COURT OF APPEAL FOR ONTARIO DATE: 20230821 DOCKET: COA-22-CR-0459

Hourigan, Brown, and Monahan JJ.A.

IN THE MATTER OF: Tyler Edgar

AN APPEAL UNDER PART XX.1 OF THE CODE

Michael Davies, for the appellant Katie Doherty, for the respondent Julia Lefebvre, for the respondent, Waypoint Centre for Mental Health Care

Heard: August 18, 2023

On appeal against the disposition of the Ontario Review Board dated, August 03, 2022.

REASONS FOR DECISION

A. OVERVIEW

[1] The appellant is 32 years old and suffers from schizophrenia, borderline personality disorder, and substance use disorders. He has been under the jurisdiction of the Ontario Review Board (the “Board”) since 2014 after being found not criminally responsible (“NCR”).

[2] The appellant was discharged into the community not long after being found NCR. He successfully lived in the community from 2014 until 2017, when his mental health deteriorated. He became more violent and was detained at the Royal Ottawa Hospital (the “Royal Ottawa”). A particularly violent event at the Royal Ottawa in the summer of 2019 resulted in his transfer to the high-security psychiatric facility at the Waypoint Centre for Mental Health Care (“Waypoint”), where he continues to be detained.

[3] While at Waypoint, he has been placed in seclusion due to his violent and verbally aggressive behaviour. While the appellant is regularly offered seclusion relief, he often refuses it or declines to wear the restraints necessary to manage his behaviour outside seclusion. The appellant also resists taking medication.

[4] Following the appellant’s 2022 annual review hearing, the Board decided to maintain the appellant’s existing detention order at Waypoint without alteration. The appellant appeals this disposition on the basis that the Board failed to: (i) consider all four statutory factors identified under s. 672.54 of the Criminal Code; (ii) recognize that his case constituted a treatment impasse; and (iii) exercise its inquisitorial and supervisory powers break the alleged impasse: Criminal Code, R.S.C. 1985, c. C-46, s. 672.54.

[5] The fact that the appellant has been detained in seclusion for over three years with little progress is obviously a matter of most serious concern. That said, the Board carefully considered all four statutory factors under s. 672.54, including the appellant’s mental state and potential reintegration into society. Further, the Board reasonably declined to designate this case as at an impasse, noting that Waypoint continues to actively attempt to treat the appellant and has identified various potential treatment options which might result in progress in the future. Nor did the Board fail to properly exercise its inquisitorial and supervisory powers, and the evidence before it was sufficient to make a disposition. Indeed, as counsel for the appellant fairly conceded in his oral submissions, the Board had no option other than to continue the appellant’s disposition at Waypoint. Accordingly, for the reasons set out below, the Board’s disposition was reasonable in the circumstances and the appeal is dismissed.

B. BACKGROUND

[6] The index offence occurred on February 23, 2014, when the appellant was 22 years old. He became agitated in a public library and punched and damaged a table and keyboard. When the police arrived shortly after this incident, an officer advised the appellant he was under arrest for mischief. The appellant took a fist-fighting stance and struggled violently when the police officers tried to handcuff him. After a struggle, he was subdued and handcuffed.

[7] The appellant was found NCR on April 16, 2014 and was then subject to a detention order at the Royal Ottawa. However, his mental state improved on antipsychotic medication, and he was discharged to live in the community later that year. He eventually moved into independent housing, and in 2016 his disposition was changed to a conditional discharge. The appellant generally adhered to his medication and had no noted symptoms of psychosis or behavioural problems.

[8] The appellant’s mental condition significantly deteriorated in 2017. He began using cocaine and cannabis daily and acting aggressively. He eventually began presenting active symptoms of psychosis, with delusions of paranoia and persecution. In August 2017, the appellant quit his job and moved out of his apartment. The police found him two weeks later reportedly living in a tent. He was arrested for breaching his conditional discharge and was returned to the Royal Ottawa. At the hospital he refused medications and denied having psychotic symptoms. The Board vacated the conditional discharge and re-imposed a detention order.

