Court of Appeal for Ontario

Date: March 2, 2018

Docket: C63078 and C63728

Judges: Strathy C.J.O., Simmons and Hourigan JJ.A.

In the Matter of: Helen Tolias

An Appeal Under Part XX.1 of the Code

Counsel:

• Christopher Hicks and Karri-Lynn Hennebury, for the appellant
• Dena Bonnet, for Her Majesty the Queen (Ontario)

Heard: February 28, 2018

On appeal against the disposition of the Ontario Review Board dated June 23, 2016 (C63078) and March 7, 2017 (C63728).

Reasons for Decision

[1] The appellant appeals from dispositions of the Ontario Review Board dated June 23, 2016 and March 7, 2017.

[2] Under the June 23, 2016 disposition, the appellant was detained at the secure forensic unit of St. Joseph's Healthcare, Hamilton, West 5th Campus. As the appellant has been the subject of a subsequent disposition, all parties agree that her appeal of the July 2016 disposition is now moot.

[3] Under the March 7, 2017 disposition, the appellant remained detained on a secure forensic unit but, at her request, was transferred to Providence Care Centre-Mental Health Services, Kingston ("Providence Care").

[4] On appeal, the appellant argues that the Board's finding in its April 4, 2017 disposition that she remains a significant threat to the safety of the public is unreasonable and that the Board erred in failing to grant her an absolute discharge. In the alternative, she submits that the Board erred in failing to grant her a conditional discharge.

Background

[5] The appellant was found not criminally responsible in July 2005 and April 2006. The July 2005 finding related to four counts of criminal harassment; three counts of breach of recognizance and two counts of breach of probation. The April 2006 finding related to a further count of criminal harassment in relation to the victim of the 2005 criminal harassment charges, a psychiatrist at the Centre for Addiction and Mental Health with whom the appellant had become infatuated. The harassment consisted largely of persistent harassing telephone calls and other efforts to contact the psychiatrist.

[6] The appellant is diagnosed as suffering from schizoaffective disorder, bipolar type and polysubstance abuse, in remission. She has been treatment capable and medication compliant since the Fall of 2016.

[7] The March 2017 Board hearing was convened under s. 672.81(2) of the Criminal Code to consider the appellant's request, made in November 2016, that she be transferred to Providence Care. However, at the hearing, the appellant requested a conditional discharge, or, in the alternative, that she be transferred to Providence Care.

[8] Evidence at the March 2017 Board hearing indicated some improvement in the appellant's mental status and behaviour since her July 2016 hearing as well as in her insight into her mental illness.

[9] However, the appellant's treating psychiatrist, Dr. Nagari, testified that she still suffers from transient delusions, mainly paranoia and some degree of grandiosity. He also said that she exhibits some challenging behaviour from day to day – consisting of 10 to 15 incidents per week, or less – but acknowledged that this was a huge improvement from previous occurrences.

[10] When asked how the appellant might act in the community, Dr. Nagari responded that while at present the appellant is being treated under her own consent, her history of lack of insight into her illness and non-compliance indicates she is likely to want to discontinue her treatment. Her decision making fluctuates, she has poor judgment and often changes her mind. Once she goes off her medication, the appellant might become preoccupied with the victim of the index offences again, leading to repeated contact which might end up in harassment. Further, the appellant may misperceive other people's intentions, which might lead to verbal outbursts.

The Board's Reasons

[11] In finding the appellant continues to pose a significant threat to the safety of the public the Board stated that it relied on the Hospital Reports that had been filed as well as the evidence of Dr. Nagari. It noted that she suffers from a major (treatment resistant) mental illness and concluded that, without the Board's supervision, she would discontinue her medication and cause psychological harm to members of the public. It also noted that she has a history of non-compliance with medication and that while she has recently shown some moderate improvement, her treatment is far from optimal.

[12] The Board also concluded there was no air of reality to the appellant's request for a conditional discharge. It said:

It is clear that [the appellant] requires the structure and supervision of a secure unit in order to manage her risk to the public, which is paramount. She eloped from the hospital for a period of four days less than two months ago and at this point cannot be trusted to follow the rules.

Discussion

[13] The appellant argues that the Board's finding that she continues to pose a significant threat to the safety of the public is unreasonable. She contends that to meet the threshold of significant threat there must be a real risk of conduct that goes beyond being annoying. Under s. 672.54.01 of the Criminal Code significant threat to the safety of the public means "a risk of serious physical or psychological harm to members of the public … resulting from conduct that is criminal in nature but not necessarily violent." She asserts that her recent behavioural challenges have been limited to verbal outbursts that have not been criminal in nature.

[14] Further, she submits that in finding her a significant threat to the safety of the public, the Board placed undue weight on her recent elopement. She argues that, in fact, her elopement demonstrates that she is not a significant threat. After being medication non-compliant for four days, she sought re-entry into the hospital to obtain her medication. While away from the hospital, there were no displays of criminal behaviour and no attempts to contact or harass any of the previous complainants.

[15] In the alternative, the appellant argues that the Board erred in failing to grant her a conditional discharge. She submits that the Board erred in placing undue weight on rule compliance and that, if anything, the appellant's recent elopement signifies insight into her mental illness and commitment to her mental health that has not been present in the past.

[16] We reject the appellant's argument that the Board's finding that she poses a significant threat to the safety of the public was unreasonable. This finding was premised largely on the nature of the appellant's mental illness, its manifestations in the index offences, her history of medication non-compliance and the need to ensure ongoing medication compliance.

[17] In this regard, we note that, in its June 2016 decision relating to a prior appeal by the appellant, this court observed that a prior attempt to reintegrate the appellant into the community resulted in "a well-documented deterioration in the appellant's mental state and behaviour": (Re Tolias, 2016 ONCA 436, at para. 30). This deterioration included incidents involving destruction of property, verbally and physically threatening and assaultive behaviour towards others and continued delusions about and attempts on many occasions to contact the victim of the index offence. On the whole of the evidence, we are satisfied that the Board's conclusion that the appellant continues to pose a significant threat to the safety of the public was reasonable.

[18] In our view, however, the Board erred in failing to inquire further into the appellant's current behavioural status, in summarily concluding there is no air of reality in her request for a conditional discharge and in failing to consider whether her risk could be adequately managed through a conditional discharge that would include a consensual treatment order.

[19] In his evidence, Dr. Nagari did not elaborate on what he meant when he testified that the appellant exhibits challenging behaviours on a day-to-day basis. Although the Hospital Reports reveal incidents involving destruction of property, as well as verbally and physically threatening behaviour in the past, our review of the Hospital Reports does not reveal any repetition of such behaviours for a significant period of time prior to the March 2017 hearing. Verbal outbursts that are no more than annoying, which may occur when the appellant is medication compliant, do not rise to the level of creating a risk of psychological harm to members of the public or endangering public safety.

[20] Given that the appellant is now treatment capable and medication compliant, in our view, it was incumbent on the Board to inquire further into the appellant's current behavioural status, and depending on the result of that inquiry, to also determine: i) whether the appellant would consent to a treatment order under s. 672.55 of the Criminal Code, ii) whether conditions could be crafted to release the appellant into the community, and iii) whether mechanisms would be available to return the appellant to the hospital in the event of non-compliance.

[21] The appellant's appeal of the June 23, 2016 disposition is dismissed as moot. Concerning the March 7, 2017 disposition, we were informed that the appellant's next annual disposition review hearing is imminent. In the circumstances, the appeal is allowed and we remit the matter to the Board to further consider the appropriate disposition.

"G.R. Strathy C.J.O."

"Janet Simmons J.A."

"C.W. Hourigan J.A."