COURT OF APPEAL FOR ONTARIO

CITATION: Gacek (Re), 2012 ONCA 591 DATE: 20120911 DOCKET: C54473

Juriansz, Watt and Hoy JJ.A.

IN THE MATTER OF: David Gacek

AN APPEAL UNDER PART XX.1 OF THE CRIMINAL CODE

David Gacek, acting in person Suzan E. Fraser, as amicus curiae M. Catherine Mullaly, for the Attorney General of Ontario Jean D. Buie, for the Centre for Addiction and Mental Health

Heard: May 28, 2012

On appeal from the disposition of the Ontario Review Board, dated October 18, 2011.

Hoy J.A.:

[1] On April 24, 2008, the appellant, David Gacek, was found not criminally responsible on account of mental disorder (“NCRMD”) on two counts of assault with a weapon and single counts of mischief over $5,000, uttering threats to cause death or bodily harm, possession of a weapon for a dangerous purpose, and assaulting a police officer. He appeals the disposition of the Ontario Review Board made pursuant to s. 672.81(1) of the Criminal Code, R.S.C. 1985, c. C-46 on October 18, 2011 (the “2011 Disposition”), ordering his continued detention at the General Forensic Unit of the Centre for Addiction and Mental Health (the “Hospital”), with terms and conditions permitting a range of liberty.

Background

[2] The charges arose out of an incident on the evening of October 6, 2007. The appellant became increasingly irrational and aggressive. He broke down the door to his brother’s room, ripped the screen off the balcony door and broke a window in the room. In the course of the evening, he chased his brother’s cat with a knife, stating several times that he wanted to kill it, and told his brother that if he could not get the cat, he would kill him. He brandished the knife at his brother. They struggled for about a minute. The appellant left. The police, called by his brother, were at the front of the apartment building. The appellant was belligerent, and without warning struck a police officer with his right hand.

[3] It is the view of the appellant’s treatment team that his history of substance use and brain injury were factors in his conduct on October 6, 2007. At the time of the offences, the appellant, then approximately 30 years of age, was using cannabis frequently.

[4] The appellant sustained a traumatic brain injury in 2003 when he fell from a seventh floor balcony. This injury is thought to have led to “deficits in his thought processes which have been linked to his ability to recognize risk factors and a reduced ability to engage in psychoeducation.” At present, there is no pharmacological treatment for the appellant’s acquired brain injury.

[5] The appellant’s psychiatric history includes two hospital admissions prior to the index offences. The first was from May 5 to 12, 2006. The minimal documentation arising from this stay indicates that the appellant had seen red coming out of the tap and something red all over his hands, and had hurled a paper towel holder through a window. He was prescribed quetiapine, which he stopped taking as soon as he was discharged. The second admission was from June 1 to 12, 2007. The appellant was brought to hospital after his brother called 911 and the related documentation indicates that his brother reported aggressive behaviour, including the throwing of beer bottles and furniture. The police indicated that the appellant had voiced suicidal ideation. He was discharged with a prescription for quetiapine.

[6] From December 2007 until shortly after the Board’s July 16, 2008 initial disposition hearing, the appellant resided on his own in a seventh floor apartment.

[7] On August 8, 2008, the appellant missed his first appointment with the Hospital’s outpatient clinic. His mother advised the Hospital that he refused to attend, and threatened to jump from his balcony if the police came. A warrant of committal was issued and the police brought him to the Hospital, where he was admitted.

[8] On March 15, 2011, this court dismissed the appellant’s appeal of a disposition of the Board dated September 22, 2010, providing for the appellant’s continued detention and significantly increasing restrictions on his liberty. The court concluded that the Board’s finding that the appellant constituted a significant risk to the safety of the public was reasonable on the record before it: R. v. Gacek, 2011 ONCA 205.

