CITATION: R. v. Ferguson, 2010 ONCA 810
DATE: 20101201
DOCKET: C52106/C49688
COURT OF APPEAL FOR ONTARIO
Doherty, Feldman and Gillese JJ.A.
BETWEEN
Her Majesty the Queen and the Regional Mental Health Care St. Thomas
Respondents
and
Ryan Ferguson
Appellant
Ryan Ferguson, appearing in person Anita Szigeti, amicus curiae
Riun Shandler, for the respondent Her Majesty the Queen Julie A. Zamprogna Ballès, for the respondent the Regional Mental Health Care St. Thomas
Heard: November 1, 2010 On appeal from the disposition order of the Ontario Review Board, dated April 28, 2010.*
Doherty J.A.:
I: Introduction
[1] The facts of this case raise a difficult problem familiar to those who must make disposition orders in respect of persons found not criminally responsible (NCR) on account of a mental disorder. The appellant is mentally ill. That illness is exacerbated by the appellant’s consumption of marijuana and, to a lesser degree, his use of alcohol. The appellant’s symptoms can be controlled by medication, but when left to his own devices, especially when under the influence of drugs, the appellant does not take his medication. The appellant has made it clear, including in a statement to this court in oral submissions, that he regards the use of marijuana as a religious practice and that he fully intends to continue the use of marijuana. It is almost inevitable that if the appellant is left on his own in the community, he will abuse the consumption of marijuana and stop taking his medication. These two events combined will lead to a significant deterioration in the appellant’s mental state within a relatively short time. With that deterioration will come conduct that is anti-social and probably criminal.
[2] The appellant has a long history (10 years) of psychiatric illness exacerbated by substance abuse. He has engaged in conduct that is bizarre, disturbing to his family and those around him and, on occasion, criminal. With the possible exception of one event involving his father, he has never engaged in physically assaultive behaviour.
[3] While it is almost certain that the appellant will engage in anti-social and criminal conduct if left on his own in the community, the crucial question is whether that conduct will pose “a significant threat to the safety of the public”. Unless the Review Board could be satisfied that the appellant’s conduct would pose that threat, the Review Board was obliged to absolutely discharge the appellant regardless of the negative effect that order might have on both the appellant’s ability to function in society and health care professionals’ ability to treat the appellant.
[4] The Review Board, after a hearing in April 2010, concluded that the appellant did pose a significant threat to the safety of the public. The Review Board ordered the appellant detained in the Regional Mental Health Care St. Thomas (RMHC St. Thomas). The Review Board had also made detention orders in 2006, 2007, 2008 and 2009. In all of those orders, the Review Board had allowed the appellant to live in the community at a place approved by the person in charge of RMHC St. Thomas. The appellant had lived in the community for much of the time he was under the Review Board’s jurisdiction. This condition was removed from the 2010 order. Instead, the appellant was allowed, at the discretion of the person in charge, to live in the community for up to one week, twice a year. This variation from the earlier orders made the 2010 order the most restrictive order that had been imposed on the appellant by the Review Board.
[5] The appellant contends that the Review Board’s finding that he posed a significant threat to the safety of the public is unreasonable. He submits that he is entitled to an absolute discharge. Amicus curiae, Ms. Szigeti, who has provided her customary able assistance to the court, supports the appellant’s submission. She further submits that if the Review Board’s finding that the appellant posed a significant threat to the public stands, the imposition of a detention order cannot reasonably be said to constitute the least onerous and least restrictive disposition. She submits that a conditional discharge is the appropriate order.
[6] Counsel for the Attorney General, joined by counsel for RMHC St. Thomas, submits that the Review Board’s determination that the appellant represented a significant threat to the safety of the public was reasonable and supported by the evidence. Counsel further argues that the disposition, while admittedly more onerous than previous dispositions, was an appropriate one under the legislative scheme set out in Part XX.I of the Criminal Code, R.S.C. 1985, c. C-46. Counsel for the Attorney General emphasizes that the appellant’s habitual use of marijuana and his refusal to follow his medication regime while in the community have repeatedly led to episodes in which the appellant’s mental stability rapidly deteriorates. Counsel for the Attorney General submits that an order giving RMHC St. Thomas control over the appellant’s access to the community and the ability to remove him quickly from the community and stabilize his mental condition, balances the various interests described in s. 672.54 of the Code.
