COURT OF APPEAL FOR ONTARIO

CITATION: Young (Re), 2014 ONCA 30

DATE: 20140114

DOCKET: C56819

Doherty, Strathy and Pardu JJ.A.

IN THE MATTER OF Ian Young

AN APPEAL UNDER PART XX.1 OF THE CODE

Michael Davies, amicus curiae for the appellant

Ian Young, in person

Amy Alyea, for the respondent the Attorney General for Ontario

Janice Blackburn, for the respondent the Centre of Addiction and Mental Health

Heard and released orally: January 9, 2014

On appeal against the disposition of the Ontario Review Board dated, March 19, 2013.

ENDORSEMENT

[1] The Appellant Ian Young appeals from a disposition of the Ontario Review Board dated March 19, 2013 ordering that he be detained at the General Forensic Unit of the Centre for Addiction and Mental Health, subject to various conditions, but authorizing him to live in the community with the approval of the person in charge of the Centre.

[2] The Appellant says he should have been given an absolute discharge, or conditionally discharged and that the Board erred in reducing its members to three from the original five scheduled to hear the matter, when one of the five became ill and could not participate.

[3] The index offences resulting in the finding that the Appellant was not criminally responsible occurred on November 17, 1998 and amounted to serious acts of violence.

[4] In April 2004 the Appellant was discharged to live in the community and was generally stable until 2009. In the summer of 2009 his mental health deteriorated significantly and he was admitted to the Emergency Assessment Unit. He ultimately agreed to take medications and return to live in the community.

[5] In the fall of 2012 the hospital became concerned that the Appellant’s condition was deteriorating again. He refused to attend for required monthly assessments and turned off his phone so he could not be contacted. An assessment of risk in a hospital report of December 14, 2012 concluded:

The actuarial risk assessment places Mr. Young in a moderate risk category. His actuarial risk, the severity of the index offence and his dynamic factors (including his recent non-compliance with treatment and associated decline in his mental state, his minimization of potential problems and his ease of hostility) render him an ongoing significant threat to the safety of the public absent appropriate supervision and structure. It is the treatment team’s opinion that Mr. Young continues to represent a significant risk to the community per Winko.

[6] Following arrest by the police on February 4, 2013 for failure to report as a sexual offender, the Appellant has been detained pursuant to the Mental Health Act.

[7] By the time of the hearing, his treating psychiatrist testified before the Board that the Appellant continued to present with very active symptoms of his mental illness, a personality disorder with narcissistic features marked by paranoia and increased hostility when he is in a decompensated state and that he refused to engage in any assessment or discussion of his condition and the need for treatment.

[8] By the time of the March 18, 2013 hearing Mr. Young was continuing to refuse all efforts to assess his condition, and also refused at times to eat meals, take medication, submit to blood testing or speak to a doctor.

[9] The Board accepted the evidence of the Appellant’s treating psychiatrist and concluded that he continued to constitute a significant risk to the community and that the least onerous and restrictive disposition possible was to order detention in a hospital with the possible privilege of residing in the community. The Board found that the Appellant continued to present with decompensation and could not be assessed or treated in his present state.

[10] These conclusions were reasonable on the evidence before the Board. The Board’s reasons were comprehensive and logical.

[11] The wisdom of those conclusions is borne out by fresh evidence indicating that the mental condition of the Appellant has significantly deteriorated since the hearing to the point that he has been transferred to a more secure unit. His deterioration is consistent with a failure to take prescribed medication. He has exhibited episodes of bizarre behaviour and psychosis with grandiosity and paranoia. He attempted to leave the secure unit, and was placed on observation every 15 minutes because of the risk he would leave the unit.

[12] On October 10, 2013 he was placed on 24 hour constant observation after exhibiting increasingly bizarre behaviour, and ultimately had to be chemically restrained and secluded. He refuses to take any medication and remains mute. He refuses to speak to any clinicians. He has been aggressive with a nurse and made remarks she perceived as threatening. His attending psychiatrist, now Dr. Swayze, indicates that his condition is consistent with psychosis as a result of non-compliance with medication and that Mr. Young is likely incapable of consenting to or refusing psychiatrist treatment and that a finding of incapacity will be necessary unless there is a change in his condition.

[13] Given that the Board’s conclusions were reasonable and are borne out by the fresh evidence, there is no basis to interfere with the Board’s decision that an absolute or conditional discharge was not appropriate.

[14] Section 672.41(1) of the Criminal Code provides that:

A quorum of a Review Board is constituted by the chairperson, a member who is entitled under the laws of a province to practise psychiatry, and any other member.

The Board which heard this matter was so constituted. The Board had a discretion to reduce its members to an odd number as long as it maintained a quorum. Mr. Young expressed a preference through his counsel for the community member to remain, and a preference for proceeding with the hearing rather than adjourning it. These preferences were accommodated.

[15] There being no basis to intervene in the Board’s decision, the appeal is dismissed.

“D. Doherty J.A.”

“G.R. Strathy J.A.”

“G. Pardu J.A.”