Court of Appeal for Ontario

Date: 2019-09-30

Docket: C66735

Judges: Juriansz, Pepall and Roberts JJ.A.

In the Matter of: Chantal Trudel

An Appeal Under Part XX.1 of the Code

Counsel:

• Meaghan McMahon, for the appellant
• Clive Ewan, for the respondent, Attorney General of Ontario
• Marie-Pierre T. Pilon, for the respondent, Royal Ottawa Health Care Group

Heard: September 20, 2019

On appeal from: The November 14, 2018 disposition of the Ontario Review Board, with Reasons for Disposition dated December 19, 2018.

Reasons for Decision

[1] The appellant appeals from the Ontario Review Board's November 14, 2018 disposition that she be detained in the secured forensic unit of the Brockville Mental Health Centre of the Royal Ottawa Health Care Group.

[2] The appellant has been under the supervision of the Board and subject to a series of detention orders since December 10, 2008, when she was found not criminally responsible ("NCR") for the offence of aggravated assault. The index offence consisted of the appellant stabbing another person in a paranoid and psychotic state after having consumed crack cocaine and while non-compliant with her medications. The appellant has struggled with addiction to crack cocaine and mental illness since she was a teenager.

[3] The appellant's current diagnoses are schizoaffective disorder – bipolar type, manic with residual psychosis; stimulant (cocaine, amphetamines) and alcohol use disorders – in remission in a controlled environment; adult ADHD – in partial remission; nicotine dependence; and antisocial personality disorder.

[4] The appellant submits that the Board erred in failing to grant her an absolute discharge because there was no evidence that she poses any significant risk of physical or psychological harm to the public. In particular, the appellant relies on the absence of any criminal or violent behaviour since 2015 and her abstention from substance abuse since 2016. She argues further that the Board erred in erroneously considering whether a detention order was in her best interests.

[5] We do not accept these submissions.

Legal Framework and Applicable Principles

[6] We start with the well-established principle that there is no presumption that NCR accused pose a significant threat to the safety of the public and that restrictions on their liberty can only be justified if, at the time of the hearing, the evidence before the Board shows that they actually constitute such a threat: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 62. In our view, there was evidence to support the Board's finding that the appellant poses a significant threat to the safety of the public.

The Board's Reasoning

[7] The Board summarized its conclusion at p. 9 of its reasons:

Although [the appellant] has not been violent for some time, this is in the context of living in a structured and well supervised environment. Left to her own she would very likely use substances and become non-compliant with her medication. This would lead to an exacerbation of her already serious chronic illness that will feature severe psychotic symptoms. Such an exacerbation of symptoms will, in all likelihood, pose a high risk of violent acts, including behaviour comparable to what occurred in the index offence.

[8] In determining that the appellant poses a significant threat to the safety of the public, the Board conducted the broad inquiry required under s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46. This included the myriad factors suggested by the Supreme Court in Winko, at para. 61:

the circumstances of the original offence, the past and expected course of the NCR accused's treatment if any, the present state of the NCR accused's medical condition, the NCR accused's own plans for the future, the support services existing for the NCR accused in the community and, perhaps most importantly, the recommendations provided by experts who have examined the NCR accused.

[9] The Board did not focus on one single factor. Its examination included the appellant's serious and long history of mental health and substance abuse issues, her previous constant elopements from the hospital and concomitant relapses into drug abuse, the index offence, as well as the other recorded serious assaults and violent behaviour in the secured forensic unit involving co-patients and staff, her cognitive impairments, her poor insight into the index offence, her present condition and her need for treatment, and her inability to self-medicate. It weighed these considerations with the appellant's positive interactions and progress, including the absence of any violent or aggressive acts on her part and her abstention from illicit drugs.

Expert Evidence

[10] The Board accepted the unequivocal opinion of the appellant's treating psychiatrist, Dr. Sanjiv Gulati, that the appellant poses a significant threat to public safety based on these factors. As Dr. Gulati explained, while the appellant has shown progress, there is still relative instability in her mental health, even when on medication:

[The appellant] does continue to exhibit signs and symptoms of the illness and remains a risk of relapse. In the absence of a structured, safe, secure environment and adequate follow-up, she's likely to relapse, become non-compliant with medication and pose a risk to herself as well as others.

Analysis of the Appellant's Arguments

[11] We do not accept the appellant's submission that the absence of violent behaviour on her part since 2015, while laudable, by itself eliminates the risk of significant harm to the public.

[12] First, s. 672.5401 of the Criminal Code provides that "a 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."

[13] Further, as Dr. Gulati testified, the appellant's psychotic and paranoid symptoms that appear, even with medication, are appreciably mitigated in the secure, controlled setting of the hospital where the appellant receives considerable support. As he opined, without such structure and supervision, if the appellant were out in the community and indulged in substance misuse, became non-compliant with medication, with a return of her psychotic symptoms, as was the case for the index offence and the instances of violent behaviour in the unit, then there would be a significant risk to public safety.

Best Interests Argument

[14] In support of her second submission that the Board erred in considering her best interests, the appellant relies on an isolated sentence towards the end of the Board's reasons that "[t]he Board would be very concerned that discharging Ms. Trudel at this time would jeopardize the progress she has been able to make since her transfer to Brockville". As the appellant correctly points out, whether an absolute discharge is in the appellant's best interests, is not relevant to the determination under s. 672.54 of the Criminal Code: Pellett (Re), 2017 ONCA 753, 139 O.R. (3d) 651, at para. 32; R. v. Ferguson, 2010 ONCA 810, 264 C.C.C. (3d) 451, at para. 45; and Wall (Re), 2017 ONCA 713, 417 D.L.R. (4th) 124, at para. 30. However, when the impugned sentence in the Board's reasons is read in the context of the reasons in their entirety, we do not agree that it represents a reason for the Board's detention order. Rather, it relates to the benefits of the hospital's treatment plan for the appellant earlier described in the reasons.

Transition Planning

[15] It is clear that the hospital has taken serious steps to prepare the appellant to make such a transition and that the appellant is responding well to these efforts and progressing towards that goal. In particular, the plan is to move the appellant into the FITT house on the grounds of the Brockville Mental Health Centre and, if she were successful in that accommodation and her mental state stabilizes, consider alternative accommodation for her in the community. To that end, the hospital requested and was granted a condition allowing it to approve 24-hour per day supervised accommodation within a 250km radius of the hospital.

Conclusion

[16] In conclusion, we find no error in the Board's finding that the appellant poses a significant risk to public safety. The Board's disposition to maintain a detention order was necessary and appropriate and the least onerous and least restrictive to the appellant in the circumstances of this case. We see no basis to interfere with this disposition.

[17] Accordingly, we dismiss the appeal.

R.G. Juriansz J.A. S.E. Pepall J.A. L.B. Roberts J.A.