[9] The appellant spent the next two years largely as an inpatient at the Royal Ottawa. During this time, there continued to be concerns regarding his medication response and adherence, substance use, stability and behaviour. He was found incapable to consent in April 2018 and started on a long-acting injectable (“LAI”) antipsychotic medication. His behaviour gradually improved, and he was discharged to live in the community with his brother and sister-in-law.

[10] Upon discharge, however, the appellant’s mental state deteriorated once more. He resumed using cocaine and in October 2018 left his brother’s house. Four days later he returned to the Royal Ottawa and made violent threats, broke a chair, and brandished it at the nurse’s station. Police arrived and the appellant was restrained and detained. Over the next year he was involved in numerous physical and verbally aggressive incidents.

[11] As a result of his behaviour, the appellant was transferred to Waypoint in July 2019. While at Waypoint, he has presented active symptoms of psychosis and persecutory delusions. He has shown no insight into his illness, poor impulse control, and quickly becomes violent and aggressive. In March 2020, he was transferred to the Provincial Division’s most highly secure program at Waypoint. Several different LAI antipsychotic medications have been tried but the appellant’s active symptoms of psychosis persist and appear to have become more treatment resistant.

[12] For most of his time at Waypoint, the appellant has been in seclusion, including for the entirety of the reporting year under appeal. When the appellant is brought out of seclusion for relief, he is restrained and accompanied by at least 6 staff members. He is offered seclusion relief regularly, but the appellant often refuses relief or refuses to wear restraints. While in seclusion, the appellant has self-harmed, punched and kicked doors and walls, and been aggressive towards staff.

[13] The appellant has recently been the subject of two expert consultations. In April 2021, Dr. Bill Komer, a forensic psychiatrist at Waypoint, assessed the appellant. Dr. Komer noted the appellant’s active and potentially treatment-resistant psychosis and mood instability. He recommended treatment with clozapine, an oral antipsychotic medication, and an oral mood-stabilizing medication such as Epival. Dr. Komer anticipated that the appellant’s treatment and recovery was likely to be quite prolonged and in the foreseeable future he would best be treated and managed in a structured, supportive, and highly secure environment.

[14] In March 2022, Dr. Ronald Jones, a forensic psychiatrist from the Centre for Addiction and Mental Health conducted an independent consultation to review the care and treatment of the appellant. Dr. Jones recommended a trial of clozapine to treat the appellant’s psychosis, relief from seclusion as frequently as possible in a safe manner, and opportunities for structured therapeutic intervention and communication in recovery-oriented language.

Board Hearing and Disposition

[15] Dr. Achal Mishra, the appellant’s attending psychiatrist at Waypoint testified at the July 2022 Board hearing. Dr. Mishra was of the opinion that the appellant continued to pose a significant threat and that Waypoint was the only hospital that could manage him while protecting the safety of others. Dr. Mishra also distinguished the appellant’s seclusion from solitary confinement: while the appellant is in a room by himself, he is checked on every 15 minutes and is provided with the opportunity for seclusion relief.

[16] Dr. Mishra further testified that, in order for the appellant to progress, he needed to cooperate both in taking his medication as well as with his behavioural plans. Without his cooperation, Dr. Mishra said there was not “an easy end in sight” to his seclusion. Dr. Mishra stated that although the hospital would like to commence treatment with the anti-psychotic clozapine, it is only available in oral form in Canada and the appellant has not cooperated with receiving medication in that form. Dr. Mishra noted that clozapine is provided in LAI form elsewhere and Waypoint is currently pursuing all possible avenues to obtain Health Canada approval for administering an LAI form of clozapine to the appellant, including on compassionate grounds.

[17] The appellant testified. He referred to voices he heard in his head, the length of time he has spent in seclusion, and his dissatisfaction with his situation. The appellant’s sister-in-law, who is also his substitute decision-maker (“SDM”), testified as well. She said there was a lack of communication with the appellant’s treatment team and that it was difficult for her and the appellant’s family to visit him at Waypoint since they resided in Ottawa.

[18] In oral submissions, both parties agreed that the appellant continued to pose a significant threat and that the Board did not have much choice but to impose a detention order. However, counsel for the appellant asked the Board to urge Waypoint to consider options that may lead to a change in the appellant’s circumstances. Such options could include moving the appellant to a facility closer to his family or obtaining an LAI form of clozapine.

