Court of Appeal for Ontario

Date: July 7, 2017 Docket: C63428

Judges: Weiler, Hourigan and Pardu JJ.A.

In the Matter of: Laurianne Munezero

An Appeal Under Part XX.1 of the Code

Counsel:

• Suzan E. Frazer, for the appellant
• Lee-Ann McCallum, for the respondent

Heard: July 5, 2017

On appeal against the disposition of the Ontario Review Board dated December 6, 2016.

Decision

Pardu J.A.:

[1] Laurianne Munezero appeals from a decision of the Ontario Review Board ("ORB") ordering her detention in hospital and rejecting her request for a conditional discharge. The only issue before the ORB was whether the least onerous and least restrictive disposition consistent with public safety was a detention order or a conditional discharge.

[2] The appellant was diagnosed with schizophrenia in 2009. On August 10, 2016, she was found not criminally responsible on a charge of arson. She was discharged with conditions.

[3] On December 6, 2016, the ORB made a disposition ordering the appellant's detention at St. Joseph's Health Care – Hamilton, subject to certain conditions including community privileges as permitted by the person in charge of the hospital. The disposition provided that she could, in the discretion of the person in charge, live in Hamilton in accommodation approved by the person in charge.

[4] The appellant submits that the ORB erred in failing to consider the legal mechanisms available under the Mental Health Act, R.S.O. 1990, c. M.7, for bringing a person in a mental health crisis to hospital.

[5] We do not agree.

[6] The ORB explicitly considered how the appellant fared while living in the community. It concluded that she had significant problems with this arrangement, despite the resources available under the Mental Health Act, the support of a substitute decision maker, her father and a community treatment order. Although she had previously been living with her parents, at the time of the hearing she was homeless, as her parents were suffering from caregiver fatigue. She rebuffed her doctor's attempts to have her come to hospital for an assessment.

[7] We reject the appellant's submissions that the ORB's reasons for refusing to adopt the mechanisms available under the Mental Health Act were inadequate. In addition to being attentive to the difficulties the appellant faced in her prior course of treatment in the community, the ORB's reasons explicitly addressed the inappropriateness of resorting to the civil mental health legislation. The ORB wrote as follows:

In spite of her best intentions to stay well, Ms. Munezero has been unable to do so while living in the community even with extensive supports, including living with her parents. Medication compliance has been problematic in the past in spite of a community treatment order. Stress and consumption of alcohol have been identified as risk factors for Ms. Munezero. At present she has no community residence and there is no evidence to suggest how she might obtain an appropriate residence in the community. The evidence of Dr. Naidoo is that the Hospital staff will work with her to locate appropriate accommodation which will provide some degree of oversight to her medications, which is the key, Dr. Naidoo said, to keeping her well. More involvement in programming will also assist in developing Ms. Munezero's insight, in particular into the very horrifying and dangerous delusions she had at the time of the index offence. Her reluctance to give up her lit cigarette to staff while she was in the Schizophrenic unit is especially concerning. Clearly the Mental Health Act was not sufficient to return Ms. Munezero to Hospital while she was living with her parents and under the care of Dr. Lough. His attempts to have her come to the Hospital for an assessment were rebuffed by her. Although she is subject to a certificate of involuntary confinement under the Mental Health Act now, the issues relevant to that Act will continue to be assessed independently of any requirement of the ORB and may well result in her being discharged from Hospital while she still remains a significant threat to the public although perhaps not an immediate danger to the public. [Emphasis added.]

[8] The appellant's treating physician, Dr. Lough, testified that while living in the community she had suffered eight episodes of decompensation, which amounted to acute exacerbations of her illness. Three of these episodes occurred recently, after the index offence was committed on December 26, 2014. Each time one of these occurred, her illness became worse and harder to treat and the danger to the public was increased. The episodes could be attributed to lack of adherence to treatment, inadequate medication, stress or alcohol consumption. The appellant had a history of non-compliance with medication. Despite monitoring in the community for compliance with a medication regime that was part of a community treatment order, the appellant relapsed because she did not comply with the requirements of that treatment order.

[9] As the ORB noted, the hospital needed to supervise and control the appellant's accommodation. The plan was for the hospital to find accommodation that would allow for monitoring of her medication, a factor key to keeping her well and the public safe. This court has held many times that a need to supervise housing justifies a detention order as opposed to a discharge: see, for example, Brockville Psychiatric Hospital v. McGillis (1996), 93 O.A.C. 226 (C.A.); Runnalls (Re), 2012 ONCA 295; Capano (Re), 2013 ONCA 737; Coburn (Re), 2015 ONCA 186; and Bohme (Re), 2016 ONCA 706.

[10] We agree with the ORB that the appellant's possession of incendiary devices, even while in hospital, was particularly concerning in light of the nature of the index offence, namely arson.

[11] The Board's disposition – detention in hospital with the privilege of living in the community under the supervision of and as permitted by the person in charge of the hospital – was within the range of reasonable outcomes and is entitled to deference: Saikaley (Re), 2012 ONCA 92, 109 O.R. (3d) 262, at paras. 34-36.

[12] The appeal is accordingly dismissed.

"G. Pardu J.A."

"I agree K.M. Weiler J.A."

"I agree C.W. Hourigan J.A."

Released: July 7, 2017