In the Matter of Gonzalez

[Indexed as: Gonzalez (Re)]

Ontario Reports

Court of Appeal for Ontario

Watt, Lauwers and Benotto JJ.A.

February 8, 2017

136 O.R. (3d) 453 | 2017 ONCA 102

Case Summary

Criminal law — Mental disorder — Dispositions

Respondent found not criminally responsible on account of mental disorder on charge of attempted murder of his former psychiatrist. Appellant detained in maximum security forensic psychiatric facility since 2006. Appellant having negative view of mental health workers and refusing to engage in treatment. Review board erring in finding that respondent's refusal to accept treatment over period of 10 years did not amount to treatment impasse. Independent assessment required and staff at present facility would not be seen as independent. Court defers to review board's expertise regarding where assessment should take place. New hearing ordered before review board as soon as practically possible.

Facts

The appellant was found not criminally responsible on account of mental disorder on a charge of the attempted murder of his former psychiatrist who had treated him for 10 years. The appellant had been detained at Waypoint, a maximum security forensic psychiatric hospital, since January 2006. He had a negative view of mental health workers, refused to speak to his psychiatrist and tried to hide cutlery that could have been used as a weapon. His psychiatrist testified that although he has not been physically threatening for some time, she thought that staff at less secure facilities would be unfamiliar with his excessive verbal aggression. Amicus argued that the appellant should be given an absolute discharge or, alternatively, moved to a medium security hospital. Amicus argued that the appellant and the staff at Waypoint had reached a treatment impasse. At the appellant's annual review, the review board ordered the continuation of his detention in maximum security at Waypoint. The appellant appealed.

Held

The appeal should be allowed.

The board's conclusion that the appellant posed a significant threat to the safety of the public was reasonable. However, the board erred in finding that the complete lack of progress in his treatment over the last decade did not constitute a treatment impasse because forward progress had been stopped by the appellant's own refusal to engage in any treatment whatsoever. A long period of incarceration without treatment or progress can constitute a treatment impasse. An NCR accused's stubborn refusal to engage with a treatment team can also constitute a treatment impasse. Although the review board has no power to prescribe medical treatment, where the board finds there to be a treatment impasse, it is entitled, under its supervisory powers, to order a re-evaluation of current or past treatment approaches and an exploration of alternative approaches. An independent assessment of the appellant's condition is required but the court defers to the board's expertise about where and how that should take place, although it seems unlikely that "a fly-in psychiatrist" could undertake the assessment and staff at Waypoint would not be seen as independent. The court is also unpersuaded by the argument that a less secure facility would not be able to deal with the appellant's excessive verbal aggression. The board was ordered to conduct a new hearing under s. 672.82 of the Criminal Code, R.S.C. 1985, c. C-46 as soon as practically possible.

Authorities

Cases Considered:

• Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), [2006] 1 S.C.R. 326, 2006 SCC 7
• R. v. Conway, [2010] 1 S.C.R. 765, 2010 SCC 22
• R. v. LePage, 2006 ONCA 326
• O'Donnell (Re), 2014 ONCA 18
• R. v. Robertson, 2009 ONCA 860
• Robertson (Re), 2012 ONCA 889
• Robertson (Re), 2015 ONCA 417
• Shaikh (Re), 2008 ONCA 114

Other Cases Referred to:

• Armstrong (Re), 2015 ONCA 326
• Carrick (Re), 2015 ONCA 866
• Hart (Re), 2016 ONCA 277
• R. v. Owen, 2003 SCC 33
• R. v. Singh, 2014 ONCA 293
• Runnalls (Re), 2012 ONCA 295

Statutes Referred to:

• Criminal Code, R.S.C. 1985, c. C-46, ss. 672.82, 672.121, 672.54, 672.5401, 672.78(1)

Appeal from the Disposition of the Ontario Review Board

[2016] O.R.B.D. No. 163

Gustavo Gonzalez, not present.

Anita Szigeti, appearing as amicus curiae.

Mike Callaghan, for Attorney General of Ontario.