II: The Significant Risk Requirement in Section 672.54
[7] An accused who is found NCR cannot be punished for his or her criminal act. Any post-verdict limitation on the liberty of the person found NCR must be justified on the basis that he or she poses an ongoing danger to the community: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 25. That constitutionally mandated precondition to restriction on liberty finds its statutory expression in s. 672.54(a). That section provides that if the Review Board concludes that the NCR accused does not pose “a significant threat to the safety of the public”, the Review Board must order an absolute discharge.
[8] The meaning of the phrase “significant threat to the safety of the public” has been authoritatively set down in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at paras. 49-62, 69. The phrase refers to a foreseeable and substantial risk of physical or psychological harm to members of the public that is serious and beyond the trivial or annoying. A very small risk of even grave harm will not suffice. A high risk of relatively trivial harm will also not meet the substantial harm standard. While the conduct must be criminal in nature, not all criminal conduct will suffice to establish a substantial risk. There must be a risk that the NCR accused will commit a “serious criminal offence”.
[9] There is no presumption that an NCR accused poses a significant threat to the safety of the public and there is no obligation on the NCR accused to prove lack of dangerousness. If upon a review of the evidence, the Review Board is satisfied that the NCR accused poses a significant risk, then limits on the liberty of the NCR accused are justified and the Review Board must determine the appropriate order. However, if the Review Board is satisfied that the NCR accused does not pose a significant risk, or if the Review Board is unable to come to a conclusion on the question of the risk posed by the NCR accused, the Review Board must order an absolute discharge: Winko at paras. 52, 57, 62.
[10] The assessment of potential risk is often somewhat uncertain compared to fact finding in respect of prior events. The Review Board has a wide power to receive and gather evidence. Its composition also ensures a level of expertise in evaluating the medical and social factors associated with risk assessment: Winko at paras. 59-61.
III: The Reasonableness Standard of Review
[11] This court does not decide whether the appellant poses a significant threat to the safety of the public. That is the Review Board’s function and one for which it has special expertise. This court’s responsibility is to decide whether the Review Board’s determination that the appellant poses such a substantial risk to the safety of the public is a reasonable one: Owen at paras. 31-35. In performing that function, the court must recognize the Review Board’s expertise and afford deference to its risk assessments. The nature of the reasonableness review is explained in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47:
Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law.
IV: The Evidence
(a) The appellant’s psychiatric history prior to the NCR finding
[12] The appellant is 27 years old. He has lived his entire life in the St. Thomas area. His mother suffers from mental illness and his upbringing was far from ideal. The appellant has been mentally ill since he was a teenager. His regular use of marijuana began around the same time. The appellant was admitted to RMHC St. Thomas on seven occasions between September 2001 and December 2005 because of his mental illness. On the first occasion in September 2001, he presented at the hospital as delusional, disorganized and withdrawn. He was diagnosed as schizophrenic with a drug induced mental disorder. That diagnosis has remained basically the same since then.
[13] The appellant was released in February 2002, only to be returned to RMHC St. Thomas some seven days later. He was irritable, angry and voicing delusional thoughts. His behaviour was considered threatening. He reluctantly agreed to start medication and responded well to that medication. He was discharged on May 29, 2002. When allowed to leave RMHC St. Thomas, he maintained only minimal contact with the workers at the hospital.
[14] The appellant was admitted for a third time in early June 2002. He was paranoid with grandiose delusions. Medication was commenced and he responded well. He was discharged to a group home on June 24, 2002.