[9] At the time of the hearing resulting in the 2011 Disposition, the appellant had been living in a ground floor apartment in the same building as his mother and brother for approximately 24 days, reporting daily to the forensic outpatient department. His treating psychiatrist described the appellant’s out-patient management as “reasonable”. The appellant has not received any medication since May 8, 2009 and there was no evidence of psychosis during the period of time he was under the care of the Hospital.

[10] The appellant tested positive for cannabinoids or a synthetic cannabinoid, in breach of the terms of his disposition, on three occasions in the nine months preceding his hearing before the Board. On two of those occasions, he was still in the Hospital. Preliminary results of three further tests conducted September 10, 11 and 13, 2011 suggest they were also positive. It is possible, however, that all of those tests reflect a single usage of the substance. The synthetic cannabinoid taken by the appellant is found in widely available herbal incense sold under various names, including “Spice”. Spice is not yet a scheduled substance under the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[11] There is no evidence that the appellant’s mental condition changed when he occasionally used cannabis or Spice.

[12] The appellant has been alcohol-free, and has not been assaultive or threatened violence since the NCRMD finding. He has occasionally been verbally aggressive and has opposed various rules imposed by the Hospital. The appellant attributes this to frustration with his continued, and in his view unnecessary, detention. The appellant’s mother has expressed frustration that the appellant “is locked in the hospital forever and the key is thrown away.”

The Expert Opinion

[13] The Hospital’s July 29, 2011 report (the “Report”), relied on by the Board, diagnoses the appellant as suffering from “Cognitive Sequelae of Traumatic Brain Injury, Substance Induced Psychosis, in remission, and Substance Abuse Disorders (alcohol and cannabis), in partial remission in a controlled setting”. In this respect, it differs from the evidence before the Board the prior year, which indicated that the appellant also suffered from a major mental illness.[^1]

[14] At page 21 of the Report, the Hospital opined that the appellant would represent a moderate risk if given an absolute discharge. This appears to mean he fits a profile with a 19 per cent risk of any violence. The period within which such re-occurrence is forecast is unclear. The Hospital’s opinion was based partly on actuarial risk assessments which, the Hospital noted, had been scored when the operative diagnosis was Schizophrenia. When cross-examined, Dr. Prendergast, the appellant’s current treating psychiatrist, expressed his view that, despite this, “considerable weight” could still be given to the scoring. Nonetheless, he would like to have the scoring re-done for next year’s report to “be sure that there’s no dramatic change in the scores.”

[15] The Hospital wrote the following about the likely re-offence scenario, at page 22 of the Report:

If Mr. Gacek is to reoffend, this will likely transpire in the following way: He will likely be using alcohol or illicit drugs, which may precipitate psychotic symptoms, increased impulsivity and aggressive behaviour.

[16] At page 24, the Hospital provided a composite assessment of risk:

In the opinion of the treatment team, based on the actuarial and clinical factors listed above, Mr. Gacek continues to represent a significant risk to the safety of the community. It is likely that he would revert to the use of both alcohol and cannabis absent the sanctions of the ORB. This would likely produce re-emergence of the admixture of paranoia and impulsivity that precipitated the index offences…Absent the sanctions of the ORB, he would likely not cooperate with monitoring or treatment in the community…

[17] At page 25, the Hospital provided its recommendation:

The team is unanimous in recommending the continuation of the current Detention [O]rder on a general forensic unit, with the ability to reside in the community in approved accommodation. It is the opinion of the treatment team that Mr. Gacek could be managed in the community with a high level of support and supervision by the Forensic Outpatient Program (FOP); should he not comply with the expectations of the treatment team or revert to substance use, his risk may not be manageable in the community, and the team would require the provisions of a Detention Order to return him to hospital, as it is the opinion of the team that the provisions of the Mental Health Act alone may not be sufficient to ensure his re-hospitalization. Finally, it is the opinion of the treatment team that the hospital requires the ability to approve Mr. Gacek’s accommodation in the community.