Janice Blackburn, for person in charge of Waypoint Centre for Mental Health Care.

Judgment

The judgment of the court was delivered by

LAUWERS J.A.:

A. Background Facts

[1] Gustavo Gonzalez appeals the disposition of the Ontario Review Board that ordered him to be detained at the Waypoint Centre for Mental Health Care, Ontario's only maximum secure forensic psychiatric facility, where he has been held since January 18, 2006.

[2] Mr. Gonzalez was found not criminally responsible on account of mental disorder on a charge of attempted murder in contravention of the Criminal Code, R.S.C. 1985, c. C-46. The index offence occurred on June 7, 2001. The victim was a psychiatrist, Dr. Jun Bi Tu, who had treated the appellant some ten years before.

[3] The appellant was originally diagnosed with schizoaffective disorder, paraphilia (exhibitionism) and anxiety disorder. He is presently treatment capable, but has not co-operated with treating physicians for years. The hospital report filed with the Review Board lists the current psychiatric diagnoses as:

Axis I: Paraphilia -- Exhibitionism, Query Delusional Disorder

Axis II: Paranoid Personality Disorder with Antisocial and Narcissistic Traits

Axis III: Depressed Skull Fracture (2005), Resolved

Axis IV: Psychosocial Stressors -- Perceived Unjustified Incarceration

B. Issues on the Appeal

[4] There are two issues on this appeal: first, does Mr. Gonzalez pose a significant threat to the safety of the public as defined in s. 672.5401 of the Criminal Code? Second, has a treatment impasse been reached between Mr. Gonzalez and Waypoint and, if so, what should be done about it?

C. The Standard of Review

[5] The standard of review of a disposition or placement decision of the board by this court is set out in s. 672.78(1) of the Criminal Code. This court can only set aside an order of the board where it is of the opinion that: the decision is unreasonable or cannot be supported by the evidence; it is based on a wrong decision on a question of law; or there was a miscarriage of justice: R. v. Owen, 2003 SCC 33, at paras. 31-37. See Hart (Re), 2016 ONCA 277, at para. 6.

D. Issue One: Does the Appellant Pose a Significant Threat to the Safety of the Public?

[6] Mr. Gonzalez provided a lengthy and closely reasoned written submission. He is articulate, organized and evidently highly intelligent. Mr. Gonzalez did not appear at the hearing of the appeal but advised that he would let his statement speak for him. He denies that he attempted to murder Dr. Tu. He seeks "a removal of all psychiatric diagnoses". He asks rhetorically: "Isn't fifteen years of psychiatry -- enforced confinement, extortion, fabrications, bickering, vilification, and irreparable damage to my repute, enough revenge for the offence that is believed I committed?"

[7] The appellant's position, as summarized briefly by court appointed amicus curiae, is this: he is not a significant threat and ought to be absolutely discharged, and in the alternative, the board acted unreasonably and erred in law by failing to transfer him to a medium security institution.

[8] Under s. 672.54 of the Criminal Code, the Review Board must assess whether the NCR accused remains "a significant threat to the safety of the public", which is the "paramount consideration". See Carrick (Re), 2015 ONCA 866, at paras. 11-17.

[9] Dr. A. Danyluk testified that she has been the appellant's treating psychiatrist since August 2015. He has refused to speak to her. The appellant is angry, irritable and contemptuous of the people and systems that keep him in detention. He continues to deny he had any involvement in the index offence but has admitted to threatening the Crown Attorney. In June 2015, the appellant was reported to have attempted to hide a metal fork and spoon that could have been used as weapons.

[10] Dr. Danyluk testified that while Mr. Gonzalez had not been physically threatening in the last year (in fact, for many years), she did not consider it advisable to transfer him to a less secure facility because the staff and others would be unfamiliar with his excessive verbal aggression.

[11] In Dr. Danyluk's opinion, the appellant continues to pose a significant threat to the safety of the public. He has very poor, if any, insight into his illness and his need for treatment. He has persecutory ideas. The appellant scores at the medium to high range on the PCL-R and VRAG.