[19] In its Reasons for Disposition, issued on November 7, 2022, the Board concluded that the appellant remained a significant threat to the safety of the public. He suffered from a treatment resistant major mental illness and remained actively psychotic. He had been in seclusion for the entirety of the review due to his volatile and threatening behaviour. The Board noted that if the appellant were to be without hospital oversight, there would be a real risk he would stop taking his medication, decompensate further, and pose a serious threat to members of the public.

[20] The Board therefore determined that continuing the detention order at Waypoint was the necessary and appropriate disposition. The appellant continued to prove resistant to treatment even at Waypoint’s highest secure setting, which has a more extensive secure structure, more resources and more staff available per patient than at any other forensic hospital in Ontario. While the Board recognized that his prolonged time in seclusion is a most serious concern, no other hospital in Ontario was equipped with high secure resources, such as seclusion support and relief, necessary to manage the appellant’s persisting targeted and violent aggression.

[21] The Board candidly acknowledged the various challenging and pressing clinical issues the appellant faced in the coming year. The Board referred to Dr. Mishra’s evidence that, despite all Waypoint’s resources and all they have tried for the appellant, they have “hit a brick wall” and are willing to try anything that would help him. The Board observed that all progress hinges first and foremost on the appellant being able to receive treatment that is effective in managing his serious ongoing symptoms of psychosis.

[22] The Board considered the treatment options recommended by Dr. Mishra, in consultation with Dr. Komer and Dr. Jones. These recommendations included treating the appellant with the anti-psychotic medication, clozapine, or a mood-stabilizing medication such as Epival to help regulate his apparent mood instability. The feasibility of these recommendations was undermined by several factors, including the fact that clozapine is currently only available in oral form, and his SDM has not consented to a mood stabilizing medication.

[23] The Board noted that Waypoint is taking all possible steps to see if a trial of clozapine medication in the LAI format can be made available by the Canadian government on compassionate grounds. The Board further expressed the hope that visits and other regular contact with his family be arranged as such contact would likely be helpful and therapeutic for the appellant. The Board also highlighted the appellant’s positive qualities and future potential, referring to Dr. Mishra’s evidence that the appellant is a young, intelligent, articulate person who has good prognostic factors if he receives appropriate medication. The Board concluded by expressing the hope that in the coming year there would be positive changes in the appellant’s circumstances.

C. ISSUES

1. Did the Board fail to consider all four factors set out in s. 672.54 of the Criminal Code?
2. Did the Board err in failing to recognize a treatment impasse with respect to the appellant?
3. Did the Board fail to exercise its inquisitorial and supervisory powers?

D. DISCUSSION

(1) Statutory Framework and Standard of Review

[24] Absent an error on a question of law or a miscarriage of justice, appellate review of the Board’s decisions is limited to determining whether the decision of the Board is reasonable. The court does not make its own judgement on the significant threat question or re-weigh the considerations before the board: Woods (Re), 2019 ONCA 87, at para. 14; Carrick (Re), 2015 ONCA 866, 128 O.R. (3d) 209, at para. 24. A decision is reasonable if, having regard to the Board’s reasoning process and the outcome, it 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, at paras. 83-85, 94, 125.

(2) The Board Reasonably Considered All Relevant Statutory Factors

[25] The appellant argues that, although the Board addressed the issue of public safety, it failed to consider the other three statutory factors set out in s. 672.54 of the Criminal Code, namely, the mental condition of the accused, the reintegration of the accused into society, and the other needs of the accused.

[26] We do not agree. As our discussion above makes plain, the Board considered in great detail the appellant’s mental condition. It also considered the appellant’s reintegration into society, including the efficacy of the various treatment plans proposed and the possibility of transferring him to another facility. The Board further considered the appellant’s other needs, including the desirability of arranging additional contact with his family.

[27] Moreover, the Board’s decision to continue the appellant’s detention order was amply supported on the record. The Board recognized that the appellant’s prolonged time in seclusion was a “most serious concern” but concluded that no other hospital in Ontario had the necessary high-secure resources necessary to manage his aggression. As noted above, counsel for the appellant conceded that these findings were appropriate and necessary in the circumstances.

