COURT OF APPEAL FOR ONTARIO

CITATION: Smith (Re), 2013 ONCA 458

DATE: 20130704

DOCKET: C56607

MacPherson, Rouleau and Lauwers JJ.A.

IN THE MATTER OF: SHIRLEY SMITH

AN APPEAL UNDER PART XX.1 OF THE CODE

Shirley Smith, in person

Anita Szigeti, Amicus Curiae

Philippe G. Cowle, for the Attorney General of Ontario

Janice E. Blackburn, for the Person in Charge of the Centre for Addiction and Mental Health

Heard and released orally: July 3, 2013

On appeal against the disposition of the Ontario Review Board dated September 21, 2012.

ENDORSEMENT

[1] The appellant appeals from the disposition of the Ontario Review Board dated September 21, 2012, whereby the Board ordered that the appellant be detained in a secure forensic unit at the Centre for Addiction and Mental Health (the “Hospital”), subject to her transfer to a general forensic unit, in the discretion of the person in charge of the Hospital, if her condition clinically improves to the extent of justifying such a transfer.

[2] Amicus challenges the Board’s hybrid order on the grounds that it is unreasonable and that the Board failed to make the least onerous and least restrictive disposition available. In particular, Amicus argues that the Board erred (1) by failing to include in its disposition order a term permitting the appellant to reside in the community, as the Board had ordered in the past; (2) by failing to consider the requirements of s. 672.54 of the Criminal Code in any meaningful way; and (3) by failing to have regard to the appellant’s liberty interests.

[3] We are not persuaded that the Board’s disposition is unreasonable or that the Board erred in the ways asserted by Amicus.

[4] The appellant suffers from bipolar disorder, historical cocaine abuse and personality disorder NOS (Cluster B, severe). As the Board noted, her treatment course has been complicated by her non-compliance with outpatient care and medication.

[5] It was common ground at the review hearing that the appellant continues to pose a significant risk to the safety of the public. The evidence before the Board established that in the months and weeks before the review hearing, the appellant experienced frequent, rapid and unpredictable declines into aggressive, manic behaviour, rendering her a threat to the public while in the community. During her episodes of acute mania, she became psychotic and behaved in impulsive, aggressive and sometimes violent ways.

[6] While the appellant had been able to maintain some stability while living in the community in the past, her condition had recently declined to the extent that her treatment team no longer regarded community living as appropriate, then or for the foreseeable future. The appellant’s treating psychiatrist since her March 2012 readmission to Hospital testified before the Board that the appellant required a period of stability for several months before she could be transferred to a general secure unit at the Hospital. Further, in his opinion, it was highly unlikely that she would be well enough to live in the community in the coming year.

[7] It was on the basis of this evidence that the Board concluded that a condition permitting community living in the coming year was inappropriate. On this record, the Board’s disposition was reasonable and well within the realm of its expertise.

[8] We are also not persuaded that the Board failed to consider the mandatory requirements of s. 672.54 of the Code or the appellant’s liberty interests.

[9] The Board’s reasons indicate that it was cognizant of the requirements of s. 672.54 of the Code and the need to fashion the least onerous and restrictive disposition possible in light of the appellant’s changed circumstances. The Board’s hybrid order was fashioned specifically to allow for the appellant’s eventual reintegration into the community by a transfer to a new general forensic unit at the Hospital as soon as her clinical condition had sufficiently improved to permit this transfer (such a transfer in fact took place six months ago). By so ordering, the Board expressly considered both the liberty interests of the appellant and the least onerous and restrictive disposition possible in light of the appellant’s recent and serious decompensation.

[10] Finally, we want to record that we were impressed with Ms. Smith’s oral submissions at the hearing today. It is obvious that she is making real progress which will be highly relevant at her next review hearing scheduled for October 23, 2013.

[11] The appeal is dismissed.

“J.C. MacPherson J.A.”

“Paul Rouleau J.A.”

“P. Lauwers J.A.”