CITATION: Ontario Shores Centre for Mental Health Sciences v. Darch, 2010 ONCA 36
DATE: 20100121
DOCKET: C50791
COURT OF APPEAL FOR ONTARIO
Simmons, Cronk and LaForme JJ.A.
BETWEEN
The Person in Charge of Ontario Shores Centre for Mental Health Sciences (formerly known as Whitby Mental Health Centre)
Appellant
and
Donald Darch
Respondent
and
Her Majesty the Queen
Respondent
Barbara Walker-Renshaw, for the appellant
Robin Flumerfelt, for the respondent Crown
Suzan E. Fraser, amicus curiae
Heard: January 7, 2010
On appeal from the disposition of the Ontario Review Board dated May 4, 2009, with reasons reported at [2009] O.R.B.D. No. 1301.
Cronk J.A.:
I. Background
[1] On January 16, 2005, the respondent Donald Darch was charged with arson, assault with a weapon and possession of a dangerous weapon. The charges arose from an incident in which Mr. Darch threatened his brother with a large knife and attempted to set fire to his family home.
[2] Following his arrest, Mr. Darch was admitted to the Forensic Assessment Unit at the Whitby Mental Health Centre (now known as the Ontario Shores Centre for Mental Health Services) (the "Hospital") for a mental health assessment.
[3] While at the Hospital, Mr. Darch was assessed by Dr. Z. Waisman. In a report dated February 4, 2005, Dr. Waisman recorded that Mr. Darch had "a longstanding history of psychiatric difficulties in the form of psychotic disorder that was untreated and undetected". Further, his psychotic symptoms were "exacerbated by substance abuse" and "this case was complicated with the existence of possible cognitive deficits from a head injury."
[4] In Dr. Waisman's opinion, based on his clinical presentation, Mr. Darch appeared to have a major mental illness. A differential diagnosis for Mr. Darch's psychotic symptoms included "Substance-Induced Psychosis, Schizophrenia, and Delusional Disorder with Persecutory Features."
[5] On March 22, 2005, H. J. Campbell J. of the Ontario Court of Justice found Mr. Darch not criminally responsible in respect of the index offences, described above, and ordered him detained at the Hospital to await a disposition by the Ontario Review Board (the "Board").
[6] Mr. Darch remained an inpatient at the Hospital until January 2007, when he was transferred to Fairpark Manor, a group home. The Board's dispositions in 2007 and 2008 regarding Mr. Darch required that he continue to be detained in the minimum secure unit of the Hospital, with privileges up to and including community living. As a result, Mr. Darch continued to reside at Fairpark Manor throughout 2007 and 2008.
[7] In April 2009, the Board conducted a further annual review hearing concerning Mr. Darch. The Board unanimously concluded that Mr. Darch "no longer represents a significant risk to the safety of the public and thus under s. 672.54 of the Criminal Code he should be absolutely discharged". Accordingly, by disposition dated May 4, 2009, the Board ordered that Mr. Darch be discharged absolutely.
[8] The Hospital appeals from the Board's disposition.
[9] Mr. Darch chose not to respond to or otherwise participate in this appeal. However, amicus curiae counsel participated in the appeal, arguing against any inter-ference by this court with the Board's decision.
II. Issues
[10] The Hospital, supported by the Crown, challenges the Board's disposition on two grounds. First, it argues that the disposition was unreasonable as the Board failed to place sufficient weight on the uncontradicted expert evidence regarding the risk to public safety posed by Mr. Darch. That risk, the Hospital says, requires that Mr. Darch continue to be subject to the structure and supervision afforded by a detention order, in order to ensure that he continues to take his required medications and participates in treatment for his condition. Second, the Hospital seeks leave to introduce fresh evidence on appeal that it says undermines findings that were central to the Board's disposition and that would reasonably have affected the result at the Board hearing, thus compelling a rehearing before the Board.
III. Discussion
(1) Reasonableness of the Board's Disposition
[11] I do not accept the assertion that the Board's 2009 disposition was unreasonable. In my view, based on the evidential record then before it, the Board's disposition was eminently reasonable.
[12] In arriving at the conclusion that Mr. Darch no longer represented a significant risk to the safety of the public, the Board indicated that it relied on several factors:
a) Mr. Darch was unmedicated prior [to] the index offence[s] and lived relatively peaceably in the community for many years. He has only one prior criminal conviction in 51 years of his life.
b) There were a combination of stressors that likely contributed to the actions at the time of the index offence[s], including the death of his father, learning his mother had a terminal illness and being required to move from the only home he had ever known.
c) He has been medication compliant since the time of [the] index offence[s].
d) He has not demonstrated any aggressive behaviour or violence since [the] index offence[s].
e) He is a rule bound and cooperative individual.
f) He states he wishes to remain at Fairpark Manor where he feels taken care of and has an environment similar to that he had with his parents. He leads a quiet existence at Fairpark Manor.
g) He has the negative symptom of low motivation which makes it unlikely he will have the necessary resources to move from his present location.
h) He has not returned to drug use since the index offence[s] and has produced repeated negative urine screens.
i) He has been free of positive symptoms of his illness for a significant period [of] time since the index offence[s].
j) Although he does not specifically admit his mental illness he does admit to benefit from the medications.
