WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
CITATION: M.L.C. v. Ontario (Review Board), 2010 ONCA 843
DATE: 20101209
DOCKET: C51729
COURT OF APPEAL FOR ONTARIO
Feldman, Lang and LaForme JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
M.L.C.
Appellant
and
Centre for Addiction and Mental Health
Respondent
M.L.C., acting in person
Suzan E. Fraser, as amicus curiae
Maura Jette, for the respondent, Her Majesty the Queen
James Hammond, for the respondent, Centre for Addiction and Mental Health
Heard: September 22, 2010
On appeal from the disposition of the Ontario Review Board, dated January 27, 2010.
Lang J.A.:
INTRODUCTION
[1] The primary issue on this appeal queries the role of the Ontario Review Board (Board) when reviewing a hospital’s decision to significantly change the restrictions on the liberty of a patient who has been found not criminally responsible (NCR). The secondary issue relates to the Board’s annual review of the appellant’s disposition, which was held at the same time as the restrictions review. The appeal challenges the Board’s finding that the appellant, M.L.C., posed a “significant threat”, as well as its disposition providing for the appellant’s continued detention at the hospital, the Centre for Addiction and Mental Health (CAMH).
OVERVIEW
[2] At the time of the combined restrictions and annual review, the NCR appellant was subject to an earlier disposition order in which the Board had delegated to CAMH the decision whether to permit the appellant to leave the hospital to live in approved accommodation in the community. CAMH had granted the appellant that permission. Subsequently, when the appellant exhibited signs of deterioration in his mental health, CAMH decided to increase the restrictions on his liberty and required him to return to live in the hospital. Although the hospital initially anticipated that the appellant’s readmission would be only for a few days, that position changed when the appellant tested positive for the use of illicit drugs. The hospital decided to detain him for a longer period, particularly given the link between the use of drugs and the appellant’s index offence. Because the restriction on the appellant’s liberty was extended beyond seven days, the Criminal Code required the hospital to give notice to the Board so that it could review the hospital’s decision (restrictions review). At that review, the Board concluded that the appellant’s readmission to the hospital and his ongoing detention to the date of the hearing satisfied the relevant test. At the same time, the Board conducted its annual review of the appellant’s disposition. In that review, it concluded that the appellant presented “a significant threat to the public” and that no alteration in the terms of his disposition was warranted. For the reasons that follow, I would dismiss the appellant’s appeal.
BACKGROUND
[3] The appellant, who is 32 years old, was found not criminally responsible on account of mental disorder in 2004 in relation to charges of assault with a weapon and sexual assault involving family members. His mental disorder appeared to have a link to his use of illicit drugs. When the appellant was detained in hospital, his treatment included the use of an antipsychotic medication. In 2005, the appellant discontinued his medication and he became “disorganized, somewhat withdrawn and agitated”. While in this state, he assaulted co-patients. His liberty at the hospital was restricted.
[4] By 2006, the appellant’s condition improved on a new antipsychotic medication. While he continued on a detention order, CAMH released him to 24-hour supervised community accommodation. In 2007, he was again readmitted to hospital when he tested positive for cannabis. After his condition improved, the appellant was released to supervised accommodation, but was required to report regularly to the hospital.
[5] In January 2008, the appellant was permitted to move into his own approved apartment. He continued to take medication, which he received by way of injection from CAMH’s clinic.
[6] In April 2009, the appellant declined his medication, although the long-lasting nature of the medication meant that it would remain in his system until about mid-May 2009. The appellant explained that he declined medication because he had concerns arising from the death of a friend at the hospital that may have been related to the friend’s medication. The appellant also had concerns about his own recently high blood sugar, weight gain, sedation and muscle stiffness.
[7] When the appellant agreed to attend clinic five days per week for the purpose of closely monitoring his mental status, the hospital allowed him to continue to live in the community, even though he was no longer taking his medication. Over the next few weeks, the appellant reported an improvement in his mood and communication. He was seemingly stable. The hospital reduced his reporting requirement to three times weekly.
