COURT OF APPEAL FOR ONTARIO
CITATION: Boehme (Re), 2016 ONCA 706
DATE: 20160928
DOCKET: C61654
Doherty, Pepall and Hourigan, JJ.A.
IN THE MATTER OF: RALPH BOEHME
AN APPEAL UNDER PART XX.1 OF THE CRIMINAL CODE
BETWEEN:
THE PERSON IN CHARGE OF ONTARIO SHORES CENTRE
FOR MENTAL HEALTH SCIENCES
HER MAJESTY THE QUEEN
-and-
RALPH BOEHME
Counsel:
Erin Dann and J. Shanmuganathan, for the appellant
P. Payne, for Ontario Shores Centre for Mental Health Sciences
Katherine Beaudoin, for the Ministry of the Attorney General
Heard: September 22, 2016
On appeal against the disposition of the Ontario Review Board dated, January 5, 2016.
ENDORSEMENT
[1] The appellant was found not criminally responsible (“NCR”) by reason of mental disorder in August 2011 for uttering threats to cause death or bodily harm and failing to comply with a probation order. He has been under the care of Ontario Shores Centre for Mental Health Sciences (“Ontario Shores”) since that time.
[2] The complainant in the index offences, Maureen Barry, managed the property where the appellant’s mother lived up to her death. After his mother’s death, the appellant got into an on-going dispute with Ms. Barry over his mother’s belongings. The dispute resulted in multiple criminal charges, including harassment charges, and culminated with the index offences.
[3] After he was found NCR, the appellant was diagnosed with delusional disorder and alcohol abuse/dependence disorder. While at Ontario Shores, the appellant has complied with his medication regime, taken supervised community outings without incident, and completed facility rehabilitative programs. However, the appellant contacted Ms. Barry at least twice during this time, including once in July 2015 when he sent a letter to the complainant’s lawyer.
[4] At his latest Ontario Review Board (“ORB”) hearing in December 2015, the Attorney General and Ontario Shores jointly recommended a detention order with a community living privilege. Counsel for the appellant advised that his client was seeking a conditional discharge.
[5] Consistent with the joint position of the parties, the ORB concluded the appellant continues to represent a significant threat to public safety, as he continues to have active delusions. It further found that the appellant has no insight into his illness and no appreciation for the psychological harm caused to the complainant by his conduct. The ORB concluded that the necessary and appropriate disposition is a detention order with community living privileges.
[6] The appellant submits the ORB erred in law when it imposed a detention order because it applied the wrong legal test. According to the appellant, rather than assessing what the least onerous and restrictive disposition was in the circumstances, as they are required to do, the ORB started from the premise that the appellant had to earn a conditional discharge. It is submitted that the ORB further erred by imposing a detention order when a carefully crafted conditional discharge could adequately address the threat to public safety represented by the appellant.
[7] We would not give effect to these arguments.
[8] The ORB applied the correct legal test. It did not start from the premise that the appellant had to earn a conditional discharge. Rather, it provided clear and cogent reasons why a conditional discharge was not appropriate.
[9] First, it accepted the evidence of the appellant’s treating psychiatrist that Ontario Shores needed to approve the appellant’s accommodations. The doctor had testified that the appellant would otherwise return to his apartment if discharged. The psychiatrist is of the view that the appellant’s risk to re-offend would rise if he were placed in the community with little or no supervision and that the preferred housing option is a group home. Therefore, approved accommodation was an important risk management tool and supported a detention order: R. v. Simpson, 2010 ONCA 302.
[10] Second, the ORB also found that Ontario Shores needed to be able to return the appellant to the hospital “expeditiously” in response to decompensation in his behaviour. Given the appellant’s lack of insight into his mental state, this finding was reasonable. While the appellant could be returned upon arrest under a conditional discharge, this route is not as expeditious as under a detention order, where no police involvement is necessary. It is also in the appellant’s best interests because he would be returned to the hospital and not have to go through the court system.
[11] Third, the appellant’s treating psychiatrist testified that he would expect to see a serious decompensation if the appellant stopped taking his medication and that this would lead to a greater likelihood of acting out against the victim of the index offences. He further testified that the appellant could not be trusted to take his medication as prescribed if he was on a conditional discharge. We agree that it is a reasonable conclusion that the risk of the appellant being non-compliant with his medication regime is reduced if he is subject to a detention order.
[12] In our view, the Board acted reasonably in concluding that level of control of the appellant necessary in the circumstances could only be accomplished through a detention order. Thus the ORB’s decision to order the appellant’s continued detention was reasonable, entirely borne out by the evidence, and should not be interfered with.
[13] We were invited by counsel for the appellant to consider clarifying paragraph 4(d) of the ORB’s disposition, which provides: “refrain from contact or communication, direct or indirect, with Ms. Maureen Barry and Mr. Ron Alltree.” Counsel suggested that we might amend the order to make clear that the prohibition would include contact or communication with Ms. Barry’s and Mr. Alltree’s employees, agents and legal counsel. In our view, the clarification is unnecessary because the reference in the order to “indirect contact or communication” would include these proposed additional parties.
[14] The appeal is dismissed.
“Doherty J.A.”
“S.E. Pepall J.A.”
“C.W. Hourigan J.A.”