[13] There is no suggestion that the Board erred in its appreciation of the evidence concerning, or its description of, these factors. On the contrary, each of the above-noted considerations identified by the Board was grounded in the evidential record.
[14] The evidence before the Board established that the members of Mr. Darch's treatment team were not unanimous as to an appropriate disposition for him. In an April 2009 report by the treatment team filed with the Board (the "Hospital Report"), the treatment team recommended that Mr. Darch be absolutely discharged from the Hospital. The team reasoned, in part, as follows:
The actuarial and related clinical assessment suggest ongoing active areas of concern. It does appear that Mr. Darch can stay at his present residence indefinitely. It is noted that this setting replicates his earlier home environment, which worked until his parents weren't available.
The increased acknowledgement of the situation at the time of the index offence[s] and his present assessment of his situation (a satisfactory setting for him) indicate he has made peace with the past and has settled into his lifestyle for the foreseeable future.
[15] Dr. R.W. Hill, Mr. Darch's treating psychiatrist at the Hospital, signed the Hospital Report. He was the only medical witness who testified at the Board hearing. Notwithstanding his endorsement of the Hospital Report and, thus, of the recom-mendation contained in it that Mr. Darch should be absolutely discharged, Dr. Hill testified before the Board that Mr. Darch should be conditionally, rather than absolutely, discharged from the Hospital.
[16] On my reading of his testimony, Dr. Hill's recommendation of a conditional discharge was premised on his view that Mr. Darch could "act in worrisome and potentially violent ways" if he stopped taking his medication, resumed his use of cannabis and lost the community supports that he enjoyed at the time of the Board hearing. Thus, Dr. Hill's opinion that Mr. Darch posed a significant threat to the safety of the public was conditional on the happening of a series of events, none of which had occurred or was anticipated to occur at the time of the Board hearing.
[17] Dr. Hill himself confirmed in his evidence that: Mr. Darch had been compliant with his medication since moving into the community in January of 2007; since that time, there had been no decompensation in Mr. Darch's mental state of which the Hospital was aware; "things [were] going well in the community" for Mr. Darch; Mr. Darch had presented "no troubles whatsoever" at the group home where he resided; Mr. Darch had not, at any time, indicated that he wished or intended to stop taking his medication; Mr. Darch had continued to be free of any positive symptoms of mental illness during the year prior to the Board's 2009 hearing; and Mr. Darch had "increasingly said" that he wished to stay at the group home and he had "no reason to go anywhere else".
[18] There was also undisputed evidence before the Board that while living at the group home, Mr. Darch met regularly with Dr. Hill at the Hospital and with Dr. Adam Waese – Mr. Darch's attending outpatient psychiatrist – and a mental health nurse from the Hospital.
[19] I note, as well, that Mr. Darch was assessed for psychological risk in 2006 and again in 2009. On both occasions, he was found to be a moderate risk for violent recidivism. The 2009 Hospital Report stressed, however, that his "level of risk would be greater if he did not have the significant supports and supervision provided by the group home and [the Hospital's] Forensic Outpatient Services". This support, it was suggested, limited Mr. Darch's "exposure to excessive stress" and "ensures compliance with his psychopharmacological regimen to keep his psychotic symptoms under control".
[20] Finally, the Board's reasons in support of its disposition indicate that the Board was alive to concerns expressed by some members of Mr. Darch's medical team regarding the possible public safety risk that he posed. However, based on the totality of the evidence before it, the Board ruled that it was "unable to say with any certainty that Mr. Darch is a risk to the public". In my opinion, given the evidence adduced at the 2009 Board hearing, this holding was reasonable. At its highest, the evidence before the Board suggested that Mr. Darch potentially could act violently if he stopped taking his medication, ceased living at his group home, lost his community supports and resumed the use of cannabis. None of these speculative factors applied at the time of the Board hearing.
[21] Absent a demonstration that Mr. Darch posed a risk to public safety, his continued detention could not be justified. It was reasonable for the Board to conclude on the record before it that the evidence adduced at the hearing fell short of meeting that key threshold for a continued detention order. It follows that the Board's decision to absolutely discharge Mr. Darch cannot be said to be unreasonable.
(2) The Fresh Evidence
[22] The Hospital also seeks to introduce fresh evidence on this appeal, which it says undercuts certain pivotal findings by the Board that led to the disposition at issue. The Hospital submits that if the fresh evidence had been available at the time of the Board hearing, the result of the hearing could reasonably have been affected.
