R. v. Li

92 O.R. (3d) 343

Court of Appeal for Ontario,

Weiler, Borins and MacFarland JJ.A.

September 9, 2008

Criminal law -- Mental disorder -- Dispositions -- Ontario Review Board erring in granting absolute discharge to NCR accused -- Board erring in holding that there was onus on hospital to demonstrate that NCR accused posed significant risk to public -- Board erring in speculating or assuming that accused not placing lives of others at risk when twice attempted to grab police officer's gun in impulsive suicidal act -- Accused remaining suicidal but stating that would ensure did not place others at risk in future attempts -- Accused's mental condition remaining relatively unchanged since offence and having limited insight into her condition or the need for medication -- Board's conclusion that accused did not pose significant risk to public being contrary to evidence that her lack of insight into her condition and her impulsiveness demonstrated propensity to unintentionally put members of public at risk.

The Crown appealed a decision of the Ontario Review Board granting the respondent L an absolute discharge. [page344]

Held, the appeal should be allowed.

The uncontradicted evidence before the ORB was that the psychiatric illnesses which precipitated L's index offence continued relatively unabated, and that L had no insight into her illness or the potential harm her actions might cause to others. The accused had twice impulsively tried to grab a police officer's weapon as part of a suicide attempt. L remained suicidal, but stated that in future she would not use a method that put others at risk. However, the medical evidence was that she was very impulsive when suicidal and that others could be injured by her during another such attempt, even if she didn't intend to harm anyone else. The ORB's finding that there was no real chance of her putting any member of the public at risk was without evidentiary foundation, speculative and contrary to the only expert evidence on point. Whether or not L intended to cause the public harm was irrelevant, particularly where her conduct in fact put the public at risk.

There was no evidence that the victim of the offence had been notified of the hearing as is required at the initial review board hearing. The Board should not have speculated or assumed in its conclusion that the accused's actions had not placed any officer at risk when she grabbed for a gun twice before, absent an evidentiary foundation. The Board should have sought out the evidence on this point.

The ORB erred in law in holding that there was an onus on the respondent hospital to demonstrate that L posed a significant risk to the public, and that that onus had not been met. There is no burden or onus on any party before the ORB.

APPEAL from the order of the Ontario Review Board granting an absolute discharge.

Cases referred to Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31, 175 D.L.R. (4th) 193, 241 N.R. 1, J.E. 99-1277, 124 B.C.A.C. 1, 135 C.C.C. (3d) 129, 25 C.R. (5th) 1, 63 C.R.R. (2d) 189, 42 W.C.B. (2d) 381, apld

Megan Stephens, for appellant. James Hammond, for respondent, the Person in Charge of the Centre for Addiction and Mental Health. Anita Szigeti, as amicus curiae for respondent Betty Li.

[1] BY THE COURT: -- The Crown appeals from the Ontario Review Board's ("ORB") decision granting Ms. Li an absolute discharge. The Crown submits the ORB erred in law in holding, at paras. 20 and 21 of its reasons, that the Centre for Addiction and Mental Health ("CAMH") had an onus on it to demonstrate that Ms. Li was not a significant risk to the safety of the public. We agree: see Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31, 135 C.C.C. (3d) 129, at paras. 54-55.

[2] The Crown further submits that this error affected the Board's chain of reasoning and led to an unreasonable result. The Crown's position may be summarized as follows. Ms. Li's attempt [page345] to seize a police officer's gun posed a significant risk not only to herself but to the public because of the possibility of the unintentional discharge of the gun. The same psycho-social stressors that led to both Ms. Li's impulsive behaviour and her lack of insight into her mental condition continue to exist. As a result, in the Crown's submission, she continues to pose a risk of harm to the public. The evidence of Dr. Flett, Ms. Li's attending psychiatrist, was that Ms. Li's lack of insight into her illness and methods for stabilizing it meant that when acting on a suicidal impulse she may put other people at risk. She also has a long history of failing to take her medication.

[3] In its reasons, the ORB noted Ms. Li's evidence that she had not given up on attempting suicide, but that, in the future, she would not use a method that put others at risk. The ORB held, at para. 18, "that whatever might flow from her private suicidal ideation there was not the slightest real current chance of her putting any member of the public at risk". This statement is not only without evidentiary foundation and utterly speculative, but is contrary to the only expert evidence on point.

[4] It is the nature of Ms. Li's particular illness that puts the public at risk. When questioned whether she believed Ms. Li continued to pose a significant risk to the public, Dr. Flett responded:

I do. I do in that the behaviour for which her index offence flows from and continues on in her impulsive acts and her suicidality which has increased over the past two months specifically. Dr. Flett stated earlier in her evidence:

I think the greatest concern currently with Ms. Li is her level of suicidality and impulsivity that's related to that. She had quite a lethal attempt a couple of weeks ago and it was very similar behaviour at the time of her index offence that led to that offence and so certainly her suicidality, impulsivity and the activity in which she can become affectively and emotionally aroused when she's faced with a disappointment or loss if they are significant.

[5] The ORB was of the view that the attending psychiatrist, Dr. Flett, and the clinical team at CAMH placed substantial reliance on the episode that generated the NCR finding and on a previous occasion when in the course of an episode of marital discord with her ex-husband she also reached for a police officer's gun. It was not the episodes themselves which concerned Dr. Flett, but rather the behaviour that preceded these incidents and caused Ms. Li to act as she did. That behaviour continues to date and has not improved.

[6] The ORB's reasons do not reflect a consideration of whether the appellant's underlying mental illness, continued [page346] lack of insight into her condition and impulsiveness demonstrate a propensity to unintentionally put members of the public risk. Whether or not Ms. Li intends to cause the public harm is irrelevant, particularly where her conduct in fact puts the public at risk.

[7] The ORB also commented that on the two prior occasions when Ms. Li had attempted to seize a police officer's gun, "on no such occasion was an officer at any real risk and subject to any aggressive conduct or threats".

[8] At the initial hearing there was an obligation on the ORB to inquire whether the victim of a criminal offence has been notified of their right to attend a hearing, present a statement and make a statement. If not, the ORB may exercise its discretion to adjourn the hearing for up to 14 days to obtain the statement. The list of exhibits presented to this court does not indicate that notice was given. In the circumstances, where the onus is on the ORB to review all relevant evidence (see para. 54 of Winko), it is incumbent on the Board to search this evidence out rather than make assumptions without any evidentiary foundation. The ORB erred in making such assumptions in this case.

[9] The ORB also erred in holding that there was an onus on CAMH to prove Ms. Li posed a significant risk to the public, and that this onus had not been met (para. 21 of the ORB's reasons). The Supreme Court of Canada has decided that there is no burden or onus on any party (see paras. 49 and 54 of Winko) and, accordingly, the Board erred in placing a burden of proof on CAMH to show that Ms. Li posed a significant risk.

[10] The uncontradicted evidence before the ORB was that the psychiatric illnesses precipitating Ms. Li's index offence continue relatively unabated. Ms. Li is non-compliant in terms of attending appointments with her attending psychiatrist at CAMH and taking her medication. She has no insight into her illness or the potential harm her actions may cause to others.

[11] For these reasons, the Board's finding that the respondent was not a significant threat to the safety of the public is unreasonable, and its order granting Ms. Li an absolute discharge is set aside. Given its conclusion that Ms. Li should be absolutely discharged, the Board did not engage in any analysis as to the least onerous and least restrictive disposition possible.

[12] This matter is therefore remitted to a fresh Review Board to consider the case in accordance with these reasons.

Appeal allowed.