COURT OF APPEAL FOR ONTARIO
CITATION: Brownlee (Re), 2020 ONCA 723
DATE: 20201112
DOCKET: C67614
Pepall, Hourigan and Roberts JJ.A.
IN THE MATTER OF: Matthew Brownlee
AN APPEAL UNDER PART XX.1 OF THE CODE
Michael Davies and Meaghan McMahon, for the appellant
Dena Bonnet, for the respondent, Attorney General of Ontario
Marie-Pierre T. Pilon, for the respondent, Person in Charge of the Royal Ottawa Mental Health Centre
Heard: June 2, 2020 by videoconference
On appeal from the disposition of the Ontario Review Board, dated October 18, 2019, with reasons dated October 22, 2019, reported at [2019] O.R.B.D. No. 2431.
Roberts J.A.:
A. Overview
[1] Matthew Brownlee appeals from the most recent disposition of the Ontario Review Board (the “Board”). The Board continued Mr. Brownlee’s detention at the secure forensic unit of the Royal Ottawa Mental Health Centre (the “hospital”), with privileges up to and including living in the community in accommodation approved by the Person in Charge of the hospital (the “Person in Charge”).
[2] Mr. Brownlee submits the Board erred in finding that he represented a significant risk to public safety and in ordering his continued detention. He seeks an absolute discharge. The Person in Charge and the Attorney General submit that the Board’s disposition was reasonable and supported by the record.
[3] This appeal also concerns the question of the procedure to be followed by the Person in Charge and the Board when there has been a change in an NCR (not criminally responsible on account of mental disorder) accused person’s liberty. This common issue was also raised in Tran (Re), 2020 ONCA 722, which was heard at the same time.
[4] Mr. Brownlee maintains that the Person in Charge failed to give formal notice and that the Board erred in concluding that neither formal notice of the increased restrictions on his liberty nor a hearing was required. The Attorney General submits that the Board properly considered the restriction of liberty at the annual hearing and proposes a procedure for the Board to follow when provided notice of increased restrictions on the liberty of the accused. The Person in Charge opposes the imposition of any procedure, arguing that the development of any procedure should be left to the Board and the Person in Charge. With respect to the increased restrictions on Mr. Brownlee’s liberty, the Person in Charge takes the position that the issue is moot given he is no longer subject to the impugned restrictions.
[5] For the following reasons, I would dismiss the appeal. There is no basis to interfere with the Board’s disposition continuing Mr. Brownlee’s detention. The issue of the restrictions on Mr. Brownlee’s liberty is moot given that the increased restrictions have now been reversed. As was done in Tran, at paras. 75-81,I would also decline to endorse Attorney General’s proposed notice and hearing procedure.
B. Background
[6] Mr. Brownlee has been under the Board’s jurisdiction since being found NCR on charges of operating a motor vehicle while impaired, operation of a motor vehicle while disqualified, dangerous operation of a motor vehicle and failure to comply with a probation order in 2006. While prohibited from driving for ten years, Mr. Brownlee operated his father’s pickup truck without his consent in an erratic manner and at a high rate of speed while impaired by alcohol and with a passenger in the vehicle.
[7] Since his teens, Mr. Brownlee has abused alcohol and illicit drugs. He has sustained numerous driving infractions and amassed a criminal record, including convictions for theft, assault peace officer, assault with a weapon, spousal assault, and numerous breaches of probation and other court orders.
[8] His most serious criminal convictions were in 1997 for causing death by criminal negligence and causing bodily harm by criminal negligence while operating a motor vehicle. He was sentenced to six years on each charge concurrently and prohibited from driving for ten years.
[9] As a result of this incident, Mr. Brownlee suffered a serious and permanent closed head injury and brain trauma that underlie his current psychiatric diagnosis. This diagnosis includes major neurocognitive disorder, psychotic disorder, with delusions, personality change, severe alcohol, cocaine and amphetamine use disorders, and antisocial personality traits. Mr. Brownlee also has significant physical and other health complications. While declared capable of managing his finances in 2018, he remains incapable of consenting to treatment. He has little insight into his condition or his need for medication, although he has been medication compliant.
