Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210920 DOCKET: C69015

Tulloch, van Rensburg and Nordheimer JJ.A.

IN THE MATTER OF: Odean McFarlane

AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel: Anita Szigeti and Maya Kotob, for the appellant Elena Middelkamp, for the respondent, Attorney General of Ontario James P. Thomson, for the respondent, Person in Charge of St. Joseph’s Healthcare Hamilton

Heard: September 10, 2021 by video conference

On appeal from the disposition of the Ontario Review Board, dated December 2, 2020, with reasons dated January 5, 2021.

Reasons for Decision

[1] The appellant appeals the disposition of the Ontario Review Board (“ORB”), dated January 5, 2021, ordering his detention at the Forensic Psychiatry Program of the St. Joseph’s Healthcare Hamilton (the “Hospital”), with provision for certain privileges, including that he be permitted to live in the community in accommodation approved by the Person in Charge of the Hospital.

[2] The appellant argues that the Board erred by refusing his request to continue his previous disposition of a conditional discharge. The appellant also argues, in oral submissions, that a detention order and being subjected to the continued jurisdiction of the ORB exacerbates his mental condition by making him more anxious, which leads to further deterioration to his mental health.

[3] At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide our reasons.

Background

[4] The appellant has a lengthy history under the ORB. We include here only the aspects of this history that are pertinent to this appeal.

[5] The appellant has been diagnosed with schizophrenia, which is now in remission; substance use disorder, which is currently in early remission in a controlled environment; and anti-social personality traits.

[6] The appellant has been the subject of a range of dispositions under the ORB since 2008, after he was found not criminally responsible on account of a mental disorder for a charge of assault.

[7] In recent years, the appellant’s mental condition significantly improved, and he commenced living with his long-time partner, who is now his fiancée. After showing considerable progress in his treatment and relative stability in his condition, on February 5, 2020, the Board granted the appellant a conditional discharge.

[8] While in the community, the appellant worked with a treatment team. After some challenges with his initial case manager, his case was re-assigned. He met with his treatment team twice per week, provided negative urine samples, and showed no thought disorders.

[9] Since being discharged, the appellant has resided in an apartment with his fiancée in Hamilton. Unfortunately, the couple began experiencing challenges in their relationship, which has resulted in them taking time apart from one another. The appellant’s fiancée commenced living in Brampton during the week and returned to the apartment on weekends, both to accommodate her commute to work in the Peel area, and due to the discord in their relationship. The appellant has questioned his fiancée’s fidelity, which has resulted in increased stress in their relationship. On one occasion, the appellant voluntarily admitted himself to hospital, as he was having difficulty coping with these relationship challenges.

[10] In September 2020, the appellant reported that his relationship with his fiancée was undergoing an increased level of stress. During the same month, the appellant approached two 15-year-old boys and demanded their cell phones and backpacks, which were given to him. The appellant returned to his apartment and discarded the stolen items. The appellant’s treatment team determined that there was no change in the appellant’s mental status, and his toxicology screens returned negative. Consequently, he could not be admitted to hospital under the Mental Health Act.

[11] On October 29, 2020, the appellant was charged with two counts of mischief, after which he was taken to the Hospital by police and admitted into seclusion. Earlier that day, around 2:45 a.m., the appellant had driven to a home and asked the occupant if he could park his car in their driveway to sleep. He was refused. The appellant attended at another home and threw a rock through a window of the home. He explained he had been trying to get the attention of the house’s occupants. At the Hospital, the appellant tested positive for THC and, when asked, he admitted to having consumed a cannabis edible.

[12] On November 27, 2020, an early review hearing was held. In a disposition dated December 2, 2020, the appellant’s previous conditional discharge was vacated, and a detention order was imposed. The appellant now appeals this disposition.

Discussion

[13] We see no error with the Board’s disposition. At the hearing before the Board, the appellant’s treating psychiatrist, Dr. Nagari, gave evidence that a detention order was necessary and appropriate as the appellant’s mental state had deteriorated. Dr. Nagari based his conclusions on the appellant’s unexplained actions in which he exhibited concerning behaviours on two separate occasions during September and October 2020, which resulted in police intervention.

[14] The Board also heard evidence from Dr. Mamak who conducted a Psychological Risk Assessment on the appellant and found him to be at a moderate to moderate-high risk to reoffend.

[15] Finally, the Board considered whether the appellant’s request for the inclusion of a “Young” clause within a conditional discharge order would mitigate the risk, as it would require the appellant to attend at the Hospital for the purposes of assessment and re-admission, if requested by the Hospital. The Board concluded that based on the evidence, it would not sufficiently mitigate the risk.

[16] In the end, the Board concluded that based on all the evidence before it, a conditional discharge was no longer appropriate to manage the appellant’s apparent state of decompensation, and that the appellant continued to pose a risk to the safety of the public.

[17] In our view, the evidence provided a reasonable basis for the imposition of a disposition that would permit the Hospital to approve the appellant’s accommodation. As has been held in previous decisions of this court, giving the Board the power to require the hospital’s approval of accommodation is only possible under a detention order: see Runnalls (Re), 2012 ONCA 295; 2013 ONCA 386.

[18] We see no error in the Board’s decision, as there was ample evidence to support its finding that the appellant continues to pose a significant risk to the community (which is not contested), and the disposition that was imposed. As the appellant’s counsel acknowledged, although the disposition may be disappointing to him, and may contribute to his anxiety, this is not a basis to interfere.

[19] We encourage the appellant to continue his treatment to improve his condition. We also encourage the treatment team to continue in its efforts to work towards the appellant’s full reintegration into the community when that is possible.

[20] As we were satisfied that the Board’s disposition was both reasonable and consistent with a need to achieve a disposition that is the least onerous and least restrictive, the appeal was dismissed.

“M. Tulloch J.A.”

“K. van Rensburg J.A.”

“I.V.B. Nordheimer J.A.”