Court of Appeal for Ontario

Citation: Coburn (Re), 2016 ONCA 536

Date: 2016-07-06

Docket: C60761

Judges: Watt, Epstein and van Rensburg JJ.A.

In the Matter of: Lillian Coburn

An Appeal Under Part XX.1 of the Code

Counsel: Daniel F. Moore, for the appellant Kathryn Hunt, for the Centre for Addiction and Mental Health Carmen Elmasry, for the Attorney General of Ontario

Heard: June 29, 2016

On appeal against the disposition of the Ontario Review Board dated June 30, 2015.

Endorsement

[1] On April 15, 2013, the appellant, Lillian Coburn, was found Not Criminally Responsible (NCR) on seven charges of criminal harassment, and individual counts of uttering a threat to cause death, and mischief. Since that time, Ms. Coburn has been under the jurisdiction of the Ontario Review Board and detained at the Centre for Addiction and Mental Health (CAMH).

[2] The index offences were committed in 2012. The harassment and death threat charges were based on Ms. Coburn’s leaving offensive voicemail messages, including death threats, and sending disturbing letters, images and other content to a variety of complainants. The mischief charge arose out of Ms. Coburn’s sending a woman a package containing a demand for money, an article about a serial killer and an unidentified powder. The presence of the powder led to the attendance of emergency services including a hazardous materials team.

[3] Since coming within the Board’s jurisdiction in 2013, Ms. Coburn has had several Consent and Capacity Board (CCB) hearings. In May 2015, she was found incapable of consenting to treatment, a finding which she is currently appealing. Ms. Coburn continues to take 20 mg of Olanzapine so that she can “build a case against CAMH”.

[4] Ms. Coburn’s current diagnoses are schizoaffective disorder and personality disorder (paranoid, borderline, histrionic and narcissistic traits).

[5] At the time of her 2015 hearing before the Board, Ms. Coburn was subject to a detention order with privileges that included discretionary permission to live in the community in approved housing.[^1] Following the hearing, the Board found that Ms. Coburn remained a significant risk to the public and that the maintenance of the detention order on the same terms and conditions was necessary and appropriate.

[6] In this appeal, Ms. Coburn argues that the Board erred in its application of the test in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, by considering the risk of psychological harm to be sufficient to meet the threshold without reference to whether the conduct that might cause such harm would be criminal in nature, and in finding that a continuation of the previous detention order was the least onerous and least restrictive disposition available. Based on these alleged errors, Ms. Coburn seeks to have this disposition set aside and replaced by an absolute or conditional discharge. In the alternative, Ms. Coburn requests a new hearing before a different panel.

[7] At the hearing, Dr. Wilkie, Ms. Coburn’s attending psychiatrist, stated that Ms. Coburn continued to manifest the same kinds of symptoms that had presented during the index offences, albeit in attenuated form. Ms. Coburn had engaged in verbal aggressions and threatening behaviour aimed at CAMH staff and members of the community outside the hospital. Further, Ms. Coburn had been dismissive of CAMH’s inpatient team and her search for medical attention in the community had been problematic. Ms. Coburn believed that others were intentionally causing her to have problems – showing limited insight into her difficulties.

[8] Dr. Wilkie expressed doubts that Ms. Coburn:

i. would remain compliant with medication in the event of an absolute discharge, leading to further deterioration and an escalated risk of re-offending;

ii. was ready for community living unless CAMH approved her housing (the problem was that her refusal to allow CAMH to communicate with her proposed housing made it impossible for her accommodation to be approved);

iii. had attained behavioural stability and could exercise privileges without making verbal threats; and

iv. had developed a stable pharmacological and psychosocial plan.

[9] In addition the doctor expressed concern about Ms. Coburn’s medication. The doctor had wanted to try to help ameliorate Ms. Coburn’s symptoms by adjusting her medication but could not do so while Ms. Coburn’s appeal from the CCB’s decision was still pending.

[10] Dr. Wilkie’s view was that unless the proposed detention order was in place, the frequency and intensity of Ms. Coburn’s communications would escalate and include references to consequences causing the recipients to be fearful.

[11] At the hearing, Ms. Coburn voiced a number of grievances concerning her treatment at CAMH. She said that she would still require support on an absolute discharge, and stated her team would consist of a primary physician, a psychiatrist, a psychologist and a counsellor along with organizations that would provide assistance. Ms. Coburn professed to have an apartment, but could not provide details. She indicated she would recalibrate her medication regime and also seek natural treatments to respond to her psychiatric problems.