[10] In its reasons for its disposition, the Board reviewed the evidence of Mr. Brownlee’s history of substance abuse, problematic relationships with women, his father and other acquaintances, difficulties with employment, criminal and driving records, antisocial behaviours, ongoing antisocial personality traits and attitudes, psychiatric diagnosis, clinical risk factors, his proclivity for elopement, and actuarial violence risk assessment. The Board accepted the opinion of Mr. Brownlee’s treating psychiatrist, Dr. Selaman, as also expressed in the Hospital Report, that the appellant continues to pose a significant threat to the safety of the public.
[11] The Board concluded that the combination of these factors “would inevitably result in Mr. Brownlee decompensating to the state he was in at the time of the index offences” and that were he “to abscond, discontinue taking medications, and begin using drugs[,] his potential for aggressive behavio[u]r is great.” If this were the case, the Board determined that the Mental Health Act, R.S.O. 1990, c. M.7, might be insufficient in allowing for his quick apprehension. As a result, the Board was of the view that the jurisdictional threshold was met and that “the least onerous and least restrictive and therefore necessary and appropriate [disposition] in all of the circumstances is maintenance of the current terms.”
C. Issues
[12] This appeal raises three issues:
Did the Board err in making a detention order?
Did the Board err by failing to hold a restriction of liberty hearing?
Should this court impose a restriction of liberty notice and hearing procedure on the Board?
D. Analysis
(1) Did the Board err in making a detention order?
[13] Mr. Brownlee submits that the Board’s conclusion that he represents a significant risk to the safety of the public is speculative and therefore unreasonable. Excepting one incident in the past reporting year, there have been no other incidents of physical aggression over the last 14 years that Mr. Brownlee has been under the Board’s jurisdiction nor has there been any demonstrable concern regarding a risk of his harassing others or driving. The evidence before the Board at its highest established that Mr. Brownlee posed a low, speculative risk of significant harm. He says the Board erred in law by conflating the risk of mental decompensation with the risk of danger to public safety without analyzing the risk of any harm occurring through Mr. Brownlee’s actions. Mr. Brownlee seeks an absolute discharge.
[14] I do not agree.
[15] In accordance with s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46, the role of the Board was to determine whether Mr. Brownlee represented a significant threat to the safety of the public and, if so, to determine the disposition that was necessary and appropriate, and the least restrictive and onerous, in his circumstances: Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326, at para. 19; Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at para. 62. A significant threat to the safety of the public means a foreseeable risk of serious physical or psychological harm that goes beyond the merely trivial or annoying and the conduct giving rise to the harm must be criminal in nature: Winko, at para. 62.
[16] This court may set aside an order of a review board where (1) the disposition is unreasonable or cannot be supported by the evidence; (2) the disposition is based on an error of law; or (3) there was a miscarriage of justice: Criminal Code, s. 672.78; R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779 at para. 31; Fotiou (Re), 2020 ONCA 153, at para. 7. As these standards of review are prescribed by clear statutory language, the applicable standard of review has not changed following the decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, at para. 34.
[17] There is no basis to interfere with the Board’s disposition in this case. The evidentiary record supports the Board’s conclusion that Mr. Brownlee meets the onerous significant threat threshold. The Board concluded that Mr. Brownlee remains a significant threat to the safety of the public on myriad factors. Those factors were not restricted to Mr. Brownlee’s risk of mental decompensation but included, as I earlier referenced, the entirety of his criminal, psychiatric, physical, employment, social, familial, and clinical history and records.
[18] I note that even within a closely supervised, clinically controlled setting, Mr. Brownlee remains delusional and his delusions are quite complex and fixed. According to the evidence of his treating psychiatrist, Dr. Selaman, while Mr. Brownlee’s medication was not optimal, it assisted in controlling the intensity of Mr. Brownlee’s delusions as well as to control aggression. The risk caused by him stopping his medication would be a return of the intensity of his delusions and an increase in his aggression that led to the commission of the index and more serious violent offences on Mr. Brownlee’s criminal record.
[19] While during his residence in hospital he has not engaged in the kind of violent behaviours that have resulted in some of his more serious criminal convictions, Mr. Brownlee’s conduct remains unsettled and reflects his real potential for serious physical and psychological harm if he ceases to take his medications and abuses substances. This conduct includes making inappropriate remarks to women, frequently eloping from the hospital during which he consumed alcohol and marijuana, being verbally aggressive to staff and other residents, persistently demanding and causing those around him to feel somewhat harassed by his behaviour, and, within a year of the hearing, frightening another resident by grabbing onto his arm and refusing to let go until persuaded to do so.