[8] In August 2009, the Board held its annual review. It observed that the appellant had not only been “symptom free and had not acted out in any manner”, but also that he appeared to “be on a positive trajectory since stopping his medications”. The Board continued the appellant’s detention, but again delegated to CAMH the discretion to allow the appellant to participate in a broad range of activities in life outside the hospital. Those activities ranged from living in the hospital with permission for accompanied or unaccompanied absences for a number of purposes, to living in the community in supervised or approved accommodation. In light of his apparent stability, the appellant at that time was allowed to continue living in his approved accommodation, with the caveat that careful monitoring should be continued. The Board ordered a further review in six months, rather than the usual 12 months.
[9] Initially, the appellant continued to do well. However, in October 2009, while attending the Relapse Prevention Group, the appellant asked sexually inappropriate questions. The same month, he exhibited difficulty adjusting to a particular caseworker. He became angry when asked for a urine sample. This new and uncharacteristic behaviour raised concerns. The hospital increased the appellant’s reporting requirement to five days per week.
[10] Although the appellant cooperated with reporting, he was observed to be behaving oddly and perspiring heavily, possible indications of illicit drug use. He resisted the scheduling of a home visit to his accommodation. In November, he requested the removal of the fillings from his teeth. He failed to attend clinic.
[11] On November 11, 2009, the appellant reported several hours late. He was readmitted to CAMH for observation. The hospital hoped to stabilize his condition and return him to the community after about a week. However, the day after admission, the appellant’s urine tested positive for both cocaine and cannabis. Three further samples taken in early to mid-December 2009 also showed the presence of cocaine and/or cannabis. The appellant admitted to the use of illicit substances, including on the hospital grounds. The appellant’s conduct further deteriorated. He was atypically rude to staff and was observed “responding to internal stimuli”. At the time, the team at CAMH concluded that the appellant was likely suffering from a “substance-induced decompensation”.
[12] Although the appellant’s December 18 urine sample tested negative for illicit drugs, and continued to test negative up to the time of the review on January 6, 2010, his condition did not improve. On December 30, 2009, he made a claim in a concerning manner that a prescribed cream caused him to have an erection and also made inappropriate sexual remarks to a nurse practitioner. A short time later, he offered condoms to female staff. The next evening, the appellant became agitated, rude and threatening in relation to an inappropriately-timed demand for a second slice of pizza. The hospital concluded this kind of uncharacteristic conduct demonstrated that the appellant was suffering from disinhibition, disorganization and psychotic thought processes.
BOARD HEARING
[13] The Board combined the restrictions review it held pursuant to s. 672.81(2.1) of the Criminal Code with its annual review of the appellant’s disposition held under s. 672.81(1).[^1]
[14] The appellant’s outpatient psychiatrist, Dr. Eayrs, testified. The record and her testimony demonstrated there was some diagnostic uncertainty about the reasons for the appellant’s ongoing atypical behaviours. The preferred diagnosis after his readmission had been psychosis brought on by the use of cocaine and cannabis. However, based on the events of the preceding week, Dr. Eayrs could not rule out a primary psychotic disorder, such as schizoaffective disorder. If that diagnosis was correct, the appellant’s mental health, she opined, would likely be improved only with the use of medication.
[15] On the basis of that evidence, as well as the evidence that the appellant’s post-hospitalization conduct was “nothing like his ordinary conduct, which is routinely quiet and laconic”, the Board found the restriction to return him to the hospital was warranted and it ordered the appellant’s ongoing detention, subject to conditions that included the potential for his return to approved accommodation in the community.
[16] The Board’s reasons gave prominence to the appellant’s “refusal” to take antipsychotic medication. The Board apparently attributed the appellant’s deterioration largely to that refusal. The Board further found that the appellant’s refusal to take medication was “deliberate”, which it considered to be an element in the assessment of whether the appellant presents a “significant threat”. The Board’s reasons referred to the hospital team’s provisional diagnosis of “drug-induced” psychosis, but concluded that the evidence pointed more towards a psychoaffective disorder for which the appellant would be required to take medication. Apparently concerned with the appellant’s “deliberate” refusal, the Board commented that the appellant’s grandmother could be a candidate as his substitute decision-maker. The Board did not consider the appellant’s significant concerns about the potentially deleterious effects of medication beyond acknowledging the appellant’s reference to his “weight gain and high blood-fasting sugars”.