[12] The Review Board's unanimous conclusion, expressed at para. 47 of its reasons, is that "Mr. Gonzalez poses a significant threat to the safety of the public as defined at s. 672.5401 of the Criminal Code". The board added, at para. 50, that if he were to be discharged absolutely, "there is a risk of serious physical or psychological harm to members of the public resulting from conduct that is criminal in nature" and "would also be violent". The board accepted the Crown's suggestion that Mr. Gonzalez is a "ticking time bomb".

[13] The board relied on the evidence of Dr. Danyluk, who endorsed the hospital report, and gave the following reasons, at para. 48:

(a) Mr. Gonzalez continues to suffer from a major mental illness; (b) that illness is currently untreated; (c) notwithstanding the absence of recent physical assaultiveness, he continues to harbour the same view of mental health workers generally that appears to have motivated the index offence; (d) he has a history of patient premeditation for an extended period leading up to an act of extreme violence; (e) he has recently attempted to take metal utensils that were potential weapons; (f) he scores relatively high on both actuarial tools on which he has been scored; (g) he continues to refuse to engage with any treatment team members making it difficult for them to assess the risk he presents and to suggest treatment that will assist him; and (h) the seriousness and level of violence of the index offence.

[14] Mr. Gonzalez continues to pose a significant threat to the safety of the public as defined by s. 672.5401 of the Criminal Code. The board's decision is plainly reasonable and is amply supported by the evidence. On the evidence, there is no support for an absolute discharge. I would not give effect to this ground of appeal.

E. Issue Two: Has a Treatment Impasse been Reached?

[15] Mr. Gonzalez's submission shows he is passionately opposed to psychiatry and to psychiatrists. He has no faith whatsoever in Waypoint staff, including his current attending psychiatrist, Dr. Danyluk, with whom he has had no therapeutic contact.

[16] Amicus supports the appellant's position that the board erred in not transferring him to a medium security psychiatric facility. In particular, she argues that such a transfer is necessary in order to facilitate an independent assessment of Mr. Gonzalez, which she asserts is necessary "to break the treatment impasse manifestly reached now at Waypoint". Amicus contends that it was legally incumbent on the Review Board, with a view to ending the impasse, to address it remedially by ordering some form of alternative assessment. She observes: "Staff at Waypoint had not managed to provide the appellant with any real treatment for 10 years." Undeniably, as Dr. Danyluk noted, there has been an "utter lack of progress".

[17] Treatment impasse was a live issue before the Review Board; this court raised the issue directly when it dismissed Mr. Gonzalez's appeal from the last disposition of the Review Board (with reasons reported at [2015] O.J. No. 5021, 2015 ONCA 650). The court found merit in the argument that a treatment impasse might have been reached, and signalled its expectation for the next hearing, at para. 4: "The Board will no doubt give careful consideration to exercising the jurisdiction described at para. 42 of Mazzei." The court added: "The hospital should be prepared to assist the Board in that regard."

(1) The Governing Principles

[18] As part of its inquisitorial function, where the evidence suggests a treatment impasse has been reached, the board is obliged to consider that possibility. The principles related to the determination of a treatment impasse were set out by the Supreme Court in Mazzei. See, also, R. v. LePage, 2006 ONCA 326, at paras. 23-26; and R. v. Conway, 2008 ONCA 326, at paras. 29-34, per Armstrong J.A., and at paras. 67, and 83-85, per Lang J.A.

Mazzei

[19] Mr. Mazzei's diagnosis was chronic paranoid schizophrenia, a serious antisocial personality disorder, organic brain damage and the after-effects of chronic substance abuse. He had been in the justice system since 1986, under British Columbia's Review Board since 1992, and had been reluctant to co-operate with his treatment team for many years. At the board hearing in 2002, Mr. Mazzei expressed a wish to attend a First Nations residential rehabilitation centre to receive culturally appropriate treatment for his drug and alcohol addictions.

