Court of Appeal for Ontario

Date: June 21, 2018

Docket: C64471

Judges: Doherty, Epstein and Pepall JJ.A.

In the Matter of: Christopher J. Collins

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• Anita Szigeti, for the appellant
• Avene Derwa, for the respondent
• Gavin S. MacKenzie, for the Centre for Addiction and Mental Health

Heard: May 11, 2018

On appeal against the disposition of the Ontario Review Board dated Tuesday October 3, 2017.

Reasons for Decision

Epstein J.A.:

Introduction

[1] The appellant has a long history of psychiatric illness. In 2005, at 22 years of age, he committed a nonviolent offence during a psychotic episode. He has been under the supervision of the Ontario Review Board ever since.

[2] He appeals the October 3, 2017 disposition of the Board that followed a combined restriction of liberty hearing and annual review hearing. The Board concluded that the appellant continued to constitute a significant threat to the safety of the public and ordered that he be transferred from the Centre for Addiction and Mental Health ("CAMH") to St. Joseph's Mental Health Care, on the general forensic unit.

[3] The appellant raises two main grounds of appeal. First, he argues that the Board's conclusion that he remains a significant threat to the safety of the public was unreasonable. Second, he submits that the Board erred in failing to consider granting him a conditional discharge.

[4] For the reasons that follow, I would allow the appeal. Although the Board's decision that the appellant continued to pose a significant threat to public safety was reasonable in the circumstances, in my view the Board erred in failing to consider whether the imposition of a conditional discharge was the least onerous and least restrictive disposition available. I would refer the matter back to the Board for a new hearing under s. 672.78(3) of the Criminal Code to consider whether a conditional discharge should be imposed in the circumstances.

Background

[5] The appellant's index offences occurred in May, 2005. He was observed thrusting a knife into the front door of his neighbour's home. He then returned to his own home and was arrested.

[6] The appellant was found not criminally responsible on account of mental disorder ("NCR") on a charge of mischief over $5000 and possession of a weapon for a dangerous purpose. During the twelve years since he was declared NCR, the appellant has been detained at CAMH almost continuously, living in the community on only brief occasions.

[7] On July 27, 2017, CAMH advised the Board that the appellant had been transferred from the general unit at CAMH to a secure unit. The Board convened on September 19, 2017 to hold both a restriction on liberty hearing and a review of the appellant's disposition.

(1) The Appellant's History Prior to the NCR Ruling

[8] The appellant suffers from psychotic disorder unspecified, cannabis use disorder, anxiety disorder unspecified, and antisocial and Cluster C personality traits. He is now 34 years old.

[9] He had a troubled upbringing; mental health professionals have been involved in his care from an early age. He was removed from the family home and placed in a group home in Grade 8. As a child, he was diagnosed with ADHD, bipolar disorder, and a "thought disorder". He was prescribed antipsychotic medication.

[10] In 2004 the appellant was admitted to hospital as a result of a psychosis presentation. He was diagnosed with a mixed personality disorder and obsessive-compulsive disorder.

[11] The appellant also has a criminal record pre-dating his index offences, involving convictions for assault and assault with a weapon.

(2) The Appellant's Conduct Under the Board's Jurisdiction

[12] The appellant has almost continuously used cannabis while under the Board's jurisdiction. He has been caught using cannabis and bringing it into CAMH on several occasions, and has regularly tested positive for cannabis and synthetic cannabinoid products. The appellant often has difficulty following rules, and went AWOL in 2014 while in the community and again in 2015 while on an escorted pass.

[13] The appellant has also had a number of incidents of violence since his index offence, including:

• In 2010, while in the community, he was convicted of assaulting his father.
• In 2012, he assaulted a security guard.
• In 2014 and 2015 there were several "incidents of agitation", involving furniture destruction and threats to staff and co-patients. During at least one of these occasions the appellant was intoxicated as a result of cannabis use.
• In April, 2015, he pushed a co-patient's head against the wall, kicked the nursing station board, threatened to assault staff, and punched walls.
• In August, 2015 he was involved in a physical fight with a co-patient. They were throwing punches and wrestling on the ground when staff intervened.
• In June, 2015 the appellant punched himself in the face.
• In February, 2016 he motioned his fist and stated that he would knock out a psychiatrist. He was also verbally aggressive towards a co-patient, pushed a ping-pong table and yelled obscenities. He was placed in a seclusion room, where he punched the wall and mattress.