[17] In the result, the Board was “unanimous that the decision made to bring the accused back into the Hospital [thereby placing significant restrictions on his liberty] was sound and in the very best interests of the accused and the public”. It also concluded that, at the time of the review, the appellant was “a significant threat to the public” and that no alteration in the terms of his disposition was warranted and that the extension of his inpatient status “made and makes good sense.”
[18] Finally, the Board considered the argument of the appellant’s counsel that it was unreasonable for the Board to conclude that the appellant presented a significant threat. This argument was based on Dr. Eayrs’ testimony that she would not have relied on the provisions of the Mental Health Act (MHA) to return the appellant to CAMH. Counsel reasoned that if the doctor did not consider that the appellant posed a “likelihood of serious bodily harm to another” within the meaning of s. 20 of the MHA, the doctor could not be of the opinion that the appellant met the test of “significant threat” under s. 672.54 of the Criminal Code, or at least that he was not a candidate for a conditional discharge. The Board rejected this argument for three reasons. First, it did not share counsel’s interpretation of the doctor’s evidence; second, it concluded that the tests under the two statutes were not identical; and third, the Board concluded that the appellant posed a current significant threat, a conclusion that overrode any preliminary view that might have been expressed by the doctor relevant to the time when the appellant was apprehended.
RELEVANT PROVISIONS
[19] What follows are the provisions of Part XX.1 of the Criminal Code dealing with mental disorders that are relevant to the discussion. I have italicized and/or bolded parts of these provisions for emphasis.
Dispositions that may be made
672.54 Where a court or Review Board makes a disposition under subsection 672.45(2) or section 672.47 or 672.83, it shall, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is the least onerous and least restrictive to the accused:
(a) where … the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely;
(b) by order, direct that the accused be discharged subject to such conditions as the court or Review Board considers appropriate; or
(c) by order, direct that the accused be detained in custody in a hospital, subject to such conditions as the court or Review Board considers appropriate.
672.55 (1) No disposition made under section 672.54 shall direct that any psychiatric or other treatment of the accused be carried out or that the accused submit to such treatment except that the disposition may include a condition regarding psychiatric or other treatment where the accused has consented to the condition and the court or Review Board considers the condition to be reasonable and necessary in the interests of the accused.
Delegated authority to vary restrictions on liberty of accused
672.56 (1) A Review Board that makes a disposition in respect of an accused under paragraph 672.54(b) or (c) may delegate to the person in charge of the hospital authority to direct that the restrictions on the liberty of the accused be increased or decreased within any limits and subject to any conditions set out in that disposition, and any direction so made is deemed for the purposes of this Act to be a disposition made by the Review Board.
Notice to accused and Review Board of increase in restrictions
(2) A person who increases the restrictions on the liberty of the accused significantly pursuant to authority delegated to the person by a Review Board shall
(b) give notice of the increase as soon as is practicable to the accused and, if the increased restrictions remain in force for a period exceeding seven days, to the Review Board.
Review of Dispositions
Mandatory review of dispositions
672.81 (1) A Review Board shall hold a hearing not later than twelve months after making a disposition and every twelve months thereafter for as long as the disposition remains in force, to review any disposition that it has made in respect of an accused, other than an absolute discharge under paragraph 672.54(a).
Review in case of increase on restrictions on liberty
(2.1) The Review Board shall hold a hearing to review a decision to significantly increase the restrictions on the liberty of the accused, as soon as practicable after receiving the notice referred to in subsection 672.56(2).
[Note that this provision, which came into force on January 2, 2006, replaced the earlier s. 672.81(2), which held that the Review Board shall hold a hearing “to review any disposition” [emphasis added] to significantly increase restrictions.]
Discretionary review
672.82 (1) A Review Board may hold a hearing to review any of its dispositions at any time, of its own motion or at the request of the accused or any other party.
Review Board to provide notice
(1.1) Where a Review Board holds a hearing under subsection (1) of its own motion, it shall provide notice to the prosecutor, the accused and any other party.
Disposition by Review Board
672.83 (1) At a hearing held pursuant to section 672.81 or 672.82, the Review Board shall, except where a determination is made under subsection 672.48(1) that the accused is fit to stand trial, review the disposition made in respect of the accused and make any other disposition that the Review Board considers to be appropriate in the circumstances.
