COURT OF APPEAL FOR ONTARIO

CITATION: Kelly (Re), 2020 ONCA 670

DATE: 2020-10-23

DOCKET: C68002

Feldman, Gillese and Miller JJ.A.

IN THE MATTER OF: Cindy Kelly

AN APPEAL UNDER PART XX.1 OF THE CODE

Anita Szigeti, for the appellant

Hatim Kheir, for the respondent, Attorney General of Ontario

Julie A. Zamprogna Ballès, for the respondent, Southwest Centre for Forensic Mental Health Care.

Heard: October 5, 2020.

REASONS FOR DECISION

[1] On November 14, 2019, the appellant was found not criminally responsible (“NCR”) on multiple charges: two counts of uttering a threat to burn, destroy, or damage property, two counts of failure to comply with probation order, and three counts of failure to comply with recognizance. She was remanded to the Ontario Review Board (“ORB”) for disposition. The hearing took place on December 12, 2019, following which a detention order was made for reasons delivered on January 21, 2020.

[2] The charges arose as a result of two original incidents in June 2018, when the appellant attended her former family home on Olive Avenue that she had sold. She threatened the owner that she would burn down the property. Later in June she returned and again threatened to burn down the property. She was arrested for failing to comply with recognizances, failing to comply with probation, and uttering threats to damage property. She attended the Olive Avenue property again on September 25, 2019, where she was found camped out on the yard. She was arrested for breach of recognizance. She was found NCR in respect of all of these charges.

[3] The hospital report provided details of the appellant’s personal history. At the time of the ORB hearing, she was 48 years old, married for 30 years but now separated from her husband who is homeless. She had two sons, but one died of a drug overdose in April 2019. She has a lengthy criminal record running from 1992 to 2005, and from 2017 to 2019. The convictions were for impaired driving, narcotics, arson and breaches of court orders. She has had a number of hospital admissions to mental health facilities where she evidenced delusions and substance abuse.

[4] Dr. Prakash, the appellant’s attending psychiatrist, testified at the hearing. He noted that since she had only been in the hospital for less than one month, he was just becoming familiar with her. With that caveat, he testified that she showed symptoms of Schizoaffective Disorder in her guardedness and suspicion as well as mood lability. Her history included significant delusional beliefs requiring hospital admissions. She was admitted to Bluewater Heath in Sarnia under Mental Health Act, R.S.O. 1990, c. M.7 forms, but left against medical advice with no follow-up treatment. Since being in Southwest Centre for Forensic Mental Health Care, a very structured unit, she had had no behavioural issues, no seclusion and no violent behaviour. He stated that her risk was not based on antisocial traits, as she had a pro-social history of running a landscape company while married with children.

[5] While polite, the appellant was not co-operative with her assessment. When probed, her symptoms of paranoia, guardedness, mood lability, agitation and anger came to the fore. She refused to give consent to the treatment team to contact her family for information. Dr. Prakash identified her lack of co-operation as a risk factor. He also identified her criminal behavioural history as a risk factor, with offences including assault, uttering threats, and failure to comply with court orders. He also connected her criminal behaviour to her substance abuse. She had a history of positive urine screens for crystal meth upon admission to hospital. He concluded that she remained vulnerable to substance abuse without supervision. She had also had multiple hospital admissions due to decompensation in her mental health due to crystal meth use. She lacked insight into her crystal meth use as well as poor insight into her need for ongoing psychiatric treatment. She also appeared to have limited insight into the index offences, denying they occurred or refusing to comment.

[6] Dr. Prakash gave the opinion that the appellant remains a significant threat to the public based on: symptoms of psychotic based disorder, guardedness and suspiciousness towards others, some delusional thoughts regarding her former house with the likelihood that without supervision or monitoring she would return there; paranoid delusions and active psychotic symptoms from crystal meth; lack of insight regarding the offences, her illness, and need for treatment.

[7] She has limited supports in the community, and even those could not be confirmed due to her lack of disclosure or consent to contact family. This contributes to the risk as she has nowhere to live, no supports or doctor. She also has polysubstance use history.

[8] Dr. Prakash also explained why the appellant required a detention order. She has the potential to do well if she co-operates with the treatment team. However, without a detention order, she would likely not take medication, would relapse to substance abuse, her delusions would return and she would require hospitalization. His view was that a detention order was necessary and that a conditional discharge would not be sufficient to manage her risk in the community.

[9] He referred to her recent history, the active risk factors, and his opinion that, if she decompensated, the Mental Health Act would not suffice to get her readmitted and treated, and she would not do so voluntarily. In his view, a conditional discharge would put her into the community with no follow up treatment. However, going forward, the plan would be to allow her privileges and liberties to see how she would tolerate them, to assess her for treatment, provide addiction treatment and to build trust with the team.

[10] Dr. Prakash addressed the appellant’s desire to spend Christmas with her son in Sarnia. He recognized that this was important for her, but it would not be possible because of the difficulty in having staff transport her. However, her son could visit her and perhaps become an approved person. He also noted that if she reached the maximum liberties under the disposition order, an early Board would be called.

