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

100 O.R. (3d) 81

2010 ONCA 324

Court of Appeal for Ontario,

Sharpe, Blair and MacFarland JJ.A.

May 3, 2010

Criminal law -- Appeals -- Fresh evidence on appeal -- Accused appealing disposition of Ontario Review Board refusing to grant him absolute discharge and continuing his conditional discharge -- Accused under jurisdiction by Review Board and its predecessor for almost 30 years -- Substantial improvement in health since 2003-2004 after long-acting injectable medication added to treatment -- Since 2006 accused living in community -- Psychiatrist stating at Review Board hearing if accused could be placed under Community Treatment Order ("CTO") pursuant to provincial Mental Health Act accused might not be significant threat to the safety of public -- Not known at time of Review Board hearing if could make such an order -- Court admitting fresh evidence that CTO issued after Board's disposition requiring him to continue to take medication and providing for monitoring of compliance -- Fresh evidence meeting all four branches of Palmer test -- Disposition of Review Board set aside and absolute discharge granted -- Mental Health Act, R.S.O. 1990, c. M.7.

Criminal law -- Mental disorder -- Dispositions -- Accused appealing disposition of Ontario Review Board refusing to grant him absolute discharge and continuing his conditional discharge -- Accused under jurisdiction by Review Board and its predecessor for almost 30 years -- Substantial improvement in health since 2003-2004 after long-acting injectable medication added to treatment -- Since 2006 accused living in community -- Psychiatrist stating at Review Board hearing if accused could be placed under Community Treatment Order ("CTO") under provincial Mental Health Act accused might not be significant threat to the safety of public -- Not known at time of Review Board hearing if could make CTO for person in accused's position -- Court admitting fresh evidence that CTO had been issued after Board's disposition requiring accused to take medication and providing for monitoring of compliance -- CTO valid -- Although accused living in community for part of last three years still "patient" in psychiatric facility for purposes of CTO -- Fresh evidence establishing that accused no longer posed significant risk to public -- Appeal allowed and absolute discharge granted -- Mental Health Act, R.S.O. 1990, c. M.7, s. 33.1(4)(a).

The accused suffered from paranoid schizophrenia and was found not guilty by reason of insanity of attempted murder and possession of a prohibited weapon when he was 27 years old, almost 30 years ago. He was detained in psychiatric facilities from 1981 until 2006. In 2003-2004, his treatment regime was modified by adding a long-active anti-psychotic injectable medication, which greatly improved his condition. Since 2006, the accused had been living in the community without incident. At his last Ontario Review Board hearing, his treating physician testified that the treatment team was exploring whether he met the criteria for a Community Treatment Order ("CTO") under the Mental Health Act and that, if a CTO were available, it would be difficult to maintain the proposition that the accused continued to pose a significant risk to the public. The [page82 ]Review Board refused to grant the accused an absolute discharge, and instead continued his conditional discharge. The accused appealed and applied to adduce fresh evidence that a CTO was issued after the Board issued its disposition. The Crown took the position that the fresh evidence should not be admitted on the ground that the legal validity of the CTO was open to question as the accused was not a "patient" in a psychiatric facility during the three-year period preceding the order, as required by s. 33.1(4)(a) of the Mental Health Act.

Held, the application should be granted and the appeal should be allowed.

It was open to the court to rule on the validity of the CTO. While s. 39.1 of the Mental Health Act grants jurisdiction to the Consent and Capacity Board to determine that issue at the request of the person subject to a CTO, nothing in the language of the Act precluded the court from determining the legal question arising on this appeal. The term "patient" should be interpreted in a flexible and purposive manner. The fact that the accused was permitted to live in the community for part of the three-year period preceding the CTO did not strip him of the "patient" designation, especially given the fact that he remained subject to a detention order until January 2008, when he was granted a conditional discharge.

The fresh evidence met all four branches of the Palmer test. The Crown had conceded the due diligence and credibility branches. The evidence was relevant to the central issue before the Board, namely, the risk to the public arising from the need to ensure that the accused continued to take his medication. The evidence could also have affected the result of the disposition. The only reasonable outcome in light of the fresh evidence was to grant the accused an absolute discharge.

APPEAL from the dispositions, [2009] O.R.B.D. No. 319 and [2010] O.R.B.D. No. 300, of the Ontario Review Board.