[20] In any event, the absence of offending behaviour alone is not determinative of whether Mr. Brownlee poses a significant threat to the safety of the public. This court’s observations in Mott (Re), 2019 ONCA 560, at para. 10, are apposite:
Further, the absence of a significant or recent history of violence by itself is not determinative of whether an NCR accused poses a significant threat to the safety of the public: evidence of the potential for physical or psychological violence, such as a lack of insight into the index offence and mental illness, rule breaking and concerns over discontinuing medication and substance abuse, which could result in decompensation, psychosis and problematic conduct, like in the present case, may support such a finding. Moreover, as the appellant's treating psychiatrist testified, the respondent facility forestalled through immediate intervention in a structured environment the threat of violence the appellant posed by his aggressive conduct towards hospital staff. [Citations omitted.]
[21] The numerous risk factors that the Board considered, including the seriousness of the index offence and Mr. Brownlee’s criminal and driving records, his lack of insight, his proclivity to abscond, his impulsivity and aggressiveness, all serve to support the Board’s conclusion that Mr. Brownlee poses a significant risk to the safety of the public and that a detention order remains the necessary and appropriate disposition in his circumstances.
[22] Accordingly, I would dismiss this ground of appeal.
(2) Did the Board err in failing to hold a restriction on liberty hearing?
(a) The Increase of the Restrictions on Mr. Brownlee’s Liberty
[23] The increase of the restrictions on Mr. Brownlee’s liberty were imposed by the Person in Charge following his elopement on June 11, 2019. When he returned about 36 hours later, he was transferred to the Forensic Assessment Unit (“FAU”). The treatment team quickly determined that Mr. Brownlee was still at his baseline and by June 27, 2019, he was on the list to be transferred to the Forensic Rehabilitation Unit (“FRU”) where he had been residing before his elopement. However, he was not transferred back to the FRU until a bed became available to him there on August 29, 2019. While on the FAU, Mr. Brownlee’s indirectly supervised hospital grounds privileges, as well as his accompanied community passes, were suspended.
[24] The Person in Charge did not give the Board formal notice of the change in Mr. Brownlee’s circumstances. When questioned about the lack of notice at the annual review hearing, Dr. Watts responded that it was the hospital’s view that this did not constitute an increase of the restrictions on Mr. Brownlee’s liberty requiring formal notice because Mr. Brownlee remained hospitalized. Dr. Watts further explained the absence of notice: “It wasn’t a conscious decision[,] but it was borne out of our knowledge that it’s not a requirement. So, did I consciously think about whether we should be informing the Board? I did not because I know that those kinds of transfers don’t require notice” (emphasis added).
[25] Counsel for Mr. Brownlee asked that the Board convene a hearing to review the increase of the restrictions on his liberty. The Board did not hold a hearing and did not determine the issue. At para. 8 of its reasons, the Board made the following observations:
What constitutes [a restriction on liberty (“ROL”)] must be at least in part a clinical decision. What constitutes an ROL for one individual [might] not for another. The change in the range of liberty enjoyed by an accused must be contextualized. While aspects of the contextualization process may appear to be determinable by an outside observer, a relevant part of the contextualization must also take into account the clinical condition of the accused. These are considerations that cannot be appropriately determined by the [Board] without psychiatric evidence. When the hospital is in doubt as to whether circumstances warrant notification of an ROL the Board should nevertheless be made aware of the event.
(b) The Positions of the Parties
[26] Mr. Brownlee submits that the Board erred in failing to address the restriction on liberty issue and to review the changes to his liberty imposed by the Person in Charge. He says the increase in restrictions was significant and triggered the mandatory notice and hearing requirements respectively under ss. 672.56(2) and 672.81(2.1) of the Criminal Code. Moreover, they were not the least onerous and least restrictive measures commensurate with public safety.
