COURT OF APPEAL FOR ONTARIO
CITATION: Kamali (Re) 2016 ONCA 52
DATE: 20160118
DOCKET: C61073
Feldman, Cronk and Roberts JJ.A.
IN THE MATTER OF: Sinem Kamali
AN APPEAL UNDER PART XX.1 OF THE CODE
Ian S. McCuaig, for the appellant
Kathryn Hunt, for the Centre for Addiction and Mental Health
Jessica Smith Joy, for the Attorney General of Ontario
Heard: January 15, 2016
On appeal against the disposition of the Ontario Review Board dated January 13, 2015.
By the Court:
[1] The appellant appeals from the order of the Ontario Review Board (the “Board”) dated January 13, 2015 that she be detained on the General Forensic Unit at the Centre for Addiction and Mental Health (“CAMH”) in Toronto, subject to a number of conditions, including the privilege of living in the community in accommodation approved by the person in charge of CAMH.
Background
[2] On June 14, 2012, the appellant was found not criminally responsible (“NCR”) on account of mental disorder on a charge of arson relating to an offence on October 23, 2010. She has been subject to a treatment order since October 2010 and a detention order under the Board’s supervision since 2012.
[3] The appellant is 35 years old. Between July 2008 and October 2010, she was apprehended under the Mental Health Act, R.S.O. 1990, c. M.7 eight times. She was admitted to hospital on numerous occasions commencing in 2009, for periods ranging from several days to several weeks. Her medical records indicate that she exhibited psychosis, paranoia, delusions, self-harming behaviour and physical aggression during her admissions.
[4] The appellant also has a history of substance abuse, with documented incidents of the use of marijuana, powdered cocaine, methadone, percocets and gasoline mixed with juice.
[5] The appellant’s current diagnosis is schizophrenia. She has no criminal record but was arrested and charged prior to October 2010 for assault and attempted murder. All charges were ultimately withdrawn.
[6] The appellant has resided at CAMH since December 10, 2010 except for the time period between February 25, 2014 and June 2014. In February 2014, she was approved to live in the community, in supervised housing at St. George House, under the oversight of her CAMH out-patient team. She was readmitted to CAMH on April 9, 2014 when she breached her disposition order by drinking alcohol.
[7] Shortly thereafter, the appellant was again discharged to reside at St. George House. However, concerns soon emerged regarding her failure to comply with her medication regime. She also missed two appointments with her treating psychiatrist and, on June 9, 2014, absconded from St. George House for a period of approximately two weeks, during which she resided with strangers, failed to take her medication and consumed alcohol.
[8] On June 18, 2014, the appellant was arrested and readmitted to the General Forensic Unit at CAMH. She was later transferred to the Secure Forensic Unit. The readmission and transfer were the subject of restriction of liberty hearings held before the Board on July 16 and October 7, 2014 at which the Board held that the restrictions were warranted. In October 2014, following her restriction of liberty hearings, the appellant set a fire in her bedroom at CAMH.
[9] At the time of her January 13, 2015 hearing, the appellant was subject to the terms and conditions of a Board disposition dated February 18, 2014, under which she was detained on the General Forensic Unit of CAMH, subject to conditions that afforded the privilege of living in approved community accommodation. At her January 13, 2015 hearing, the appellant sought an absolute discharge.
Board Decision
[10] The Board concluded, on all the evidence before it, that the appellant continued to pose a significant threat to the safety of the public. It also accepted CAMH’s submission that it was necessary and appropriate in the circumstances, taking into account the safety of the public, the appellant’s mental condition, her re-integration into society, and her other needs, that her detention on the General Forensic Unit at CAMH should continue, on essentially the same terms as set out in the Board’s 2014 disposition.
[11] The appellant appeals from both of these rulings.
Issues
[12] The appellant submits that the Board erred in finding, in the absence of any positive evidence, that she continues to pose a significant risk to the public. Further, the appellant says, the Board erred by ignoring or discounting the evidence before it of significant improvements in her mental status during the latter part of 2014. As a result of these errors, the appellant submits, the Board failed to impose a disposition that was the least onerous and least restrictive in the circumstances and to properly consider her liberty interests.
Discussion
[13] We do not accept these submissions. In our view, the Board did not err in its assessment of the threat posed by the appellant to public safety or in its determination of the necessary and appropriate disposition in all the circumstances. In both respects, the Board’s disposition was reasonable and fully supported by the evidence.
