CITATION: Young (Re), 2011 ONCA 432

DATE: 20110607

DOCKET: C52218

COURT OF APPEAL FOR ONTARIO

Doherty, Goudge and Armstrong JJ.A.

BETWEEN

The Person in Charge of Centre for Addiction and Mental Health

Appellant

and

Ian K. Young

Respondent

and

Her Majesty the Queen

Respondent

Jean D. Buie, for the appellant

Uma Kancharla, for the respondent, Young

A. Alyea, for the respondent, Her Majesty the Queen

Heard: May 6, 2011

On appeal from the disposition of the Ontario Review Board dated April 23, 2010.

Doherty J.A.:

I

[1] In November 1998, the respondent, Ian K. Young (“Mr. Young”), was charged with numerous serious criminal offences, including attempted murder and sexual assault. In May 2001, he was found not criminally responsible on account of mental disorder (“NCRMD”). He has been under the jurisdiction of the Ontario Review Board (“Review Board”) since then.

[2] Mr. Young was initially held in hospital under a detention order. He has lived in the community since March 2005. At first, Mr. Young lived in the community under the terms of a detention order that gave the person in charge of the hospital where Mr. Young was detained the discretion to allow Mr. Young to live in the community at an approved residence. By late 2006, Mr. Young was living in the community under the terms of a conditional discharge disposition made by the Review Board.

[3] Mr. Young suffers from a longstanding serious mental illness. Until August 2009, Mr. Young did relatively well in the community. He took his medication, complied with the various terms imposed on him by the Review Board, maintained employment and kept up his own apartment. He had support from friends and relatives. Mr. Young’s condition was described as stable and he seemed able to function in the community. Mr. Young would not, however, have anything to do with treatment. He was quite hostile to those who attempted treatment and to the Review Board, which he saw as unduly restricting his liberty and stigmatizing him as a deviant person.

[4] Unfortunately, Mr. Young’s condition deteriorated significantly beginning in August 2009. He refused to comply with requests for drug-testing and may have stopped taking his medication. In October 2009, he was involuntarily committed under the terms of the Mental Health Act, R.S.O. 1990, c. M.7. Mr. Young remained in the hospital under that order until December 2009.

[5] Mr. Young’s annual review hearing before the Review Board pursuant to s. 672.81(1) of the Criminal Code, R.S.C. 1985, c. C-46, was scheduled to proceed in October 2009. The hearing was adjourned until November. At that time, the appellant (CAMH) took the position that Mr. Young’s decompensation required that he be ordered detained at CAMH with the condition that the person in charge at CAMH have the discretion to allow Mr. Young to live in the community. The hospital’s change in position necessitated a further adjournment of the annual review.

[6] For various reasons, the annual review hearing did not proceed until March 2010. By that time, Mr. Young was back living in the community. CAMH maintained the position that a detention order was the appropriate disposition. Counsel for Mr. Young submitted that the Review Board should order Mr. Young conditionally discharged on terms similar to those that had been imposed in the prior orders.

[7] At the commencement of the annual review hearing in March 2010, the Board was asked to consider the effect of Mr. Young’s confinement in October 2009 pursuant to the Mental Health Act on the Board’s obligations under Part XX.1 of the Criminal Code. The Review Board ultimately determined that Mr. Young’s confinement under the Mental Health Act constituted a restriction on Mr. Young’s liberty that necessitated notification to the Review Board and a hearing under s. 672.81(2.1). That hearing should have occurred soon after Mr. Young’s detention.

[8] The Review Board then proceeded with its annual review of Mr. Young’s status. The Review Board considered Mr. Young’s history in some detail. It appeared that a new psychiatrist had taken charge of Mr. Young’s care in the summer of 2009 and that difficulties had developed as a result of Mr. Young’s reaction to the more proactive approach taken by those who became responsible for his treatment. In the end, the Review Board decided to continue the order allowing Mr. Young’s discharge on conditions. The Board imposed various conditions, two of which were new and are of some significance to this appeal. Those terms required that Mr. Young:

• upon notice by the person in charge of the hospital, will immediately submit to attendance and for readmission to hospital; and

• upon the request of the hospital, attend for psychiatric assessment, and upon notice of the person in charge, attend for admission to the hospital.

[9] In addition, the Review Board, acting pursuant to s. 672.55(1) of the Criminal Code and with Mr. Young’s consent, required him to take his medication as required and to submit to testing to monitor his compliance with that direction.