[15] The appellant was admitted to RMHC St. Thomas for a fourth time on January 1, 2004. The police had been called when the appellant had threatened to kill himself. He was very agitated and suspicious when admitted to the hospital. He had apparently expressed some homicidal ideation. The appellant initially refused any treatment, but subsequently agreed to begin taking medication. Within a couple of days of taking the medication, his condition improved. He was discharged on January 15, 2004.
[16] The appellant’s fifth admission to RMHC St. Thomas occurred on April 1, 2004. His mother called the police when the appellant damaged furniture in her apartment during an angry outburst. The appellant was verbally abusive on admission, but settled quickly. He admitted using marijuana while away from the hospital. The appellant was delusional. He was discharged in May 2004.
[17] The appellant was admitted to RMHC St. Thomas for a sixth time in October 2004 and remained there until February 2005, although he did receive several weekend passes. As on the other occasions, the appellant was paranoid and suffering from various specific delusions when admitted to the hospital. He admitted that he had again stopped taking his medication when released from the hospital and began the consumption of marijuana and alcohol. The appellant, again, was placed on medication and responded well before his discharge later in February 2005.
[18] The appellant was admitted to RMHC St. Thomas for a seventh time on December 4, 2005. He told the hospital staff that he had quit taking his medication and resumed using marijuana on a regular basis. He told them that he used marijuana for religious reasons. The appellant was agitated but not physically threatening. He was released on December 7, 2005. Five days later, his sister had to ask him to leave the house as his anger was getting out of control. On December 15, his father reported that the appellant had become quite aggressive, punched the wall and yelled at his father. The appellant’s father was concerned that the appellant would become physically aggressive.[^1]
(b) The Index Offences
[19] The appellant was found NCR in respect of two charges of mischief and one charge of breach of recognizance. The first mischief offence occurred on May 24, 2005. The police were called by the appellant’s roommate who advised them that the appellant was smashing items in the apartment, including glasses and beer bottles. The appellant told the police that he had not taken his medication that day. He was released on a recognizance.
[20] The second mischief offence occurred on December 15, 2005. The appellant was walking away from the police station after speaking with an officer in the parking lot. The officer watched as the appellant kicked at and broke a window in a nearby business establishment. He then casually walked away. The appellant was arrested and charged with mischief and breach of his bail order. The appellant offered various bizarre explanations for breaking the window. He was released on an undertaking on the condition that he report to RMHC St. Thomas.
[21] Apart from the index offences, the appellant has one criminal conviction. He was convicted of carrying a concealed weapon, a large knife, in 2003 and given a suspended sentence with probation. The appellant apparently took the knife to a street fight, but was not involved in the street fight.
(c) The Appellant’s Psychiatric History Since the NCR Finding
[22] The Review Board’s first disposition following the NCR finding was made in April 2006. Following the hospital’s recommendation, the Review Board ordered the appellant detained at RMHC St. Thomas but provided a condition which allowed him to live in the community in an accommodation approved by the person in charge of RMHC St. Thomas. The appellant was also ordered to abstain from the use of marijuana and provide urine samples for drug testing.
[23] The appellant moved out of RMHC St. Thomas into the community in June 2006. He did quite well in the ensuing nine months. Although he had little, if any, insight into his mental illness and he continued to be delusional, the appellant largely refrained from the use of marijuana. He tested positive for marijuana only once between June 2006 and March 2007. The appellant also continued to take his medication and seemed to appreciate that it had some value for him. He did, however, unilaterally reduce the dosage. His overall mental stability improved and he regained relationships with his family, sister, father and some friends.
[24] The first annual review of the appellant’s disposition order occurred in March 2007. RMHC St. Thomas took the position that the appellant continued to pose a significant threat of physical or psychological harm to members of the public, and recommended that the same order be continued for another year. RMHC St. Thomas stressed that the appellant was unlikely to continue his medication if released and that it needed the ability to return him to the hospital quickly, if needed, and to control where he lived in the community. The Review Board accepted the hospital’s position and made the same order it had made a year earlier.