[18] The opinion of the treatment team, as reflected in the Report, is less stark than the opinion expressed in the prior year. At that time, their opinion was that the appellant was “highly” likely to revert to the use of both alcohol and cannabis, that such use would produce (as opposed to “likely” produce) re-emergence of the admixture of paranoia and impulsivity that precipitated the index offences, and that the appellant would not (as opposed to would “likely” not) cooperate with monitoring or treatment in the community.

[19] The opinion of Dr. Prendergast is that the appellant does not experience daily cravings for drugs or alcohol, and that his consumption is driven by his impulsivity. Dr. Prendergast acknowledged that there was not a huge volume of literature about Spice, but postulated that its effects would be similar to naturally occurring cannabis. Given the hypothesized link between the index offences and the use of cannabis, Dr. Prendergast “would have real concerns” about the appellant ingesting Spice.

[20] At the hearing, Dr. Prendergast recounted that the appellant’s mother had advised that, since the appellant’s release, everything was going very well. He further testified that, while it is “a possibility” that the appellant would return to past behaviour, he “like[s] to think that, that will not happen.” Dr. Prendergast went on: “But certainly, should [the appellant] use substances, it is my opinion that there’s a very real risk of rekindling an acute psychotic disorder.” And, he explained, such a disorder could in turn lead to some violence or harm to somebody.

[21] In Dr. Prendergast’s opinion, if the appellant were discharged, his mother would bring him back to the hospital or to the attention of psychiatrists if there were overt signs of decompensation or concerning behaviours. However, in his view, the appellant is unlikely to voluntarily agree to readmission if his treatment team advised him that it was necessary.

[22] With respect to the ability to risk manage the appellant in the community using the Mental Health Act, R.S.O. 1990, c. M.7, if he were discharged, Dr. Prendergast testified:

…I think the Mental Health Act would not be would not allow for a rapid return to hospital. Certainly the, the presence of a positive urine screen would not, in and of itself, be sufficient under the Mental Health Act to readmit someone... And even early signs of decompensation might not, in and of themselves, be persuasive, absent any specific behaviours or threats. So I would have, I would have concerns about my ability to intervene at the appropriate time using the Mental Health Act if I felt hospitalization was indicted [sic].

Conditional Discharge

[23] As Dr. Prendergast opines, one or more positive drug screens would not necessarily of themselves permit the Hospital to involuntarily readmit the appellant if he were conditionally discharged.

[24] The Mental Health Act, R.S.O. 1990, c. M.7, establishes a two-step procedure which would have to be satisfied before the appellant could be involuntarily readmitted to the Hospital. A physician would first be required to examine the appellant. Such an examination might result from the police (under s. 17) or someone else bringing the appellant to the Hospital, or from a justice of the peace ordering that the appellant be returned to the Hospital (under s. 16 of the Mental Health Act or s. 672.93 of the Criminal Code). The examining physician could order a psychiatric assessment of the appellant if there is reasonable cause to believe that the appellant is suffering from a mental disorder that is likely to cause serious bodily harm to himself or another person; and that he has threatened or attempted to cause bodily harm to himself, behaved violently towards another person or caused another person to fear bodily harm, or shown a lack of competence to care for himself (s. 15).

[25] The appellant would then have to be admitted for an assessment by a physician who would determine whether to authorize the appellant’s continued detention (s. 20). Pursuant to s. 20(5), the appellant could be involuntarily admitted to the Hospital if the assessing physician concluded:

(a) that the patient is suffering from mental disorder of a nature or quality that likely will result in,

(i) serious bodily harm to the patient,

(ii) serious bodily harm to another person, or

(iii) serious physical impairment of the patient,

unless the patient remains in the custody of a psychiatric facility; and

(b) that the patient is not suitable for admission or continuation as an informal or voluntary patient.