[11] The Board also heard from the appellant. She said that if released, she would apply for housing through the Good Shephard in Lambton County. She talked about her car accident in 2016 when she fell asleep at the wheel after taking her older son to a treatment facility. She also told the Board that she had attended programming in 2019 on healthy relationships and substance abuse. She also advised that she had been hallucinating while in the Sarnia jail. She wanted to return to Sarnia to deal with ongoing issues in the community. She acknowledged her drug addiction and could not say if she would use illicit drugs if she were released.

[12] The Board first found that the appellant was a significant threat to the safety of the public. That conclusion was based on the evidence of the appellant’s ongoing symptoms of her psychotic disorder, exacerbated by her drug addiction, together with her lack of insight and her limited personal supports. The Board also relied on the opinion expressed by Dr. Prakash that without a detention order in place, she would likely return to the use of substances that would exacerbate her mental illness and likely result in decompensation and behaviour similar to the index offences.

[13] The Board agreed that the necessary and appropriate disposition was a detention order with the terms suggested by the hospital. The Board found that a conditional discharge had no air of reality at the time, because the appellant had no residence or community supports, she had a significant history of non-compliance, and she had shown by going AWOL that the Mental Health Act provisions were insufficient to manage her risk in the community.

[14] In reaching its disposition, the Board referred to the safety of the public as the paramount consideration, the mental condition of the appellant, her reintegration into society and her other needs.

Issues

[15] The appellant raises two bases on which she says the Board’s decision was unreasonable and not supported by the evidence: 1) its finding that she poses a significant threat to the public; and 2) its failure to meaningfully consider a conditional discharge.

Analysis

Issue 1: The finding that the appellant continues to pose a significant threat to the public.

[16] The appellant says that she does not meet the test for a significant threat, which requires a significant risk of significant harm, and that “[t]aken at its highest the evidence may support a low threat of physical harm and/or a high threat of low psychological harm.” She submits that the Board fell into error by focussing on the concern that the appellant would use substances if discharged, and the hope that she would engage in treatment in the hospital and have a better life.

[17] We do not agree.

[18] The appellant’s major index offence of threatening to burn down her former and currently occupied home, if carried out, would cause very significant harm. The fact that the appellant has an arson conviction adds weight to the threat’s significance. The Board accepted the evidence of the treating psychiatrist that left on her own, the appellant would very likely revert to substance abuse, leading to mental decompensation and the risk of the same conduct as the index offences.

[19] The appellant went to the house three times between June 2018 and September 2019 and threatened the owner. She was found NCR in November 2019, and the hearing was held in December 2019 at a time when she had not yet received any treatment because of her lack of co-operation to receive treatment. These circumstances provided no basis to infer that the appellant no longer posed a significant threat to the safety of the public. The Board’s decision, supported by the opinion of the treating psychiatrist and all the evidence, was reasonable.

[20] We note that in its factum, the hospital submitted that counsel for the appellant at the hearing (not counsel on the appeal), while initially opposing a finding of significant threat, conceded the issue at the conclusion of the hearing and requested a conditional discharge. This was disputed by the appellant on appeal. As the reasons of the Board do not refer to such a concession, we decline to address the issue in these reasons.

Issue 2: Did the Board give meaningful consideration to ordering a conditional discharge as the least onerous disposition consistent with public safety?

[21] The appellant’s position is that the Board erred by not giving effect to her evidence that she was prepared to engage in substance abuse programming and by failing to ask her to consent to such a term under s. 672.55. Her position is that she does not have a major mental disorder but only a substance abuse problem. She submits that in her evidence she explained the reason she did not want to talk about her recent traumas, and that explanation accounted for her guardedness and lability as symptoms of her alleged mental illness, leaving only her substance abuse as a risk factor. It follows that her substance abuse was manageable with therapy, counselling and treatment programs as an outpatient, coupled with a prohibition on substance use and random drug screening. She says the Board should have considered this option and crafted conditions for a conditional release that would safeguard the public.

[22] We do not accept this submission.

[23] It is contrary to the evidence of the treating psychiatrist whose evidence the Board was entitled to accept. While he was still coming to know the appellant after only a short time, he concluded that she evidenced symptoms of Schizoaffective Disorder and suffered from delusions. Because she showed these symptoms, he considered her failure to co-operate with the treatment team to be a risk factor. He testified that a conditional discharge had no air of reality in the appellant’s circumstances at the time. There were a number of reasons for this that the Board clearly articulated: the appellant had no place to reside and no community support to assist her or to get her help if needed, including for the effects of substance abuse; she has a history of non-compliance with court orders as well as leaving hospital when taken there under a form issued under the Mental Health Act. As a result, there was no basis for any confidence that the appellant could be managed in the community and that the safety of the public would be protected.

[24] The Board accepted the conditions proposed by the hospital which included the possibility of taking the appellant to Lambton County to see her son, based on compassionate grounds, as well as a ladder of liberty privileges including entering Elgin County indirectly supervised.

Result

[25] The Board made no error in the conclusions it reached and in the order it made, based on the four statutory criteria: safety of the public as the paramount consideration; the mental condition of the appellant; her re-integration into society and her other needs.

[26] The appeal is dismissed.

“K. Feldman J.A.”

“E.E. Gillese J.A.”

“B.W. Miller J.A.”