Court of Appeal for Ontario

Date: 2023-07-04 Docket: COA-22-CR-0375

Before: Zarnett, Thorburn and George JJ.A.

In the Matter of: Jeffrey Smith

An Appeal Under Part XX.1 of the Code

Counsel: Julia Lefebvre, for the Appellant Heather Fregeau, for the Respondent Attorney General of Ontario Anita Szigeti, for the Respondent Jeffrey Smith

Heard: June 05, 2023

On appeal against the disposition of the Ontario Review Board, dated November 1, 2022.

Reasons for Decision

[1] The appellant, Person in Charge of St. Joseph’s Healthcare Hamilton (“the Hospital”), appeals the decision of the Ontario Review Board to grant the respondent Jeffrey Smith an absolute discharge. The respondent, the Attorney General of Ontario (“the Crown”), supports the Hospital’s position.

[2] The Hospital submits that the Board’s decision is unreasonable. It asks that we quash the absolute discharge and substitute a conditional discharge; or, alternatively, that we order an expedited hearing before a differently constituted Board.

Background

[3] In 2012 Mr. Smith attacked his mother and assaulted a neighbour who attempted to intervene on her behalf. He was later found not criminally responsible on account of mental disorder on index charges of assault and uttering a threat to cause death. From 2012 until his transfer to St. Joseph’s in 2014, Mr. Smith was detained at Waypoint. He remained at St. Joseph’s on a detention order until his initial discharge into the community on April 18, 2017. In 2018, Mr. Smith was readmitted to St. Joseph’s after testing positive for cocaine.

[4] At the 2022 review hearing which gives rise to the disposition under appeal, the evidence included a July 2022 psychological report, in which Dr. Sheridan assessed Mr. Smith’s risk for future violence as moderately high without the oversight of the Board and the Forensic Outpatient Program. He noted Mr. Smith’s limited insight into his mental illness and need for treatment. In Dr. Sheridan’s view the most likely risk scenario would involve Mr. Smith discontinuing his medication, withdrawing from his parents, and abusing substances, which would lead to a return of his psychosis. In his opinion, these risk factors would likely cause Mr. Smith to act out violently as he had when he committed the index offences, with his likely victims being those closest to him.

[5] At Mr. Smith’s 2021 review hearing, his treating psychiatrist, Dr. Prat, recommended an absolute discharge. However, at the 2022 hearing Dr. Prat supported the Hospital and Crown position that Mr. Smith posed a significant threat to the safety of the public and should therefore remain under the Board’s supervision. Of note, Dr. Prat did not change his opinion because of anything Dr. Sheridan had to say, but rather, after reviewing the victim impact statement of Mr. Smith’s parents and after speaking directly with his father, he was no longer of the view that they could “serve as a viable monitoring agent and form of external control”.

[6] The Board heard from one witness called on behalf of Mr. Smith – his friend and roommate, Ms. Singh. Ms. Singh testified that she has known Mr. Smith for approximately three years and that he is one her closest friends. As of the hearing date, the two had been living together for three years. Ms. Singh’s unchallenged evidence was that she has worked in the mental health field for 15 years, with the Canadian Mental Health Association and as a member of a Crisis Outreach and Support Team. She is presently a fourth-year student in Toronto Metropolitan University’s Bachelor of Social Work program. While the Board ultimately concluded that Ms. Singh was a suitable external control for Mr. Smith – largely because she was familiar with the mental health system, knew how to obtain a Form 2 under the Mental Health Act (“MHA”) (an order for examination), and understood Mr. Smith’s 28-day medication cycle – her testimony did raise concerns. For instance, she travelled with Mr. Smith during unauthorized absences, was present with him when he was charged with stunt driving [1], and admitted to consuming alcohol in Mr. Smith’s presence knowing that he had longstanding issues with alcohol and substances.

