Court of Appeal for Ontario

Date: 2019-10-25 Docket: C66704

Judges: Strathy C.J.O., Doherty and Tulloch JJ.A.

In the Matter of: Edda Esposito

An Appeal Under Part XX.1 of the Criminal Code

Counsel

For the appellant Edda Esposito: Anita Szigeti and Maya Kotob

For the respondent Her Majesty the Queen: Gavin MacDonald

For the respondent Centre for Addiction and Mental Health: Kathryn Hunt

Heard: October 4, 2019

On appeal against: The disposition of the Ontario Review Board dated December 27, 2018, with reasons reported on January 17, 2019.

Reasons for Decision

Overview

[1] The appellant, Ms. Edda Esposito, appeals from the order of the Ontario Review Board dated December 27, 2018 that she be detained in the General Forensic Unit at the Centre for Addiction and Mental Health (CAMH) in Toronto.

[2] Ms. Esposito came under the Board's jurisdiction on September 20, 2017, when she was found not criminally responsible on account of mental disorder on charges of possession of a weapon for dangerous purposes, assault with a weapon, and aggravated assault. She continues to be detained following two subsequent Review Board orders.

[3] On November 14, 2017, the Board rendered a Hybrid Order with initial detention in the Secure Forensic Unit at CAMH, with an array of privileges as well as the ability to be transferred to the General Forensic Unit. A subsequent Review Board hearing was convened on December 13, 2018, which resulted in the current detention order which is the subject of this appeal.

[4] Ms. Esposito appeals the decision of the Board on the following bases:

a. That the Board erred in fact and in law by failing to render a disposition that is necessary, appropriate and least restrictive;

b. That the disposition ordered is unreasonable on the evidence.

Facts

[5] Ms. Esposito is a 63-year-old woman, and the mother of four adult children. She was originally diagnosed with schizophrenia in 1990.

[6] The index offence occurred on September 11, 2016, when Ms. Esposito, in a delusionary state, believed her father to be the devil and attacked him while he was asleep in his bed. At the time, Ms. Esposito and her father had resided together for two years. At approximately 7:30 a.m., Ms. Esposito's father awoke to her entering his room while brandishing a fork. She approached him while he laid in his bed and began stabbing him with the fork. Ms. Esposito stopped her attack only after her father was able to escape by running outside their condo, and a concerned neighbour intervened.

[7] As a result of the altercation, the appellant's father sustained numerous cuts and lacerations to his face and nose and required hospitalization as a result of a piece of metal being lodged in his eye.

The Ontario Review Board Hearing

[8] Following the appellant's NCR verdict, the Board concluded that she represented a significant threat to the public safety, and that the necessary and appropriate, least onerous and restrictive disposition available on the evidence was a detention order on a general level, with privileges up to and including residence in the community in accommodation approved by the Person in Charge of CAMH.

[9] At the last Board hearing, the hospital recommended that Ms. Esposito's detention continue as she is still a significant threat to the public. Ms. Esposito sought an absolute discharge, or in the alternative, a conditional discharge. The Board rejected her position and accepted the submissions of the hospital and the Crown and found that Ms. Esposito continued to pose a significant threat to the public.

[10] The hospital's recommendation was supported by the evidence of the attending psychiatrist, Dr. Shaheen Darani. The evidence indicated that Ms. Esposito was still experiencing active symptoms of her illness, which included beliefs that her co-patients were molesters and/or murderers and that her mother was a witch. She also continued to harbour a belief that her son-in-law was a molester. The evidence also indicated that, while Ms. Esposito accepted the fact that she suffers from schizophrenia, she stated that she will cease taking her medication if she is released, because she believes that the disease was inflicted on her through an electrical shock or a witch's spell and she plans to seek out a priest so he can perform an exorcism.

[11] According to Dr. Darani, Ms. Esposito is especially vulnerable to the use of prescribed opiate-based medications to alleviate her pain. Dr. Darani noted that the use of narcotics has exacerbated Ms. Esposito's symptoms in the past, and that the use of narcotics was an exacerbating factor at the time of the index offence, as it led to her non-adherence to medication and rendered her a real risk to the public. Ms. Esposito has specifically stated to Dr. Darani that once in the community, she will seek out any doctor who will be prepared to prescribe her pain medication.

[12] Two of Ms. Esposito's children were in support of the hospital's recommendation for a detention order on the General Forensic Unit with the ability to reside in the community in approved accommodation, and they both agreed with the hospital and the treatment team that it would be best for their mother to be placed in supportive housing. One of Ms. Esposito's sons indicated that he would be willing to have his mother reside with him and that he was prepared to supervise her with respect to her medication and her mental status, but he also resides with Ms. Esposito's elderly mother who is the subject of one of Ms. Esposito's delusionary beliefs that her mother is a witch.