[14] The central issue at the Board hearing was whether the appellant continued to pose a significant threat to the safety of the public. The evidence before the Board on this issue consisted of the testimony of the appellant’s treating psychiatrist, Dr. Wilkie, and CAMH’s hospital report, dated December 15, 2014.
[15] Dr. Wilkie testified that, notwithstanding acknowledged improvements in the appellant’s mental status in late 2014: i) she continues to suffer from persecutory and somatic delusions due to her psychotic disorder, together with disorganized thinking and behaviour. Her psychotic symptoms are sometimes accompanied by physical or verbal threats; ii) the appellant continues to exhibit paranoid delusions, although her more grandiose delusions have abated as her medication has been optimized; and iii) the appellant continues to have limited insight into the relationship between her mental illness, substance abuse and the risk of her engaging in violent behaviour and the need for medication.
[16] Further, and importantly, it was Dr. Wilkie’s opinion that, absent supervision, the appellant would likely decrease or discontinue her medications, leading to her rapid decompensation, the overt manifestation of symptoms of psychosis and a significant risk to the public. As a result, the appellant’s continued detention was necessary to permit CAMH’s rapid and early intervention in the event of the appellant’s non-compliance with medication and resulting decompensation.
[17] There was also evidence before the Board establishing that, during the 2014 review year:
from July to October 2014, the appellant was involved in a number of episodes of agitation, altercation and verbal threats;
when the appellant was absent without leave from St. George House in June 2014, she stole money, drank alcohol and lived with strangers;
on readmission to CAMH in late June 2014, the appellant presented as “significantly disorganized, whispering and incoherent”;
following her readmission, the appellant: refused clozapine medication; engaged in altercations with staff and co-patients; stole and drank hand sanitizer; set paper on fire in her bedroom; and, while on the Secure Forensic Unit at CAMH, continued to present as highly disorganized and confused, exhibiting both paranoid and grandiose delusions; and
notwithstanding that the appellant’s symptoms had attenuated somewhat due to her medication compliance, to which the Board referred, she continued to lack insight into her illness and her need for medication. In particular, on transfer back to the General Forensic Unit on December 9, 2014, the appellant continued to deny her mental illness and exhibited limited insight.
[18] This evidence, together with Dr. Wilkie’s testimony, provided ample support for the Board’s finding that the appellant continues to pose a significant threat to the safety of the public. This finding is dispositive of the appellant’s contention on appeal that she should have been granted an absolute discharge at her January 2015 hearing. On the evidence before the Board, outlined above, an absolute discharge would have been unreasonable. It would also have failed to accord with s. 672.54(a) of the Criminal Code, R.S.C. 1985, c. C-46, which contemplates an absolute discharge for an NCR-accused where, in the opinion of the court or the Board, the accused is not a significant threat to the safety of the public.
[19] Nor, in our view, can the Board otherwise be faulted for ordering the continued detention of the appellant. In contrast to a conditional discharge (which, we note, the appellant did not request at the hearing), under a detention order, an NCR-accused can be returned to hospital, if necessary, by means of a Board-issued warrant of committal, without detention in jail or a court order: s. 672.57 of the Criminal Code. This court has recognized the practical advantages and public safety dimensions of providing for the involuntary return of an NCR-accused to hospital by means of this approach: see R. v. Breitwieser, 2009 ONCA 784.
[20] In this case, Dr. Wilkie’s testimony and the evidence of the appellant’s clinical course and behaviours during the 2014 review year supported the conclusion that a detention order, as a preventative and public safety measure, was both necessary and appropriate. The Board accepted this evidence, as it was entitled to do, and found that “it is essential that [CAMH] have the ability to respond quickly and intervene early in the event of [the appellant’s] non-compliance with medication and decompensation.” This conclusion was both reasonable and supported by the evidentiary record.
[21] Accordingly, for the reasons given, the appeal is dismissed. We note that the appellant’s next review hearing is scheduled for January 19, 2016, four days from the date of this appeal. The appellant’s progress during the 2015 review year, and her suitability for discharge from CAMH, no doubt will be fully canvassed at that hearing.
“K. Feldman J.A.”
“E.A. Cronk J.A.”
“L.B. Roberts J.A.”