Cases referred to R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, 106 D.L.R. (3d) 212, 30 N.R. 181, 50 C.C.C. (2d) 193, 14 C.R. (3d) 22, 17 C.R. (3d) 34, apld Other cases referred to Lavallie v. Kingston Psychiatric Hospital, 2000 CanLII 16896 (ON CA), [2000] O.J. No. 3641, 136 O.A.C. 334, 35 E.T.R. (2d) 250, 100 A.C.W.S. (3d) 154 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 672.78(3) [as am.] Mental Health Act, R.S.O. 1990, c. M.7, ss. 1(1) [as am.], 33.1 [as am.], (1), (3), (4), (a)(i), (11), (12), 39.1, 54 [as am.]

Brian Harold Stanley, acting in person. Anita Szigeti, as amicus curiae. Lisa Joyal, for Her Majesty the Queen. Julie A. Zamprogna-Ballès, for St. Joseph's Regional Mental Health -- St. Thomas.

The judgment of the court was delivered by

[1] SHARPE J.A.: -- The appellant appeals from the dispositions of the Ontario Review Board (the "Board"), continuing his conditional discharge and refusing to grant him an absolute [page83 ]discharge. The appellant's appeal from the Board's 2009 disposition initially came before this court after the Board issued its 2010 disposition. The parties agreed to expedite this appeal from the Board's 2010 disposition.

[2] The appellant has been subject to the jurisdiction of the Board or its predecessor for almost 30 years. The index offences, attempted murder and possession of a prohibited weapon, committed when the appellant was 27 years old, were very serious. The appellant was being treated by a physician for his mental problems with megavitamins. The appellant became convinced that the megavitamins were toxic and went to the doctor's office with a shotgun. He entered the office and levelled the gun in the direction of the doctor, who ducked. The appellant fired the weapon, narrowly missing a young girl who was seated in the doctor's office. The appellant was found "not guilty by reason of insanity" (a verdict now legally known as "not criminally responsible") and was diagnosed with paranoid schizophrenia.

[3] The appellant is now 56 years old. Apart from the index offences, he has no other involvement with the criminal justice system and has committed no further criminal or violent acts. From 1981 until 2008, the appellant was detained in psychiatric facilities, except for three periods of community living at the discretion of the treating hospital. He was subject to a detention order until January 2008, when the Board granted him a conditional discharge.

[4] The appellant's psychiatric illness improved dramatically in 2003-2004 as a result of biweekly injections of a long- acting antipsychotic medication. The appellant has lived successfully in the community without incident since May 2006.

[5] In addition to his psychiatric illness, alcohol abuse has been a matter of concern. While he resumed drinking for a period of time while living in the community, the appellant self-reported his drinking to his treatment team and has since resolved not to consume alcohol. Issues

[6] With the support of amicus curiae, the appellant submits that the Board's determination that he still constitutes a significant threat to public safety was unreasonable in fact and that the Board misapprehended and misapplied the applicable legal test.

[7] The respondent St. Joseph's Health Care, Regional Mental Health Care, St. Thomas seeks to introduce fresh evidence of significant developments that have occurred in the appellant's treatment since the Board's 2010 disposition. [page84 ] Analysis

[8] For the following reasons, I would admit the fresh evidence and allow the appeal. As I view the fresh evidence as dispositive of this appeal, I find it unnecessary to consider the other issues raised by the appellant.

Fresh evidence

[9] The fresh evidence consists of an affidavit sworn by Dr. Jack Ellis, the appellant's treating physician. The developments since the Board's 2010 disposition related in Dr. Ellis's affidavit demonstrate that -- the appellant has started his transition from the forensic case manager to the non-forensic, long-term case manager; and -- a Community Treatment Order ("CTO") was issued on April 9, 2010 with respect to the appellant, pursuant to the Mental Health Act, R.S.O. 1990, c. M.7 (the "Act"), s. 33.1.

[10] Dr. Ellis deposes that he issued the CTO based upon his opinion that the appellant suffers from a mental disorder requiring continued treatment or care, and that the appellant is able to comply with the community treatment plan annexed to the CTO. The appellant agreed to the issuance of the CTO and, because he is incapable of making his own treatment decisions, actual consent to the CTO was given on his behalf by his substitute decision-maker, namely, the Public Guardian and Trustee.

[11] The community treatment plan attached to the CTO requires the appellant to take medications as indicated by clinical need, to accept medication as ordered by Dr. Ellis, to meet regularly with Dr. Ellis as required by clinical need, to meet with the long-term case manager at least once a week, and to submit to blood and lab investigations as clinically indicated and ordered by Dr. Ellis or his designate.