[14] Notably, however, there was no evidence of any such incident occurring within more than two years leading up to the disposition under review.

(3) The Opinion of the Treating Psychiatrist

[15] The Board heard evidence from Dr. Rootenberg, the appellant's treating psychiatrist. Dr. Rootenberg testified that the decision to restrict the appellant's liberty on July 19, 2017 was due to his escalating substance use and the clinical team's inability to control his substance use on a general forensic unit.

[16] Dr. Rootenberg testified that his view was that the appellant represented a significant threat to the safety of the public. He based this on the appellant's "long history of violence", lack of insight, and poor impulse control. He also identified the appellant's use of marijuana and synthetic cannabinoids as a "major risk management concern" – he noted that the appellant had recently tested positively for synthetic agents, which are more unpredictable than regular cannabis products and increased the likelihood of his becoming violent. Consistent with the Hospital Report prepared for the disposition, Dr. Rootenberg testified that the appellant has poor insight into his mental illness and his substance use.

[17] The conclusion set out in the Hospital Report was that based on the appellant's history of aggression, ongoing substance use, and limited insight, he remained a significant threat to the safety of the public. The appellant's score on the Violence Risk Appraisal Guide test put him at a high risk of violent recidivism. The other actuarial risk test conducted by the hospital, the HCR-20 test, identified the appellant as being at a low-moderate risk of violently reoffending with his current supervision and structure, but that this "would greatly increase if he were to receive an absolute discharge."

(4) The Board's Decision

[18] The appellant requested an absolute discharge, or, alternatively, a conditional discharge. In the further alternative, the appellant argued that there was a treatment impasse at CAMH and that he should be transferred to St. Joseph's.

[19] The Board unanimously concluded that the appellant continued to constitute a significant threat to the safety of the public. It relied on Dr. Rootenberg's evidence that there was a real risk that the appellant would fall away from treatment and stop taking his medication if absolutely discharged. The Board noted the appellant's long history of substance abuse with cannabis and synthetic cannabinoids, which "impacts his mental health negatively and has triggered psychosis which on occasion has led to violence."

[20] The Board did not consider whether a conditional discharge was an appropriate disposition.

[21] The majority of the Board ordered that the appellant be detained on a general forensic unit with the opportunity for community living privileges, and that he be transferred to St. Joseph's so that he could be given a fresh start and an opportunity to work with a new treatment team. A minority of the Board would have made a hybrid order, permitting the hospital to detain the appellant on the secure forensic unit and to transfer him to a general forensic unit and the community, should his treating psychiatrists determine that his mental state had improved.

[22] The appellant has been moved to St. Joseph's Health Centre, Hamilton since this disposition.

Issues

[23] This appeal gives rise to two issues:

1. Was the Board's conclusion that the appellant remained a significant threat to the safety of the public reasonable?

2. Did the Board err in failing to consider whether to grant the appellant a conditional discharge?

Analysis

(1) Did the Board Err in Concluding the Appellant Was a "Significant Threat" to the Public?

(a) The Significant Threat Requirement

[24] The Board must order an absolute discharge if it concludes that an NCR accused does not pose "a significant threat to the safety of the public": Criminal Code, s. 672.54(a).

[25] The phrase "significant threat to the safety of the public" refers to a foreseeable and substantial risk of physical or psychological harm to members of the public. This risk must be serious, in the sense of going beyond the merely trivial or annoying: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 62. As Doherty J.A. explained in R. v. Ferguson, 2010 ONCA 810, 271 O.A.C. 104, at para. 8, "[a] very small risk of even grave harm will not suffice. A high risk of relatively trivial harm will also not meet the substantial harm standard. While the conduct must be criminal in nature, not all criminal conduct will suffice to establish a substantial risk. There must be a risk that the NCR accused will commit a 'serious criminal offence'."

(b) The Standard of Review

[26] This court reviews decisions of the Board on a reasonableness standard. The Board's membership has significant expertise in evaluating the medical and social factors associated with risk assessment: Ferguson, at para. 10. The Board's decisions are owed a high degree of deference in the light of the nature of the inquiries before the Board, the familiarity of the Board with the statutory regime and the specific NCR accused persons before the Board, as well as the difficulty in assessing whether a given individual poses a "significant threat" to public safety: Winko, at para. 60. This decision is not amenable to strict proof – the Board is required to exercise its expert judgment based on its evaluation of the evidence: Re Carrick, 2015 ONCA 866, 128 O.R. (3d) 209, at para. 25.