ISSUES
[20] The arguments put forward on this appeal raise two issues:
(1) Did the Board err at the appellant’s restrictions review by (a) failing to constrain the review to the time when the restrictions were imposed, and (b) failing to apply the “least onerous and least restrictive” test to the restrictions imposed?
(2) Did the Board err at the appellant’s annual review by (a) concluding that he posed a “significant threat” in light of the criteria set out in the MHA, and (b) failing to grant a conditional or absolute discharge as the “least onerous and least restrictive” disposition available?
ANALYSIS
Standard of Review
[21] The standard of review of a Board decision, including reasonableness in finding facts and drawing inferences and correctness in deciding the law, is mandated by s. 672.78 of the Criminal Code:
672.78 (1) The court of appeal may allow an appeal against a disposition or placement decision and set aside an order made by the court or Review Board, where the court of appeal is of the opinion that
(a) it is unreasonable or cannot be supported by the evidence;
(b) it is based on a wrong decision on a question of law; or
(c) there was a miscarriage of justice.
The Legislative Purpose
[22] Interpreting the statutory provisions of Part XX.1 at issue in this appeal requires consideration of their context, purpose and parameters.
[23] In arriving at its initial disposition for a patient found not criminally responsible under s. 672.54 of the Criminal Code, the Board is required to consider the protection of the public as well as the mental condition, potential for reintegration and the other needs of the patient to arrive at a disposition that is least onerous and least restrictive for the patient. If the patient does not pose a significant threat to the public, the Board will grant an absolute discharge. Otherwise, the Board will detain or conditionally discharge the patient.
[24] A Board’s disposition usually contains appropriate conditions that delegate to the hospital a broad scope to increase or restore liberties to reintegrate a patient gradually into the community, or to restrict liberties when a patient needs to be closely monitored in a hospital setting. This is why a disposition such as the appellant’s attaches conditions ranging from living in the hospital to living in approved accommodation. A Board is required to review a patient’s disposition not later than every 12 months.
[25] The framework and the different interests involved in the determination of a patient’s disposition were recently explained by Abella J. in R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, at paras. 88-93:
It is well established that the review board regime is intended to reconcile the “twin goals” of protecting the public from dangerous offenders, and treating NCR patients fairly and appropriately [citations omitted]. While public safety is the paramount concern, an NCR patient’s liberty interest has been held to be the Board’s “major preoccupation” within the fence posts staked by public safety (Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, 2004 S.C.C. 21, [2004] 1 S.C.R. 528, at para. 19). The Board fulfills its “primary purpose” therefore by protecting the public while minimizing incursions on patients’ liberty and treating patients fairly (Mazzei, at para. 32; Winko, at paras. 64-71; Penetanguishene, at para. 51). [Emphasis added]
Accordingly, at a disposition hearing regarding an NCR patient, the Ontario Review Board is authorized to make one of three dispositions: an absolute discharge, a conditional discharge or a detention order. When making its disposition, the Board must consider the four statutory criteria: the need to protect the public from dangerous persons, the patient’s mental condition, the reintegration of the patient into society and the patient’s other needs.
The Board has a “necessarily broad” discretion to consider a large range of evidence in order to fulfill this mandate (Winko, at para. 61). The Board’s assessment of the evidence must “take place in an environment respectful of the NCR accused’s constitutional rights, free from the negative stereotypes that have too often in the past prejudiced the mentally ill who come into contact with the justice system” (Winko, at para. 61). Upon considering the evidence, if the Board is not of the opinion that the patient is a significant threat to public safety, it must direct that the patient be discharged absolutely (s. 672.54(a); Winko, at para. 62). On the other hand, if the Board finds that the patient is, as in Mr. Conway’s case, a significant threat to public safety, an absolute discharge is not statutorily available as a disposition (s. 672.54; Winko, at para. 62).
A patient is not a significant threat to public safety unless he or she is a “real risk of physical or psychological harm to members of the public that is serious in the sense of going beyond the merely trivial or annoying” (Winko, at para. 62). The conduct giving rise to the harm must be criminal in nature (Winko, at paras. 57 and 62).
