Court of Appeal for Ontario

Citation: Dhingra (Re) 2014 ONCA 902

Date: 20141216

Docket: C58360

Before: Rouleau, van Rensburg and Pardu JJ.A.

IN THE MATTER OF: VED DHINGRA

AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel: Anita Szigeti, for the appellant Shawn Porter, for the respondent, the Attorney General of Ontario Michele Warner, for the respondent, the Centre for Addiction and Mental Health

Heard: November 20, 2014

On appeal against the disposition of the Ontario Review Board dated January 23, 2014.

ENDORSEMENT

Introduction

[1] This is an appeal of the disposition of the Ontario Review Board (the Board) dated January 23, 2014, refusing to grant an absolute discharge and continuing the appellant’s conditional discharge with modified conditions. A majority of the Board concluded that the appellant continues to pose a significant threat to public safety. In a minority opinion, one Board member concluded that the threshold of significant threat had not been met, and would have granted an absolute discharge.

[2] The appellant seeks an order allowing the appeal and substituting an absolute discharge, or alternatively referring the matter back to a differently constituted panel of the Board. The appeal is opposed by the Centre for Addiction and Mental Health (the Hospital) and the Crown.

[3] For the reasons that follow the appeal is dismissed.

Background

[4] The appellant is 72 years old. In February 2008, he was found not criminally responsible on account of mental disorder (NCR) on a charge of second degree murder in the killing of his wife, which occurred in June 2006. Since the NCR finding in February 2008, he has been under the jurisdiction of the Board. In October 2010 he began living in an independent apartment in the community.

[5] The appellant has been subject to a conditional discharge since November 9, 2012. The conditions initially included that he report to the Hospital at least bi-weekly, that on his consent, he take such treatment as recommended by his attending psychiatrist, and permitting him to travel to India for up to two weeks if approved by the Hospital.

[6] In the January 2014 disposition, the appellant’s conditions were changed to reduce his reporting requirement to once per month, and permitting him, with the Hospital’s approval, to travel for up to one month.

[7] The appellant has a long-standing mental illness. His current diagnosis is schizoaffective disorder and narcissistic personality traits. He is treated with an anti-psychotic medication and an anti-depressant, as well as a number of other medications for other health problems. The appellant had a history of non-compliance with his medication before the index offence, which led to psychotic behaviour and incidents of harm to himself (through suicide attempts) and to others, including the commission of the index offence.

[8] The appellant’s condition has been stable since he has been under the Board’s jurisdiction. When he first began to live in the community in October 2010 he received his psychiatric medication through long-lasting intramuscular injections. This continued until May 2013 when he began to self-administer his medications orally. This change was recommended by the appellant’s treating psychiatrist in order that he might demonstrate his ability to comply with oral medication to move toward an absolute discharge.

[9] For the eight months preceding his January 2014 review, the appellant was compliant with his medication, with one possible incident of non-compliance indicated in a low reading of his anti-psychotic medication. This reading may have been due to causes other than a failure to take his medication.

[10] In the context of this background, the Board had to determine whether the appellant would pose a significant threat to public safety if he were discharged absolutely. The question before the Board was centred on whether the appellant would likely continue to take the medication that was required to control the symptoms of his mental illness if he were granted an absolute discharge.

Issue on Appeal

[11] The central issue in this appeal is whether the Board’s conclusion that the appellant continued to pose a significant threat to the safety of the public, that is whether there was a significant risk that he would commit a serious criminal offence, was reasonably supported by the evidence before the Board.

[12] Central to the question of risk was whether, if an absolute discharge were granted, the appellant would continue to take his anti-psychotic medication that is necessary to control his symptoms. The Board concluded that there was a high likelihood of non-compliance if the appellant was not under a Board disposition.

[13] The appellant contends that the weight of the evidence was to the contrary. The Board accepted the opinion of Dr. Jeff McMaster, a consulting forensic psychiatrist who testified on behalf of the Hospital. Instead, the Board ought to have accepted the evidence of Nicole Johnson, a social worker who had the most frequent contact with the appellant as his caseworker over a period of some two and a half years before the hearing, and who supported an absolute discharge, as well as that of his daughter and son-in-law, with respect to his commitment to treatment and his strong social supports.

[14] The appellant also asserts that the evidence relied on by the Hospital and accepted by the Board was deficient. Dr. McMaster’s opinion was based on one meeting of an hour and a half with the appellant and a hospital report that was compiled by a social worker with no involvement in the appellant’s care. Dr. McMaster reached his opinion without knowledge of Ms. Johnson’s views, which were not referenced in the hospital report.