[27] As Doherty J.A. noted in Ferguson, this court on review does not decide whether the appellant poses a significant threat to the safety of the public; it only decides whether the Board's determination is reasonable. In performing that function, it asks only whether the Board's decision "was unreasonable in the sense of not being supported by reasons that can bear even a somewhat probing examination…": R. v. Owen, 2003 SCC 33, [2001] 1 S.C.R. 779, at para. 33.

(c) Was the Board's Decision That the Appellant Posed a Significant Threat to Public Safety Reasonable?

[28] The appellant argues that the Board erred in law in failing to grant him an absolute discharge. Specifically, the Board erred in concluding that the "significant threat" threshold had been met in the circumstances, relying on a dated history of violence involving relatively minor incidents. The Board also made unreasonable findings in: (i) concluding, based on the testimony of Dr. Rootenberg, that the appellant would fall away from treatment if granted an absolute discharge, despite the fact that the appellant had been compliant with treatment for many years; and (ii) relying on the appellant's continued use of cannabis as evidence of a risk of psychosis, even though the appellant in the reporting period had not become psychotic despite using cannabis.

[29] The Crown submits that the Board's finding that the appellant is a significant threat to the safety of the public discloses no error in the light of his mental disorders, lengthy history of violence, and legitimate concerns about his falling away from treatment if discharged.

[30] I would not give effect to this ground of appeal.

[31] The only evidence before the Board on whether the appellant would fall away from treatment if given an absolute discharge; namely, the Hospital Report and the testimony of Dr. Rootenberg, demonstrated that the appellant has limited insight into his mental illness. He regularly (although not always) denies that he has a mental illness, and disputes whether his medication is of any benefit to him. Although he may take his medication while under a detention order, on this record, it was reasonable for the Board to rely on the opinion of the appellant's treatment team and conclude that he would likely stop taking anti-psychotic medication if no longer subject to any supervision.

[32] The appellant's counsel also conceded before the Board that the appellant has consistently used cannabis and synthetic cannabinoids while under the Board's jurisdiction and will continue do so if discharged absolutely. Although during the reporting period the appellant had not become psychotic while using cannabis, there was evidence before the Board that this had occurred previously, and that cannabis use generally impacted his mental state. That evidence, combined with the expert testimony that established the connection between cannabis and his psychosis, was sufficient to support the Board's conclusion that his use of cannabis increased his risk of psychosis.

[33] The question before the Board, then, was whether the appellant constituted a significant risk of violent recidivism after taking into account: (i) his history of violent behavior; (ii) his likely failure to take anti-psychotic medication if absolutely discharged; (iii) his continued cannabis use; and (iv) the evaluations and risk assessment done by his treatment team.

[34] In my view, it was reasonable for the Board to conclude that the appellant remained a significant threat to public safety. As Binnie J. said for the majority in Owen, at para. 33, this court should decline to intervene where the Board's decision could reasonably be the subject of disagreement between Board members. The Board's decision was grounded in the evidence and was within a "range of acceptable and rational solutions": Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.

[35] Dr. Rootenberg testified that the appellant has an "established history of violence", which is triggered by "perceived slights or real slights" – not simply "frustration because his liberty was being restricted", as the appellant contends. He concluded that the appellant met the significant threat threshold as a result of the appellant's past history, his substance use, and – crucially – his lack of insight. He testified that if absolutely discharged the appellant would not take his medication and would constitute a greater risk to the public, and that the appellant was a significant threat to public safety even if he did not take substances, based on his history of violence and problems with impulse control. The actuarial risk assessments performed by the hospital supported this conclusion.

[36] The Hospital Report notes that the appellant's risk of reoffending on an absolute discharge would result from non-adherence to his current psychopharmacological regiment in conjunction with substance use, which would lead to psychosis. His reoffending behavior would most likely involve family members as victims. The report notes that when psychotic, the appellant behaves in a dangerous and unpredictable fashion.

[37] Although the appellant's history of violence is relatively dated, it was far more recent and relevant than the violent conduct at issue in Re Wall, 2017 ONCA 713, 417 D.L.R. (4th) 124, pointed to by the appellant. It was not unreasonable for the Board to rely on the appellant's history of violence as part of its expert determination: Re Medcof, 2018 ONCA 299, at para. 55. Unlike Re Pellett, 2017 ONCA 753, 139 O.R. (3d) 651, upon which the appellant also relied, the appellant's violence was not a "one-off" incident, but a pattern of behaviour.

