COURT OF APPEAL FOR ONTARIO

CITATION: Davies (Re), 2020 ONCA 544

DATE: 2020-09-01

DOCKET: C67650

Tulloch, Paciocco and Harvison Young JJ.A.

IN THE MATTER OF: Jacqueline Davies

AN APPEAL UNDER PART XX.1 OF THE CODE

Anita Szigeti, for the appellant

Eric Taylor, for the respondent, Attorney General of Ontario

Lauren Barney, for the respondent, St. Joseph Health

Heard: In writing

On appeal from the disposition of the Ontario Review Board, dated September 13, 2019, with reasons dated October 21, 2019.

REASONS FOR DECISION

[1] Ms. Davies was found not criminally responsible on account of mental disorder on charges of assault with a weapon and aggravated assault in 2007. She appeals from the September 2019 disposition of the Ontario Review Board (the “Board”) and seeks an absolute discharge. The Board’s disposition accepted the hospital recommendation that the existing detention order be continued. For the following reasons, we conclude that the Board’s decision was reasonable.

Background

[2] Ms. Davies was 19 years old at the time of the index offences. She has no prior criminal record. She is now 32.

[3] The hospital report describes the index offence as follows. Ms. Davies had been standing alone in the lobby of an apartment building in Welland holding a folding tree saw when a woman and her 11-year-old daughter walked past her on their way out to a parking lot through a rear door. Without provocation, she approached the child from behind and hit her with the saw blade on the back of the head. The mother heard the child’s screams and intervened to protect her. She tackled the appellant who continued to fight, striking the mother’s face with the saw. The appellant then dropped the saw and fled the scene. Both victims were treated and released from hospital.

[4] Ms. Davies psychiatric history is detailed in the hospital report. In the period before the index offences she had multiple hospital admissions. Her current diagnoses include:

• Schizophrenia;
• Cannabis Use Disorder;
• Alcohol Use Disorder; and
• Borderline Personality Disorder.

[5] From the time of her initial Board hearing until October 2016, she remained subject to a detention order. She was granted a conditional discharge in 2016. At that time, she was living in the community in 24-hour supervised housing. The conditional discharge disposition was continued at her annual hearing in 2017. At the 2018 annual hearing the Board accepted the hospital’s recommendation and replaced the conditional discharge with the existing detention order. She has remained in hospital since her readmission on July 9, 2018.

[6] In February 2019 there was a failed attempt to begin reintegrating Ms. Davies into community living in 24-hour supervised housing. On her first overnight pass, she returned to the hospital saying she did not want to stay there. She has since fluctuated between wanting to return there and insisting on independent living. The supervised home held a bed open for her from the time of her readmission to hospital in July 2018 until March 2019 when it advised that hospital that, due to community need, it could no longer do so. It has advised the hospital that when she is ready to fully transition, they will place her on the priority list.

The Board’s Decision is Reasonable

[7] In making its decision, the Board looked carefully at the evidence relating to the replacement of the conditional discharge order with the existing detention order. It also considered Ms. Davies’ evidence that there have been some encouraging signs of improvement since the 2018 disposition, including her interest in obtaining her Food Handler’s certificate so she can work in the food service industry, and in working to obtain her high school equivalency. The Board expressly referred to the “constellation” of factors relied on by Dr. Alatishe:

• Severe and persistent mental illness, Schizophrenia, sub-optimally treated
  • Active symptoms (psychosis, mood dysregulation)
• History of violence (and offending behaviour);
  • Serious index offence
  • Unprovoked, use of a weapon, violent
  • Random victims
  • History of physical violence to others (staff)
  • History of verbal aggression
  • Threats to assault and kill (staff, psychiatrist)
• History of treatment non-compliance
  • Refusing advised dosages of psychotropic medications
  • Discontinued long acting intra-muscular injection of antipsychotic medication
  • Non-compliant with oral medications during this review period
• History of polysubstance use
  • Ongoing intermittent use of alcohol and cannabis even while under monitoring and supervision (inpatient status)
  • Historical evidence of significant effect substance use has had on mental status
  • Engaging in extensive means to avoid detection of substance use
  • Buying “clean” urine and providing it as her own
  • Has used intrusive methods to avoid detection
• Poor insight
  • Regarding risk substance use poses to potential exacerbation of psychiatric symptoms and subsequent increased risk to reoffend
  • Suboptimal insight regarding psychotropic medication and their role in managing psychiatric symptoms
• Poor Support Network
  • Has disengaged from all family contact
  • No known positive peer supports
  • Has disengaged from professional supports
  • Recent (August 2019) improvement in expressed motivation for therapeutic engagement.

[8] The Board accepted Dr. Alatishe’s evidence that Ms. Davies continued to present a significant threat to public safety which could not be “adequately mitigated within the ambit of a conditional discharge”. Having considered his evidence, it stated

29. Ms. Davies seemed sincere in expressing her intention to continue her prescribed medications, find housing, and continue her education with the goal of finding a job and successfully reintegrating into the community.

30. However, Ms. Davies’ evidence must be viewed with regard to her history of fluctuating insight, with periods when she fails to recognize the seriousness of her mental illness, her need for psychotropic medications, and the risk of decompensating when she discontinues her mediations.

Significant Threat

[9] Having reviewed and considered all the evidence before it, the Board applied the correct test including that the risk of serious physical or psychological harm as a result of the commission of a serious criminal offence must be “more than speculative”: Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at paras. 57, 69. In doing so it referred to the hospital report, stating that:

32. The Board has considered the evidence and the submissions of counsel and the evidence outlined at paragraphs 22 to 24 of these reasons, which we accept. Of particular significance in the Board’s opinion is that Ms. Davies continues to have poor insight into her need to remain compliant with prescribed medications and her extensive efforts to mask her substance abuse by providing “clean” urine and providing it as her own. These factors along with the others set out in paragraphs 22 to 24, satisfy the Board that Ms. Davies continues to represent a significant threat to the safety of the public.

[10] This finding was open to it on the law and evidence before it.

Necessary and Appropriate

[11] The Board then went on to consider its duty, set out in s. 672.54 of the *Criminal Code*, R.S.C., 1985, c. C-46, to make the least onerous and appropriate disposition having regard to the safety on the public: Winko at para. 42. The Board concluded that the continuation of the detention order was necessary and appropriate, finding that the risk to the public could not be safely managed within the ambit of a conditional discharge. It specifically referred to the difficulties Ms. Davies had faced in the previous reporting year along with the facts that she did not have an identified potential residence in the community, had a recent history of substance abuse, and also of taking elaborate measures to conceal the substance abuse. Her insight into the need to continue her medication was limited and she had only limited engagement with her treatment team. Based on the record, the Board concluded:

35. … We are satisfied that in order to safely ensure the protection of the public, the hospital must be able to approve her accommodation and return her quickly if she shows signs of decompensation.

[12] The detention order contemplates supervised community access as the hospital considers appropriate. This provides a framework within which Ms. Davies can continue the improvement that the Board noted had begun and work towards community living in the future.

[13] In short, the Board’s decision was reasonable. The disposition is well grounded in the evidence before the Board. It specifically considered the evidence it heard and clearly justified its conclusion. It applied the correct legal principles. Its reasoning process and the outcome reflected "an internally coherent and rational chain of analysis" that was "justified in relation to the facts and law”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, at paras. 34, 83 and 85; see also Ahmadzai (Re), 2020 ONCA 169, at paras. 12-13.

[14] The appeal is dismissed.

“M. Tulloch J.A.”

“David M. Paciocco J.A.”

“A. Harvison Young J.A.”