Decision Below

[7] The Board addressed the evidence of Dr. Prat and Ms. Singh, as well as several reports including the Hospital Report which contained Dr. Sheridan’s risk assessment. Dr. Sheridan did not testify. The Board’s decision to grant an absolute discharge was not unanimous. The majority, comprised of the two legal representatives and member from the public, could not make a positive or affirmative finding of significant threat and therefore granted an absolute discharge. At para. 60 of their reasons the majority wrote this:

The Board renders its decision on all the evidence, and has been transparent in this instance about its doubts. There has been no violence or aggression on Mr. Smith’s part in over 10 years. He has a very strong work ethic and has done extremely well. There have been no psychotic symptoms for many years, and only one known lapse into substance use in the community four years ago. Mr. Smith has been compliant with his medication and says that he will continue. The safeguards that will be in place following a discharge include the [Schizophrenia Outpatient Clinic], which is available once Mr. Smith receives an absolute discharge. The MHA and a Box B return to hospital is another form of external control that is available should it become necessary. Other protective factors include a 28-day injectable medication, a highly supportive family, and a roommate [Ms. Singh] trained in mental health care who knows how to engage the MHA should Mr. Smith begin to decompensate. In these circumstances and on all the evidence, the Board is unable to make a positive finding that Mr. Smith is a significant threat and grants him an absolute discharge.

[8] The minority, comprised of the panel’s two doctors, concluded that Mr. Smith continued to meet the threshold for significant threat to public safety, writing that:

[M]r. Smith continues to meet the threshold for significant threat to public safety. We take into account the diversity of opinions on many issues including inputs from his treatment team, his psychiatrist, his parents and a roommate who provided oral evidence at this annual review. We have taken seriously his index offence, his mental disorders, the initially undisclosed overnight trip to Muskoka with [Ms. Singh], his stunt driving charge, and his lack of openness with his treatment team about the overnight trip and his driving charge.

Analysis

[9] In arguing that the decision to grant an absolute discharge is unreasonable the Hospital raises three specific concerns. It submits that the majority: 1) erred in its significant threat determination, which cannot be justified on the evidentiary record; 2) ignored Dr. Sheridan’s 2022 psychological risk assessment; and 3) erred in its assessment of “external controls”. We will begin by speaking to the applicable standard of review.

i) Standard of Review

[10] This court can allow an appeal against a Board’s disposition only where the decision is: a) unreasonable or cannot be supported by the evidence; b) based on a wrong decision on a question of law (unless no substantial wrong or miscarriage of justice has occurred); or c) where there was a miscarriage of justice. When, as here, the review is for reasonableness, we must consider whether the disposition “falls within the range of acceptable outcomes”. A reasonable decision is one where the Board’s reasoning process and the outcome reflects an internally coherent and rational chain of analysis that is justified in relation to the facts and the law: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; Abdulle (Re), 2021 ONCA 524.

[11] Careful attention must be paid to the Board’s specialized knowledge and expertise, which does not change depending on which members constitute the majority, or minority, when there is a dissenting opinion. That is to say, even when a minority opinion comes from those panel members with psychiatric training, the deferential standard applies to the majority decision without regard to the qualifications or expertise of individual members: Capano (Re), 2012 ONCA 172, at para. 16.

[12] Our task is to assess the decision’s reasonableness, not to “conduct a de novo analysis or seek to determine the correct solution to the problem”: Vavilov, at para. 83. We must avoid making our own judgment on the question of significant threat, and to then use that as the benchmark for assessing the reasonableness of the Board’s decision. The Board’s decision is owed deference so long as its reasons “can bear even a somewhat probing examination”: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 33; Wall (Re), 2017 ONCA 713, 417 D.L.R. (4th) 124; Kaminski (Re), 2021 ONCA 220.

ii) The Board’s decision on significant threat is supported by the record and the Board did not ignore Dr. Sheridan’s assessment

[13] The Hospital cites this court’s decision in Ahmadzai (Re), 2020 ONCA 169, in support of its position that the majority’s reasoning process was flawed on the issue of significant threat and cannot stand, and on Vavilov for the proposition that “[t]he reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it”: at para. 126.

