Court of Appeal for Ontario

Date: November 8, 2019 Docket: C66798

Justices: Fairburn, Harvison Young and Thorburn JJ.A.

In the Matter of: Helen Tolias

An Appeal Under Part XX.1 of the Code

Appellant: Helen Tolias, acting in person

Amicus Curiae: Jeff Marshman

Respondent: Nicole Rivers, for the Attorney General of Ontario

Heard: November 1, 2019

On appeal against: The disposition of the Ontario Review Board dated March 8, 2019, with reasons for disposition dated March 22, 2019.

Reasons for Decision

A. Overview

[1] The appellant was found not criminally responsible in July 2005 and April 2006. The July 2005 finding related to multiple counts of criminal harassment, breaches of recognizance and probation. The April 2006 finding related to a further count of criminal harassment in relation to the same victim as the 2005 criminal harassment counts, a psychiatrist at the Centre for Addiction and Mental Health. The harassment arose largely from persistent telephone calls and other efforts to contact the psychiatrist. The appellant has been under the jurisdiction of the Ontario Review Board since July 14, 2005.

[2] Ms. Tolias appeals from the most recent disposition of the Ontario Review Board (the "Board") ordering that she be detained in the Secure Forensic Unit of the Providence Care Hospital in Kingston, Ontario. She seeks an absolute discharge on the basis that she is no longer a significant threat to the safety of the public. She is joined in that submission by amicus curiae, who also submits in the alternative that Ms. Tolias is entitled to a conditional discharge.

[3] For the reasons that follow, we allow the appeal and refer the matter to the Board to determine whether Ms. Tolias should be released on a conditional discharge.

B. Background

[4] The appellant has a long history of review hearings and appealing her dispositions. In her most recent appeal prior to this one, the appellant took the position that the Board had acted unreasonably in concluding that she remained a significant threat to the safety of the public. In the alternative, she argued that the Board erred in failing to impose a conditional discharge as the least onerous and restrictive disposition available.

[5] This court dismissed that appeal, finding no error in the Board's approach and concluding that the disposition was not unreasonable: Tolias (Re), 2019 ONCA 123. Even so, the court commented as follows, at para. 22:

[C]ases such as this one always raise a certain concern. The index offences involved criminal harassment. Such offences have a serious impact on the victim but, in the case of Ms. Tolias, the offences did not involve any violence. Yet, the offences occurred more than a decade ago, and since that time Ms. Tolias has remained in detention. Although the record certainly supports the Board's conclusion that Ms. Tolias continues to suffer from a serious mental illness, cases such as this require constant vigilance and inquiry by the Board into the appropriate disposition, especially the appropriateness of a conditional discharge with community living. [Emphasis added.]

[6] This court expressed the view that, at the next annual review hearing, the Board should "inquire actively into the appropriateness of alternative dispositions for Ms. Tolias": at para. 23.

C. The Board Hearing

[7] That hearing was held on February 25, 2019. A majority of the 3-member Board took this court's direction into account but concluded on the factual record before it that Ms. Tolias remains a significant threat to the safety of the public and that the appropriate disposition remained a detention order. The dissenting member would have granted Ms. Tolias an absolute discharge.

[8] The majority rested its finding on the fact that Ms. Tolias continues to suffer from two major mental illnesses – schizoaffective disorder and borderline personality disorder – that have proven to be treatment resistant. The majority also accepted the evidence of Ms. Tolias' treating psychiatrist that Ms. Tolias' mental stability is volatile, that she threatens institutional staff, and that she has engaged in physical violence in respect of property. Finally, the majority found that Ms. Tolias' delusions regarding the victim of the harassment complaints continue. It would appear that this finding is based upon the psychiatrist's testimony that a nurse overheard Ms. Tolias asking another patient if the patient thought that Ms. Tolias could change her surname to correspond to the victim's surname a few weeks before the Board hearing.

[9] As for the necessary and appropriate disposition, the majority found that there was "no place for Ms. Tolias to live in the community and as such, no basis for a conditional discharge."

[10] The dissenting opinion found that Ms. Tolias is "frustrated and angry about her inpatient status" and, as such, poses a difficult management issue. The dissenting member further held that on the evidence adduced, the likelihood of Ms. Tolias engaging in serious criminal conduct was "mere speculation". Accordingly, the dissenting member would have granted an absolute discharge, even though the member acknowledged that it may not be in Ms. Tolias' best interests to do so.

D. The Parties' Positions on Appeal

[11] Like the last appeal, Ms. Tolias maintains that the majority decision was unreasonable and seeks an absolute discharge. In her submissions, Ms. Tolias emphasized that:

• she is not delusional;
• she faithfully takes her medication;
• she has not attempted to contact the victim of the harassment in over five years;
• she has made a conscious decision not to take Clozapine, an anti-psychotic medication that her psychiatrist suggests would be ideal, because she believes it has harmed her health in the past; and
• she has only acted out in the institutional setting in the recent past because she is extremely frustrated and bored.