[25] The appellant reacted very badly to the Review Board’s detention order in March 2007. He felt very strongly that the order was unjust and that he should not be required to spend more than a year under the control of the Review Board and the personnel at RMHC St. Thomas.
[26] An unhappy pattern emerged after the Review Board’s detention order in March 2007. That pattern continued under the detention orders of 2008 and 2009. While in the hospital, the appellant took his medication, did not use marijuana, was relatively stable and able to function. He was then released into the community where he returned to the use of marijuana and did not take his medication as required, leading to a relatively quick deterioration in his mental state producing paranoid delusions and bizarre and sometimes aggressive conduct. That conduct resulted in the appellant’s return to RMHC St. Thomas and the cycle began anew.
[27] If anything, the appellant’s ability to live in the community seems to have diminished over the years. For example, he was returned to RMHC St. Thomas from the community no less than four times between March 2009 and March 2010. The appellant has continued to use marijuana and continued to refuse to take his medication when in the community. He has also become less cooperative and somewhat more confrontational with the mental health personnel who are trying to help him. However, there have been some positive developments over the past three years. For example, the appellant did manage to complete the course work needed to obtain his high school diploma and has also taken other computer related courses.
[28] The appellant’s pattern of conduct is typified by the events in the several months immediately prior to the Review Board hearing in April 2010. The appellant was living in the community in the summer of 2009, but was returned to RMHC St. Thomas in August 2009 in consequence of non-compliance with the terms of his release. He was using marijuana, was delusional and had made a series of “bizarre decisions”. Upon his return to the hospital, the appellant was cooperative and quickly received further passes to live in the community.
[29] The appellant was returned to RMHC St. Thomas when he tested positive for cannabis in October 2009. Once again, he settled quickly and was cooperative. Hospital staff reported a significant improvement in his mental state. He was again allowed to go back into the community only to return to the hospital in January 2010 after testing positive for marijuana use. The appellant was living in the community on a pass at the time of the Review Board hearing in April 2010.
(d) Opinion of the Attending Physician
[30] Prior to October 2009, the appellant’s attending physician, Dr. Ellis, had consistently taken the position that the appellant represented a significant threat to the safety of the public. For example, in February 2008, he wrote:
It is the opinion of the treatment team that Mr. Ferguson continues to pose a significant threat of physical or psychological harm to the safety of the public. He continues to use cannabis and when he does, he becomes psychotic and disorganized. When regressed, he is at similar risk as at the time of the index offence and other activities that were dangerous and disturbing to others. [Emphasis added.]
[31] In October 2009, Dr. Ellis and the treatment staff for the first time opined that the appellant was not a significant threat to the public and that he should be discharged absolutely. The report prepared by the treatment team contained the following:
The treatment team had extensive discussions in attempting to formulate a risk assessment and come to the conclusion that Mr. Ferguson likely does not meet the threshold of significant threat at this time.
Currently, Mr. Ferguson remains very delusional which is more than likely due at least in part to his ongoing use of cannabis, but whether or not the threat he presents to members of the public constitutes a real and potentially serious risk is debatable, having regard to the nature of the index offence and the fact that he has not been physically assaultive notwithstanding ongoing use of cannabis and an increase in symptoms of his psychosis over the last number of years and the last year or two in particular.
Past assessments of significant threat have made clear the connection between exacerbations of Mr. Ferguson’s chronically delusional mental state, his use of cannabis and the likelihood of him acting out in an aggressive manner. While most aspects of Mr. Ferguson’s presentation including his illness structure, lack of insight into his index offence, mental illness and need for medication, repeated violation of Disposition by ongoing use of cannabis, poor participation in treatment and lack of appropriate supports remain unchanged from previous years, he has not, despite risk predictions to the contrary, acted out in a way that puts others in the community at serious risk of harm thus putting the likelihood of him posing a threat to others more firmly within the realm of speculation.
