Court of Appeal for Ontario

Date: April 25, 2018 Docket: C64481

Justices: Hoy A.C.J.O., Sharpe and Nordheimer JJ.A.

In the Matter of: Ginger Leuschner

An Appeal Under Part XX.1 of the Code

Counsel

For the appellant, Ginger Leuschner: Anita Szigeti

For the respondent, the Attorney General of Ontario: Jennifer Epstein

For the respondent, the Person in Charge of the Centre for Addiction and Mental Health: Michele Warner

Heard: April 13, 2018

On appeal from: The disposition of Ontario Review Board, dated October 10, 2017, with reasons dated October 19, 2017.

Reasons for Decision

Background

[1] The appellant came under the jurisdiction of the Ontario Review Board ("the Board") after being found not criminally responsible in May, 2008. For the most part, she has been detained at the Centre for Addiction and Mental Health ("CAMH") since that time. At her most recent review, the appellant sought an absolute discharge while the Hospital sought an order transferring her to secure custody from the General Forensic Unit.

[2] The appellant's index offences were assault, failure to attend court and failure to comply with a recognizance. In February, 2008, the appellant ordered another woman on a snowy street to get out of her way and then punched that person in the back of the head.

[3] The appellant, now 33 years old, has a history of substance abuse and a criminal record including four convictions for assault and one for assaulting a police officer. She has been diagnosed with severe borderline personality disorder with antisocial traits and cocaine dependence disorder.

[4] During the past year, while detained at CAMH, the appellant absconded after receiving an indirect pass into the community. The police returned her to the unit, describing her as "agitated, aggressive, kicking and spitting". Other incidents included striking a co-patient and hitting a staff member on the nose when attempting to strike a co-patient. On another occasion, she absconded and was returned by the police while "disorganized and belligerent". She assaulted the police and admitted to using cannabis and cocaine. Several attempts in earlier years at community living failed after incidents of the appellant going AWOL and using illegal drugs.

[5] The Hospital Report filed at the appellant's most recent Board hearing states that the appellant "continues to present a significant risk to the safety of the public", citing numerous clinical risk factors combined with the appellant's history of assaulting a stranger, physical assaults on police officers and her "impulsive anti-social tendencies" leading to a "high likelihood of violent recidivism."

[6] The Board concluded that the evidence supported a finding that the appellant continues to present a significant threat to the safety of the public and rejected her submission that the appropriate disposition was an absolute discharge. The Board also rejected the Hospital's request for increased security and refused to make any change to the terms of the appellant's disposition.

Issues on Appeal

[7] The appellant submits that:

1. The Board's conclusion that she continues to pose a significant risk to the public is unreasonable;

2. The Board erred by failing to consider a conditional discharge; and

3. The Board erred by ignoring evidence that, given the nature of the appellant's illness, hospitalization puts the appellant at risk.

Analysis

1. Significant Risk to the Public

[8] We are troubled by the fact that the appellant has now been detained for almost ten years following an assault that would not have attracted a lengthy custodial sentence and that she does not appear to be progressing towards community living. While we will have more to say about that aspect of the case, we do not accept the appellant's submission that the Board's finding that she continues to pose a significant risk to public safety was unreasonable. The appellant has a significant history of assaultive behavior including several recent assaults on fellow patients and assaults on police officers. In July, 2016, the appellant absconded. The police found her in a known drug area and she kicked one police officer in the groin and scratched another officer when they returned her to CAMH. In another incident, the appellant kicked and spat on police called to deal with her after she went AWOL. The Hospital Report also contains other incidents of aggressive and violent behaviour including in interactions with the police, hospital staff and other patients.

[9] The Hospital Report highlights a number of criminogenic risk factors in addition to this history of assaultive behaviour. These include substance abuse, impulsivity, characterological style notable for borderline antisocial features, disregard for authority, ongoing violation of rules, negative peer relations, lack of meaningful engagement supports, and negative attitudes towards the rehabilitation process.

[10] The appellant does not challenge her diagnosis. In her own evidence, the appellant indicated that she would be willing to stay in another hospital for periods of time and agree to a Community Treatment Order. She agreed that she lacked support in the community, and testified that if discharged, she would taper off her medication, live in a shelter and that her illicit drug use would "really depend on, on my headspace, how I feel".

