COURT OF APPEAL FOR ONTARIO

CITATION: Tolias (Re), 2016 ONCA 463

DATE: 20160613

DOCKET: C60801

Epstein, Pepall and van Rensburg JJ.A.

IN THE MATTER OF: Helen Tolias

AN APPEAL UNDER PART XX.1 OF THE CODE

Ken J. Berger, for the appellant

Katherine Beaudoin, for the respondent, the Attorney General for Ontario

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

Heard: May 12, 2016

On appeal against the disposition of the Ontario Review Board dated June 29, 2015.

Pepall J.A.:

Overview

[1] The appellant appeals from the June 29, 2015 disposition of the Ontario Review Board (the “Board”) ordering that she be detained on the secure forensic unit at St. Joseph’s Healthcare, Hamilton, West 5th Campus (the “Hospital”). As a result of the disposition, she was to be transferred from the general forensic unit of the Hospital and her permission to live in Hospital-approved accommodations in the community was revoked.

[2] The disposition resulted from an early hearing request made by the Person in Charge of the Hospital on May 6, 2015, due to a significant deterioration in the appellant’s mental state and behaviour.

[3] The appellant appeals this disposition on the basis that: (1) the Board breached the rules of natural justice by conducting a hearing with two panel members who had conflicts of interest and in the face of bias or a reasonable apprehension of bias; and (2) the Board’s decision was unreasonable.

[4] For the reasons that follow, I would dismiss the appeal.

Background

[5] The appellant suffers from schizoaffective disorder, bipolar type, and has a history of drug abuse, supervision failure and medication non-compliance.

[6] The appellant was originally charged in 2003 with uttering threats and criminal harassment of her ex-boyfriend, and with breach of recognizance. She was admitted to the Centre for Addiction and Mental Health (“CAMH”) to be assessed for criminal responsibility on those charges. She became infatuated with, and developed erotomanic delusions about, Dr. Colleton, the CAMH staff psychiatrist who conducted her assessment. She began to send him letters and repeatedly called him on the telephone.

[7] As a result, the appellant was charged with criminal harassment and with making harassing telephone calls.

[8] On November 14, 2003, she was convicted of the charges relating to her ex-boyfriend.

[9] Despite recognizances containing conditions that she abstain from direct or indirect communication with Dr. Colleton, the appellant persisted with her communications and was again charged.

[10] On July 14, 2005, the appellant was found not criminally responsible on account of mental disorder (“NCR”) of four charges of making harassing phone calls to Dr. Colleton, three charges of failure to comply with a recognizance, and two charges of failure to comply with probation. She received a conditional discharge and was required to report to the Whitby Mental Health Centre.

[11] The appellant’s attempts to communicate with Dr. Colleton continued. She was again charged and again found NCR in 2006. Since that time, the appellant has remained under the jurisdiction of the Board. She has been detained on general and secure forensic units in Whitby, Kingston and Hamilton with varying levels of privileges, which has included living in the community in supervised accommodation.

[12] The appellant appealed the Board’s February 11, 2014 disposition to this court. On January 16, 2015, this court rejected her appeal but, in its endorsement, indicated that consideration ought to be given to commencing the appellant’s integration into the community. This was due to the length of time that had elapsed since her index offences and the progress that had been made in her attitude and condition.

[13] On January 19, 2015, the appellant had her next annual review before the Board. On January 21, 2015, the Board ordered that she was to be detained in the general forensic unit of the Hospital, with conditions that allowed her to live in the Hamilton community in accommodations approved by the Hospital.

[14] In May 2015, the Board approved a request for an early review of the appellant’s disposition due to the appellant’s deterioration. The Hospital report described 180 aggressive incidents that occurred between January and May 2015. These included the destruction of property, as well as verbally and physically threatening and assaultive behaviour towards others. She also continued to have delusions relating to Dr. Colleton. In violation of the terms of her disposition, the appellant had attempted to contact him on many occasions.

Board Hearing

[15] The Hospital, supported by the Crown, sought an order placing the appellant in a secure forensic unit. They submitted that such a disposition was necessary and appropriate to manage the appellant’s risk.

[16] At the commencement of the hearing, the Chairperson raised a preliminary matter. He advised the parties that Dr. Darby, a member of the panel, works at CAMH in Toronto and had been involved in the recommendation involving the appellant’s transfer from CAMH to Whitby. He explained that Dr. Darby dealt with the appellant’s case as a psychiatrist at CAMH because Dr. Colleton was the victim.