Once a patient is absolutely discharged, he or she is no longer subject to the criminal justice system or to the Board’s jurisdiction (Mazzei, at para. 34). However, pending an absolute discharge, NCR patients are subject to a detention or conditional discharge order. The Board is entitled to include appropriate conditions in its orders (s. 672.54(b) and (c)). The appropriateness of conditions is tied, at least in part, to the framework for making the least onerous and least restrictive disposition consistent with public safety, the patient’s mental condition and other needs, and the patient’s reintegration into the community (s. 672.54(b), (c); Penetanguishene, at paras. 51 and 56).
The Board is not entitled to include any conditions that prescribe or impose treatment on an NCR patient (s. 672.55; Mazzei) and any conditions must withstand Charter scrutiny (Slaight).
[26] Accordingly, the conditions imposed by the Board were not to pertain to the particulars of the appellant’s treatment or medication, but rather to the envelope outlining the liberties he was permitted during the duration of the Board’s disposition.
Restrictions Reviews
[27] In Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20, [2004] 1 S.C.R. 498 (Tulikorpi), Binnie J. outlined the application of the least onerous and least restrictive standard that balances public safety and patient liberty in determining the patient’s disposition, as well as the parameters of the accompanying envelope of appropriate conditions. Binnie J. explained at paras. 68-70 how the disposition and the conditions provide flexibility to the hospital to restrict a patient’s liberty:
Thus, within the outer envelope established by the Review Board order, a hospital administrator may move to restrict the detainee’s liberty if circumstances warrant, although if the restriction is significant and lasts longer than seven days, the Review Board must be notified and a hearing held: see “Wording of Custodial Disposition Orders”, s. 4 in Manual of Operating Guidelines for Provincial Psychiatric Hospitals (June 1995). If problems arise, such as a deterioration in the mental condition of a hospital detainee permitted residence in the community, the detainee can be returned to the hospital without the need of any prior order of a court or the Review Board.
The delegated authority, of course, must be exercised having due regard to the detainee’s liberty interest in light of the twin goals of public safety and treatment, but it permits a degree of day-to-day fine tuning that, if properly exercised, will prevent the “least onerous and least restrictive” requirement from compromising achievement of treatment objectives.
The evidence therefore establishes that, while imposition of the “least onerous and least restrictive” requirement on the conditions of detention viewed in their entirety may create difficulty in some situations, the difficulty is manageable and in fact is being managed by Ontario Review Board at the present time.
[28] While the Board has the jurisdiction to review a patient’s disposition at a particular hearing, it is not in a position to oversee the patient on a day-to-day basis and to refine the restrictions on his or her liberty. This is why the statutory framework gives the hospital the ability and flexibility to monitor patients who suffer from mental disorder. The responsibility for adjusting the restrictions for such a patient comes from s. 672.56(1), which allows the Board to delegate to the hospital certain decisions about the patient’s liberty. Any restrictions the hospital places on the patient must fall within the envelope of the conditions enumerated by the Board in its disposition. As a safeguard, any decision by a hospital that significantly restricts a patient’s liberty for more than seven days must be considered by the Board in a restrictions review.
1. The restrictions review
[29] Amicus and the hospital disagree on two aspects of the scope of the Board’s review of the hospital’s decision: first, the timeframe that is the subject matter of the review, and; second, the applicable standard of review.
[30] Supported by the Crown, amicus argues that the Board should conduct the review based on the patient’s circumstances at the time the restrictions decision was made, as well as during the ensuing period that the restrictions remained in place up to the time of the restrictions review. If this argument is accepted, the restrictions review in this case would look at the hospital’s decision from the date of the appellant’s readmission on November 11, 2009 until the restrictions review on January 6, 2010.
[31] However, the hospital argues that the Board may only consider whether the decision met the applicable standard at the time it was made, and that the Board has no jurisdiction to consider the effects of the decision thereafter. If the hospital’s position is right, the limited question for the restrictions review is whether the hospital’s decision met the standard on November 11, 2009.
[32] Amicus also argues that the applicable standard of the Board’s review is whether the restrictions imposed by the hospital were the least onerous and least restrictive in the circumstances, while the hospital argues for a standard based on whether the hospital’s decision demonstrated “prudent risk management” and, in its factum, the Crown argues for a standard of whether the decision was “appropriate” in the circumstances.