Mr. Ferguson can present as very symptomatic, and without treatment, support and follow up for his mental illness it seems very likely that he will become increasingly ill. He will find it challenging to maintain safe and stable housing in the community and is at extreme risk for “the revolving door syndrome” in terms of repeat admissions to psychiatric facilities. He may very well come to the attention of police in the future but it is difficult to predict with any confidence that such contact would more likely than not come about as a result of involvement in acts that post a real and serious harm or threat of harm to others.
Based on the recommendation of the treatment team that Mr. Ferguson no longer constitutes a significant threat of physical or psychological harm to the public, the person in charge is recommending that Mr. Ferguson be discharged absolutely. [Emphasis added.]
[32] Dr. Ellis testified before the Review Board in April 2010. He advised the Review Board that he and the treatment staff no longer held the opinion set out in the October 2009 report. Dr. Ellis and the treatment team had reverted to their earlier opinion that the appellant did pose a significant threat to the safety of the public. When asked to explain why the position had changed between October 2009 and the hearing in April 2010, Dr. Ellis responded:
A. No, on, on reviewing his course in therapy with us and prior, I came to appreciate that I -- I think that absent a disposition order, we will recreate for him the same situation that existed prior to that being on the disposition order which was one of increasingly unwellness, non-compliance, use of drugs, and increasing aggressive behaviour, and, and that is a concern to me. I do grant that he hasn’t any sort of criminal record of, of note other than the one carrying a concealed weapon when he was -- I can’t remember how old, around 20 or 21, I think, and, and there have been no further criminal charges. And I guess that is the, the -- is what the Board will have to struggle with, but I would be concerned. [Emphasis added.]
[33] Dr. Ellis also expressed concern that if the appellant’s condition deteriorated, he could “become more aggressive and hurt someone”. Dr. Ellis acknowledged that the appellant had not previously acted in that way, although he did refer to an occasion prior to 2005 when the appellant threatened his father and frightened him.
[34] The chairperson put a series of questions to Dr. Ellis directed at the risk posed by the appellant to the public:
Q. Now, in your opinion, if he were granted an absolute discharge, is there a foreseeable and substantial risk that he would commit a serious offence involving that he would be likelihood to commit a serious offence involving physical or psychological harm?
A. I, I think that there is very foreseeable likelihood that he would become ill and commit an offence. My guess is whether or not you feel that -- and I think the pattern would, would become that which was developing prior to the index offence.
Q. Yes, and would that escalate -- is, is there a substantial risk that that would escalate to physical violence?
A. I have concerns about that, yes.
Q. It, it would?
A. I have concern that it would.
Q. Substantial risk that it would?
A. I think so.
Q. Even though in the past it perhaps fortunately did not escalate to actual physical violence here?
A. It has never actually done that ...
Q. But that doesn’t mean to say it won’t happen in the future, and you think there’s a, a foreseeable and substantial risk that it, that it would?
A. I think he was on track to accomplishing that before he was arrested and charged for a very minor offence, and, and then put into this system which has monitored. [Emphasis added.]
V: Was the Review Board’s Decision that the Appellant Posed a Significant Risk to the Safety of the Public Unreasonable?
[35] The Review Board concluded:
Mr. Ferguson continues to pose a significant and serious threat of physical harm to members of the public. The Board accepts the opinion of Dr. Ellis that, if Mr. Ferguson was granted an Absolute Discharge, he would discontinue his medication, would resume the regular use of marijuana, become psychotic and aggressive, and would likely cause physical injury to members of the public. Although he had not been physically assaultive, he had been physically threatening to the point of frightening others, and the level of his aggression raised the likelihood that it would have escalated to physical violence if it had been left untreated. The test in Winko is clearly satisfied in this case. [Emphasis added.]
[36] In reaching its conclusion, the Review Board appropriately relied heavily on Dr. Ellis’ opinion: Winko at para. 61. Not only did Dr. Ellis have the expertise of a practising psychiatrist, he was intimately familiar with the appellant and his course of treatment and conduct over the last several years.
