Court of Appeal for Ontario

Date: 2021-07-07 Docket: C68732

Judges: Hourigan, Paciocco and Zarnett JJ.A.

In the Matter of: Alfred Marfo

An Appeal Under Part XX.1 of the Code

Counsel: Anita Szigeti, for the appellant Vallery Bayly, for the respondent, Attorney General of Ontario Leisha Senko, for the respondent, Person in Charge of the Centre for Addiction and Mental Health

Heard: June 24, 2021 by video conference

On appeal from the disposition of the Ontario Review Board dated July 24, 2020, with reasons dated October 14, 2020.

Reasons for Decision

Introduction

[1] The appellant appeals the disposition of the Ontario Review Board (the “Board”) that ordered him to be detained on the General Forensic Unit at the Centre for Addiction and Mental Health (“CAMH”) on conditions.

[2] The appellant contends that the Board erred in law in finding that he was a significant threat to the safety of the public, and thus in failing to grant an absolute discharge. Alternatively, he submits that the Board erred in law in failing to give meaningful consideration to a conditional discharge, and to the extent the Board did consider a conditional discharge, it unreasonably failed to grant one. The appellant concedes that he has a history of violence committed against intimate partners, but places central reliance on what he says was the Board’s failure to take note of a four year period of stability between 2015 and 2019, during which the appellant lived in the community while on bail in relation to the index offences.

[3] A decision of the Board is subject to deference on appeal. This court may intervene only if the Board made an error of law, there was a miscarriage of justice, or the decision is unreasonable or cannot be supported by the evidence: Criminal Code, R.S.C., 1985, c. C-46, s. 672.78. We do not accept the appellant’s arguments that a basis for appellate intervention exists in this case. We therefore dismiss the appeal.

Background

[4] In April 2001, the appellant assaulted his common law wife and, for several hours, forcibly confined her in their apartment. In October 2001, he was found not criminally responsible due to a mental disorder (“NCR”) on charges of forcible confinement, assault with a weapon, and aggravated assault, and came under the jurisdiction of the Board.

[5] The appellant continued under the Board’s jurisdiction until 2014. Between 2001 and 2014, he had a number of lengthy admissions to CAMH, Millhaven Institution, and the Mental Health Centre Penetanguishene (now Waypoint Centre for Mental Health Care).There were also periods during which he was permitted to live in the community.

[6] In November 2003, while living in the community, the appellant assaulted, sexually assaulted, and forcibly confined a second intimate partner. On this occasion, the forcible confinement lasted nine hours. He was ultimately found NCR on charges arising from that conduct.

[7] In August 2014, the appellant received an absolute discharge from the Board.

[8] Within a year of his discharge, on March 8, 2015, the appellant committed the index offences against a third intimate partner. He confined her in an apartment for five hours, prevented her from calling the police, hit her, and threatened to kill her.

[9] After an initial period of detention following his arrest for the index offences, the appellant was granted bail and lived in the community for more than four years. He was supported by payments under the Ontario Disability Support Program, and episodic work. He was treated by family physicians and prescribed anti-psychotic medication; he had a number of psychiatric assessments.

[10] On December 18, 2019, the appellant was found NCR in relation to the index offences, on charges of assault causing bodily harm, assault with a weapon, and sexual assault.

[11] On July 9, 2020, the Board held a hearing to determine whether the appellant was a significant threat to the community and, if so, what disposition was necessary and appropriate.

The Board’s Decision

[12] At the hearing before the Board, CAMH and the Crown took the position that the appellant was a significant threat to the safety of the public and that a detention order was necessary. They opposed either an absolute or conditional discharge. The appellant requested an absolute discharge, or alternatively a conditional discharge. He relied heavily on his conduct while on bail during the four years following the index offences, taking the position that he had educated himself on his illness, taken rehabilitative steps, seen a physician regularly, taken prescribed medications, and received support from his mother.

[13] The Board concluded that the appellant posed a significant threat to the community and made a detention order, with privileges up to living in the community in accommodations approved by the Person in Charge.

[14] The Board noted the appellant’s significant psychiatric history and service utilization. He has been diagnosed with schizophrenia with symptoms of delusional ideation, auditory and visual misperceptions, affective instability disinhibition, and agitation. His delusional system was pervasive.

[15] The Board accepted the evidence of Dr. Paul Benassi, who performed a psychiatric and mental status examination of the appellant in May 2020, and the reports of Dr. Philip Klassen, who conducted a psychiatric assessment for the court during the proceedings leading to the 2019 NCR finding. The Board noted that both psychiatrists concluded that the appellant posed a significant risk due to his significant and repeating violence, his psychotic illness and ongoing symptoms, problems with medication compliance, impaired insight into his illness, and his risk assessment scores.