[20] The Review Board ordered that Mr. Mazzei continue to be held in custody at the hospital, but expressed its concern that clinical progress and reintegration prospects had reached a "troubling crossroads or impasse", and that he was "stuck in an untenable and unlikely-to-resolve situation". The board ordered the hospital to "undertake a comprehensive global review of Mr. Mazzei's diagnostic formulations, medications and programs with a view to developing an integrated treatment approach which considers the current treatment impasse and the accused's reluctance to become an active participant in his rehabilitation". The board added a requirement that it be provided with "an independent assessment of the accused's risk to the public in consideration of the above refocussed treatment plan" at the next hearing.

[21] The hospital appealed.

[22] The careful wording of the Supreme Court's decision in Mazzei, in dismissing the appeal, pays close attention to the legislative division of powers in the Criminal Code. The Supreme Court noted, at para. 42, that the board is obliged to identify and address treatment impasses, "where no progress has been made or is likely to be made", on the evidence before it, in light of the board's responsibility "to provide opportunities for appropriate and effective medical treatment with a view to controlling and reducing that risk, to work towards the ultimate goal of rehabilitation and reintegration, and to safeguard the liberty interests of the accused in this process". In doing so, the board may require the "hospital authorities to justify their position regarding any treatment impasse".

[23] Where the board finds a treatment impasse has been reached, it is Mazzei, at para. 42, "entitled to order a re-evaluation of current or past treatment approaches, and an exploration of alternatives" as part of its "supervisory powers". It may "supervise the medical treatment provided thus far, and to suggest or explore alternative approaches". In doing so, "it is necessary and essential for a Review Board to form its own independent opinion of the accused's treatment plan and clinical progress".

[24] The legal finding in Mazzei is set out in para. 7, where Bastarache J., for the Supreme Court, stated: "Review Boards have the power to bind hospital authorities and to impose binding conditions regarding or supervising (but not prescribing or imposing) medical treatment for an NCR accused." He added, at para. 39: "The scope of this power would arguably include anything short of actually prescribing that treatment be carried out by hospital authorities." The court concluded that the impugned conditions were within the Review Board's power, and dismissed the hospital's appeal.

LePage

[25] R. v. LePage, supra, resembles this case, although Mr. LePage's inclination to violence was more pronounced than that of Mr. Gonzalez. Mr. LePage had refused treatment and had languished for 28 years. His psychiatrist testified that he had had "zero" interaction with Mr. LePage. He explained: "the reason the appellant is receiving no treatment is because he has been completely unwilling to participate in any therapy or treatment for many years" (para. 14). Justice Juriansz stated, at para. 24:

In this case, after 28 years it is clear that the high level of danger the appellant poses to the public is unchanging, he is receiving no treatment, his attending psychiatrist describes his role as "theoretical", and the institution has no treatment plan with prospects of leading to a different situation. Rather than simply recapitulating the static situation and ordering that the appellant continue to be detained, an exercise of the Board's inquisitorial role may have resulted in the appellant's continued detention being subject to a condition ordering a comprehensive review of his situation as in Mazzei.

[26] This court concluded, at para. 22:

In this case the appellant is not receiving treatment and there is no prospect that he will receive treatment or that his situation will change on the basis of the information currently before the Board. It is not clear what specific actions might conceivably lead to a break in the impasse, or even that the impasse can be broken. However, after 28 years, this case had reached the point where it was incumbent on the Board to consider making further inquiry.

The court allowed the appeal, ordered a new hearing and required the Review Board to appoint amicus curiae to assist.

Conway

[27] The circumstances in R. v. Conway, supra, are similar to this case. The Review Board found the accused to be responsible for any lack of progress, as Armstrong J.A. noted for the majority, at para. 30: "The Board refused to attribute Mr. Conway's lack of progress since 2005 to his treatment team, suggesting instead that progress was more likely impeded by 'Mr. Conway's incessant harassment and his obstructionistic tactics'." Justice Lang agreed, stating, at para. 67: "[I]t was both an error of law and unreasonable for the Board not to impose conditions in light of the uncontradicted evidence that, despite 24 years of detention, Mr. Conway had received no effective treatment." This court concluded that the board's failure to address the impasse, in light of the 24-year detention, was unreasonable, and remitted the matter back to the ORB for a new hearing to consider what conditions, if any, should be imposed in order to break the impasse.

