposing conditions of detention, in our view, it is not apparent that it considered the needs of the appellant as one of the factors set out in s. 672.54 when it imposed the impugned conditions.

[14] We accordingly accept the appellant's contention that the impugned conditions are unreasonable and not supported by the evidence. However, given that the ORB did not explain its reasons for rejecting the expert evidence and recommendations adduced at the review hearing, or for imposing the conditions that it imposed, in our view, it is not appropriate that we substitute our discretion to impose appropriate conditions for that of the Board.

[15] Accordingly, the appeal is allowed and the matter is referred back to the ORB for rehearing on an expedited basis to determine appropriate conditions of detention in accordance with these reasons.

Appeal allowed.