Court of Appeal for Ontario

Date: February 26, 2019 Docket: C65351

Judges: Feldman, Lauwers and Nordheimer JJ.A.

In the Matter of: Burhan Esgin

An Appeal Under Part XX.1 of the Code

Counsel:

• Anita Szigeti, for the appellant
• Andrew Cappell, for the respondent, Attorney General of Ontario
• Kathryn Hunt, for the respondent, Centre for Addiction and Mental Health

Heard: January 29, 2019

On appeal from the disposition of the Ontario Review Board, dated April 10, 2018, with reasons for disposition dated April 24, 2018, reported at [2018] O.R.B.D. No. 927.

Lauwers J.A.:

Introduction

[1] On May 29, 2014, Burhan Esgin was found not criminally responsible on account of mental disorder on charges of possession of weapons dangerous, contrary to the Criminal Code, R.S.C., 1985, c. C-46. Mr. Esgin has been diagnosed with "Schizoaffective Disorder, Bi-polar Type; Substance Use Disorder, Alcohol and Cannabis; and Unspecified Personality Disorder, Narcissistic and Antisocial."

[2] Mr. Esgin was subject to a 2017 disposition, which detained him in the general forensic unit at the Centre for Addiction and Mental Health, and granted him privileges up to and including living in the community with accommodation approved by the person in charge. The 2018 disposition relaxed the reporting requirement from daily to not less than once every two weeks.

[3] Mr. Esgin appeals. He maintains that the Board erred by failing to grant a conditional discharge. He seeks a conditional discharge from this court, and in the alternative, a new hearing.

Index Offence and Detention History

[4] Mr. Esgin was driving his automobile on November 30, 2013. He began yelling at pedestrians on the sidewalk and at drivers of other vehicles, and he pointed what appeared to be a black handgun at several drivers. He then parked the car, leaving the handgun behind, got out of the car and began yelling at people. As he returned to the car, police officers arrived and arrested him. The black handgun was an air pistol.

[5] Mr. Esgin is particularly vulnerable to alcohol, and the hospital report summarizes a number of incidents from November 2013 to February 2017, in which he showed positive test results for alcohol; he was also on occasion medication non-compliant. Mr. Esgin was discharged to the community in 2017 and lived with his mother until January 22, 2018. He now lives alone. There has been no evidence of psychotic symptoms. Mr. Esgin is currently being treated by long-acting injections, which he receives every two weeks at the hospital.

The Decision Under Appeal

[6] The Board unanimously found that Mr. Esgin continues to pose a significant threat to the safety of the public. The Board relied on the evidence of Dr. Swayze, Mr. Esgin's treating physician, to find that "there is a foreseeable and substantial risk that Mr. Esgin would commit a serious criminal offence" if he were discharged absolutely.

[7] The Board also found that "there is no air of reality to a Conditional Discharge at the present time", noting that "Mr. Esgin has only been living on his own in the community for under three months and a further period of time and stability would be required before a Conditional Discharge could be considered."

[8] Dr. Swayze expressed concern about the two positive tests for cannabis on March 5 and 13, 2018, and the positive test for a marker for alcohol, Ethyl Glucuronide. Mr. Esgin acknowledged that he had used cannabis once only due to the stress of his upcoming Board hearing which was originally set for March 2018 but had to be adjourned due to Dr. Swayze's illness and to the lack of a Hospital Report. Mr. Esgin also admitted drinking a non-alcoholic beer believing there was no alcohol in it, which could account for the marker.

[9] The Board noted, at para. 48:

When asked if he would return to hospital voluntarily if asked, he said he would. He indicated if he received a Conditional Discharge and then had a positive test for cannabis, he would come in "based on my mental status". He said if he showed signs of deterioration he would come in but would also come in if there was no deterioration.