[12] Ms. Tolias says that we should enter an absolute discharge. If this court does so, she will go and live with her sister Anastasia or rent an apartment.

[13] Amicus curiae supported Ms. Tolias' position, arguing that the majority's decision is unreasonable and that Ms. Tolias should be absolutely discharged. In the alternative, amicus curiae suggests that the majority erred in concluding that the least onerous and restrictive disposition was a detention order. He contends that, at a minimum, Ms. Tolias should be granted a conditional discharge.

[14] The respondent argues that the majority's reasons on both the risk assessment and disposition are reasonable and should be granted deference. The respondent emphasizes that this court "should not be too quick to overturn the Board's expert opinion about how that risk is to be managed": R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 69.

E. Issues

(1) Significant Threat to the Safety of the Public

[15] Although the appellant appears to have made tremendous strides in recent years, it was open to the majority to conclude that the appellant remains a significant risk to the safety of the public based upon the evidentiary record before the Board. We see no need to review that evidence. It is well documented and includes certain treatment resistant conditions, suboptimal medication regimes, actuarial risk assessments, and continued delusions.

(2) The Appropriateness of a Conditional Discharge

[16] At the same time, the appellant's progress affects whether her risk can be managed in the community. Although the majority considered this issue, it concluded that:

With respect to the necessary and appropriate disposition, the Board finds that there is simply no place for Ms. Tolias to live in the community and as such, no basis for a conditional discharge. In addition, given Ms. Tolias' conduct and delusions, it is unlikely that she would be accepted in any group home or other facility. [Emphasis added.]

[17] At the time that the Board came to this conclusion, it had information that Ms. Tolias' sister, Anastasia Tolias, was not prepared to have the appellant live with her. We are in receipt of fresh evidence, albeit in the form of double hearsay, that suggests otherwise. The respondent consents to the admission of this information. Pursuant to s. 672.73(1) and (2) of the Criminal Code, we find it necessary to admit the information in the interests of justice. See also: Owen, at paras. 48-49, 52.

[18] A lawyer to the Tolias family wrote to amicus curiae explaining that the Tolias family is prepared to support Ms. Tolias if she is granted an absolute or conditional discharge. The family attended the hearing of the appeal and clearly supports the request to, at a minimum, release Ms. Tolias on a conditional discharge and allow her to live with her sister.

[19] The lawyer's letter states that Ms. Tolias' father is a parish priest in British Columbia and is "100% committed to assisting with the integration into the community of Helen Tolias. He is prepared to have her live with him", but recognizes that his out-of-province status may create difficulties in terms of any future dealings with the ORB.

[20] The letter also states that Ms. Tolias' sister, Anastasia Tolias, is "prepared to accept, without any reservation whatsoever, the role of providing housing for her sister at her own house in Mississauga, Ontario and also to assist with accessing psychiatric services in the community and helping with the monitoring of the proper usage of prescribed medication."

[21] We note that there is no dispute that the Tolias family, commendably, has stayed involved with and supported Ms. Tolias over all of these years.

[22] We are aware that Ms. Tolias' treating psychiatrist testified at the hearing that he was not prepared to support a conditional discharge, even if Ms. Tolias could live with her sister. However, the psychiatrist's evidence was somewhat equivocal on the point. Moreover, one of the factors informing the psychiatrist's view was the "significant stress" it would cause to the sister and that "Anastasia probably would not be able to help Helen the way she needs."

[23] That evidence was given over eight months ago. It was also based on what now seems to have been an incorrect view that Anastasia Tolias would not allow her sister to live at her residence. Accordingly, the information that the Board was operating upon has fundamentally changed. That information is directly relevant to the majority's finding that a conditional discharge was not the least onerous and restrictive disposition available. If that information were to be provided in a proper format, and it were to be accepted, then Ms. Tolias may well be entitled to a conditional discharge.

[24] In the circumstances, it is critical that the Board reconvene a hearing to determine whether, against the backdrop of Ms. Tolias' current condition, and in light of the new information about the possibilities for Ms. Tolias to live in the community, the least onerous and restrictive disposition is now a conditional discharge.

F. Disposition

[25] The appeal is allowed and the Board is directed pursuant to s. 672.78(3)(b) of the Criminal Code, R.S.C., 1985, c. C-46, to hold an expedited rehearing where this new evidence can be explored and considered with regard to the least onerous and restrictive disposition available.

"Fairburn J.A."

"Harvison Young J.A."

"Thorburn J.A."