Court File and Parties

Court of Appeal for Ontario Date: 20211014 Docket: C69037

Before: Fairburn A.C.J.O., Doherty and Watt JJ.A.

In the Matter of: Chantal Trudel

An Appeal Under Part XX.1 of the Code

Counsel: Meaghan McMahon, for the appellant Sunil Mathai, for the respondent Attorney General of Ontario Barbara J. Walker-Renshaw and Kate Deakon, for the respondent Royal Ottawa Mental Health Centre

Heard: October 7, 2021 by video conference

On appeal from the January 12, 2021 disposition of the Ontario Review Board, with Reasons for Disposition dated January 26, 2021.

Reasons for Decision

[1] In 2008, the appellant was found not criminally responsible. The index offence involved an aggravated assault, where the appellant stabbed a man in the chest while in a paranoid and psychotic state. She has been under the supervision of the Ontario Review Board since that time.

[2] In her most recent review hearing, the appellant requested an absolute discharge or, in the alternative, a conditional discharge. That position was rejected. The Board concluded that the appellant remains a significant threat to the safety of the public and that a continuation of the detention order is necessary.

[3] The appellant argues that the Board’s reasons reflect two errors.

[4] First, the appellant contends that the Board failed to conduct an appropriate analysis regarding whether she constitutes a significant threat to public safety. The appellant says that the Board’s reasons fall short by failing to meet the principles of justification and transparency: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, at paras. 84-86; Sim (Re), 2020 ONCA 563, at para. 68. More specifically, the appellant argues that the Board failed to adequately explain why the following three factors, noted at para. 20 of its reasons, supported its conclusion that the appellant remains a significant threat to the safety of the public: (1) the appellant’s risk of relapse; (2) the appellant’s lack of insight into her mental illness and the need for medication; and (3) the appellant’s use of substances to the point that she recently decompensated after eloping from the location where she was required to live. This decompensation required hospital admission and stabilization.

[5] We do not accept that the Board failed in its duty to justify or transparently explain the conclusion that the appellant remains a significant threat to public safety.

[6] The Board’s reasons must be read in the context of the previous disposition, a detention order, and the fact that this court upheld that disposition on appeal: see Trudel (Re), 2019 ONCA 759. In this type of situation, this Court’s primary focus must be on the period of time between the date of the prior disposition and the date of the annual review. Importantly, the appellant’s last disposition was based upon largely the same evidence as was before the Board in the most recent hearing. To the extent that it differs, the differences point even more clearly toward a detention order than before, specifically the circumstances surrounding the appellant’s recent elopement and decompensation requiring hospital stabilization.

[7] The impugned paragraph must also be read against the entire reasons, including the factual summary that supports the conclusions drawn in that paragraph. It must also be read against the factual record from the hearing, including the psychiatric evidence underscoring the appellant’s difficulties with substance abuse and her symptomatic nature during the period of time most recently under review.

[8] Against that contextual backdrop, we conclude that the reasons provide a transparent and intelligible basis upon which to understand how the Board arrived at the conclusion that the appellant continues to be a significant threat to the safety of the public.

[9] Second, the appellant argues that the Board failed to perform its inquisitorial duties in a way that would have allowed it to correctly determine the least onerous and least restrictive disposition commensurate with the safety of the public. In particular, the appellant suggests that the Board should have sought out evidence to assist in considering whether a conditional discharge could have been carefully crafted as a less onerous disposition while still addressing the concerns expressed by the treating psychiatrist. The appellant suggests that the Board should have sought out evidence on whether it would have been appropriate to order a conditional discharge with a treatment clause, a residence condition, and a condition directing her to quickly return to the hospital if required.

[10] Respectfully, we disagree.

[11] In light of the record, we see no abdication by the Board of its responsibilities.

[12] While it is true that the Board performs an inquisitorial function, the demands arising from that function must be considered in context, including the record as developed before the Board and the positions of the parties as advanced before the Board. Here, the appellant was represented by counsel who did not lead evidence on these issues. Moreover, as reflected in the hospital report, the appellant took the position that she did not want any restrictions placed on her.

[13] As well, the appellant’s psychiatrist testified that, in light of the appellant’s risk to the community, the hospital would need to be directly involved in approving her supervised community housing, something that can only be done through a detention order. The psychiatrist also emphasized the need for a quick return to the hospital should the appellant start to decompensate, something that can be more easily accomplished under a detention order than under the Mental Health Act, R.S.O. 1990, c. M.7.

[14] Finally, the Board accepted the psychiatrist’s evidence that the appellant’s risk profile had actually increased since the last Board disposition involving a detention order.

[15] Against that contextual backdrop, there was nothing that the Board needed to inquire into.

[16] In our view, the disposition was carefully tailored to allow the appellant to progress toward even further community integration, including the possibility of being discharged into a 24-hour care group home when COVID-19 restrictions permit.

[17] The appeal is dismissed.

“Fairburn A.C.J.O.” “Doherty J.A.” “David Watt J.A.”