[12] Ms. Coburn also stated that she intended to refrain from using the telephone and would change to email and the internet to avoid problematic communication.

[13] In reasons released July 6, 2015, the Board found Ms. Coburn presented a significant threat to the safety of the public and ordered her detention, subject to certain privileges that included living in approved accommodation. Specifically, the Board found Ms. Coburn’s behaviour to present a risk of serious psychological harm as defined by s. 672.5401 of the Code. As explained by Dr. Wilkie, the frequency, intensity and content of Ms. Coburn’s behaviour set it apart from conduct that was merely upsetting, offensive and inappropriate. Furthermore, the Board feared that Ms. Coburn would discontinue or decrease her medication if absolutely discharged, resulting in heightened risk to the public. Finally, the Board expressed concern that Ms. Coburn’s housing circumstances were unsettled or, at best, unclear and that her susceptibility to stress about housing and the increased risk it posed to the public made it clear she remained a significant threat.

[14] In summary, the Board held that a conditional discharge was neither necessary nor appropriate. Ms. Coburn was incapable and not optimally treated. Her verbal and threatening behaviour continued and her system of delusions was active and complex. The Board concluded that Ms. Coburn had little or no insight into her illness. Her housing status remained unclear and she had been unable to affirm that she would report to the hospital under a conditional discharge. The Board found it to be imperative that the hospital have the authority to approve accommodation and be in a position to return Ms. Coburn to the hospital.

[15] The Board concluded that maintenance of the current detention order remained necessary and appropriate and was the least onerous and least restrictive disposition in accordance with the test set out in Winko.

[16] Ms. Coburn argues that the Board impermissibly failed to consider whether the conduct or activity creating the harm was or would be criminal in nature. While Ms. Coburn’s interactions with members of the hospital staff and some members of the public may have presented indicia of concern, there was no evidence that her interactions had ever risen beyond the merely annoying.

[17] We find no basis for the argument that the Board’s finding that Ms. Coburn constituted a significant threat to the public was the product of an error of law, nor was it unreasonable. Dr. Wilkie’s evidence established that Ms. Coburn’s behaviour was more than irritating. As the Board noted, harassment under s. 264 of the Code requires the accused’s conduct to cause the victim to “reasonably fear for their safety” – safety that is not limited to physical safety but may include substantial psychological harm or emotional distress: see R. v. Szostak, 2012 ONCA 503, 111 O.R. (3d) 241, at paras. 31, 45. The expert evidence before the Board that demonstrated the likelihood of Ms. Coburn’s re-engaging in the criminal harassment of strangers provided an adequate basis for the conclusion that the threshold test had been met: see Saikaley (Re), 2011 ONCA 136, at para. 3.

[18] Ms. Coburn also submits that given the primary risk factors in this case were recidivist behaviour, discontinuation of psychiatric medication, and appropriate housing, it was incumbent on the Board to consider whether there were conditions that could attach to a discharge that would address those issues. There is no reason why Ms. Coburn’s pharmacological treatment regime could not continue as part of a conditional discharge. Finally, CAMH did not sufficiently investigate the appropriateness of alternatives other than its own direct intervention in approving her housing.

[19] We disagree. The Board reasonably concluded that a detention order with the possibility of hospital-approved community living was the least onerous and least restrictive disposition available. A critical distinction between a conditional discharge and a detention order lies in the means by which an NCR accused can be involuntarily returned to the hospital. As Dr. Wilkie testified, Ms. Coburn’s threatening and aggressive behaviour materializes quickly and immediate intervention with feedback is helpful for her. This cannot be achieved under the Mental Health Act, R.S.O. 1990, c. M.7, alone, and so a conditional discharge would not be sufficient to respond to the risk Ms. Coburn presents when she acts out. Further, this court has held that a conditional discharge is not suitable where the NCR accused is incapable of providing consent to treatment, and that, where the evidence discloses the necessity of hospital oversight over where the NCR accused will reside, continued detention should be ordered: see Kalra (Re), 2016 ONCA 390, at para. 19.

[20] Considering the entirety of the record, we cannot say that the Board’s disposition was unreasonable or reflected a failure to approach its task in accordance with the binding authorities.

[21] Accordingly, for the reasons given, the appeal is dismissed.

“David Watt J.A.”

“Gloria Epstein J.A.”

“K. van Rensburg J.A.”

[^1]: At the time of the hearing, Ms. Coburn was not exercising that privilege. Currently, however, she lives in the community in approved housing.