(a) The time parameters
[33] The argument about time parameters is based on the 2006 change to the wording of the relevant Criminal Code provision. In the former s. 672.81(2), Parliament provided for the Board to review the hospital’s “disposition”, while the new s. 672.81(2.1) provides for the Board to review the hospital’s restrictions “decision”.[^2]
[34] It is evident from Parliament’s replacement of “any disposition” with “a decision” that it intended that the review focus on the decision to impose the particular restriction on the patient’s liberty. At the same time, s. 672.83(1) requires the Board to review and make any changes to the patient’s disposition that are “appropriate in the circumstances”, which suggests a broader look at the overall envelope. In any event, when read in the framework of Part XX.1, nothing in the amendment freezes the Board’s analysis to the point in time when the decision was made.
[35] It would make no sense for the Board to confine its consideration to the moment in time of the imposition of the restriction without considering the ongoing nature and the effect of the decision on the patient’s liberty to the date of the review. The purpose of the restrictions review is to provide a mechanism to monitor significant changes in the patient’s liberty and to ensure that liberty is infringed only to the extent necessary to protect public safety in the timeframe between the patient’s annual dispositions.
[36] A point-in-time restriction could create a gap in the Board’s overview of the patient’s disposition and hamper the Board’s effectiveness in achieving the overall objectives of the legislation. Moreover, if the hospital imposed restrictions that met the standard at the time of the imposition, but the restrictions did not continue to do so at the time of the review, the Board should be in a position to make a decision based on the patient’s condition at that time.
[37] In most cases, there should not be a prolonged timeframe between the decision and the review. Section 672.81(2.1) obliges the Board to conduct the restrictions review “as soon as practicable after receiving the notice”. And s. 672.83(1) provides the Board the right to review the patient’s disposition in the context of a restrictions review. Moreover, if concerns arise about the patient’s disposition during the restrictions review, s. 672.82(1) explicitly provides that the Board may call for another hearing to review its own disposition. Where a Board calls for such a discretionary review, it is required by s. 672.82(1)(1.1) to provide notice to the prosecutor, the patient and any “other party”.
[38] While in this case it apparently proved convenient for all parties to combine the restrictions review with the appellant’s annual review, in many instances it may not be in the interests of the patient or the hospital to delay the restrictions review, or to trigger an annual review that may result in unnecessarily long-term consequences for the patient’s disposition.[^3]
[39] I conclude that the Board was entitled, indeed mandated, to consider the indefinite nature of the hospital’s decision and the ongoing circumstances of the appellant from the time of the decision up to and including the time of the review.
(b) The test to be applied at a restrictions review
[40] The appellant proposes that the reviewing Board ask whether the hospital’s decision to significantly restrict the patient’s liberty met the “least onerous and least restrictive” test that is set out in s. 672.54 for the Board’s disposition, which in turn is based on the four enumerated factors referencing public safety and patient liberty.
[41] The hospital takes the position that the Board’s test should be limited to whether the hospital’s decision reflected “prudent risk management”, while the Crown argues in its factum for a standard that asks whether the decision was “appropriate” in the circumstances.
[42] The wording “prudent risk management” proposed by the hospital does not appear in the legislative scheme. Indeed, such a standard could place undue emphasis on the goal of public safety, without properly balancing the other objective of treating the NCR patient fairly and taking into consideration the patient’s liberty interests.
[43] In my view, the “appropriate” standard is also too broad. As Binnie J. observed at para. 48 of Tulikorpi, “[t]he word ‘appropriate’ (‘indique’) generally confers a very broad latitude and discretion.” Although not employed in the provision at issue, the word “appropriate” is employed elsewhere in the Criminal Code – the conditions imposed must be “appropriate” and s. 672.83(1) also references “appropriate”. However, Binnie J. explained at para. 51 of Tulikorpi the meaning of “appropriate” in the context of arriving at a least onerous and least restrictive disposition:
… but appropriate having regard to the four enumerated factors (public safety, mental condition of the accused, other needs of the accused, and the reintegration of the accused into society) to fashion a disposition that is “the least onerous and least restrictive to the accused.” This is clear from Winko, supra, where, in dealing with the Charter challenge under s. 7, McLachlin J. observed, at para. 71, that the scheme “ensures that the NCR accused’s liberty will be trammelled no more than is necessary to protect public safety.”
