COURT OF APPEAL FOR ONTARIO

CITATION: Isbister (Re) 2013 ONCA 132

DATE: 20130306

DOCKET: C55739

MacPherson, LaForme and Pepall JJ.A.

IN THE MATTER OF: TREENA ISBISTER

AN APPEAL UNDER PART XX.1 OF THE CODE

Treena Isbister, appearing in person

Howard Krongold, amicus curiae

Suhail Akhtar, for the respondent, Her Majesty the Queen

Michelle O’Bonsawin, for the respondent, Royal Ottawa Mental Health Centre – Royal Ottawa Health Care Group

Heard: February 26, 2013

On appeal against the disposition of the Ontario Review Board dated May 9, 2012, with reasons for disposition dated July 3, 2012.

By the Court:

A. Background Facts

[1] On November 2, 2004, the appellant was found not criminally responsible on account of mental disorder (“NCR”) on charges of assault and failing to comply with a probation order. She suffers from schizoaffective disorder compounded historically by alcohol and drug abuse. She also has been diagnosed with borderline and antisocial personality traits. Her illness has resulted in multiple hospitalizations in Ontario, Manitoba, and Alberta.

[2] In August 2008, she was admitted to Royal Ottawa Mental Health Centre (“ROMHC”), a member of the Royal Ottawa Mental Health Care Group.

[3] On April 5, 2011, the Ontario Review Board (“Board”) held an annual review to consider the appellant’s progress. The Board determined that she continued to present a significant risk to the community. The appellant wished to stay at the ROMHC, however, all reasonable and necessary interventions at the ROMHC had proven ineffective. She had also shown a propensity for eloping impulsively. The ROMHC and the Attorney General made a joint submission that the appellant be transferred to the Brockville Metal Health Centre (“BMHC”), another member of the Royal Ottawa Health Care Group. On May 10, 2011, the Board made such a disposition.

[4] The next annual review was held on May 3, 2012. At that time, the transfer to BMHC had still not taken place.

[5] The appellant expressed a desire to remain in Ottawa and to be discharged into a supervised boarding facility in that city. The Attorney General asked that the transfer to BMHC be cancelled so as to accord with reality.

[6] The ROMHC asked that the disposition consisting of the transfer to BMHC be maintained as it was the least onerous and least restrictive disposition. It filed a report dated April 27, 2012 and Dr. Brathwaite, the appellant’s treating psychiatric physician at ROMHC, testified. She recommended a transfer to BMHC. Although not specified, she noted the BMHC’s greater number of programmes, its long-term care mandate, and the opportunity for stability of the appellant’s psychiatric state. Dr. Braithwaite also observed that given the time it would take to prepare the appellant for reintegration into the community, BMHC’s longer term mandate would make it the best place for that purpose.

[7] The evidence disclosed that the appellant’s transfer had been delayed because the BMHC was housing a male patient who was under a Board disposition to be housed in an all-male unit.

[8] On May 9, 2012, the Board once again ordered that the appellant be detained forthwith at BMHC, with the same privileges and conditions as ordered in its May 10, 2011 disposition. It found that the appellant continued to present a significant risk to the community. She required long-term care and could stand to benefit from a more stable environment that could offer an easier transition to community living. The Board expressed its frustration that, though ordered, the transfer to BMHC had not yet taken place. In her July 3, 2012 Reasons for Disposition, Alternate Chairperson Labrosse wrote:

It is incumbent upon the persons in charge of both hospitals to ensure that this transfer does take place as soon as possible, failing which the Board would expect very clear and conclusive evidence as to why a transfer has not been possible in the circumstances.

B. The Appeal

[9] The appellant appeals this disposition of the Board. It is not contested that the appellant is a significant risk to the community.

[10] The appellant advances three grounds of appeal:

(1) the Board’s order failed to provide authority for the appellant to be detained at the ROMHC and to avail herself of discretionary privileges while the appellant remained at that facility pending transfer;

(2) the Board’s order was unreasonable and legally wrong because the evidence showed no reasonable likelihood of a transfer to BMHC; and

(3) there was no evidence that a transfer to BMHC was the least onerous and least restrictive venue for the appellant’s detention consistent with the objectives of the Code.

(1) Fresh Evidence

[11] The respondent, the Royal Ottawa Health Care Group, on consent of the Attorney General, seeks the admission of fresh evidence on this appeal. The fresh evidence consists of the affidavit of Dr. A.G. Ahmed and includes his report dated January 23, 2013. Among other things, this evidence shows that the appellant was transferred to BMHC on January 18, 2013. Dr. Ahmed is the appellant’s attending psychiatrist at BMHC, the Associate Chief of Psychiatry at the Integrated Forensic Program of the Royal Ottawa Health Care Group, and is also the director of both ROMHC and BMHC. In his affidavit, Dr. Ahmed notes that the appellant was transferred to his care at the Forensic Treatment Unit at BMHC on January 18, 2013. He had first assessed the appellant on April 4, 2009, and then on April 10, 2011. He re-assessed her on January 13, 2013.

[12] It was Dr. Ahmed’s opinion that the appellant remained a significant threat to the safety of the public and an appropriate candidate for transfer to BMHC for ongoing treatment and rehabilitation. He was of the opinion that the appellant would most likely benefit from the treatment programmes at BMHC, specifically a medication review and involvement in psychological rehabilitation programmes including insight orientation. With a reasonable degree of certainty, he was of the opinion that a placement at BMHC was the least onerous and least restrictive intervention to manage the appellant’s current risk and to attend to her rehabilitation requirements.

[13] Pursuant to s. 672.73(1) of the Criminal Code, R.S.C. 1985, c. C-46, an appeal from a disposition of a Review Board “shall be based on a transcript of the proceedings and any other evidence that the court of appeal finds necessary to admit in the interests of justice.” In R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R 779, the Supreme Court stated, at para. 54, that the phrase “interests of justice” includes “not only justice to the NCR detainee, whose liberty is at stake, but also justice to the public, whose protection is sought to be assured.”

[14] The fresh evidence provides updated insight into the appellant’s status and is necessary to ensure that the order of this court is consistent with the aforementioned objectives. It is credible and reliable. Indeed, we note that no request was made to cross-examine Dr. Ahmed. It is in the interests of justice that the fresh evidence be admitted.

(2) Merits of the Appeal

[15] Turning to the merits of the appeal, although we are troubled by the delay in implementation of the Board’s disposition that the appellant be transferred to BMHC, in our view, the first two grounds of appeal are moot. Furthermore, this court’s decision in Mental Health Centre Penetanguishene v. Ontario, 2010 ONCA 197, 206 O.A.C. 125, has already addressed the issues raised in these two grounds. Though moot, we do note that the appellant’s privileges at ROMHC and at BMHC were the same.

[16] Turning to the third ground of appeal, as mentioned, interventions at ROMHC had proven to be ineffective. The evidence of Dr. Brathwaite, which was expanded upon by Dr. Ahmed, supports the Board’s conclusion of a transfer to BMHC. Section 672.54 of the Code provides that in making a disposition that is the least onerous and least restrictive to the accused, the Board is to take 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. As stated at para. 71 of Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20, [2004] 1 S.C.R. 498, the various conditions have to be viewed collectively, and the “least onerous” requirement applied to the package as a whole. The Board’s conclusion that detention at BMCH was the least onerous and least restrictive to the appellant in the circumstances was reasonable and we see no error.

[17] The appeal is dismissed.

Released: March 6, 2013 “SEP”

“J. C. MacPherson J.A.”

“H. S. LaForme J.A.”

“S. E. Pepall J.A.”