Haye (Re), 2011 ONCA 700

CITATION: Haye (Re), 2011 ONCA 700

DATE: 20111110

DOCKET: C53476

COURT OF APPEAL FOR ONTARIO

Laskin, Cronk and Blair JJ.A.

IN THE MATTER OF: Naureen G. Haye

Ewa Krajewska, for the appellant, the Person in Charge of Ontario Shores Centre for Mental Health Sciences

Naureen G. Haye, acting in person

Anita Szigeti, as amicus curiae

Robert Gattrell, for the Attorney General

Heard: November 4, 2011

On appeal against the disposition of the Ontario Review Board, dated March 31, 2011.

By the Court:

[1] The Hospital appeals a disposition of the Ontario Review Board dated March 31, 2011, granting Naureen Haye an absolute discharge. In considering this appeal, we have had the benefit of written and oral submissions by counsel and by Ms. Haye.

[2] Ms. Haye was found not criminally responsible for wilful mischief endangering life after she lit a fire in the driveway she shared with a family with young children, and then used her gas-fired oven to incinerate clothes, garbage, incense and food while her son was in the house. She was admitted to the Ontario Shores Centre for Mental Health Sciences in February of this year. This was her first Review Board disposition.

[3] Under s. 672.54 of the Criminal Code, a Review Board may grant an absolute discharge where it is of the opinion that the accused “is not a significant threat to the safety of the public”. In the present case, the Review Board was satisfied that Ms. Haye suffers from a mental disorder, but was “not satisfied to the degree required that she is a significant risk to the safety of the public”. The principal issue on this appeal is whether the Review Board erred in its opinion that Ms. Haye is not a significant threat to public safety.

[4] We recognize the expertise of the Review Board and we acknowledge that its opinions are entitled to deference from an appellate court. However, in the present case, the Review Board’s reasons raise two concerns, which together warrant our intervention.

[5] The first concern is that the Review Board seems to have misapprehended the evidence of Dr. Rootenberg, the psychiatrist who assessed Ms. Haye. Dr. Rootenberg was the only expert to testify before the Review Board and, in discharging Ms. Haye absolutely, the Review Board relied on his opinion. After noting that since entering the hospital Ms. Haye had done nothing to indicate “she is likely to cause physical or psychological harm to anyone including herself,” the Board said:

When Dr. Rootenberg was questioned by Mr. Balka [a Board member] as to his opinion, he acknowledged that at best such a risk was speculative. We appreciate his frankness. We agree and think that the evidence falls short of establishing the accused is a significant risk to the safety of the public.

[6] We have reviewed the entire transcript of Dr. Rootenberg’s testimony, including the part where he was questioned by Board members. At no time did he say or leave the impression that the risk of harm posed by Ms. Haye was “speculative.” On the contrary, Dr. Rootenberg said very clearly in his evidence that, if released, Ms. Haye was likely to act on her delusional beliefs and paranoid thoughts. For example, in response to a question from counsel for the Hospital, he said “yes, I do think if she wasn’t in a structured supervised setting, she may well act on those views.” And when counsel for the Attorney General asked: “Now in terms of significant risk, I take it the concern is that she is going to continue to act out on her delusional thinking, the way that she did at the time of the index offence?”, Dr. Rootenberg replied, “Certainly.”

[7] Our second concern is that in its analysis of significant risk, the Review Board did not refer either to the evidence of Ms. Haye’s sister or to the written report of the Hospital treatment team. Both the sister’s testimony and the Hospital report strongly support a finding that, if released, Ms. Haye would be a significant threat to the safety of the public. As the Board did not refer to this evidence, we cannot be satisfied that it took it into account in discharging Ms. Haye absolutely.

[8] For these brief reasons we set aside the Review Board’s disposition and remit the matter back to it for a new hearing. That hearing should be scheduled expeditiously, even as early as this month should a date be available.

RELEASED: November 10, 2011 “John Laskin J.A.”

“EAC” “E.A. Cronk J.A.”

“R.A. Blair J.A.”