[10] CAMH appeals the disposition raising three issues:

• Did the Review Board err in holding that confinement pursuant to the Mental Health Act triggers the requirement that the Review Board conduct a restriction of liberty hearing pursuant to s. 672.81(2.1)?

• Did the Review Board err in law by imposing a disposition that blended a conditional discharge with a detention order resulting in a disposition that was not available under either ss. 672.54(b) or 672.54 (c) of the Criminal Code?

• If the Review Board’s disposition was a conditional discharge under the terms of s. 672.54(b), was that order unreasonable in all the circumstances?

II

Was the Board Required to Hold a Restriction of Liberty Hearing When Mr. Young was Confined Under the Mental Health Act?

[11] The disposition under appeal was made at the conclusion of the Review Board’s annual review of Mr. Young’s status: see s. 672.81(1). In the course of its reasons, the Review Board found that Mr. Young’s confinement under the Mental Health Act in October 2009 triggered CAMH’s obligation to notify the Board, which in turn required the Board to hold a hearing. This finding ultimately had no effect on the Review Board’s disposition or on Mr. Young’s status, and it is therefore unnecessary, in resolving the appeal, to determine the merits of the Board’s conclusion. Nevertheless, it is, I think, appropriate for this court to decide whether confinement under the Mental Health Act triggers the obligations under Part XX.1 of the Criminal Code.

[12] Persons who are subject to dispositions under Part XX.1 will no doubt from time to time find themselves confined under the Mental Health Act. This court should resolve the question raised on this appeal so that institutions like CAMH, as well as the Review Board, understand their obligations where a person who is subject to a disposition under Part XX.1 finds him or herself confined under the terms of the Mental Health Act.

[13] With due respect to the contrary view expressed by the Review Board (and the Review Board differently constituted in other cases), I think the language of the Criminal Code clearly indicates that confinement under the Mental Health Act does not trigger the hearing requirement under s. 672.81(2.1).

[14] Under Part XX.1, the Review Board can make dispositions that include conditions allowing the person in charge of the hospital to increase or decrease the restrictions on the liberty of the person who is subject to the disposition: see s. 672.56(1). Where the person to whom the power is delegated exercises it to restrict the liberty of the individual subject to the disposition, the added restriction is an exercise of the Review Board’s power over the person subject to the disposition.

[15] The person exercising the discretion in a manner that limits the liberty of the person subject to the disposition must comply with s. 672.56(2), which provides:

A person who increases the restriction on the liberty of the accused significantly pursuant to authority delegated to the person by a Review Board shall

(a) make a record of the increased restrictions on the file of the accused; and

(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. [Emphasis added.]

[16] The obligation of the Review Board when notified of the added restrictions on liberty is set out in s. 672.81(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 s. 672.56(2). [Emphasis added.]

[17] The language of the Criminal Code provisions leaves no doubt. The obligation to hold a hearing found in s. 672.81(2.1) is triggered by the provision of notice to the Review Board, as set out in s. 672.56(2). That notice is to be provided when restrictions on the liberty of an accused are significantly increased by a person acting “pursuant to authority delegated to the person by a Review Board”. The purpose of the hearing is to review the restrictions resulting from that exercise of discretion.

[18] The Board has a supervisory role over all of its dispositions, including those where it has delegated to someone else the power to restrict the liberty of an individual subject to a disposition. Where the Review Board has made such an order and the power to restrict liberty is exercised, the Review Board, as the entity ultimately responsible for the order, must review it. The relevant provisions of Part XX.1 provide for the necessary oversight and ensure that the Review Board will be aware of and ultimately responsible for any restrictions imposed under its authority.

[19] An involuntary committal under the Mental Health Act has nothing to do with the Review Board or the terms of any disposition made by the Review Board. Committal under the Mental Health Act depends on the criteria set out in that Act and is determined using the procedures set down in the Mental Health Act.

[20] No one questions the competence of the province to enact the Mental Health Act. Those who exercise confinement powers under the Mental Health Act are not subject to the authority of the Review Board or to the terms and conditions imposed by Part XX.1 of the Criminal Code. The Review Board has no oversight role to play in connection with the exercise of powers under the Mental Health Act. The exercise of those powers is reviewable by the Consent and Capacity Review Board: see Mental Health Act s. 39. Confinement pursuant to the Mental Health Act is not a restriction on liberty made pursuant to any authority delegated to hospital personnel by the Review Board and is, therefore, not subject to the requirements of s. 672.81(2.1).