[44] This approach was recently reiterated in Conway, supra, where Abella J. observed at para. 92 that the “appropriateness of conditions is tied, at least in part, to the framework for making the least onerous and least restrictive disposition.”
[45] The hospital argues that it is not bound, nor is it equipped, to assess a decision to significantly restrict a patient’s liberty on a least onerous and least restrictive standard. I do not accept this argument. As a practical matter, the hospital makes precisely that assessment, although likely using different language, when it exercises the discretion delegated to it by the Board and makes day-to-day decisions about the patient’s care in light of both safety and liberty interests. In addition, the hospital gives its opinion and recommendations about the patient’s disposition in its report before and at the disposition hearing and at review hearings. In my view, the hospital is capable of and actually does apply the least onerous and least restrictive standard on a regular basis.
[46] Amicus argues that the Board failed to apply that standard at the restrictions review. I cannot agree. The Board expressly addressed both components of public safety and patient liberty when it concluded that the restriction and its continuation “make good sense from the perspective of the public and the accused.” Undoubtedly, it would have been preferable for the Board to explicitly refer to the restrictions as meeting the least onerous and least restrictive standard. However, this was an experienced Board that would have been alive to the correct standard. Moreover, its application is implicit in the Board’s reasons.
2. The annual review
(a) Significant threat – the MHA argument
[47] In this argument, amicus takes the position that, if the appellant did not meet the MHA standard for civil committal, the Board was obliged to conclude he did not present a “significant threat” within the meaning of the Criminal Code provisions. If amicus is correct, and the appellant did not pose a significant threat, he would have been entitled to an absolute discharge.
[48] In support of her argument, as expressed in her factum, amicus interprets Dr. Eayrs’ evidence as providing the opinion that the appellant “did not pose a significant threat to the safety of the public at the time that he was admitted to the hospital and, could not have been admitted [by civil certification], absent a detention order.”
[49] Amicus raises the criteria for civil certification under the MHA for two reasons.
[50] First, she argues that the appellant could not be found to be a “significant threat” at his January annual review if Dr. Eayrs had conceded that he was not “certifiable on November 11, 2009”. Amicus argues that if the appellant was not civilly certifiable then, he could not be said to pose a significant threat under the Criminal Code provisions and should have been discharged.
[51] Second, amicus argues that a detention order, with the ability to apprehend on a warrant, is unnecessary if the appellant could be apprehended under the MHA. If an apprehension under the MHA is feasible, amicus argues that the appellant should be conditionally discharged because that is the least onerous and least restrictive disposition.
[52] Apart from the differences between the relevant provisions in the MHA and the Criminal Code and their purposes, there is a significant problem with the interpretation argued by amicus: it is not supported by the evidentiary findings of the Board. Those findings are entitled to considerable deference. The Board did not interpret Dr. Eayrs’ evidence to find that she concluded the appellant did not meet the MHA test. The transcript makes it clear that Dr. Eayrs stated simply that the MHA route was not viable at the time the restriction was imposed, given the lack of contact with the appellant, any explanation for his conduct, and the absence of any evidence or admissions at that point that he was again consuming illicit drugs or had otherwise triggered a psychosis.
[53] It was in these circumstances that the hospital decided to proceed with the warrant of committal provisions in the Criminal Code. That decision was amply supported by the evidence that the appellant had suffered a significant deterioration in his mental stability.
[54] This was not a case where the Board erred in failing to consider how the appellant could be discharged conditionally. Dr. Eayrs pointed to circumstances that demonstrated why “it would be very difficult to … manage [the appellant] under the Mental Health Act” in the event of a conditional discharge. There was simply not an air of reality to a conditional discharge at the time of the review.
[55] In any event, in Tulikorpi at para. 68, Binnie J. explained the importance of conditions that allow a detained patient to be returned to hospital “without the need of any prior order of the court or the Review Board.” For a discussion of the use of the warrant provisions in the Criminal Code and the need to consider options available under the MHA on a conditional discharge, see R. v. Breitweiser, 2009 ONCA 784, as well as R. v. Lamanna, [2009] 252 O.A.C. 28. See also R. v. Runnalls, 2009 ONCA 504, [2009] 251 O.A.C. 284 and R. v. Simpson, 2010 ONCA 302. I conclude that the MHA argument advanced by amicus is not raised by the facts of this case.
