Court of Appeal for Ontario

Date: 2021-06-03 Docket: C68883

Judges: Simmons, Gillese and Huscroft JJ.A.

In the Matter of: Roberte Davidson

An Appeal Under Part XX.1 of the Code

Counsel: Meaghan McMahon, for the appellant Michael Dineen, for the respondent, Attorney General of Ontario Marie-Pierre Pilon, for the respondent, Person in Charge of The Royal Ottawa Mental Health Centre

Heard and released orally: May 27, 2021 by video conference

On appeal against the disposition of the Ontario Review Board dated, October 20, 2020.

Reasons for Decision

[1] We reject the appellant’s submission that in imposing a detention order with community living privileges, the Ontario Review Board (the “Board”) erred in failing to adequately consider the option of a conditional discharge.

[2] Although the Board’s analysis on this issue was brief, we are satisfied that, read fairly, the treating psychiatrist’s opinion supported the Board’s conclusion that a detention order was the least onerous, least restrictive disposition and that the Board relied on that opinion in making its disposition.

[3] The psychiatrist’s opinion included factors such as the appellant’s poor insight into her illness (schizoaffective disorder, bipolar type), lack of awareness of her symptoms and ambivalence to taking medication. In accordance with the terms of the immediately preceding disposition, a June 2019 detention order with community living privileges, the appellant progressed to living in her own apartment as of March 2020. She was readmitted to The Royal Ottawa Mental Health Centre (the “Hospital”) in April 2020 but released within 20 days. We consider that the disposition imposed by the Board can be viewed as a stepping-stone to a conditional discharge, assuming a period of stability.

[4] As for the appeal of the Board’s disposition concerning the temporary restriction of liberty in April 2020, we conclude the contested issues surrounding the practicalities of readmitting the appellant to the Hospital are moot and unlikely to arise again because they were rooted in early stage COVID-19 protocols. That said, the Board’s reasons properly alerted the Hospital that, in future, where a patient is admitted from the community having recently been assessed by her treating physician, the clinical opinion of the doctor should be taken into account. The Board’s reasons sufficiently put the Hospital on notice that reliance on a blanket policy and the failure to make an individual assessment in this type of case could lead to unjustified restrictions of liberty.

[5] The appeal is therefore dismissed.

“Janet Simmons J.A.”

“E.E. Gillese J.A.”

“Grant Huscroft J.A.”