[11] On this record, it was entirely reasonable for the Board to conclude that there was a high likelihood that if discharged into the community, the appellant would likely return to a chaotic life-style, illegal drugs, and violent confrontations with others, including the police. While there is no indication that the likely level of assaultive behaviour would be sufficient to attract a lengthy sentence, it is not seriously disputed that assaultive behaviour, including assaults on the police when called to deal with the appellant, are likely to recur. It was open to the Board to conclude that this reaches the level of posing a serious risk to the public, in the words of this court: "a foreseeable and substantial risk of physical or psychological harm to members of the public that is serious and beyond the trivial or annoying": R. v. Ferguson, 2010 ONCA 810, 264 C.C.C. (3d) 451, at para. 8.

[12] We do not accept the submission that the Board erred by distinguishing the appellant's case from Wall (Re), 2017 ONCA 713, 417 D.L.R. (4th) 124. That case involved an individual who continued to use illicit drugs and display rude and verbally abusive behaviour but had not committed an act of violence since 2004. Regrettably, the appellant's history includes recent assaultive behavior.

[13] Accordingly we reject the submission that the Board's finding that the appellant continues to pose a significant threat to public safety was unreasonable.

2. Conditional Discharge

[14] Although the appellant did not seek a conditional discharge, it was incumbent upon the Board to consider the least onerous and restrictive disposition consistent with ensuring public safety. However, in the circumstances the Board's failure to specifically address the possibility of a conditional discharge is not material. We see no air of reality to the suggestion that the risk the appellant poses to the public could be managed on a conditional discharge. Previous attempts at community living have failed and the appellant has an established pattern of returning to drug use and violent conflict with the police.

3. Risk of Harm to the Appellant

[15] In oral argument, counsel for the appellant emphasized that prolonged hospitalization is counter-therapeutic for the appellant, and that the risk of harm of detaining the appellant in the hospital exceeded the risk of harm to the public if she were released. In cross-examination, the treating physician agreed that there was some support in the literature for the proposition that continued hospitalization of individuals suffering from borderline personality disorder could do more harm than good. The appellant complains that when the psychiatrist board member tried to explore this issue further, he was cut off by the Alternate Chair.

[16] The appellant is clearly very frustrated with her treatment in the Hospital and the Hospital is also frustrated with the appellant's behaviour and lack of progress. The record reveals one serious incident of self-harm that nearly led to the appellant's death. The appellant appears to have made no progress after ten years of detention, and the prospect of her returning to health and the community remains elusive.

[17] We agree with the Crown that, as a matter of law, the Criminal Code's NCR regime does not permit the Board or this court to engage in the kind of risk balancing exercise suggested by the appellant as a way of justifying an absolute discharge. If the appellant poses a significant risk to public safety, her detention is legally justified even if there appears to be a risk that her continued detention will cause her some harm.

[18] On the other hand, it is very concerning that continued detention may be doing the appellant more harm than good. We agree with the Board's statement that some effort should be taken to break the cycle of a situation that has been frustrating to all:

The Board would like to see the Hospital work with Ms. Leuschner more closely and develop a one to one customized plan that meets her particular needs and her particular diagnosis. It may be that consultation with other professionals could assist, and it may be that a move to a more secure unit would be in her interest; however, other than containing her and preventing future AWOL attempts, it is unclear to us on this record how such a move at this time would assist in her reintegration or meet her other clinical needs. We appreciate the difficulty from all perspectives in finding the balance of freedom, structure and supervision for Ms. Leuschner.

Ms. Leuschner has had an inconsistent course on a variety of Dispositions and it is clear that everyone is frustrated at this point in time; however, the Board would like to see renewed effort at a clinical program that might break the cycle, short of placing Ms. Leuschner in a smaller locked unit.

[19] We recognize that the issue of treatment impasse was not put to the treating physician in cross-examination before the Board. The Board is directed by the Criminal Code, s. 672.54 to take into account the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused in addition to the paramount consideration of the safety of the public. The Board has a broad supervisory and inquisitorial role to "search out and consider evidence favouring the accused": Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625 at para. 54.

[20] In our view, given the appellant's ten year history of detention, the lack of progress the Hospital has made in improving her situation, and the risk that continuing down the same road may actually pose a risk of harm to the appellant, the Board erred by failing to make its recommendation mandatory.

Disposition

[21] Accordingly, we allow the appeal but only to this extent. The Person in Charge is directed to retain one or more appropriate independent professionals to review the appellant's situation and to prepare a report in consultation with the appellant's treatment team recommending the best course of treatment with a view to her eventual reintegration into the community. Such report is to be presented to the Board when completed to be considered on a fresh review and no later than the date of the appellant's next annual review.

Alexandra Hoy A.C.J.O.

Robert J. Sharpe J.A.

I.V.B. Nordheimer J.A.