(b) “Significant threat” finding
[56] Apart from the MHA argument, there are several other bases on which amicus takes issue with the Board’s interpretation of the evidence about the appellant’s condition for the purposes of his annual review.
[57] In my view, the appellant’s concerns about certain aspects of the Board’s reasons are understandable, particularly because those reasons will inform his next annual review. However, reading the reasons as a whole, I do not conclude that the decision arrived at by the Board was unreasonable, not supported by the evidence or that it disclosed an error of law.
[58] One of the appellant’s concerns is that the reasons cast a negative light on his refusal to take medication and that they do so without referring to his concern about the death of a friend in the institution. The appellant understood that the friend died from metabolic complications caused by the medication. It is understandable that this would be particularly concerning for the appellant in light of his recent problems with his own high blood sugar. While not affecting the appellant’s worrisome conduct or the criterion of “significant risk”, the appellant’s concerns certainly provide an explanation for his medication-related fears.
[59] Amicus also queries the terminology employed by the Board in referring to the appellant’s “deliberate” refusal of medication as something that increased the risk. While the appellant admittedly had the capacity at law to refuse medication, the Board’s terminology may be read to suggest that the Board made its assessment based on what it perceived to be the “fault” of the patient. “Fault” for the appellant’s illness was not a relevant consideration. Fault should not be a factor when a patient is suffering from an active mental imbalance, even though the imbalance may not be sufficient at law to render the person incompetent regarding the capacity to consent to treatment. In any event, I observe that, at the time of the review, the hospital had little opportunity to provide the appellant with information and education about the proposed new metabolically-neutral medication and to reassure him, if possible, about its consequences. In those circumstances, even if fault were an appropriate consideration, it did not arise in this case.
[60] In addition, the Board’s reasons appear to place a great deal of weight on the need to treat the appellant with medication. The Board’s reference to the potential need for medication was understandable given the appellant’s condition leading up to the reviews, including the potential that his behaviour was not induced by illicit drugs, but rather reflected an underlying mental disorder. However, in focussing on medication, the Board’s reasons fail to balance this with the considerable evidence about the appellant’s success in living in the community for some months without any medication, particularly, as Dr. Eayrs testified, “if his symptoms clear without antipsychotic treatment, and if he succeeds in abstaining from those substances, then I think he could be discharged back to the community.” While there was unquestionably a need to carefully monitor the appellant, it was not absolutely certain that he would be required to take medication in order to regain his mental health. Rather, the evidence supported diagnostic uncertainty at the time of the review and, accordingly, the need for ongoing monitoring. The reasons could have better reflected this uncertainty. Nonetheless, this deficiency did not detract from the validity of the conclusions reached by the Board and the abundance of evidence that supported those conclusions.
[61] Finally, the appellant argues that the Board erred in failing to consider the viability of a conditional (or absolute) discharge. As I have said, there was ample evidence of the appellant’s lack of stability and the Board was alive to that evidence. It was reasonable for the Board to conclude on the evidence that the appellant’s ongoing detention (with significant flexibility to return him to approved accommodation if it becomes warranted) was the least onerous and least restrictive disposition consistent with public safety. Accordingly, I would not interfere with the Board’s decision.
CONCLUSION
[62] For these reasons, I would dismiss the appellant’s appeal regarding the combined restrictions and annual review.
[63] I am grateful to amicus and to all counsel for their argument of this appeal.
RELEASED: Dec. 9, 2010
“KF” “S.E. Lang J.A.”
“I agree K. Feldman J.A.”
“I agree H.S. LaForme J.A.”
[^1]: Actually, the review was held after six months as mandated by the Board in its August 2009 disposition.
[^2]: Note that a direction by a hospital to change a patient’s liberty within the envelope of the conditions is deemed by s. 672.56(1) to be a disposition made by the Board.
[^3]: Apparently, no objection was taken to the delay in the restrictions review in this case.