Principles Extracted

[28] I extract several principles from the cases: first, a long period of incarceration without treatment or progress can constitute a treatment impasse.

[29] Second, an accused's stubborn refusal to engage with the treatment team can also constitute a treatment impasse.

[30] Third, although the Review Board has no power to prescribe medical treatment, where the board finds there to be a treatment impasse, it is entitled, under its supervisory powers, to order a re-evaluation of current or past treatment approaches and an exploration of alternative approaches. The board must form its own independent opinion about the accused's treatment plan and clinical progress, and in doing so, it may order an independent assessment in some form under s. 672.121 of the Criminal Code, and may order the accused's transfer to another facility for that purpose.

(2) The Review Board's Decision

[31] The Review Board characterized this court's endorsement on Mr. Gonzalez's appeal from his last disposition as "obiter dicta", at para. 51. The board concluded, at para. 53: "Having carefully considered the evidence and those submissions, the Board finds that, with all due deference to that honourable court, treatment impasse of the kind contemplated in the Mazzei case has not been reached."

[32] The board's reasoning is set out at para. 54:

This is not a situation where the hospital has tried every avenue of treatment (pharmacological or otherwise) that its staff thinks reasonable, nor has the treatment team given up on helping Mr. Gonzalez improve his mental condition or reintegration into society. Rather, forward progress has been stopped by Mr. Gonzalez's obstinate refusal to engage in any discourse or treatment whatsoever. Such an impasse, if it can be called that, is not one that can be resolved by the Board exercising its discretion as contemplated in Mazzei. Forward progress can only be achieved by either Mr. Gonzalez abandoning his resolute rejection of all Canadian psychiatrists in every aspect of the Canadian forensic mental health system; or by a finding of incapacity to consent to treatment that is upheld by the bodies whose responsibility it is to review such decisions.

[33] In declining to order Mr. Gonzalez's transfer to another facility, the Review Board observed, at para. 55: "the disdain that he demonstrates for psychiatrists and the mental health system is not limited to a particular individual or hospital, and there is no reason to believe that any other psychiatrist or hospital would be any better able to get past the blank wall of his resistance".

(3) The Principles Applied

[34] There is no real treatment plan in place at Waypoint, as acknowledged by the board, at para. 35: "Dr. Danyluk testified in response to questions from the Board that the only way she currently can see for Mr. Gonzalez to move forward, if he continues to refuse to engage with the team, is to explore the possibility of a finding of incapacity for treatment decisions." The purpose for pursuing a finding of incapacity is so that he could be involuntarily treated with psychotropic medications, which he has steadfastly refused.

[35] The Crown and the hospital take the position that when a capable NCR accused simply declines treatment, no treatment impasse has been reached and point to several of this court's decisions, mostly endorsements, in support.

[36] I reject this argument, for two reasons. First, it is inconsistent with the approach taken by the Supreme Court in Mazzei, and by this court in LePage and Conway. In these cases, each of the NCR accused, like Mr. Gonzalez, had been refusing treatment for a long time and had made no progress. The standoffs were long-standing and unlikely to resolve.

[37] Second, this court's decisions offered in support by the Crown and the hospital are distinguishable on several bases. None of the standoffs were as long-standing or as intractable as the one with Mr. Gonzalez, at ten years. There is no basis for optimism that the treatment plan in place will gain traction with Mr. Gonzalez, unlike in O'Donnell (Re), 2014 ONCA 18, where Feldman J.A. noted, at para. 33, that "[a]lthough the appellant had not made any significant progress at Oak Ridge by the time of the hearing, it was not unforeseeable that he could progress in the future." It is also unlike Armstrong (Re), 2015 ONCA 326, where the board noted that the accused's father had agreed to assist in persuading him to consent to medication.