[26] The Criminal Code contains provisions which permit the monitoring of a person released on a conditional discharge. It would permit the arrest of the appellant without a warrant “if the peace officer has reasonable grounds to believe that the accused has contravened or wilfully failed to comply with the assessment order or disposition or any condition of it, or is about to do so” (s. 672.91). If not released from custody and consequently brought before a justice of the peace (s. 672.92), and the justice of the peace is similarly satisfied that disposition order was contravened or not complied with, the justice of the peace “may make an order that is appropriate in the circumstances in relation to the accused, including an order that the accused be returned to a place that is specified in the disposition…” (s. 672.93). A provision in the disposition that, in the event of non-compliance, the individual be returned to hospital could trigger the procedure under the Mental Health Act and facilitate readmission, if warranted.

The Board’s Reasons

[27] The Board reviewed the evidence, including the following:

The opinion of the treatment team is that Mr. Gacek continues to represent a significant threat to the safety of the public because he would be likely to return to use of alcohol or cannabis without the restrictions in place as a result of his disposition. This would precipitate a return of his paranoia and impulsivity that led to the index offence…he cannot be predicted to comply with voluntary monitoring in the community.

In addition, Dr Prendergast noted that a conditional discharge would mean that early problems could not be effectively managed under the provisions of the Mental Health Act. Mr. Gacek cannot be counted on to return voluntarily in the event of early risk factors such as a number of positive drug screens.

[28] The Board unanimously found that the appellant meets the threshold for a significant threat to public safety:

…The evidence heard by the Board persuades us that Mr. Gacek would revert to substance use if not for the disposition of the Ontario Review Board. The Board agrees that Mr. Gacek has not been assaultive since the NCR finding, but he has been verbally aggressive, he has opposed rules and he has sought out substances, in breach of his disposition. We are unable to agree on the evidence before us that his risk can be characterized as “minuscule”. We find that Mr. Gacek continues to represent a significant threat to the safety of the public.

[29] The Board ordered the appellant’s continued detention:

We find that the least onerous and least restrictive disposition for the coming year is a detention order which provides for hospital approval of Mr. Gacek’s accommodation in the community, that is the Greater Toronto Area and to allow for managing early risk factors such as substance use which could not necessarily permit a return to hospital under a conditional discharge.

Submissions of the Appellant

[30] With the assistance of amicus curiae, the appellant argues that: (1) the Board applied the wrong test in addressing the question of his risk to public safety and there was no evidence to suggest that he posed a significant threat to the safety of the public so as to warrant the continued jurisdiction of Board; (2) in the alternative, the Board erred in failing to order a conditional discharge: and (3) in the further alternative, the Board erred by failing to articulate why the provisions of the Criminal Code are insufficient to manage risk on a conditional discharge.

Submissions of the Hospital and the Attorney General

[31] The Hospital and the Attorney General argue that the Board applied the correct legal test and that its conclusion is reasonable and supported by the evidence. They argue that the Board imposed the least onerous and restrictive disposition available.

[32] Among other submissions, the Hospital and the Attorney General point to this court’s dismissal of the appellant’s appeal of the Board’s 2010 Disposition. They argue that “nothing of significance has changed” since the prior appeal.

Standard of Review

[33] Pursuant to section 672.78(1) of the Criminal Code, this court may only set aside the Board’s order if: (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.

[34] Pursuant to section 672.78(2), if the court is of the opinion that (1)(b) may apply, but no substantial wrong has occurred, it may dismiss the appeal.

[35] As this court noted in Saikaley (Re), 2012 ONCA 92, 109 O.R. (3d) 262, at para. 35:

The Supreme Court of Canada has instructed appellate courts not to “be too quick to overturn a review board’s ‘expert opinion’ on how best to manage a patient’s risk to the public” (citations omitted): R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, at para. 95. However, the Board’s risk assessment and disposition can be considered unreasonable when not “supported by reasons that can bear even a somewhat probing examination”: Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326, at para. 17.