[37] In my view, however, the Review Board overstated Dr. Ellis’ opinion. In the extracts quoted above, Dr. Ellis opined that there was a foreseeable likelihood that the appellant would commit an offence. He acknowledged “concerns” that the appellant’s conduct would pose a substantial risk that could escalate to physical violence. Dr. Ellis offered the further opinion that the appellant seemed on his way some five years earlier to committing crimes involving physical violence before he was “put into the system”. I do not read Dr. Ellis as offering the definitive opinion that it was likely that the appellant would engage in conduct that would cause physical injury to members of the public.
[38] The Review Board also failed to consider the effect of Dr. Ellis’ opinion, expressed only some six months earlier, that the appellant did not constitute a significant risk to the safety of the public. Dr. Ellis was, of course, at liberty to change his opinion. No one criticizes him for doing so. However, in assessing the weight to be given to the opinion he gave at the hearing, the Review Board was obliged to consider the different opinion provided only six months earlier and the reasons offered for the change in his opinion.
[39] The opinion advanced by Dr. Ellis and the treatment team in October 2009 was based on the notion that past conduct over a sufficient period of time is the best prognosticator of future conduct. In the eight years that the appellant had been involved with the treatment team at RMHC St. Thomas, he had not exhibited physically violent conduct towards others. The index offences were minor and property related. His psychiatric condition remained unchanged. In effect, Dr. Ellis opined that the appellant would continue to behave as he had in the past. That behaviour had not presented a significant risk to the safety of the public.
[40] Dr. Ellis did not change his opinion based on anything that happened between October 2009 and April 2010, or on any new information that had not been available to Dr. Ellis in October 2009. Quite simply, Dr. Ellis had second thoughts. Having regard to the appellant’s condition and his psychiatric history, Dr. Ellis returned to the opinion he had expressed on various occasions before October 2009.
[41] While it was appropriate for Dr. Ellis to rethink his position, the Review Board was required to take into account the fact that Dr. Ellis had arrived at a different opinion based on the same information only six months earlier. This was clearly a close call for Dr. Ellis. Considering the change in his opinion and the guarded manner in which he expressed his opinion at the April 2010 hearing, I think Dr. Ellis’ assessment of whether the appellant posed a significant risk to the public is best characterized as uncertain.
[42] The Review Board was required to grant an absolute discharge unless the evidence reasonably permitted a positive finding that the appellant posed a significant risk to the public. Put differently, the Review Board was obliged to grant an absolute discharge if it was uncertain whether the appellant reached the significant threat threshold: Winko at paras. 62, 70.
[43] I do not think that the uncertain opinion of Dr. Ellis could reasonably bear the burden of a finding that the appellant posed a significant risk to the public. There was nothing else in the record to support that conclusion. Neither the appellant’s psychiatric history, nor the nature of the index offences suggest a significant likelihood of physical violence.[^2]
[44] I am satisfied that the totality of this record does not reasonably permit a finding that the appellant posed a significant threat to the public.
VI: Conclusion
[45] I would allow the appeal, set aside the order of the Review Board and direct an absolute discharge. In doing so, I recognize that this may well not be in the appellant’s best interests. The Review Board is, however, absent a reasonable finding of significant threat, not constitutionally permitted to impose limitations on the appellant’s liberty even though they may be in the appellant’s best interests.
RELEASED: “DD” “DEC 01 2010”
“Doherty J.A.”
“I agree K. Feldman J.A.”
“I agree E.E. Gillese J.A.”
- The appellant also appeals the disposition order of the Ontario Review Board, dated April 1, 2008. That appeal is dismissed as moot.
[^1]: There is an indication in the hospital records that the appellant slapped his father on the face on one occasion during an argument. It is unclear whether this happened and, if so, when.
[^2]: It was not suggested by the Review Board in its reasons that psychological as opposed to physical harm was at issue in this case.