[23] The fresh evidence consists of two affidavits affirmed on September 30, 2009 and December 14, 2009 by Mr. Darch's community-based psychiatrist, Dr. Adam Waese, together with excerpts from Mr. Darch's Hospital clinical records.
[24] In R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at paras. 59 and 71, Binnie J. of the Supreme Court cautioned: "An absolute discharge [of an NCR accused] should be granted only upon consideration of all the reliable evidence available both at the time of the Board hearing and, if appealed, at the time of the appellate review" and "[I]t will generally be desirable for an appellate court to admit fresh evidence that is trustworthy and touches on the issue of risk to public safety as being 'necessary…in the interests of justice'."
[25] I am satisfied, as acknowledged by amicus counsel, that the Hospital has met the requisite test for the admission of fresh evidence on an appeal from a disposition of the Board as discussed in Owen at paras. 48-72. I would emphasize, in particular, that the admission of the fresh evidence in this case is necessary in the interests of justice given that both justice for Mr. Darch – whose liberty is at stake – and the protection of the public are the central issues on this appeal. The fresh evidence is credible and bears directly on the key question of the risk to public safety posed by Mr. Darch. It is also my view that the fresh evidence, if believed and if taken with the other evidence adduced before the Board (including the evidence of Dr. Hill and the evidence contained in the Hospital Report), could reasonably be expected to have affected the Board's disposition. I would, therefore, admit the fresh evidence on this appeal.
[26] The salient parts of the uncontradicted fresh evidence indicate that after Mr. Darch was absolutely discharged from the Hospital in May 2009: (i) he stopped taking his medication, almost immediately; (ii) he thereafter refused to meet with some members of his clinical outpatient team, including Dr. Waese; (iii) a resident at the group home where Mr. Darch resides reported that he sold him marijuana; (iv) Mr. Darch acknowledged that although he had not been caught by drug screening tests due to "good luck", he had resumed intermittent use of marijuana even before his absolute discharge; (v) after he stopped using his medication, Mr. Darch was observed to be more agitated, argumentative and prone to swearing than he had been in the past; and (vi) Mr. Darch informed his social worker that, on his receipt of an expected share of family inheritance moneys, he was "considering moving out of Fairpark Manor to live on his own".
[27] As a result of Mr. Darch's post-discharge condition and the other post-discharge events outlined above, he was readmitted to the Hospital by Dr. Waese on July 24, 2009. The Hospital appealed the Board's disposition in late July 2009. Shortly thereafter, Mr. Darch was discharged from the Hospital to the community and returned to Fairpark Manor.
[28] According to Dr. Waese's sworn fresh evidence, after Mr. Darch's return to the group home and after the Hospital initiated an appeal from the Board's disposition, Mr. Darch restarted his medication, became compliant with treatment and exhibited a positive change in his level of interaction and co-operativeness with others.
[29] In his supplementary affidavit affirmed on December 14, 2009, Dr. Waese stated:
I am concerned that Mr. Darch's current actions suggest that his intentions regarding medication and treatment may again alter substantially should he not be under the jurisdiction of the [Board]. I anticipate that if his absolute discharge is upheld, he will quickly stop medication, and contact with the treatment team. A relapse of psychosis will follow. In an untreated, psychotic state Mr. Darch poses a significant risk to the safety of the public, considering the gravity of the index offence and the risk it posed to members of his family residing in the family home at the time of the arson.
[30] The Board's May 4, 2009 finding that Mr. Darch no longer represented a significant risk to the safety of the public rested on several factors. These included, at least implicitly if not explicitly, the expectations that Mr. Darch would remain "medication compliant", "rule bound" and "cooperative", that he would continue to reside at Fairpark Manor, and that he would refrain from drug use if granted an absolute discharge, all as discussed in the Hospital Report and Dr. Hill's testimony.
[31] But the fresh evidence demonstrates that within a short time after his absolute discharge, Mr. Darch acted in a manner contrary to several of the factors relied on by the Board to ground its decision (see paragraph 12 above) and in a way that led his outpatient psychiatrist to view him as posing a significant risk to the safety of the public.
[32] The fresh evidence tendered by the Hospital undermines several of the Board's reasons for granting an absolute discharge and, in several material respects, the factual foundation for the Board's disposition. Further, in my view, the fresh evidence could reasonably have affected the result of the Board hearing. I conclude, therefore, that the appeal must be allowed and a rehearing held by the Board.
IV. Disposition
[33] For the reasons given, I would allow the appeal, set aside the disposition of the Board and remit the matter back to the Board for rehearing. In the particular circum-stances of this case, I would also direct that, if possible, the rehearing be conducted by the same panel of the Board as that which conducted Mr. Darch's April 2009 annual review hearing.
RELEASED:
"JAN 21 2010" "E.A. Cronk J.A."
"EAC" "I agree Janet Simmons J.A."
"I agree H.S. LaForme J.A."