COURT OF APPEAL FOR ONTARIO

CITATION: Ranieri (Re), 2015 ONCA 444

DATE: 20150618

DOCKET: C59183

Weiler, Tulloch and van Rensburg JJ.A.

IN THE MATTER OF: Mary Ranieri

AN APPEAL UNDER PART XX.1 OF THE CODE

Mary Ranieri, appellant, acting in person

Anita Szigeti, Amicus Curiae

Amy B. Rose, for the respondent Attorney General of Ontario

Janice Blackburn, for the respondent Person in Charge of St. Joseph’s Healthcare Hamilton

Heard: June 1, 2015

On appeal against the disposition of the Ontario Review Board dated July 30, 2014.

van Rensburg J.A.:

[1] The appellant appeals the initial disposition of the Ontario Review Board (the “Board”) after she was found not criminally responsible on account of mental disorder (“NCR”) on charges of uttering threats to cause death or bodily harm and assaulting a peace officer with intent to resist arrest.

[2] The index offences occurred on March 12, 2014. The appellant, reacting to noise in an apartment above her own, made repeated threats to kill the superintendent of her building and two contractors. She repeated her threats to the investigating police officers, saying that one of the victims “should be concerned if it gets any worse. Don’t worry about what I’m going to do. If I do something it’ll be with merit.” The officers told the appellant she was under arrest. In response to their attempt to take physical control of her, the appellant pulled away and made a swatting motion, causing her glasses to fall off and break and leaving small scratches on her. While on the ground she kicked an officer in the leg.

[3] In its disposition of July 30, 2014, the Board concluded that the appellant posed a significant threat to public safety for two reasons: she had committed and threatened acts of physical violence; and she continued to have active, untreated persecutory delusions. The Board accepted evidence from forensic psychiatrist Dr. Nagari, that the appellant’s symptoms affect her behaviour and require her to be detained in the Secure Forensic Unit. The Board noted that the appellant’s own testimony at the hearing revealed the scope and intensity of her delusions.

[4] The Board determined that a conditional discharge was not appropriate because of the clear risks involved in discharging someone with the appellant’s symptoms. The appellant had recently been declared NCR and had not been treated.

[5] The Board held that detention of the appellant on the Secure Forensic Unit at the time of her initial disposition was necessary and appropriate because of her active untreated symptoms. At the time of the hearing before the Board, the appellant had refused treatment because she did not believe she was ill, and was challenging a determination that she was not capable of consenting to treatment.

[6] Recognizing, however, that the appellant’s condition might well improve with treatment, the Board made a hybrid order that the appellant be detained on the Secure Forensic Unit until the Hospital concludes that her condition has improved so as to warrant a transfer to the General Forensic Unit. The order allowed for privileges up to and including access to hospital grounds under indirect supervision and access to the community in the company of staff or an approved person.

[7] The appellant contests the Board’s finding that she posed a significant risk to public safety, and argues that the Board failed to impose the least onerous and least restrictive disposition. The appellant asserts that, in arriving at the determination of significant risk and its disposition, the Board relied on inadmissible hearsay. Amicus joins in these arguments and makes two further submissions. She contends that the Board, instead of determining the disposition that was “least onerous and least restrictive”, erroneously applied a lower standard based on recent amendments to the Criminal Code, R.S.C., 1985, c. C-46, and that the Board failed to give meaningful consideration to a conditional discharge for the appellant.

[8] I would not give effect to any of the grounds of appeal.

[9] The Board’s conclusion that the appellant posed a significant threat to public safety was reasonable and supported by the evidence. The Board emphasized the importance of the evidence that the appellant had committed and threatened acts of physical violence and that she suffers from active persecutory delusions that remain untreated.

[10] There were two reports in evidence at the hearing: the Hospital report co-authored by Dr. Ferencz, the appellant’s attending psychiatrist, as well as the initial assessment report leading to the NCR finding, which was authored by Dr. Ferencz and clinical fellow Dr. Nagari.

