Court File and Parties

Court of Appeal for Ontario Date: 2021-11-22 Docket: C69027

Judges: Hoy, Coroza and Sossin JJ.A.

In the Matter of: Ralph Peter Boehme

An Appeal Under Part XX.1 of the Code

Counsel: Ralph Peter Boehme, acting in person Erin Dann, appearing as amicus curiae Nicholas Hay, for the respondent, the Attorney General of Ontario Gavin S. MacKenzie, for the respondent, Ontario Shores Centre for Mental Health Sciences

Heard: November 16, 2021

On appeal against the disposition of the Ontario Review Board dated December 15, 2020, with reasons dated January 13, 2021.

Reasons for Decision

[1] On August 23, 2011, the appellant was found not criminally responsible by reason of mental disorder on charges of uttering threats to cause death or bodily harm and failure to comply with a probation order. He has been under the jurisdiction of the Ontario Review Board since that time. His current diagnoses are delusional disorder and alcohol use disorder.

[2] The appellant appeals the Board’s disposition of December 15, 2020, granting him a conditional discharge. He argues that the Board’s finding that he continues to pose a significant risk to public safety is unreasonable. The index offence did not involve violence and he does not have a history of violent aggression. He submits there was no evidence before the Board that he would not pursue his grievances through appropriate legal channels. He has behaved well at his residence and has not missed any appointments at the hospital. He wishes to reside at the apartment he occupied at the time of the index offence. He seeks an absolute discharge.

[3] Amicus curiae submits that the Board erred by not fully exercising its general inquisitorial powers and requests that the Board be directed, or urged, at the appellant’s next hearing, to ensure adequate efforts are being taken to further the appellant’s reintegration in the community, despite the seemingly intractable nature of his delusional disorder.

[4] We are not persuaded that the Board’s finding that the appellant continues to pose a significant risk was unreasonable. The appellant’s treatment team was clear that absent the Board’s supervision, the appellant “would almost certainly return to substance abuse, discontinue his medication (particularly clozapine), gravitate towards inappropriate housing, and pursue the victim of the index offence (and perhaps others by whom he felt wronged or slighted) in a harassing and threatening manner causing serious psychological harm.” The Board was entitled to accept that assessment.

[5] Nor are we persuaded that there is any basis to interfere with the Board’s exercise of its general inquisitorial powers.

[6] On the appellant’s appeal of the Board’s previous disposition, amicus argued that the Board failed to properly inquire into what it submitted was a treatment impasse. The court rejected that argument, finding that there was little in the record to establish that there was an impasse: Boehme (Re), 2020 ONCA 735. However, the court added this, at para. 5:

That said, the appellant has been under the supervision of the Board since 2011. We are concerned that there has been a lack of real progress in addressing the appellant’s condition since that time. The evidence does show that, at least recently, the appellant’s medical team has been considering alternate diagnoses and other forms of treatment. We would urge the Board to look closely at these efforts at the appellant’s next review (which is to be held shortly) and ensure that adequate steps are being taken to try and advance proper treatment of the appellant’s condition.

[7] Amicus argues that the Board failed to heed this direction. In particular, it failed to probe the appellant’s treating physician Dr. Hartfeil’s explanation that the appellant derived “very little benefit” from the alternate form of treatment, namely one-on-one cognitive behavioural therapy, that had been under consideration at the time of the previous hearing and was “not willing to participate any further”. Amicus says that the Board should have asked what further alternative forms of treatment or therapy could be tried and asked why there was “very little benefit”. Amicus suggests that there may have been “very little benefit” because of the need to provide sessions by phone or video because of the COVID-19 pandemic, or because at the time the appellant was overusing lorazepam to treat his anxiety. Similarly, amicus argues that the Board should have asked the appellant why he was unwilling to participate in this therapy.

[8] Amicus concedes that this is not a situation where there is a treatment impasse. The appellant’s situation has improved, as reflected in his conditional discharge. The treatment team found an appropriate treatment for the appellant’s anxiety, which the treatment team explained contributes to his use of substances and “possibly also contributes to his sort of obsessionality or preoccupation with his various grievances”, and therefore affects his risk of reoffending. The appellant has developed a better rapport with his treatment team and shown an ability – with the assistance of the treatment team – to manage his risk factors in the community without readmission to hospital.

[9] The Board is afforded broad discretion in determining “when additional information is necessary, in [its] view”: Kassa (Re), 2020 ONCA 543, at para. 34. In our view, this expert Board was fully engaged and appropriately exercised its general inquisitorial powers. It carefully reviewed the court’s endorsement with Dr. Hartfeil and explored whether non-pharmacological treatment could be revisited. Dr. Hartfeil explained that the challenges the appellant faces in benefitting from psychotherapeutic interventions are “most[ly] related to his personality” and “some cognitive deficits” as well. The Board also explored whether an occupational therapist might be able to assist and what could be done to build community-based supports over the upcoming year. Dr. Hartfeil indicated that all of those things could be pursued, and we expect that the Board’s attentiveness to these issues will continue.

[10] Accordingly, the appeal is dismissed.

Alexandra Hoy J.A. S. Coroza J.A. Sossin J.A.