Analysis

[13] Ms. Esposito asks this court to set aside the Board's detention order, and instead order an absolute discharge, or, in the alternative, order a conditional discharge. Failing that, she asks for a new hearing before a differently constituted panel.

[14] We find no error in the Board's reasoning or disposition. As such, there is no basis for this court to intervene.

[15] The Board was obliged to determine the "necessary and appropriate" disposition for Ms. Esposito, given her particular circumstance, pursuant to s. 672.54 of the Criminal Code. This meant the Board had to determine, in light of the evidence, what was the least onerous and least restrictive disposition that was appropriate for Ms. Esposito. This entailed conducting a risk assessment to determine whether she continued to pose a significant threat to the safety of the public as outlined in Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625. To find significant threat, there must be "a foreseeable and substantial risk of physical or psychological harm that is serious and beyond trivial or annoying": R. v. Ferguson, 2010 ONCA 810, 264 C.C.C. (3d) 451. In the words of the court in Winko, "a miniscule risk of even grave harm will not suffice."

[16] In applying the test in Winko, the Board made the following observations at para. 62 of its decision:

The Board regards the recentness of the index offence; the severity of the harm and physical danger of the index offence as well as the current continuation of active symptoms of her major mental illness that include similar themes of that in the index offence as going beyond the test as set out in Winko to establish significant threat. Add to this the stated intention of Ms. Esposito to cease taking medication when discharged, leads inextricably to the conclusion of significant threat.

[17] The Board then considered what was the least onerous and least restrictive disposition that would be appropriate for Ms. Esposito, based on the evidence, and concluded that nothing short of a detention order would mitigate the risk. The Board specifically addressed Ms. Esposito's submissions regarding her request for a conditional discharge and articulated why such a disposition was inappropriate. At para. 66 of its decision, the Board noted that it "must consider whether the risk to the public can be safely managed under terms imposed as part of a conditional discharge and not simply focus on the risk that Ms. Esposito will breach any term of the order." The Board then set out its reasons for rejecting Ms. Esposito's request, and outlined the evidence that militates against a conditional discharge:

…the evidence establishes that Ms. Esposito will view a discharge as a license to stop taking medication and she will absolutely experience an exacerbation of her symptoms, which will put her at very real risk to her family members as well as to members of the community who could be brought into her delusional system. Terms of a discharge will not sufficiently provide adequate incentive for Ms. Esposito to adhere to medication and psychiatric follow up. As well intentioned and loving as her family is, given the gravity of the recent index offence in the face of years of chronic use of illicit substances and medication non-adherence, at this critical time, the family is not in a position to manage the risk, and expose her mother to that risk as well and the community.

[18] The Board noted that Ms. Esposito's counsel had raised the possibility of a conditional discharge including a term of consent to treatment. However, it found that Ms. Esposito's stated intention to discontinue her medication if she were discharged rendered this an unworkable solution.

[19] The Board also considered whether the risk management provisions under the Mental Health Act, R.S.O. 1990, c. M.7, which would apply if it ordered a conditional discharge, would adequately mitigate any threat to society from the appellant's release. It concluded that the Mental Health Act was not sufficient to manage the risk, due to the level of structure and supervision Ms. Esposito required. This included risks from any event of non-compliance with conditions.

[20] The Board therefore concluded that a conditional discharge was not appropriate. It considered Ms. Esposito's possible consent to treatment, the implausibility of her actual compliance with treatment, and the inadequacy of the Mental Health Act provisions to manage the risk. This conclusion was reasonable: R. v. Breitwieser, 2009 ONCA 784, 99 O.R. (3d) 43.

[21] Based on all these factors, the Board found that Ms. Esposito continues to pose a significant threat to the safety of the public as defined by the Supreme Court of Canada in Winko. A conditional discharge would not be sufficient to manage this risk.

Conclusion

[22] In our view, based on the overwhelming evidence before the Board, this was a reasonable disposition, and there is no basis to interfere. The evidence which was presented before the Board clearly indicates that the appellant continues to pose a significant threat to the safety of the public, and as such, a detention order was necessary. Neither an absolute or a conditional discharge would mitigate the present risk of significant threat pose by Ms. Esposito, given her current psychological state. The Board's decision is owed a significant degree of deference and we have not been persuaded that it was unreasonable.

[23] The appeal is dismissed.

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

"Doherty J.A."

"M. Tulloch J.A."