Analysis

[15] We would not give effect to the appellant’s arguments.

[16] In our view, there was sufficient evidence to support the Board’s conclusion that the appellant continued to pose a significant risk to public safety as a result of a reasonable concern that, if discharged absolutely, he would likely become non-compliant with his anti-psychotic medication. The Board was justified in accepting Dr. McMaster’s opinion, which the Board considered together with the other evidence.

[17] The Board noted that the appellant had a frequent and regular history of medication non-compliance in the period of time leading up to the index offence.

[18] The Board accepted the evidence that the appellant had taken his medication orally without incident for eight months, with one possible incident of non-compliance, and that he had family and community support, which were positive factors. What was of concern was that the appellant’s insight into his condition and the need to take his medication was suboptimal and fluctuating.

[19] There was evidence supporting the conclusion that the appellant lacked insight into his condition and the need to take his medication. The hospital report noted that this concern had been expressed by Dr. Eayrs, the psychiatrist who treated the appellant until July 2013, and repeated by the two subsequent psychiatrists assigned to his care, Dr. Ng, who saw him once and went on maternity leave, and then Dr. DeJesus. Dr. McMaster explored this question with the appellant when he met with him in December 2013. He reported that the appellant told him he was not on any psychiatric medication and no longer had schizophrenia issues. When it was pointed out that he was taking an anti-psychotic drug, the appellant agreed that he was, but said he was unsure what it was for.

[20] Dr. McMaster testified that the appellant needs to “increase his insight in to his illness, the connection between his illness and risk of suicide and violence”, that if he were granted an absolute discharge, eventually he would stop taking his anti-psychotic medication. Dr. McMaster was of the opinion that, due to the history of non-compliance, a longer period of supervision was necessary to ensure that the appellant was compliant with his medication.

[21] There is no indication that the evidence or views of Ms. Johnson, the appellant’s caseworker, were disregarded by the Board. To the contrary, the Board accepted her observations about the appellant’s compliance with medication when she worked with him, and his family support. The Board however preferred Dr. McMaster’s opinion over Ms. Johnson’s belief that the appellant would continue to take medication if it was prescribed to him if he were granted an absolute discharge.

[22] The evidence supports the Board’s conclusion that the appellant continues to pose a significant threat to public safety because of concerns about his compliance with the medication he requires to control his symptoms. The Board considered all of the evidence, including the appellant’s pre-offence history of non-compliance, his substantial compliance while under its jurisdiction, the presence of social and family supports, and his fluctuating insight into the need to continue to take his medication, in assessing whether the appellant was likely to become non-compliant.

[23] Finally, we would not give effect to the appellant’s contention that the evidence on which the Board acted was deficient. The hearing was originally adjourned because the Board required a properly qualified forensic psychiatrist to provide an assessment of risk. There is no question that Dr. McMaster possessed the necessary qualifications. He prepared for the hearing by reviewing the hospital report, meeting with the appellant and speaking with Dr. DeJesus. Where there was no disagreement about his diagnosis and treatment, and the sole issue was risk assessment, Dr. McMaster, as a consulting forensic psychiatrist, was capable of providing an opinion based on his meeting with the appellant and his review of the hospital report.

[24] The appellant points out that Dr. McMaster did not have the benefit of the opinion and experience of Ms. Johnson, the member of the clinical team who had the most continuous and direct contact with the appellant in the months before the annual review. When the hospital report was prepared, Ms. Johnson was on leave. She had however prepared a pre-ORB report that is mentioned in the hospital report. While her pre-ORB report is listed as a source at the beginning of the hospital report, the report contains no reference to her involvement or views.

[25] In the circumstances of this case, where Ms. Johnson had direct and regular contact with the appellant, it would have been preferable for the consulting psychiatrist, in formulating his opinion, to have considered the information Ms. Johnson was able to provide. At a minimum, the Hospital report ought to have disclosed that the recommendation of the clinical team was not unanimous.

[26] Notwithstanding these concerns, the question for determination on this appeal is whether the result reached by the Board was unreasonable on the evidence that was presented. In our view, the record supports the disposition. The Board’s decision that it would be premature to grant an absolute discharge to the appellant was reasonable and supported by the evidence.

Disposition

[27] Accordingly, the appeal is dismissed.

“Paul Rouleau J.A.”

“K. van Rensburg J.A.”

“G. Pardu J.A.”