Court File and Parties

Court of Appeal for Ontario Date: 20231006 Docket: COA-23-CR-0188

Before: Hourigan, Thorburn and Copeland JJ.A.

In the Matter of: Joanne Woods

An Appeal Under Part XX.1 of the Code

Counsel: Anita Szigeti, for the appellant Joanne Woods David Tice, for the respondent Attorney General of Ontario Leisha Senko, for the respondent Centre for Addiction and Mental Health

Heard: September 29, 2023

On appeal from the disposition of the Ontario Review Board, dated December 23, 2022, with reasons dated January 12, 2023.

Reasons for Decision

[1] On May 9, 2012, the appellant was found not criminally responsible on account of mental disorder on charges of uttering a threat to cause death or bodily harm and possession of a weapon for a dangerous purpose. During the relevant period, the 2021-2022 reporting year, the appellant lived in the community on a conditional discharge. However, she was inconsistent in her attendance at appointments at the Centre for Addiction and Mental Health (“CAMH”). When she had attended her appointments, she had at times become angry, threatening, and yelled at staff. The appellant was placed on a Community Treatment Order on June 14, 2022. Form 47 has been relied on to secure her attendance at appointments. On November 15, 2022, the appellant’s physician, Dr. Simpson, issued a Form 47 due to her declining mental stability. This effort was not successful in bringing the appellant into the hospital.

[2] On December 7, 2022, the ORB convened a hearing to review the appellant’s disposition. The appellant did not attend the hearing and could not be located. The evidence at the hearing consisted of a hospital report and testimony from Dr. Simpson. According to him, the appellant has been in a state of decompensation since October 2021 and has exhibited a “marked deterioration in her stability.” However, Dr. Simpson testified that he thought it was still possible to manage the appellant on a conditional discharge.

[3] Counsel for the hospital submitted that the necessary and appropriate disposition was a continuation of the conditional discharge. The Crown agreed with this proposed disposition. Counsel for the appellant disagreed that the appellant was a significant threat but agreed that if she was found to be a significant threat, the conditional discharge should continue.

[4] The ORB concluded that the appellant continues to pose a significant threat to the safety of the public. It relied on the testimony of Dr. Simpson, which indicated that the appellant has demonstrated acts of a criminal nature by threatening death to the clinical team and hospital staff, and that there is a “marked deterioration in her stability.” The ORB disagreed with Dr. Simpson’s opinion that the appellant could be effectively managed under a conditional discharge. It made an order for detention in custody and rehabilitation of the appellant within the Forensic Service of CAMH, with privileges up to living in the GTA in accommodation approved by the person in charge.

[5] Counsel for the appellant submits that imposing a detention order was not necessary or appropriate, and that it was not the least onerous, least restrictive disposition order in the circumstances. She argues that the ORB imposed a detention order because it erroneously concluded that efforts utilizing the mechanisms of the Mental Health Act, R.S.O. 1990, c. M.7, had failed to bring the appellant to the hospital. In support of that submission, counsel notes that Form 47s have been used successfully to return the appellant to the hospital on multiple occasions.

[6] We do not give effect to this submission. Dr. Simpson indicated that the appellant was already in a significant state of decline when she was last observed. In cross-examination, he also testified that the most recent use of a Form 47 in November 2022 was distinct from the prior occasions where it had been used with some success, for example, when the appellant had simply missed an injection. This time, the Form 47 was issued due to her “ongoing deterioration and her mental state, her failure to attend to [the Forensic Outpatient Program Service], our inability to assess her and work with her, and our sense…that she was deteriorating in overall function.” Thus, the prior uses of Form 47 were not analogous to its most recent use.

[7] We agree with the Crown’s submission that the appellant’s counsel focuses too narrowly on how the detention order and the scheme of the Mental Health Act operate to secure the appellant’s reattendance at the hospital. The ORB was obliged to consider the future treatment of the appellant, not simply the mechanism for securing her reattendance. There were also concerns regarding the appellant’s housing, which could be managed through the approval of housing in a detention order.

[8] It was not unreasonable in these circumstances to conclude that her treatment would be enhanced by a detention order. As this court noted in Re Davies, 2019 ONCA 738, 380 C.C.C. (3d) 552, at paras. 31-32:

The mere fact of convenience and expediency is not enough to justify a detention order. However, in determining that a detention order was the appropriate disposition in this case, the Board reasonably accepted Dr. Alatishe’s evidence that the appellant’s risk profile had increased. The need for the hospital to have the flexibility provided by a detention order was justified by the appellant’s actions during the reporting year: her substance use leading to her pronounced failure of insight, elopement, and decompensation.

The Board is an expert tribunal and is well aware of the mechanisms under the Mental Health Act, and its disposition is entitled to deference. In the circumstances, the Board’s disposition appears reasonable.

[9] There is no basis for this court to interfere with the ORB’s reasonable disposition. The appeal is dismissed.

“C.W. Hourigan J.A.”

“Thorburn J.A.”

“J. Copeland J.A.”