[17] The Chairperson asked whether the appellant objected to Dr. Darby’s continuing as a member of the panel. The appellant initially objected. Then the appellant’s counsel asked for time to discuss the matter whereupon he and the appellant retired from the hearing room. On their return, counsel advised that the appellant was prepared to proceed with Dr. Darby present as a member of the panel. Counsel for the Hospital and the Crown took the same position. No one mentioned any actual or potential conflict with Dr. P. N. Wright, a psychologist and the second panel member now alleged to be in a conflict of interest.

[18] The Board proceeded with the hearing. It subsequently found that there was “a foreseeable and substantial likelihood that Ms. Tolias would cause serious psychological harm to members of the public from conduct that is criminal in nature if not under the jurisdiction of the Board.” The Board concluded that the appellant continued to pose a significant threat to the safety of the public and the necessary and appropriate disposition to safely manage that risk was to order her detention at the Hospital’s secure forensic unit on terms and conditions. These included hospital and grounds privileges, accompanied by staff or a person approved by the Person in Charge. The disposition reflected the unanimous view of panel members.

[19] In reaching its conclusion, the Board relied on the evidence of Dr. Nagari, the appellant’s psychiatrist. He had opined that the appellant presented an ongoing risk of psychological harm to Dr. Colleton and significant risk of harm to the public. During the reporting period, the appellant had contacted Dr. Colleton on multiple occasions, had tried to leave the hospital without permission, had refused her medication numerous times, and her conduct had been “threatening and assaultive”.

Issues on Appeal

[20] Before us, the appellant advances two grounds of appeal. First, she argues that the Board breached the rules of natural justice. Second, she argues that the Board’s decision was unreasonable.

Analysis

(1) Natural Justice

[21] The appellant submits that the Board breached the rules of natural justice by conducting a hearing with two panel members who had a conflict of interest and by failing to make complete disclosure of said conflicts. She asserts that there was bias and a reasonable apprehension of bias with respect to both Dr. Darby and Dr. Wright.

[22] The appellant argues that the two panel members were personal colleagues of Dr. Colleton, the victim of her index offences. Moreover, Dr. Darby was involved in her transfer from CAMH to Whitby.

[23] The appellant provided no details on Dr. Wright’s role but asked this court to infer that Dr. Wright had had conversations about her with Dr. Colleton, given that they were colleagues on a small team of mental healthcare professionals at CAMH. I would note that the record does refer to Dr. L. Wright, a forensic psychiatrist who conducted the appellant’s first assessment. However, Dr. P. N. Wright who is a psychologist and sat on the panel is a different Dr. Wright.

[24] There is a legal presumption that Board members are impartial, and as a result, there is a high threshold to successfully challenge a decision based on bias or reasonable apprehension of bias: see Ontario (Commissioner, Provincial Police) v. MacDonald, 2009 ONCA 805, 255 O.A.C. 376, at para. 44.

[25] Full disclosure was made to the appellant and her counsel of the circumstances relating to Dr. Darby. The Chairperson asked whether there was any objection and, as previously mentioned, the appellant, represented by counsel, advised that she was prepared to proceed with Dr. Darby as a panel member. No fresh evidence was proffered to suggest that full disclosure had not been made or that served to rebut the presumption of impartiality.

[26] Arguments on bias or a reasonable apprehension of bias relating to Dr. Wright were only raised in oral submissions. The court was not directed to any evidence in the record regarding his alleged bias or even his place of work, and again, no fresh evidence was submitted. Even if he worked or works as a psychologist at CAMH, which was not established, this fact alone is insufficient to anchor the appellant’s claim that there was a breach of natural justice. The dearth of evidence causes me to conclude that the presumption of impartiality has not been rebutted.

(2) Reasonableness of the Board’s decision

[27] Second, the appellant submits that the Board’s decision was not reasonable. She states that the Board’s reasons do not support the disposition and the disposition was not supported by the evidence. She contends that there was no real risk of physical or psychological harm.

[28] I disagree.

[29] The appellant’s mental state and behaviour had significantly deteriorated since January 2015. The Board’s reasons were responsive to the issues before it and its disposition was reasonable and supported by the evidence, including that of Dr. Nagari, the appellant’s attending psychiatrist.

[30] The appellant argues that the Board improperly disregarded this court’s comments made when reviewing the appellant’s February 11, 2014 disposition. I do not accept this submission. The comments were made at a different time and in a different context. Following that appeal and in its next disposition, the Board commenced the integration of the appellant into the community. There ensued a well-documented deterioration in the appellant's mental state and behaviour, which fully justified the Board’s subsequent disposition.

[31] I see no basis on which to interfere.

Disposition

[32] For these reasons, I would dismiss the appeal.

Released:

“GE” “S.E. Pepall J.A.”

“JUN 13 2016” “I agree Gloria Epstein J.A.”

“I agree K. van Rensburg J.A.”