The Winko Test

[36] In considering the Board’s approach, I am guided by Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625. McLachlin J., writing for the majority, wrote:

[47] …the only constitutional basis for the criminal law restricting liberty of an NCR accused is the protection of the public from significant threats to its safety. When the NCR accused ceases to be a significant threat to society, the criminal law loses its authority…

[49] …There must be evidence of a significant risk to the public before the court or Review Board can restrict the NCR accused’s liberty…

[54] …The court or Review Board has a duty not only to search out and consider evidence favouring restricting NCR accused, but also to search out and consider evidence favouring his or her absolute discharge or release subject to the minimal necessary restraints, regardless of whether the NCR accused is even present…

[57] …The threat must also be “significant”, both in the sense that there must be a real risk of physical or psychological harm occurring to individuals in the community and in the sense that this potential harm must be serious. A minuscule risk of a grave harm will not suffice. Similarly, a high risk of trivial harm will not meet the threshold…

[62] …When deciding whether to make an order for a conditional discharge or for detention in a hospital, the court or Review Board must again consider the need to protect the public from dangerous persons, the mental condition of the NCR accused, the reintegration of the NCR accused into society, and the other needs of the NCR accused, and make the order that is the least onerous and least restrictive to the NCR accused.

Disposition and Analysis

[37] In my view, the Board erred in its application of the test in Winko and I would accordingly allow the appeal and return this matter to the Board for rehearing with Mr. Gacek’s next review, with the direction that the Board request the Hospital to re-score the appellant’s actuarial risk based on his current diagnosis.

[38] As noted above, the Board concluded that, “We are unable to agree on the evidence before us that his risk can be characterized as “miniscule”. We find that Mr. Gacek continues to represent a significant threat to the safety of the public.” Winko explicitly cautions, at para. 57, that

…The threat must also be “significant”, both in the sense that there must be a real risk of physical or psychological harm occurring to individuals in the community and in the sense that this potential harm must be serious. A miniscule risk of a grave harm will not suffice. Similarly, a high risk of trivial harm will not meet the threshold…

[39] The Board did not describe the level of risk, other than to say it is not “miniscule”. Nor did the Board address the second part of the test, namely the potential harm. Winko requires a balancing of the level of risk and the level of harm.

[40] The Board’s failure is not saved by the fact that this court dismissed the appellant’s appeal of the Board’s 2010 Disposition. The opinion of the treatment team, and the appellant’s overall situation, were more favourable than in the prior year. The diagnosis of Schizophrenia was eliminated. The appellant’s compliance with conditions was better. The treatment team no longer expressed concern regarding its ability to rely on the appellant’s mother.

[41] I am not satisfied that the Board’s error in the application of Winko is of no consequence. While both the Hospital and the Board concluded that the appellant continues to represent a significant threat to the safety of the public, neither specifically adverts to a serious risk of serious physical or psychological harm to individuals in the community. It is unclear that the evidence of Dr. Prendergast – the most current evidence before the Board – supports a finding of a real risk of serious physical or psychological harm to individuals in the community. The “bodily harm” inflicted in connection with the index offences (striking a police officer with his hand) did not amount to serious physical harm. The greatest risk of harm appears to be to the appellant, and not to members of the community.

[42] There is no question that a detention order would facilitate management of the appellant’s mental health. That, however, is not the test when considering whether an individual should remain in detention in a hospital or be discharged subject to conditions.

[43] As I would allow the appeal on the basis that the Board erred in its application of the test in Winko, it is not necessary for me to address the appellant’s argument that the Board also erred by failing to consider a conditional discharge and by failing to articulate why the provisions of the Criminal Code are insufficient to manage risk on a conditional discharge. However, if the Board determines that the only impediment to the granting of a conditional discharge is an increased level of risk due to the Hospital’s inability to manage early problems under the Mental Health Act, it may consider specifying in its disposition that, in the event of non-compliance with a condition of its disposition (for example, consuming alcohol, if the disposition prohibits the consumption of alcohol), the appellant be returned to the Hospital.

Released: Sep. 11, 2012 “Alexandra Hoy J.A.”

“RGJ” “I agree R.G. Juriansz J.A.”

“I agree David Watt”

[^1]: See page 8 of the Board’s Reasons for Decision and Disposition dated November 3, 2010.