[11] In conducting the initial assessment, the psychiatrists interviewed the appellant on two occasions, as well as her mother, her sister and the victim of the index offences. The psychiatrists diagnosed the appellant with Delusional Disorder, Persecutory type, and observed that, as a result of her condition, she suffers from delusional thinking about various agencies and believes that for years she has been the victim of various injustices. They also observed that the appellant’s delusions had expanded while in the Hospital: she claimed that the superintendent she threatened in the index offences had influence over people in the Hospital as well as the judge who determined she was NCR.

[12] The psychiatrists also noted that the appellant’s behaviour is irate and agitated, and that without treatment – which the appellant continues to refuse – there is an ongoing risk of violence. The index offences involved violence, and the appellant continues to justify her actions on the basis of perceived threats. There have also been subsequent threats of violence by the appellant, including, according to her sister, a threat to her mother that she would “get her” when released from the Hospital (this was noted as having been denied by the appellant). Dr. Nagari noted that the appellant had more than once told him that she would “do anything” to defend herself when threatened by others. The appellant repeated this assertion in her evidence at the hearing.

[13] The appellant and amicus assert that the Board proceeded on inadmissible hearsay when Dr. Nagari, and then the Board, relied on police occurrence reports that contained unproven allegations of previous criminal conduct that did not result in convictions. Despite a number of interactions with police and the criminal justice system, the appellant has no prior convictions: some interactions did not result in charges, some charges were withdrawn, she was acquitted on one charge, and another is noted as “pending”. In his testimony, Dr. Nagari based his assessment that the appellant, while untreated, posed an unpredictable risk of harm, in part on what he understood was a previous assault that had been resolved by way of a peace bond.

[14] Amicus relies on this court’s decision in R. v. Runnalls, 2009 ONCA 504, as authority that criminal charges that do not result in a conviction are inadmissible in a Board hearing, except to the extent that they form part of an actuarial instrument of risk assessment. In the present case no actuarial instrument of risk assessment was compiled or tendered in respect of the appellant. Amicus acknowledges that Re Palmer, 2013 ONCA 475, at paras. 32 and 33, recognizes that information from a criminal charge not resulting in a conviction may be considered, but asserts that such information is admissible only where it is undisputed, and that, because the appellant disputed the prior incidents resulting in criminal charges, information about these incidents was inadmissible and ought not to have been considered by the Board.

[15] I agree with the Crown and the Hospital that amicus advocates an overly restrictive approach to the evidence a review board may consider that is not mandated by the case law. In Re Palmer, Rosenberg J.A. concluded that the Board was entitled to use facts surrounding a sexual assault allegation in determining the least onerous and least restrictive disposition for the accused, notwithstanding that the appellant had been acquitted of the criminal charge. While the information about the offence circumstances was in fact undisputed in that case, I do not read the decision as saying that only undisputed information about prior criminal conduct may be considered by a review board.

[16] It is true that information from a police occurrence report is a form of hearsay evidence. However, as this court observed in R. v. Vancurenko, [2006] O.J. No. 2569, at para. 2, a review board enjoys a wide latitude to receive hearsay evidence because of its inquisitorial rather than adversarial process. In Vancurenko, the court held that the Board was entitled to receive and consider a police summary of prior criminal activity. It was for the Board to evaluate the hearsay evidence, while aware of the dangers inherent in evidence of this type. See also R. v. Wodajio, 2005 ABCA 45, 194 C.C.C. (3d) 133, at para. 33, where the Alberta Court of Appeal observed that, having regard to the nature of the proceedings and the review board’s broad mandate to consider all relevant, reliable evidence concerning an accused’s mental condition and a possible nexus between that condition and the threat (in that case, of sexual assault), the review board was entitled to consider evidence of an accused’s ongoing pattern of conduct, which included complaints of alleged sexual assaults during his detention.

[17] While the fact that an accused person has been charged with an offence not resulting in a conviction, without more, would be of limited assistance to the Board in arriving at a disposition, information about prior behaviour that led to police involvement can be useful in assessing whether an accused poses a significant threat to the safety of the public and in determining the appropriate disposition. Such information is hearsay and must be evaluated having regard to such matters as its source and context, and any contradictory information, including any account or explanation provided by the accused.