[14] The Hospital correctly points out that the majority provided no express analysis of Dr. Sheridan’s assessment. While the Hospital acknowledges that the Board need not mention every piece of evidence, and is not compelled to accept the recommendation of an expert such as Dr. Sheridan, it takes the position that given the nature of Dr. Sheridan’s assessment, which featured prominently in the Hospital’s Report and was the primary basis for its position, and in light of its importance to the ultimate question of significant threat, the majority had an obligation to explain why they were rejecting it.

[15] It is important to remember that the question before the Board was not whether the current conditions should be maintained, but whether it was satisfied that Mr. Smith is a significant threat. That being the case, if the majority was uncertain about whether Mr. Smith posed a significant threat to public safety, which they clearly were, then they had no choice but to resolve this question in Mr. Smith’s favour and to grant an absolute discharge: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625.

[16] The majority’s reasons, read in context and properly understood, make it clear the factors that both militated in favour of, and against, an absolute discharge were considered. They identified the right issues, cited and applied the relevant guiding principles, and did not misapprehend the evidence. The reasons mention Dr. Sheridan’s opinion. Since the majority was considering the exact question Dr. Sheridan opined on, it cannot be said that they ignored him. Rather, they came to a different conclusion than he did.

[17] In addition to raising concerns about whether the record supporting Dr. Sheridan’s assessment was sufficiently recent, the majority indicated that they had considered “all the evidence before” them. The majority also discussed Dr. Prat’s evidence at some length, which is significant because, while Dr. Prat’s opinion was, at the time of the 2022 review, aligned with the hospital, Crown, and Dr. Sheridan’s assessment, it had changed from the year prior. As mentioned, this was not because of anything Dr. Sheridan had to say but because he no longer felt that Mr. Smith’s parents could be a sufficient external control. Dr. Prat’s evidence presented the main medical evidentiary issues with which the majority felt it had to contend. The majority’s determination that it could not find Mr. Smith posed a significant threat to public safety was reasonably arrived at.

iii) The Board did not err in its assessment of Ms. Singh as an “external control”

[18] The Hospital and Crown submit that the majority erroneously found that Ms. Singh could provide “the external control to monitor treatment compliance and engage the [MHA] provisions” to bring Mr. Smith back to the hospital should he decompensate.

[19] It is important to understand what the majority actually said about external controls. The majority understood, and found, that the Schizophrenia Outpatient Clinic (“SOC”) would operate as the primary safeguard, bolstered by the provisions of the MHA. In that context, the Board considered Ms. Singh as a suitable external control, not because she could guarantee Mr. Smith’s mental well-being or compel him to cooperate with the SOC team, but because she was well suited to utilize the provisions of the MHA should he decompensate. In other words, the majority was satisfied that there were several safeguards in place should Mr. Smith be discharged absolutely, and that Ms. Singh was but one of them. This conclusion was reasonably arrived at given Ms. Singh’s knowledge, training, stated willingness to engage the MHA, and because she lived with Mr. Smith.

[20] The majority was not required to consider the fact that Ms. Singh had only lived with Mr. Smith for three years (and therefore had never seen him in a decompensated state) as carrying real significance. Relative to Mr. Smith’s parents and family members, especially his mother who was a victim of the serious index offence, it was open to the majority to find that Ms. Singh was in a better position to observe and evaluate Mr. Smith’s mental state, not just because she lives with him but because she, as a mental health professional, has experience doing so. The majority’s reasons demonstrate that they contended with the concerns surrounding Ms. Singh’s suitability.

[21] In our view, it does not much matter, as the Hospital contends, that it’s treatment team did not have an opportunity to meet with Ms. Singh beforehand to independently assess her ability to provide the controls necessary to manage Mr. Smith’s risk to the public should he cease taking his medication. Ms. Singh testified and was subject to cross-examination, which equipped the Board to consider her suitability as an external control. The Hospital and Crown, understandably, do not agree with the majority’s conclusion on this point, but that is not a basis to interfere.

Conclusion

[22] For these reasons, the appeal is dismissed.

“B. Zarnett J.A.”

“Thorburn J.A.”

“J. George J.A.”

Footnote

[1] Mr. Smith was ultimately found guilty of speeding and received a $400 fine.