[10] The Board's analysis of the request for a conditional discharge is set out in paras. 59-61:

The Board noted the strong presentation made by counsel for Mr. Esgin for a Conditional Discharge. The Board finds that there is no air of reality to a Conditional Discharge at the present time.

The Board accepts the evidence of Dr. Swayze that Mr. Esgin appears externally motivated to take his medication and to avoid substances. The fact there were two positive tests for cannabis and one for a marker for alcohol this year indicate that Mr. Esgin has not fully dealt with his substance abuse issues. He readily succumbed to peers to use cannabis when he felt stressed despite having had extensive training on stress management techniques.

In addition, the Board is not confident that a Conditional Discharge would permit the Hospital to intervene quickly enough should there be deterioration in Mr. Esgin's mental status. The Board prefers the evidence of Dr. Swayze and the events of Mr. Esgin's history under the Board as evidence for the fact he is not likely to return to hospital voluntarily over the evidence of Mr. Esgin who himself said that he would return to hospital if requested. The fact that Mr. Esgin would agree to a consent to treatment clause being included in the Conditional Discharge does not sway the Board's view in this matter.

A Significant Threat

[11] The Board unanimously found that Mr. Esgin continues to pose a significant threat to the safety of the public, because his noncompliance with prescribed medication would lead to decompensation and the re-emergence of behaviours similar to that of the index offence. I would defer to that finding, which is well established on the evidence.

The Disposition

[12] Amicus submits that: "The Board was required, but failed to consider in a serious and probing manner, the evidence in relation to mechanisms of return to hospital as they would present in the particular circumstances of the Appellant." She pointed to the following positive developments:

The Appellant's mental state had been essentially stable for the reporting year preceding the hearing, at least, and probably for longer. The Appellant had been medication compliant, his medications had been adjusted and optimized; indeed, there had been a switch to an injectable form of the same antipsychotic medication the Appellant was previously receiving. This now required only biweekly administration of his main medication treatment, his anti-psychotic. There were no incidents of aggression or violence or for that matter any verbal altercations in the reporting year.

[13] Amicus argues that it was unfair for the hospital to pursue the allegations of cannabis use and alcohol without providing any notice or record in the hospital report of those allegations. She points out that the hospital was sufficiently untroubled that it did not bring Mr. Esgin in when the test results were received.

[14] This court recently dealt with a similar situation in Valdez (Re), 2018 ONCA 657. The comments made by the court in Valdez apply equally to Mr. Esgin who, like Mr. Valdez, is taking long-acting medication administered at the hospital. The hospital would know immediately if he did not attend for a scheduled injection and would be immediately able to take remedial steps. In Valdez this court said, at para. 21:

However, we have difficulty with the majority's cursory consideration of whether Mr. Valdez's risk to the public could be managed under a conditional discharge. The majority reasoned that "it is substantially easier to bring about a return to the hospital for individuals who are under a Detention Order" and that a warrant will always be acted upon to bring a person back to the hospital if necessary. However, this would always be true and could always be used to justify the refusal of a conditional discharge. But, given the least onerous and least restrictive test, something more is required than mere convenience to the hospital.

Analysis

[15] Part XX.1 of the Criminal Code establishes the legislative regime for mental disorders and dealing with NCR accused. As Bastarache J. observed in Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326, at para. 32: "the primary purpose of the legislative scheme is to protect the public while minimizing any restrictions on the NCR accused's liberty interests".

[16] The Board is charged with the responsibility for determining the "necessary and appropriate disposition" in the language of s. 672.54 of the Criminal Code. The previous version of the section directed the Board or a court to make the disposition "that is the least onerous and least restrictive to the accused". However, the Board and the courts have considered that the new language did not change the applicable test, still commonly expressed as: "the least onerous and least restrictive" disposition necessary to protect the public: Winko v. Forensic Psychiatric Institute, [1999] 2 S.C.R. 625, at para. 47. The Board is a specialized, expert body and its decisions are owed a significant degree of deference: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at paras. 29-30, 37. Appellate courts are "'not [to] be too quick to overturn a review board's 'expert opinion' on how best to manage a patient's risk to the public": R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765 at para. 95; see also Owen, at para. 69.