[12] The Crown concedes that the fresh evidence introduced meets the "due diligence" and "credibility" elements of the test developed in R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, but submits that it does not meet the "relevance" and "effect on the result" requirements of the same test. The Crown submits that there is doubt as to the legal validity of the CTO, that the Consent and Capacity Board has exclusive jurisdiction to decide that issue and that, given the legal uncertainty surrounding the validity of the CTO, the fresh evidence is neither relevant nor could it affect the result. [page85 ]

[13] In any event, the Crown submits that, even if the fresh evidence is admitted, this matter should be returned to the Board for further consideration.

[14] To understand the relevance and impact of the fresh evidence, it is necessary to consider the evidence given by Dr. Ellis at the 2010 Board hearing. As I read his evidence, Dr. Ellis testified that the treatment team was exploring whether the appellant met the criteria for a CTO. Dr. Ellis testified that, if a CTO could be issued, and if the appellant could be integrated into the local non-forensic case management system, the appellant's treatment team would be open to asking the Board to replace its current disposition with an absolute discharge on the ground that the appellant could be managed with the CTO. Dr. Ellis also indicated that, while he was concerned that the appellant might not continue his medication if granted an absolute discharge with nothing else in place, it was also his opinion that the appellant does respond to the requirements of legal orders. According to Dr. Ellis, this meant that if a CTO were available, it would be difficult to maintain the proposition that the appellant continued to pose a significant risk to the public.

[15] It is clear from the fresh evidence that, since the 2010 hearing before the Board, Dr. Ellis has satisfied himself that a CTO is appropriate and, indeed, a CTO has now been issued.

[16] I am not persuaded by the Crown's submission that we should not admit the fresh evidence on the ground that the legal validity of the CTO is open to question.

[17] Section 33.1 of the Act governs the issue before this court and reads as follows:

Community treatment order

33.1(1) A physician may issue or renew a community treatment order with respect to a person for a purpose described in subsection (3) if the criteria set out in subsection (4) are met. . . . . .

Purposes

(3) The purpose of a community treatment order is to provide a person who suffers from a serious mental disorder with a comprehensive plan of community-based treatment or care and supervision that is less restrictive than being detained in a psychiatric facility. Without limiting the generality of the foregoing, a purpose is to provide such a plan for a person who, as a result of his or her serious mental disorder, experiences this pattern: The person is admitted to a psychiatric facility where his or her condition is usually stabilized; after being released from the facility, the person often stops the treatment or care and supervision; the person's condition changes and, as a result, the person must be re-admitted to a psychiatric facility. [page86 ]

Criteria for order

(4) A physician may issue or renew a community treatment order under this section if, (a) during the previous three-year period, the person, (i) has been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during that three-year period, or (ii) has been the subject of a previous community treatment order under this section; (b) the person or his or her substitute decision-maker, the physician who is considering issuing or renewing the community treatment order and any other health practitioner or person involved in the person's treatment or care and supervision have developed a community treatment plan for the person; (c) within the 72-hour period before entering into the community treatment plan, the physician has examined the person and is of the opinion, based on the examination and any other relevant facts communicated to the physician, that, (i) the person is suffering from mental disorder such that he or she needs continuing treatment or care and continuing supervision while living in the community, (ii) the person meets the criteria for the completion of an application for psychiatric assessment under subsection 15(1) or (1.1) where the person is not currently a patient in a psychiatric facility, (iii) if the person does not receive continuing treatment or care and continuing supervision while living in the community, he or she is likely, because of mental disorder, to cause serious bodily harm to himself or herself or to another person or to suffer substantial mental or physical deterioration of the person or serious physical impairment of the person, (iv) the person is able to comply with the community treatment plan contained in the community treatment order, and (v) the treatment or care and supervision required under the terms of the community treatment order are available in the community; (d) the physician has consulted with the health practitioners or other persons proposed to be named in the community treatment plan; (e) subject to subsection (5), the physician is satisfied that the person subject to the order and his or her substitute decision-maker, if any, have consulted with a rights adviser and have been advised of their legal rights; and [page87 ] (f) the person or his or her substitute decision-maker consents to the community treatment plan in accordance with the rules for consent under the Health Care Consent Act, 1996. . . . . .

Expiry of order

(11) A community treatment order expires six months after the day it is made unless, (a) it is renewed in accordance with subsection (12); or (b) it is terminated earlier in accordance with section 33.2, 33.3 or 33.4.

Renewals

(12) A community treatment order may be renewed for a period of six months at any time before its expiry and within one month after its expiry.