[18] In this case, the Hospital, and in turn the Board, did not simply rely on the fact that the appellant had been charged criminally on prior occasions. Nor is there any indication that the Board accepted without question all of the facts alleged in the occurrence reports. The relevant facts concerning the appellant’s pattern of conduct and behaviour were not really at issue, having been largely confirmed by the appellant, her mother and sister, and the complainant in the index offences, who had observed the appellant’s behaviour leading to some of the other incidents when the police attended. Importantly, the appellant did not deny her pattern of aggressive conduct. Rather, she offered a justification, rooted in her mental illness, that she was responding to threats and persecution.

[19] With respect to disposition, amicus argues that the Board failed to determine the “least onerous and least restrictive” disposition, and erroneously interpreted the amended language in s. 672.54 of the Criminal Code as importing a lower threshold. While previously the section directed a review board to make a disposition “that is the least onerous and least restrictive to the accused”, the section now refers to a disposition “that is necessary and appropriate in the circumstances”.

[20] This court noted in Re Osawe, 2015 ONCA 280, at para. 45, FN 3, that since the amendment, the Board has held that “the necessary and appropriate disposition” is also the least onerous and least restrictive disposition (citing Re Ahmed-Hirse, [2014] O.R.B.D. No. 1876, at para. 36). Indeed, in her factum, the Attorney General, referring to the legislative history of Bill C-14,[^1] acknowledges that the amendments to s. 672.54, as well as related amendments, are clarifications as opposed to modifications of the law, and that the prevailing jurisprudence still applies.

[21] In our view, the Board, in referring to the “necessary and appropriate” disposition, simply tracked the language of the amended provision, and there is no reason to believe that a lesser standard was applied.

[22] The Board’s hybrid disposition was reasonable and represented the least onerous and least restrictive option for the appellant at the time of her initial disposition. The Board ruled out a conditional discharge “because of the clear risks involved in discharging an individual with [the appellant’s] symptoms into the community.” There was ample evidence before the Board that a detention order was necessary in circumstances where the appellant lacked insight into her illness and was refusing treatment. The hybrid disposition – involving detention in the Secure Forensic Unit, where her privileges would be limited to, at most, indirectly supervised access to the hospital and grounds and accompanied access to the community, with the discretion of the Hospital to move her to a less secure unit – was supported by the evidence. Dr. Nagari testified that the appellant posed some “elopement risk” and that there was some concern that an incident might occur in a General Unit where there is less supervision.

[23] Finally, there is no merit to the argument that the Board failed to give meaningful consideration to the option of a conditional discharge. Amicus argues that the Board relied on the fact that the appellant had only recently been found NCR and unreasonably failed to consider that a no-contact provision would have been sufficient to protect public safety. I disagree. At the time of the Board’s initial disposition, the appellant denied her mental illness, was refusing treatment, suffered from active and expanding persecutory delusions, and continued to believe that her aggressive responses to perceived threats were justified. In these circumstances, there was no air of reality to the appropriateness of a conditional discharge.

[24] For these reasons, I conclude that the Board’s finding that the appellant poses a significant risk to public safety and its disposition by way of hybrid order were reasonable. I would accordingly dismiss the appeal.

Released: “K.M.W.” June 18, 2015

“K. van Rensburg J.A.”

“I agree K.M. Weiler J.A.”

“I agree M. Tulloch J.A.”

[^1]: Referring to the phrase “necessary and appropriate in the circumstances”, the Honourable Peter McKay, Minister of Justice and Attorney General of Canada, stated that the amendment “is not intended to eliminate the requirement that a disposition be the ‘least onerous and least restrictive,’ but rather to make the concept easier to understand”: Standing Senate Committee on Legal and Constitutional Affairs, Proceedings, 41st Parl., 2nd Sess., No. 3 (27 February 2014), at pp. 32-33.