Court File and Parties

CITATION: R. v. Coles, 2007 ONCA 806

DATE: 20071126

DOCKET: C47169 and C45625

COURT OF APPEAL FOR ONTARIO

CRONK, JURIANSZ and WATT JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

SUSAN COLES

Appellant

Maureen Elaine Addie, for the appellant

Greg Skerkowski, for the respondent

Heard: November 15, 2007

On appeal from the dispositions of the Ontario Review Board dated June 13, 2006 and May 11, 2007.

ENDORSEMENT

[1] On April 10, 2006, the appellant was found not criminally responsible (NCR) on account of mental disorder on a charge of criminal harassment. She appeals from a subsequent disposition of the Ontario Review Board dated June 13, 2006, whereby she was ordered detained in a minimum secure facility at Whitby Mental Health Centre (WMHC) subject to various privileges, including the right to live in the community in accommodation approved by the person in charge of WMHC. The appellant also appeals the disposition of the Board dated May 11, 2007, which continued her detention at the minimum secure forensic unit of WMHC subject to the same conditions imposed under the Board’s June 13, 2006 disposition.

[2] As acknowledged by the appellant’s counsel during oral argument, the appellant’s appeal from the June 13, 2006 disposition of the Board is moot. The appellant is now detained under the Board’s May 11, 2007 disposition. Accordingly, argument proceeded before this court in respect of the appellant’s appeal from the latter disposition only.

[3] As framed by the appellant’s counsel during oral argument before us, the main issue on appeal is whether the Board erred by failing to consider whether the appellant could be conditionally discharged subject to the condition that she continue the medi-cation regime that she recently commenced at WMHC. The appellant argues that when a conditional discharge subject to continued treatment is a live option for an NCR accused – as the appellant contends was the case here – it is incumbent on the Board, when considering possible dispositions, to inquire of the NCR accused whether he or she is prepared to consent to the proposed course of treatment, as contemplated by s. 672.55(1) of the Criminal Code. Anything less, the appellant submits, constitutes a failure by the Board to properly exercise its inquisitorial functions in fashioning the least onerous and least restrictive disposition for the NCR accused. Because this inquiry was not made by the Board in this case, and the evidence before the Board allegedly otherwise supported a conditional discharge, the appellant maintains that the Board’s assessment of a proper disposition was imbalanced and contrary to the requirements of s. 672.54 of the Code.

[4] We agree with the appellant that where an NCR accused seeks a conditional discharge from a mental health facility and such a disposition is a potentially realistic option based on the evidence adduced before the Board, the Board should consider whether the NCR accused might consent to any treatment conditions thought by the Board to be reasonable and necessary in the interests of the NCR accused. This type of inquiry would position the Board to impose treatment conditions, where appropriate, as provided for under s. 672.55(1) of the Code. It would also further the Board’s full consideration of the least onerous and least restrictive disposition for the NCR accused, as mandated by s. 672.54 of the Code.

[5] However, for two reasons, we do not agree that this type of inquiry was appropriate or necessary in this case.

[6] First, by the time of her annual review hearing in May 2007, the appellant had been found incapable of consenting to treatment and that determination had been upheld by order of the Consent and Capacity Board. As a result, by May 2007, the appellant’s sister had been appointed as her substitute decision-maker. In these circumstances, a direct inquiry of the appellant as to her willingness to consent to ongoing treatment, as the appellant submits was required, would have served little purpose.

[7] Second, and importantly, in our opinion the conditional discharge of the appellant on the consensual condition that she continue to take her medication was not a realistic option on the evidence before the Board.

[8] It was the uncontroverted psychiatric evidence before the Board at the May 2007 hearing that the appellant lacks insight into the gravity of the index offence and its effect on the original complainant and his family, her own illness, and the need to treat that illness with anti-psychotic medication. Moreover, although the appellant began to take such medication during her detention at the WMHC in the winter of 2007, she initially refused to accept the medication and actively engaged in activities designed to avoid it. It was the uncontradicted opinion of Dr. Johnston, the appellant’s treating psychiatrist, that unless the appellant was subject to further detention and required to adhere to a prescribed medication regime, she would likely cease taking her medication. According to Dr. Johnston, this, in turn, could trigger a reversion by the appellant to her previous psychotic state, giving rise to significant public safety concerns.

[9] Thus, on the evidence available to the Board in May 2007, the appellant was not receptive to or understanding of her need for medication. Nor was there any basis on which to conclude that she would voluntarily comply with a recommended medication regime. Indeed, her past behaviours and her lack of insight suggested that she would not voluntarily comply. In addition, the appellant’s substitute decision-maker at the time (her sister) was unwilling or unable to assume responsibility for ensuring that the appellant would take her medication, if she was conditionally discharged to live with her sister.

[10] We recognize, based on this record, that the appellant made considerable rehabilitative progress while at WMHC following her receipt of medication. In addition, on consent of the parties, we were told that the appellant is now living in the community with her sister pursuant to the conditions imposed by the Board’s May 11, 2007 disposition. We were also informed that she is taking her medication and complying with her reporting obligations to the WMHC at present. These commendable efforts may well support an application by the appellant for an accelerated 2008 annual review hearing by the Board. However, they do not displace or detract from the evidence before the Board in May 2007 upon which the challenged disposition was grounded.

[11] In oral argument, the appellant did not pursue the other grounds of appeal advanced in her factum. For completeness sake, however, we observe that we are satisfied that, in fashioning its May 11, 2007 disposition, the Board was alive to and properly applied the requisite legal test under s. 672.54 of the Code and, based on the totality of the information before it, that the Board’s disposition was not unreasonable. Finally, in our opinion, the Board’s disposition and the conditions imposed were crafted with a view to and took proper account of the appellant’s liberty interests.

[12] Accordingly, for the reasons given, the appeals are dismissed. We commend both counsel for their able arguments and assistance to the court.

“E.A. Cronk J.A.”

“R. Juriansz J.A.”

“David Watt J.A.”