[18] The pivotal issue is whether the appellant was a "patient" in a psychiatric facility during the three-year period preceding the order. Section 1(1) of the Act defines "out-patient" and "patient" as follows:

"out-patient" means a person who is registered in a psychiatric facility for observation or treatment or both, but who is not admitted as a patient and is not the subject of an application for assessment;

"patient" means a person who is under observation, care and treatment in a psychiatric facility;

[19] The Crown submits that, as s. 39.1 provides that a person who is subject to a CTO may apply to the Consent and Capacity Board for a determination of whether or not the criteria for issuing or renewing a CTO set out in subsection 33.1(4) are met, this court is without jurisdiction to determine the validity of the order.

[20] I disagree with the contention that it is not open to this court to rule on the validity of the CTO. While s. 39.1 clearly grants jurisdiction to the Consent and Capacity Board to determine this issue at the request of the person subject to a CTO, I see nothing in the language of the Act that would preclude this court from determining the legal question arising on this appeal, which has a direct bearing upon the legal rights of the appellant.

[21] Accordingly, I turn to the issue of whether the appellant meets the criteria for a CTO. The Crown submits that as the appellant was living in the community since May 2006, he had not been a patient in a psychiatric facility during the three-year period immediately before the CTO was issued and that, therefore, he does not meet the requirement specified by s. 33.1(4)(a)(i) of the Act.

[22] In my view, this argument cannot be accepted. The appellant was subject to a detention order until he was granted a [page88 ]conditional discharge in January 2008. He was living in the community since May 2006, but remained bound by the terms of his detention order, which granted his treatment team the discretion to allow him to live in the community. Thus, he could be returned to the hospital at any time and he remained subject to the discretion and control of his treatment team at all times. By virtue of the legal character of the disposition that governed the appellant and ordered that he be detained in a psychiatric institution, subject only to the discretion of his treatment team, he remained a patient under the Act, even though the treatment team allowed him to live temporarily in the community.

[23] The situation here is closely analogous to the one that arose in Lavallie v. Kingston Psychiatric Hospital, 2000 CanLII 16896 (ON CA), [2000] O.J. No. 3641, 136 O.A.C. 334 (C.A.). In that case, the central question concerned the validity of a certificate of incapacity issued pursuant to s. 54 of the Act, which grants an attending physician the authority to issue such a certificate for a "patient". The appellant had been granted regular leaves of absence from the hospital. He argued that, as he did not remain in the hospital, he was no longer a "patient" and, consequently, that the certificate of incapacity was therefore a nullity. This court held that the definition of "patient" should be approached in a flexible and purposive manner, and that the fact that the appellant had been on a leave of absence did not invalidate the certificate of incapacity.

[24] I would apply the same purposive interpretation of the term "patient" to the case at bar and hold that, even though the appellant had been permitted to live in the community, this did not strip him of the "patient" designation, especially given the fact that he remained subject to a detention order until January 2008, when he was granted a conditional discharge. As the present case can be decided on that basis, I leave the resolution of the question of the status of an individual who is subject to a conditional discharge for another day.

[25] Accordingly, I do not accept the submission that the CTO is of questionable legal validity. It follows, in my view, that the fresh evidence meets all four branches of the Palmer test. The Crown has conceded the due diligence and credibility branches.

[26] The evidence is relevant to the central issue before the Board, namely, the risk to the public arising from the need to ensure that the appellant continues to take his medication.

[27] The evidence also could have affected the result of the disposition. As I read the record before the Board and the reasons underpinning its decision, it is clear that the justification for denying the appellant an absolute discharge rested upon the concern that, absent a legal compulsion requiring him to do so, [page89 ]he would not take his medication and that he was not integrated with the non-forensic case management system. The appellant has demonstrated a record of consistent compliance for the past several years. Moreover, the CTO implements a legal mechanism that requires the appellant to continue taking his medication. Dr. Ellis is satisfied that the appellant will adhere to the CTO. The fresh evidence adds the vital link missing at the time of the hearing. The fresh evidence also indicates that the appellant has been linked with the community mental health care network to the satisfaction of his treating physician.

[28] As all elements of the Palmer test are satisfied, the fresh evidence should be admitted.

[29] I do not agree that the appropriate disposition is to return the matter to the Board for further consideration, as it is my view that the only reasonable outcome in light of the fresh evidence is to grant the appellant an absolute discharge. Disposition

[30] Accordingly, I would admit the fresh evidence, allow the appeal and, pursuant to Criminal Code, R.S.C. 1985, c. C-46, s. 672.78(3), grant the appellant an absolute discharge.

Appeal allowed.