[28] In our view, the Board’s reasoning and findings on all of these issues were reasonable and we dismiss the first ground of appeal.

(3) The Board did not Err in Failing to Find a Treatment Impasse

[29] A treatment impasse refers to a situation where an NCR accused has been incarcerated for a prolonged period of time, and no progress has been made or is likely to be made with respect to his treatment: Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326, at para. 42. A long period of incarceration without treatment or progress can constitute an impasse, as can an accused’s stubborn refusal to engage with the treatment team. While a treatment impasse might well be tolerable for a while as the situation ripens, after a certain point the Board is obliged to go further: R. v. Conway, 2008 ONCA 36, 98 O.R. (3d) 335, at paras. 29-34 and 83-85; Gonzalez (Re), 2017 ONCA 102, 136 O.R. (3d) 453, at paras. 18-30, 41.

[30] In this case, the Board candidly acknowledged that the fact that the appellant had not made any progress since been transferred to Waypoint in 2019 was a matter of “serious concern”. The Board also noted Dr. Mishra’s comment that the hospital had hit “a brick wall” in their treatment efforts. At the same time, the hospital continued to be active in attempting to develop treatment options which might cause the appellant’s condition to improve. Waypoint had obtained two consultations with psychiatric experts and were attempting to act on those recommendations, including efforts to obtain government approval to administer a LAI form of clozapine.

[31] In our view, these circumstances are sufficient to distinguish the appellant’s situation from earlier cases in which a treatment impasse has been found to exist. We conclude that it was not unreasonable for the Board to decline to designate this case as being at an impasse and would dismiss this ground of appeal.

(4) The Board Fulfilled its Inquisitorial and Supervisory Responsibilities

[32] The appellant argues that the Board failed to recognize and act on its supervisory powers, noting in particular a Board comment in its Reasons for Disposition to the effect that “expert clinical decisions are not for the Board to make”. The appellant argues that the Board had an obligation to “leave no stone unturned in trying to improve his situation”, and that the Board failed to do so.

[33] The Board is empowered to make orders and conditions in a supervisory role or capacity with respect to an NCR accused’s mental treatment and clinical progress. This power encompasses “anything short of actually prescribing the treatment be carried out by hospital authorities”: Mazzei, at para. 39. For example, where a treatment impasse is reached, the Board is entitled to order a re-evaluation of current or past treatment approaches and exploration of alternatives. The Board must form its own independent opinion about the accused’s treatment plan and clinical progress and, in doing so, may order an independent assessment: Gonzalez, at para. 30.

[34] In this case, we note that there was extensive evidence before the Board with respect to the appellant’s institutional history, treatment options, and the reasons behind his lack of progress in the last three years. None of this evidence was disputed in any meaningful way. Moreover, unlike in cases relied upon by the appellant such as Conway and Gonzalez, Waypoint had recently obtained an independent assessment of the appellant’s treatment options and was attempting to act on the recommendations set out in that assessment. The Board also carefully considered the possibility of transferring the appellant to another facility but concluded that no other hospital in Ontario was equipped with the high secure resources necessary to manage the appellant’s behaviour. We further note that the Board engaged in a constructive and helpful discussion of the clinical options available to the appellant, and reviewed possible measures that should be explored in an effort to improve his circumstances and condition.

[35] In short, it was not unreasonable for the board to decline to impose any additional conditions on Waypoint. We regard the Board’s comment that “expert clinical decisions are not for the board to make”, as suggesting nothing more than the Board’s acknowledgement of the limitations on its powers to prescribe actual treatment, and its recognition of the division of labour and authority between the hospital and Board that is well established in the jurisprudence: Mazzei, at para 35. We find that the Board properly recognized and exercised its inquisitorial and supervisory responsibilities in this case, and this ground of appeal is therefore dismissed.

Disposition

[36] For the reasons set out above, the appeal is dismissed.

“C.W. Hourigan J.A.”

“David Brown J.A.”

“P.J. Monahan J.A.”