[21] In holding that an involuntary committal under the Mental Health Act does not trigger the Review Board’s obligation to conduct a restriction on liberty hearing, I do not disregard the submissions of all counsel that it is important that the Review Board be made aware of any restrictions on the liberty of persons subject to a Review Board disposition. Clearly, if a person subject to a Review Board disposition is confined under the terms of the Mental Health Act, the Review Board should be made aware of that order.

[22] Steps can be taken to require that the Review Board be notified of any confinement under the Mental Health Act without torturing the language of the relevant sections of the Criminal Code. The Review Board has the power to impose conditions, both in respect of detention orders and conditional discharges. Those conditions can require the hospital to take certain steps, including notification to the Review Board if a person subject to a disposition is confined under the terms of the Mental Health Act. If the Review Board includes that condition in its disposition and if it is notified that the person subject to the disposition has been confined under the Mental Health Act, the Review Board has the discretion to direct a hearing before it pursuant to s. 672.82(1) of the Criminal Code. That section reads:

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.

[23] The approach that provides for notice to the Review Board of committal under the Mental Health Act as a condition of the Board’s disposition, combined with the Review Board’s exercise of its discretion to review its own disposition, is consistent with the language of the relevant sections of the Criminal Code and with the function of the Review Board. That approach maintains the Review Board’s focus on its own dispositions rather than on the merits of any intervening order made by an independent authority.

[24] For the reasons set out above, the Review Board erred in finding that involuntary committal under the Mental Health Act for a period in excess of seven days triggered CAMH’s obligation to give notice under s. 672.56(2), and in turn the Board’s obligation to hold a hearing under s. 672.81(2.1). That error, however, had no effect on the ultimate disposition imposed by the Board. I turn now to the grounds of appeal that challenge that disposition.

III

Was the Review Board’s Disposition Beyond the Scope of the Remedial Powers in Sections 672.54(b) and (c)?

[25] Before the Review Board, and in this court, all parties agreed that Mr. Young, by virtue of his mental disorder, poses a significant threat to the safety of the public. He could not be absolutely discharged. The Review Board had two options. It could discharge Mr. Young on conditions, as it had in the previous three orders, or it could order his detention in CAMH and give the person in charge the authority to allow Mr. Young to live in the community. The Board had made this type of order prior to 2006.

[26] The important difference between a conditional discharge and a detention order lies in the mechanism available to the hospital to return Mr. Young to the confinement of the hospital if necessary for the safety of the public. If the Review Board released Mr. Young on a conditional discharge, it could return him to the hospital by convening a new hearing under s. 672.82(1), by resorting to the provisions governing breaches of conditional discharges found in s. 672.92, or through the committal provisions available under the Mental Health Act. If, however, Mr. Young were subject to a detention order, he would be at large under the terms of a warrant of committal issued pursuant to s. 672.57. If CAMH determined that the safety of the public required Mr. Young’s confinement in the hospital, it could simply direct the authorities to exercise the warrant and return Mr. Young to the hospital. Re-confinement of persons who are subject to a detention order is significantly more expeditious than re-confinement of persons at large on a conditional discharge. Re-confinement of persons under detention orders is also available as a preventative measure, whereas re-confinement of those under a conditional discharge will usually be available only after a breach of the conditions of that order.

[27] The Review Board was faced with a difficult situation. Mr. Young had fared quite well in the community for many years. However, his condition had quickly and significantly deteriorated in the late summer and fall of 2009. By the time the Review Board hearing commenced in March 2010, Mr. Young’s condition had settled and he was again doing relatively well in the community. However, he continued to have no insight into his problems and was reluctant to participate in any treatment programs.

[28] The Review Board decided that Mr. Young should remain in the community under a conditional discharge. It attempted to address concerns for public safety should Mr. Young decompensate again by directing that he was required to return and be readmitted to the hospital if so directed by the person in charge of CAMH.

[29] Counsel for CAMH submits that the Review Board was properly concerned about the risk Mr. Young posed should his condition once again deteriorate. The Review Board appreciated that his speedy return to CAMH might be necessary for the safety of the public. Counsel contends, however, that the disposition fashioned by the Review Board is, in effect, an amalgam of a conditional discharge and a detention order and is not an order that can be made under s. 672.54.