[38] The other cases advanced by the Crown and the hospital are also distinguishable. In Shaikh (Re), 2008 ONCA 114, the NCR accused was held in a minimum security facility and the dispute was over conditions for community living.

[39] Finally, in the Robertson sequence of cases (R. v. Robertson, 2009 ONCA 860, Robertson (Re), 2012 ONCA 889, Robertson (Re), 2015 ONCA 417), this court noted in 2009, at para 3, that "[t]he appellant was continuing treatment at the time of the Board hearing and there were other treatment alternatives the appellant could pursue at Oak Ridge." This suggests that the standoff was not as long-standing, although there is little information on this issue in the endorsements. Short endorsements of this court on ORB appeals fall squarely within the caution expressed in R. v. Singh, 2014 ONCA 293, at para. 12: "While all decisions of this court are binding, care must be taken to avoid reading unwarranted jurisprudential principles into a decision of the court rendered in [a brief] endorsement[.]"

[40] It is clear on the evidence that the appellant's mental illness has posed a serious obstacle to treatment. If the only way forward for the appellant is for him to consent to treatment or be declared incapable, and the appellant's mental illness precludes his consent to treatment, but the team has not declared him incapable, then a treatment impasse plainly exists. While the accused's attitude might assist in explaining why a treatment impasse exists, it does not justify the Review Board's refusal to recognize the treatment impasse, throwing up its hands and complacently leaving any future progress up to the accused.

[41] While a treatment impasse might well be tolerable for a while as the situation ripens, when it reaches the duration of this case, a decade, the Review Board is obliged to go further, as Mazzei, LePage and Conway insist. Both the board's interpretation of the term "treatment impasse", and its approach in determining whether an impasse exists in this case, were wrong in law. Accordingly, no deference is due.

(4) Remedy

[42] Amicus seeks "a disposition transferring the appellant to a medium secure facility for the purpose of an independent assessment".

[43] The Crown and the hospital point to the Review Board's reasons to resist such a placement. The board said, at para. 55, given Mr. Gonzalez's view of psychiatry: "there is no reason to believe that any other psychiatrist or hospital would be any better able to get past the blank wall of his resistance". Neither the Criminal Code, nor Mazzei, LePage and Conway, permit the board to yield to that counsel of despair, without another concerted effort to break the impasse.

[44] While I agree with amicus that an independent assessment is required, I would be reluctant to specify the modality, and would leave that to the Review Board's expertise. The board has authority to order an independent assessment under s. 672.121 of the Criminal Code: Mazzei, para. 39; Runnalls (Re), 2012 ONCA 295, at para. 14.

[45] I make several observations. First, it seems quite evident that an order addressed to Waypoint requiring it to undertake a comprehensive assessment of Mr. Gonzalez's diagnostic formulations with a view to developing an integrated treatment approach that considers the current treatment impasse, and his reluctance to become an active participant in his treatment, would meet with no success there. Mr. Gonzalez has no faith whatsoever in Waypoint staff, including his current attending psychiatrist, Dr. Danyluk. An assessment by Waypoint staff would not be seen by him as independent.

[46] Second, the idea put forward by Dr. Danyluk that Mr. Gonzalez should not be transferred to a less secure facility, because the staff and others would be unfamiliar with his excessive verbal aggression, is unpersuasive.

[47] Nor is this a situation in which a fly-in psychiatrist would be able to undertake the assessment. Counsel for the hospital conceded in oral argument that a comprehensive assessment is a multi-disciplinary exercise requiring a team of professionals and some time. Such an undertaking does not seem to be feasible in situ at Waypoint.

F. Disposition

[48] I would allow the appeal, and would order the board to conduct a new hearing under s. 672.82 in accordance with these reasons as soon as practically possible.

Appeal Allowed

Notes

1 The difference between the majority and the minority in Conway turned on the application of the Canadian Charter of Rights and Freedoms, a matter on which the Supreme Court of Canada ruled at 2010 SCC 22, [2010] 1 S.C.R. 765, [2010] S.C.J. No. 22 without commenting on the treatment impasse issue.

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