Court File and Parties

Court of Appeal for Ontario Date: 2021-11-05 Docket: C69092

Rouleau, Huscroft and Thorburn JJ.A.

In the Matter of: Cindy Kelly An Appeal Under Part XX.1 of the Code

Counsel: Anita Szigeti and Tanner Blomme, for the appellant Khorshid Rad, for the respondent, Attorney General of Ontario Julie Zamprogna, for the respondent, Southwest Centre for Forensic Mental Health Care

Heard: October 29, 2021 by video conference

On appeal from the disposition of the Ontario Review Board, dated February 10, 2021, with reasons dated March 2, 2021.

Reasons for Decision

[1] It is not contested that the appellant poses a significant risk to the safety of the public. The sole issue on this appeal is whether a detention order was the least onerous and least restrictive disposition. The appellant argues that she should have received a conditional discharge.

[2] The appellant argues that the Board failed to make a number of inquiries relevant to granting a conditional discharge and that it was unreasonable to deny her a conditional discharge. For example, the Board failed to meaningfully consider or inquire into the housing of the appellant at her husband’s home in Lambton County.

[3] We disagree.

[4] The Board considered and rejected a conditional discharge for two primary reasons: the need to facilitate the appellant’s return to the hospital if necessary and the need to approve her housing in the community.

[5] The Board found that recourse to the Mental Health Act, R.S.O. 1990, c. M.7, had been inadequate to manage the risk the appellant poses in the past and could not be relied upon in the future. The appellant had a history of supervision failure immediately prior to her NCR finding. She remains incapable of making treatment decisions and has limited insight into her mental illness and treatment requirements. She left hospital against medical advice on several occasions and on one occasion soon returned to the scene of the index offence.

[6] We see no error in the Board’s decision and no basis to intervene on appeal. Contrary to the appellant’s submissions, the Board did not fail to exercise its inquisitorial function. It specifically considered the inclusion of a Young provision, but considered it inadequate because the hospital would have no power to detain the appellant unless she agreed to voluntary readmission or remained certifiable under the Mental Health Act – clearly a problem in light of the appellant’s history of refusing to stay in hospital and non-compliance. Moreover, the appellant had been unable to receive substance abuse counselling she required, as a result of the COVID pandemic.

[7] As for housing, it is well established that the appellant’s residence is a relevant consideration in determining the management of risk to public safety: see e.g., Munezero (Re), 2017 ONCA 585, at para. 9.

[8] The Board found that the appellant requires professional support, supervision, and monitoring for community accommodation, as unstable housing had been a risk factor for her methamphetamine use and criminal behaviour.

[9] This is not, as the appellant submits, a case such as Williams (Re), 2021 ONCA 90, where the hospital can be faulted for failing to assess the adequacy of available housing options. First, unlike Williams, the hospital did not consider the appellant ready to live in the community. The hospital needed to know the outcome of therapy before allowing the appellant to reside in the community.

[10] Second, the Board was not satisfied that her needs would be met if she lived with her husband. There was evidence that the appellant’s relationship with her husband was not good, including a prior restraining order against him. The appellant and her husband had been separated and homeless prior to her admission to the hospital. He had little in-person contact with her, and she had previously made it clear to her treatment team that she did not want her husband involved in her care until she was granted an absolute discharge. He was not designated as an approved person or as her substitute decision maker and the appellant had denied the treatment team permission to allow them to contact him.

[11] In these circumstances, the Board’s finding that a conditional discharge was inappropriate cannot be said to be unreasonable.

[12] The appeal is dismissed.

Paul Rouleau J.A. Grant Huscroft J.A. J.A. Thorburn J.A.