[30] Counsel for CAMH interprets the Review Board’s disposition as discharging Mr. Young conditionally, while at the same time imposing terms that would allow the hospital to require Mr. Young’s continued confinement at CAMH. Counsel correctly submits that s. 672.54 does not contemplate a disposition in the form of a conditional discharge that includes conditions that give the hospital authorities the discretion to unilaterally remove the individual from the community and return that person to confinement within the hospital: see Brockville Psychiatric Hospital v. McGillis (1996), 1996 CanLII 1828 (ON CA), 93 O.A.C. 226 at paras. 2-4 (C.A.); Forensic Psychiatric Institute (B.C.) v. Johnston et al. (1995), 1995 CanLII 399 (BC CA), 66 B.C.A.C. 34 at paras. 48-59 (C.A.).

[31] Counsel for Mr. Young and counsel for the Attorney General agree that a conditional discharge cannot contain a term authorizing the hospital to re-confine the individual within the hospital. They submit, however, that properly interpreted, the Review Board’s order does not have that effect.

[32] I agree with this submission. The Review Board’s disposition required Mr. Young to submit for readmission to CAMH if directed by the appropriate authority. The terms of the disposition did not, however, and in my view could not, authorize the hospital to have Mr. Young forcibly returned to CAMH against his will and confined there. The disposition made by the Review Board gave CAMH the power to require Mr. Young to attend for readmission to CAMH. The terms also required Mr. Young to comply with the direction of CAMH. If Mr. Young refused to comply, he would be in breach of the conditions of the order. As with any breach of a provision of a conditional discharge, CAMH would have available to it the provisions of ss. 672.91, 672.92 and 672.93. None of those provisions gives CAMH the power to have Mr. Young arrested, brought back to CAMH against his will and confined there. While the two new terms imposed by the Review Board could properly be attached as conditions to a conditional discharge, a breach of those conditions triggers the breach provisions and does not give CAMH the power to detain Mr. Young. He could only be confined in CAMH following a breach if so ordered by a justice pursuant to s. 672.93(2).[^1]

[33] The Review Board’s disposition is a conditional discharge within the meaning of s. 672.54(b). That interpretation leads to the third issue. Was the Review Board’s disposition unreasonable?

IV

Was the Disposition Unreasonable?

[34] The reasonableness standard of review as applied to decisions of the Review Board is articulated in R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779 at para. 33:

[T]he Court of Appeal should ask itself whether the Board’s risk assessment and disposition order was unreasonable in the sense of not being supported by reasons that can bear even a somewhat probing examination... If the Board’s decision is such that it could reasonably be the subject of disagreement among Board members properly informed of the facts and instructed on the applicable law, the court should in general decline to intervene.

[35] Counsel for CAMH agrees that Mr. Young should be living in the community. Counsel submits, however, that he should be doing so under the terms of a detention order which allows the person in charge at CAMH to bring Mr. Young back into CAMH quickly should he decompensate as he did in the summer of 2009. In making this submission, counsel refers to Mr. Young’s longstanding refusal to engage in any meaningful way in the treatment process and the risk that Mr. Young poses should he go off his medication. Counsel submits that the conditions attached to the conditional discharge aimed at securing Mr. Young’s re-confinement in CAMH, if necessary, cannot adequately protect the public in that they do not allow CAMH to act expeditiously or even pre-emptively should Mr. Young stop taking his medication and become a danger to the public.

[36] The Review Board’s reasons are detailed and thoughtful. It was acutely aware that the discharge of Mr. Young did pose potential risks to the public despite his relative success living in the community for many years. The extracts from the Review Board’s reasons set out below demonstrate its appreciation of Mr. Young’s condition:

The overall picture presented in so describing the accused’s behaviour over the years is one that describes an accused whose risk is associated with a psychotic illness with Bipolar Disorder and an AXIS II Personality Disorder. It appears that the Bipolar Disorder is under control and stabilized for the most part, however the accused’s persistent and adamant refusal to communicate with his caregivers in this Board’s view has resulted in an incomplete rehabilitation path. The Board tends to agree with Dr. Cohen’s observations that the accused has “flown under the radar” for some time, not because his caregivers were not aware of the communication problems with the accused, but because addressing them from a risk perspective has been incomplete.

