Court of Appeal for Ontario

Citation: R. v. Simpson, 2010 ONCA 302 Date: 2010-04-28 Docket: C51333

Before: Weiler, Simmons and Watt JJ.A.

Between: Her Majesty the Queen (Respondent) And Douglas Simpson (Appellant)

Counsel: Douglas Simpson, acting in person Joseph Di Luca, as amicus curiae John Patton, for the respondent Jean D. Buie, for the Centre of Addiction and Mental Health

Heard: April 8, 2010

On appeal from the disposition of the Ontario Review Board, dated June 4, 2009.

Reasons for Decision

Weiler J.A.:

[1] On April 23, 2008, the appellant was found not criminally responsible on account of mental disorder (NCRMD) on charges of assault (x2) and threatening death or bodily harm (x3). On June 3, 2008, the Board released its initial disposition, ordering that the appellant be detained at the minimum secure unit of CAMH subject to various conditions. The appellant appeals from a subsequent disposition of the Ontario Review Board, dated June 4, 2009, whereby his continued detention was ordered.

[2] The appellant submits that the Board’s decision failed to reflect the least onerous and least restrictive disposition and that the Board erred in law by failing to meaningfully consider whether the appellant could be discharged absolutely or conditionally. The other issues raised in the appellant’s factum were not pursued on appeal and I would not give effect to them.

[3] During the intervening year following the appellant’s detention, he made great progress such that, although detained, he is out in the community every day and enjoys very liberal privileges. He works, drives a car and plays golf. In addition, he has participated meaningfully in various psycho-educational programs and enjoyed supervised access to his daughter. There has been no issue with the appellant’s compliance with medication for his delusional disorder since he came under the jurisdiction of the Board (except for refusing to take medication that caused him serious side effects). The hospital’s plan is to continue his detention but to allow him to live in the community in a two-bedroom apartment that the appellant found for himself. He would have a general practitioner to attend to his medical needs in the community.

[4] Although not referred to in its reasons for disposition, the Board had evidence in the expert opinion of Dr. Pearce that approved accommodation was an important risk management tool. This court has held that in such circumstances, the continued detention of the patient should be ordered. See Brockville Psychiatric Hospital v. McGillis, [1996] O.J. No. 3430 at para. 4 and R. v. Capano, [2008] O.J. No. 1712 at para. 8. Here, the submission of amicus was that approval of the appellant’s accommodation was imminent and more in the nature of a formality and the appeal proceeded on that basis.

[5] The Board’s findings disclose essentially two reasons for its disposition. First, the Board was concerned that if discharged into the community, albeit on a conditional basis, the appellant would not continue to take his medication. If he ceased taking his medication, the appellant could start to decompensate, he would not be immediately certifiable, and the hospital would have no ability to return him. The Board was concerned that the appellant would constitute a real risk of physical or psychological harm to the safety of the public before he could be returned to detention.

[6] The second reason the Board gave for the appellant’s continued detention is that he would face a number of stressors in the community, including returning to a teaching position, court proceedings in an attempt to have joint custody of his daughter and interpersonal relationships. The Board noted that in the past, interpersonal conflict with others had affected the appellant’s mental status and led to delusions. Moreover, at the hearing Dr. Pearce testified that stressors involved in teaching and living independently could cause a deterioration in the appellant’s mental condition even independent of compliance with medication.

[7] The Board’s conclusion, that continued detention of the appellant was necessary to ensure timely intervention if the appellant decompensated, was in accord with the evidence and opinion of the appellant’s psychiatrist, Dr. Pearce. However, his evidence appears to have been premised on the Mental Health Act and did not take into consideration the provisions of the Criminal Code.

[8] The able submissions of the amicus are that the Board’s decision is not consistent with R. v. Breitwieser, 2009 ONCA 784, [2009] O.J. No. 4653. In that case, this court held that where there is an air of reality to the claim that a conditional discharge would be an appropriate disposition, the Board must address two elements. As stated at para. 18 of the court’s reasons:

First, the Board must canvass whether the accused will consent to appropriate conditions under s. 672.55 [of the Criminal Code]. Second, it must address the potential mechanisms for the accused’s return to the hospital in the event of non-compliance, and determine whether the patient is likely to agree to return or whether a combination of s. 672.55 [consent to condition regarding psychiatric treatment] and either s. 672.92 or s. 672.93(2) or another route of return would be sufficient in the circumstances.

[9] Section 672.92 allows a peace officer to arrest a person subject to a conditional discharge if, pursuant to s. 672.91, the officer has reasonable grounds to believe that the person has contravened or wilfully failed to comply with a condition in a disposition order or is about to do so. If, taking into consideration the conditions of the conditional discharge, the need to prevent the commission of an offence or to prevent the person from contravening a condition of his or her discharge, a peace officer has a reasonable belief that the person’s detention is necessary in the public interest, the peace officer cannot release that person. Instead, the peace officer must take the person before a justice of the peace within twenty-four hours after arrest. Pursuant to s. 672.93, if the justice of the peace is satisfied that the accused person has failed to comply with a disposition, the justice of the peace may make an order that the accused be returned to a place that is specified in the disposition order.

[10] Here, the Board did not engage in a consideration of the two elements it was required to address. The evidentiary threshold, an air of reality, existed for the Board to explore the appellant’s willingness to consent to a medication regime that would potentially satisfy any concerns the Board had about public safety. The Board also failed to turn its mind to the practical reality that in the event the appellant failed to follow the conditions of a conditional discharge, he could be detained quickly for breaching his conditions.

[11] That said, the evidence that the appellant does not believe he has a major mental illness, his limited insight into his illness, non-compliance with treatment while living in the community in 2007, requests for discontinuance or reduction of his medication, and difficulty accepting that he requires life-long treatment, cannot be ignored.

[12] At the time of the hearing before the Board, the appellant had no history of self-medication, let alone a successful regime of compliance within the community. The Board’s determination that the appellant was a significant threat to public safety was not based on a mere speculative assumption that he would not take his medication if granted a conditional discharge. Furthermore, the submissions of amicus do not address the second reason for the Board’s refusal to grant a discharge, including a conditional discharge, namely, the stressors in the appellant’s life. The appellant could not be arrested should his mental status decompensate due to these stressors despite compliance with medication as he would not be in breach of any term of his disposition. In all the circumstances, the Board’s decision was not unreasonable.

[13] Accordingly, I would dismiss the appeal.

"DW"

RELEASED: Apr. 28, 2010 "Karen M. Weiler J.A."

"I agree Janet Simmons J.A."

"I agree David Watt J.A."