[16] Dr. Benassi gave evidence that the appellant’s treatment while in the community was suboptimal: he was taking medication in a dosage far below what was recommended, was continuing to experience psychotic delusions, and lacked interest in increasing his medication. These bore on the assessment of risk as, in Dr. Benassi’s view, the appellant had limited or impaired insight into his condition and need for treatment. Dr. Benassi testified that:

As we can see, Mr. Marfo has a significant history of violence, specifically in intimate relationships. From reviewing all incidents, but mainly the most recent index offence is that this has occurred under symptoms of psychosis, specifically paranoid delusions that have been directed towards his partner. It appears that even at that time, and currently, he still is not [optimally] treated for his psychosis and still experiences active psychosis. It appears that when he is in intimate relationships, this can be a destabilizer for him where it will elicit more of these paranoid delusions, which then lead him to act out in an impulsive and violent manner towards his partner.

[17] Dr. Benassi stressed the need to be able to intervene quickly to manage risk and described the challenges of attempting to do so by resort to the Mental Health Act, R.S.O. 1990, c. M.7 (“MHA”).

[18] The Board considered the appellant’s evidence and came to the same conclusion. It found that the appellant was over-confident in his ability to self-diagnose and would not recognize his symptoms if he decompensated. He was suboptimally treated under the care of his family physician and would not consent to an appropriate dosage of medication. Additionally, the appellant has a history of withholding information. He gave inconsistent answers about his working hours, the frequency at which he sees his doctor, withheld that he has two pharmacies dispensing his drugs, and that he had a new intimate partner. The Board expressed concerns about the appellant’s ability to mask his symptoms and convince doctors that he is not unwell. Finally, it found that the appellant takes no responsibility for his actions, blaming alcohol or his partner for his offences. The Board concluded that the MHA is not sufficient to manage the appellant’s risk because by the time the unwellness is obvious, the appellant would be “well on his way to decompensation and violence”.

Analysis

[19] The appellant argues that the Board erred in finding that he was a significant threat to the safety of the public by placing undue focus on the existence of a major mental illness and giving insufficient attention to the fact that he had been able to live peacefully for four years on bail, despite the existence of a mental disorder.

[20] We disagree. The Board described the issue before it as whether the appellant is a significant risk to the community in the first paragraph of its decision. After discussing the evidence, it concluded “that Mr. Marfo poses a significant threat to the safety of the public as enunciated in Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625”. The psychiatric evidence that the Board accepted went beyond the existence of psychiatric disorders; it related those disorders to the appellant’s history of intimate partner violence and identified the significant risk of further intimate partner violence, should the appellant find himself in a committed or cohabiting relationship. The Board cited the correct test and applied it. It did not ignore the appellant’s four years on bail.

[21] We do not accept the appellant’s argument that the Board should not have considered the reports of Dr. Klassen, as his reports were prepared for the court proceedings in relation to the index offences. In any event, in light of the Board’s acceptance of the evidence of Dr. Benassi, the alleged error had no impact on the result.

[22] The appellant also argues that the Board failed to give meaningful consideration to a conditional discharge, and that its decision not to grant one was unreasonable. We disagree. It is convenient to discuss both arguments together.

[23] The Board noted that if it found the appellant to be a significant risk, the issue was the necessary and appropriate disposition. The Board’s express discussion of a conditional discharge was limited to noting that the Crown and Hospital took the position that one would not be appropriate, and that the appellant requested, in the alternative, that a conditional discharge be granted. As the appellant correctly points out, the Board’s analysis section does not use the words “conditional discharge”.

[24] The Board is an expert tribunal. It noted that the parties took positions on a conditional discharge, and we are not prepared to conclude that the Board lost sight of the issue. Rather, read as a whole, it is clear from the Board’s reasons that it decided not to grant a conditional discharge because it would not be appropriate to do so. The factors it referred to in fashioning a disposition that was necessary and appropriate include those relevant to why a conditional discharge was rejected. For example, the Board found that, in this case, the MHA was insufficient to protect public safety. This court has held that the need to be able to intervene in a timely fashion and the adequacy of the MHA regime in a specific case are relevant considerations when deciding whether a conditional discharge is appropriate: Davies (Re), 2019 ONCA 738, 380 C.C.C. (3d) 552, at paras. 28-32.

[25] In light of the appellant’s history of three sets of violent offences – one committed while the appellant was under the Board’s jurisdiction but had been permitted to live in the community, and another within a year of his absolute discharge – and the psychiatric evidence that it accepted, the Board’s finding that there was a need to be able to intervene quickly and thus not to grant a conditional discharge was reasonable, even taking into account the appellant’s apparent stability while on bail. This court should be slow to second guess the Board’s expert opinion about the appellant’s risk level and how it is best managed: Fotiou (Re), 2020 ONCA 153, at para. 14.

Conclusion

[26] For these reasons, the appeal is dismissed.

“C.W. Hourigan J.A.”

“David M. Paciocco J.A.”

“B. Zarnett J.A.”