[27] The Person in Charge submits that it properly exercised its delegated authority and discretion when it increased the restrictions on Mr. Brownlee’s liberty following his elopement from the Person in Charge and that the Board did not err when it refused to grant a separate restriction of liberty hearing. In any event, the Person in Charge maintains this issue is moot because Mr. Brownlee has since been moved out of the FAU and any determination of this issue will have no bearing on his circumstances.
[28] The Attorney General submits that the Board’s reasons demonstrated its consideration of the issue of the increase of the restrictions on Mr. Brownlee’s liberty. The Board indicated to the Person in Charge that it should provide information to the Board when in doubt as to whether an increase in restrictions meets the statutory test for notice and advised the Person in Charge to consider disconnecting prospective housing from community access.
(c) The Applicable Law
[29] Section 672.56(2) provides that a person in charge of a hospital who increases the restrictions on the liberty of an NCR accused significantly must give notice of the increase as soon as is practicable to the NCR accused and, if the increased restriction remains in force for a period exceeding seven days, to the Board. Section 672.81(2.1) requires the Board to hold a hearing, as soon as practicable after receiving notice under s. 672.56(2), to review the decision to significantly increase the restrictions on the liberty of the NCR accused.
[30] Not every increase of the restrictions on an NCR accused’s liberty will rise to the level requiring notice. As this court stated in Campbell (Re), 2018 ONCA 140, 139 O.R. (3d) 401, at para. 67, the person in charge of a hospital must give formal notice of the increase in restrictions to the Board under s. 672.56(2), triggering a hearing under s. 672.81(2.1), “[o]nly where the change in liberty status clearly deviates from the NCR accused’s liberty norm” and “[t]he change in liberty status must be so significant that a reasonable person, considering all of the circumstances, would think that the Board should be called on to consider whether the hospital properly applied the least onerous and least restrictive test ahead of the next annual review.”
[31] As this court further explained in Campbell, the question of notice must be approached on a case-by-case basis and will necessarily be a fact-specific analysis: Campbell, at para. 66. In consequence, rigid rules purporting to identify circumstances that will or will not result in the need for notice must be avoided in favour of an individual assessment of the particular circumstances of each case.
(d) Mootness
[32] We agree with Mr. Brownlee that the Person in Charge and that the Board erred in their treatment of this issue. While I also agree that the issue is moot as far as Mr. Brownlee is concerned, it is important to provide guidance.
[33] The Person in Charge erred in its consideration of this issue because it engaged in an inappropriate, categorical approach to the giving of notice. While the Person in Charge must have the discretion to deal with urgent situations by exercising its delegated authority, that authority comes with the corresponding duty to notify of significant increases in restrictions on the liberty of the accused: Criminal Code, s. 672.56(2). To determine whether this duty requires notice to the Board, the Person in Charge must carry out an individual assessment of the particular circumstances in issue: Campbell, at para. 42. It failed to do so in this case.
[34] The Board erred by taking a categorical approach and failed to undertake any meaningful analysis of the issue.
[35] However, as I earlier indicated, the impugned increase of the restrictions on Mr. Brownlee’s liberty no longer exists. The issues of whether the Person in Charge should have given formal notice of the increased restrictions to the Board and whether the increased restrictions were the least onerous and the least restrictive and therefore necessary and appropriate are therefore moot.
[36] Unlike the situation in Campbell, the determination of these issues cannot serve any useful purpose either as far as Mr. Brownlee is concerned or for other cases before the Board. As a result, I would decline to determine them and dismiss these grounds of appeal.
(3) Should a restriction of liberty notice and hearing procedure be imposed on the Board?
[37] As this court determined in Tran, at paras. 75-81, it is not the role of this court on this appeal to define generally applicable procedural requirements. As was done in Tran, I decline to comment on or impose the Attorney General’s proposed procedure. Any such procedure beyond the mandatory provisions of the Criminal Code earlier noted in these reasons must be crafted by the competent legislator or the Board.
[38] However, as also observed in Tran, at para. 80, procedural errors that may have bearing on the particular appeal may properly form the basis of an appeal from a disposition.
[39] I would decline to impose any procedure on the Board.
E. Disposition
[40] Accordingly, I would dismiss the appeal.
Released: November 12, 2020 (“S.E.P”)
“L.B. Roberts J.A.”
“I agree. S.E. Pepall J.A.”
“I agree. C.W. Hourigan J.A.”