Based on the evidence, the Board is not at all satisfied that the accused has sufficient insight into the relationship between his diagnosis and the happening of the index offences. He has consistently refused to reveal anything of a personal nature to his caregivers or shared such information in groups when he did attend them and he has minimized or denied that he might represent a risk to others in the future. Instead his concerns seem to be almost entirely self-centered. He blames others for his problems. He feels he is being mistreated by the Ontario Review Board and by his treatment team. He gets angry by his needs not being immediately met. He is upset that others may become aware of his criminal record and legal involvement. He becomes “offended” that he might have been symptomatic or non-compliant.

Dr. Cohen expressed his concern that when those persons closest to the accused noticed signs of anger and irritability it was not reported to the hospital. The essence of the hospital’s concern is that to properly monitor the accused for compliance with medication and to be able to enforce the lithium level testing and to immediately deal with any relapse or emergence of symptoms, a custodial order represents the best vehicle for this. On a conditional discharge the hospital feels hampered by the comparative uncertainty of being able to readmit the accused to hospital. It is concerned that criteria which would otherwise enable it to quickly respond on a custodial disposition might not qualify for readmission under the Mental Health Act. An example of this is the patient’s recent refusal to submit blood to measure his lithium levels.

[37] The situation faced by the Review Board was similar to that found in R. v. Breitwieser (2009), 2009 ONCA 784, 99 O.R. (3d) 43 (C.A.), a case referred to by the Review Board in its reasons. In Breitwieser, as in this case, the primary concern was the risk to the public should the accused stop taking his medication. This court said, at para. 18:

In our view, in any case where the primary issue is compliance with conditions, and there is an air of reality to the claim that a conditional discharge would be an appropriate disposition, the Board must address these two elements. First, the Board must canvass whether the accused will consent to appropriate conditions under s. 672.55. Second, it must address the potential mechanisms for the accused's return to the hospital in the event of non-compliance, and determine whether the patient is likely to agree to return or whether a combination of s. 672.55 and either s. 672.92 or s. 672.93(2) or another route of return would be sufficient in the circumstances. The Board must consider these elements in light of the legislative scheme and the requirement of s. 672.54 that, after taking into consideration the designated factors, the Board must make the disposition “that is the least onerous and least restrictive to the accused”.

[38] The Review Board followed the direction in Breitwieser. After noting the risk factors described above and Mr. Young’s guarded willingness to co-operate with those responsible for his treatment after his confinement in the fall of 2009, the Review Board went on to say:

The accused was presented with the option of agreeing to a condition that he take his prescribed medication and submit to lithium level testing in a conditional discharge. The accused agreed to both of these conditions and indeed he had signed a risk management plan on his discharge from hospital in December 2009 in which, among other things, he agreed to regular urine drug screens and lithium levels as well as consenting to a psychiatric assessment.

The Board has taken into consideration Mr. Young’s above noted agreement and along with an additional condition that he submit to readmission to hospital upon demand by the person in charge, the Review Board is of the unanimous opinion that a conditional discharge with these appropriate conditions represents the least onerous and least restrictive order for the accused at this time. [Emphasis added.]

[39] It is not suggested that the Review Board misapprehended material evidence or failed to consider material evidence. On my review of its reasons, the Review Board was alive to the very real possibility that Mr. Young would not avail himself of treatment opportunities and could discontinue his medication. At the same time, the Board was obligated to give significant weight to Mr. Young’s past performance while under various dispositions. The Board also understood that a detention order would be seen by Mr. Young as very much a step backward that could well have a significant negative impact on him.

[40] I think the order fashioned by the Review Board recognized Mr. Young’s performance in the community over several years, while at the same time identified the very real risk management concerns associated with Mr. Young. The disposition order made addresses, in my view, Mr. Young’s best interests and the public safety concerns in a manner that is consistent with the statutory scheme of Part XX.1. The order is not an unreasonable one.

V

Conclusion

[41] I would dismiss the appeal.

RELEASED: “DD” “JUN 07 2011”

“Doherty J.A.”

“I agree S.T. Goudge J.A.”

“I agree Robert P. Armstrong J.A.”

[^1]: Section 672.92(1)(b) allows a peace officer who has decided to release a person subject to a disposition order to deliver the person to the place specified in that order. It does not appear to me, however, that the section gives the hospital any authority to hold the person so delivered against his or her will.