[38] Based on this analysis I would not give effect to this ground of appeal.

(2) Did the Board Err in Failing to Consider Granting the Appellant a Conditional Discharge?

[39] However, in my view the Board erred by failing to consider whether a conditional discharge was the least onerous and least restrictive disposition available in the circumstances.

[40] The appellant submits that the Board erred in failing to consider whether a discharge subject to conditions could manage his risk to the community.

[41] The Crown attempts to justify the Board's failure to consider whether a conditional discharge was the least onerous and restrictive disposition consistent with public safety by submitting that there was no air of reality to a conditional discharge. In particular, the Crown argues that there was evidence that if the appellant was discharged he would need to reside in structured accommodation approved by the hospital, and it is well established law that a Review Board cannot order a conditional discharge if the hospital needs to approve the NCR accused's accommodation.

(a) The Legal Framework

[42] After concluding that the appellant continued to represent a significant threat to public safety, the Board was required to impose the least onerous and least restrictive disposition in the circumstances: Criminal Code, s. 672.54.

[43] In Winko, at para. 43, the Supreme Court directed that an NCR offender "is to be treated with dignity and accorded the maximum liberty compatible with Part XX.1's goals of public protection and fairness to the NCR accused." In my view, where the NCR accused requests a conditional discharge and there is an air of reality that such a disposition would be appropriate, the Board must consider granting an NCR accused a conditional discharge: see R. v. Breitwieser, 2009 ONCA 784, 99 O.R. (3d) 43.

[44] In this case, in my view there was a sufficient air of reality to the appellant's claim that a conditional discharge would be an appropriate disposition. It follows that it was incumbent upon the Board to consider whether a conditional discharge was the least onerous and least restrictive disposition available in the circumstances.

[45] The appellant's lack of insight and probable failure to take anti-psychotic medication if absolutely discharged was a central reason for the Board's finding that the appellant was a significant threat to public safety. Absent this conclusion, given the appellant's relatively dated history of acting out in a violent manner and the nature of the index offence, a conclusion that he represented a significant threat may have been unreasonable.

[46] As noted above, the Board was required to consider whether the appellant's risk to public safety was capable of being managed. The evidence disclosed that while in the hospital the appellant was compliant with his anti-psychotic medication. Dr. Rootenberg's concern was that the appellant would fall away from taking his medication absent any supervision. He did not testify about the possibility of ensuring the appellant remained compliant with his medication through the supervision inherent in a conditional discharge, or the risk the appellant would pose in the community if conditionally discharged.

[47] At minimum, the Board was required to consider whether conditions could be crafted to adequately address medication compliance concerns and allow the appellant to be safely managed in the community. The failure to do so was an error: see Re Baumann, 2015 ONCA 603, 447 O.A.C. 199; Re Tolias, 2018 ONCA 215; Re Runnals, 2008 ONCA 93. Of course, compliance with medication treatment cannot be a condition of a discharge order absent an NCR accused's consent: Criminal Code, s. 672.55(1). However, in these circumstances the Board was required to canvass whether the appellant would have consented to such a condition: Breitwieser, at para. 18; R. v. Coles, 2007 ONCA 806, at para. 4.

[48] After properly engaging in this analysis and considering the factors outlined in s. 672.54 of the Criminal Code, the Board may have gone on to reject the appellant's request for a conditional discharge. But there was nonetheless an "air of reality" to the appellant's request for a conditional discharge such that the Board was required to consider this disposition.

[49] I would also reject the Crown's argument that there was no air of reality to a conditional discharge because the evidence before the Board indicated that the appellant required structured accommodation approved by the hospital. Although this proposition is correct in law – see, for example, Re Boucher, 2015 ONCA 135, at para. 6 – the Board made no such factual finding in its reasons. The appellant's apparent need for structured accommodation approved by the hospital was only a suggestion in the Hospital Report – it was not considered by the Board.

Disposition

[50] In the result, I would allow the appeal and order that this matter return to the Review Board to consider whether a conditional discharge should be imposed in the circumstances.

Released: June 21, 2018

"Gloria Epstein J.A."

"I agree. Doherty J.A."

"I agree. S.E. Pepall J.A."