[17] The issue on this appeal is whether the Board's decision falls within a range of reasonable outcomes: Owen, at para. 33. A decision will be considered unreasonable when the reasons do not "bear even a somewhat probing examination": Saikaley (Re), 2012 ONCA 92, 109 O.R. (3d) 262, at para. 35; Mazzei, at d. 17. As in Valdez, this task is hampered by the Board's reasons, which are sparse in their consideration of the least onerous/restrictive test: Marchese (Re), 2018 ONCA 307, 359 C.C.C. (3d) 408, at paras. 16-23.

[18] In my view, the Board's decision is unreasonable.

[19] The Board was right to be concerned that Mr. Esgin would decompensate if he failed to take his medication. However, I have difficulty with the Board's cursory consideration of whether Mr. Esgin's risk to the public could be managed under a conditional discharge. The Board's conclusory assertion is that it "is not confident that a Conditional Discharge would permit the Hospital to intervene quickly enough should there be deterioration in Mr. Esgin's mental status." The Board gives no reasons for this statement that are rooted in the realities of managing Mr. Esgin.

[20] As was noted in oral argument, it is always easier to bring about a return to the hospital for individuals who are under a detention order since a warrant will always be acted upon to bring a person back to the hospital if necessary. However, this would be true in every case and could always be used to justify the refusal of a conditional discharge. But, given the least onerous and least restrictive test, something more is required to justify a detention order than mere convenience to the hospital.

[21] As discussed in Young (Re), 2011 ONCA 432, 278 O.A.C. 274, at para. 26, there are multiple ways in which to secure someone's attendance at the hospital when they fail to comply with a condition of their discharge. For instance, the person could be returned: (1) by convening a new hearing under s. 672.82(1) of the Criminal Code; (2) by resorting to the breach provisions of the Criminal Code; or (3) through the committal provisions available under the Mental Health Act, R.S.O. 1990, c. M.7.

[22] Some of these options were discussed in oral argument, but I am not confident that the ramifications were fully aired. Also, I do not consider the evidence of Dr. Swayze on this point to be sufficient.

[23] In my view, the reasons of the Board are inadequate and did not permit meaningful appellate review. Decision makers must give reasons for their decisions that display the qualities of accountability, intelligibility, adequacy and transparency, and that are responsive to the live issues. See R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 per Binnie J. at para. 55. See also Clifford v. OMERS, 2009 ONCA 670; Vancouver International Airport Authority v. Public Service Alliance of Canada, 2010 FCA 158, at para. 16.

[24] The Board had a duty to assess the evidentiary record in context, and to take into consideration in this case: (1) the risk of Mr. Esgin's non-attendance for medication; (2) the mechanisms for securing his attendance at hospital under the conditional discharge framework; (3) the length of time that any such steps may take; (4) the effect of that delay on Mr. Esgin's mental health; and (5) the risk to public safety posed by any delay in treatment.

[25] The Board's reasoning does not demonstrate that it took these considerations into account. Although Mr. Esgin appears to be a significant risk to public safety when unmedicated, it appears that, given the biweekly injection schedule, that he would not decompensate immediately. There was no evidence here that any delay in apprehending Mr. Esgin for the purpose of administering his medication would be critical to public safety.

[26] For these reasons, I would direct the Board at its next hearing to consider whether, after due consideration of all of the relevant factors set out above and any others that appear relevant, Mr. Esgin should be subject to a conditional discharge rather than a detention order and to set out its reasons for its conclusion to select one disposition rather than the other. Since the next hearing is very close, I would dismiss the appeal.

Released: February 26, 2019

"P. Lauwers J.A."

"I agree. K. Feldman J.A."

"I agree. I.V.B. Nordheimer J.A."