Court of Appeal for Ontario

Date: 2023-06-07 Docket: COA-22-CR-0483

Judges: Miller, Sossin and Copeland JJ.A.

In the Matter of: Iesha Mitchell

An Appeal Under Part XX.1 of the Code

Counsel: Michael Schloss and Anita Szigeti, for the appellant Étienne Lacombe, for the respondent His Majesty the King Leisha Senko, for the respondent Person in Charge of Centre for Addiction and Mental Health

Heard: May 24, 2023

On appeal from the disposition of the Ontario Review Board, dated October 27, 2022, with reasons dated November 25, 2022.

Reasons for Decision

[1] The appellant has been diagnosed with schizophrenia. When undermedicated, the appellant experiences visual and auditory hallucinations and paranoid thoughts. In 2019, the appellant discontinued her medication. Two months later, she encountered a woman and her young daughter walking home from the Centennial Mall in Brampton. Unprovoked, but responding to paranoia, the appellant chased them and attempted to stab them both with a knife. Although she made contact with each with the knife, the blade did not penetrate. She carried on to the mall and attempted to stab another person, who restrained her until the police arrived. She was found not criminally responsible on charges including assault and assault with a weapon.

[2] At her 2021 hearing, the appellant was found to be a significant threat to the safety of the public. A conditional discharge was determined to be the necessary and appropriate disposition, and included the condition that she take her medication as prescribed. The order also included a condition that the appellant reside with her parents.

[3] The appellant was treated successfully with clozapine therapy, which stopped her hallucinations. Unfortunately, that treatment had to be discontinued some months later due to very serious side effects. Although the appellant was treated with other anti-psychotic medications, auditory and visual hallucinations persisted and the appellant relapsed. After a suicide attempt, the appellant was seriously injured with multiple fractures and required hospitalization for medical treatment. In hospital, medical staff observed that her mental state had deteriorated. The appellant was kept in hospital under the Mental Health Act, R.S.O. 1990, c. M.7, and was subsequently transferred to the Centre for Addiction and Mental Health.

[4] In the disposition under appeal, the Board concluded that the appellant remains a significant threat to the safety of the public, and that a detention order, with privileges including living in the community, is the least onerous and restrictive disposition.

[5] The appellant appeals on the basis that the Board erred in finding that: (1) the appellant remains a significant threat to the safety of the public; and (2) a detention order was the least onerous and restrictive disposition.

[6] We do not agree that the Board erred.

[7] With respect to the finding of significant threat, counsel for the appellant argued that the Board erred by taking the attempted suicide as evidence that she posed a threat to others, when at most it was some evidence that she was a threat to herself.

[8] The Board did not make this error. Although the Board took note of the appellant’s suicide attempt in the context of flagging a therapeutic concern about the appropriateness of her living situation (given her statements about conflict with her parents), the Board did not treat the attempt as evidence that the appellant poses a threat to others. The Board’s reasoning was rather that because the appellant lacked insight into her illness and had expressed a desire to discontinue medication, she would likely do so if not under supervision. The consequences would be rapid decompensation where she would perceive other people to be threats and could act out in a violent manner, as she did in the index offences. This chain of reasoning was supported by the evidence and was open to the Board. This ground of appeal therefore fails.

[9] With respect to the argument that a detention order is not the least restrictive disposition consistent with maintaining the safety of the public, the Board did not err in ordering a disposition more restrictive than the conditional discharge previously ordered. Circumstances had changed. The Board accepted that, through no fault of the appellant, the treatment regime that provided her with stability was no longer available to her, and a new treatment regime had not yet proved effective. Although the appellant had been mainly cooperative with medication since the index offences, the suicide attempt was some evidence that she had not stabilized post-Clozapine. The Board was entitled to conclude, based on the evidence before it, that protection of the public required detention while a new treatment regime was being worked out. Included in the Board’s concern was that the hospital maintain control over the appellant’s place of residence for therapeutic purposes, given her report that household stress had contributed to the suicide attempt. It should be noted that this finding was not a criticism of the appellant’s parents. Until comparatively recently, the appellant would not consent to her treatment team speaking with her parents, and accordingly they had received little reliable information about the appellant’s condition. On all accounts, they are loving and supportive of the appellant.