COURT OF APPEAL FOR ONTARIO DATE: 20230207 DOCKET: C70435

Tulloch, Benotto and Trotter JJ.A.

IN THE MATTER OF: Laurianne Munezero

AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel: Anita Szigeti and Michael Schloss, for the appellant Caitlin Sharawy, for the respondent

Heard: December 2, 2022

On appeal against the disposition of the Ontario Review Board dated, February 2, 2022, with reasons dated March 10, 2022.

REASONS FOR DECISION

A. OVERVIEW

[1] The appellant, Ms. Laurianne Munezero, appeals the disposition of the Ontario Review Board (the “Board”) dated February 2, 2022, which continued her conditional discharge, but with reduced requirements. Namely, the appellant’s reporting requirements were decreased to “not less than once a month”, and the appellant was granted the ability to “travel out of the province with an itinerary approved by the person in charge prior to her departure”.

[2] The appellant submits that the Board unreasonably concluded that she posed a “significant threat” to the public. She contends that the Board should have granted her an absolute discharge.

[3] For the following reasons, we would dismiss the appeal.

B. BACKGROUND

[4] The appellant is 39 years old and suffers from a schizoaffective disorder. Her illness is very brittle, and stress and suboptimal treatment are major destabilizing factors.

[5] The appellant has been under the jurisdiction of the Board since 2016, when she was found not criminally responsible on account of mental disorder (“NCRMD”) on a charge of arson – disregard for human life. She was subsequently discharged with conditions.

[6] The facts of the index offence can be summarized as follows. In December 2014, the appellant, in an acute state of psychosis, set fire to her apartment. Several people were injured as a result. When firefighters attempted to remove the appellant from her burning couch, she fought back. Using a lighter, the appellant attempted to light herself and the firefighters on fire, but she did not succeed. The appellant suffered serious injuries and was placed in a medically induced coma in the hospital.

[7] In its annual review disposition dated February 2, 2022, and the Reasons for Disposition dated March 10, 2022, the Board determined that the appellant remains a significant threat to the safety of the public.

[8] In its analysis, the Board found that the appellant’s insight into her treatment and the impact of substance use on her major mental illness is partial. The appellant continues to try to negotiate reductions in her medications, and her sleep hygiene is poor. In addition, the Board noted that the appellant was hospitalized three times in the reporting year. While two of these hospitalizations were voluntary, the last one was not. Dr. Naidoo, the appellant’s attending psychiatrist, testified that this third hospitalization was “the most unwell [he had] seen her.” Her symptoms were also similar to those present at the time of the index offence.

[9] Consequently, the Board ordered a continuation of the appellant’s conditional discharge. However, the Board recognized that the appellant had been developing a positive relationship with an Assertive Community Treatment Team (“ACTT”), whom she meets with at least twice a week on a voluntary basis. The appellant is also connected to the Good Shepherd Program team, where she has access to counsellors and support workers. For these reasons, the Board reduced the appellant’s reporting requirements and granted her the ability to travel out of the province with a pre-approved itinerary.

C. ANALYSIS

[10] The appellant submits that the Board erred in its “significant threat” analysis, and unreasonably concluded that she continues to pose a risk to the public. Her submission is two-fold. First, she argues that the Board failed to meaningfully consider all the evidence before it, especially evidence favouring her absolute discharge. Second, the appellant argues that the totality of the evidence does not support a finding that she was a “significant threat” to the public.

[11] Considerable deference is owed to the Board’s determination on whether an NCRMD accused is a “significant threat” to the safety of the public: Wall (Re), 2017 ONCA 713, 417 D.L.R. (4th) 124, at para. 21; Abdulle (Re), 2020 ONCA 698, at para. 15. This court should not interfere with a Board’s decision unless it concludes that “the Board’s risk assessment and disposition order was unreasonable in the sense of not being supported by reasons that can bear even a somewhat probing examination”: R. v. Owen, 2003 SCC 33, [2003] S.C.R. 779, at para. 33.

[12] For the reasons below, we are satisfied that it was reasonable for the Board to conclude that the appellant continues to be a “significant threat” to the public.

(1) The Board Properly Considered All the Evidence

[13] To begin, the appellant submits that the Board failed to search out, analyze, and account for all the evidence before it. More specifically, the appellant submits that (1) the Board failed to consider any evidence in favour of absolute discharge; and (2) any evidence that the Board did consider was treated in a one-sided manner. We are not persuaded by either of the appellant’s arguments.

(1) The Board did not fail to consider evidence favouring absolute discharge

[14] According to the appellant, “not a single piece of evidence” that weighed in favour of her absolute discharge was mentioned in the Board’s analysis on whether she was a “significant threat”. The appellant points to the absence of any reference to Dr. Naidoo’s evidence about her “protective factors”. The appellant also argues that the Board failed to address the two letters from ACTT and Good Shepherd Homes. These letters, the appellant submits, provided more nuance and contextual evidence about her insight into her illness and need for medication.

[15] However, reasonableness cannot be a “line-by-line treasure hunt for error”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 102. The Board’s reasoning must be read as a whole. In doing so, it is clear that the Board understood the totality of the evidence, including factors which favoured the appellant’s absolute discharge.

[16] While the Board did not directly address Dr. Naidoo’s positive findings in its analysis, there was explicit reference to this evidence elsewhere in the reasons. More specifically, the Board noted that “Dr. Naidoo testified that Ms. Munezero has many protective factors” and proceeded to summarize these factors. Later, the Board began its analysis by stating that it “accepts the evidence of Dr. Naidoo”.

[17] The Board’s failure to expressly address the ACTT and Good Shepherd Homes letters in its analysis was also not fatal. The Board had acknowledged in its reasons that they received these community support letters. Moreover, the Crown submits that, when read in context of the hospital report and Dr. Naidoo’s evidence at the hearing, the letters did not add anything new to the analysis. We agree. The ACTT letter confirmed the details in the hospital report: the appellant’s insight was limited, she had expressed a desire to go off her medication, and her sleep hygiene remained poor. The Good Shepherd Homes’ letter revealed that the appellant eventually recognized that her alcohol and cannabis intake were “problematic” – however, this evidence was also raised by Dr. Naidoo in the hearing.

(2) The Board did not consider evidence in a one-sided manner

[18] The appellant also submits that the Board approached the evidence before it in a one-sided manner, and points to two instances of this treatment.

[19] First, the Board had asked Dr. Naidoo questions about the appellant’s Community Treatment Order (“CTO”), but subsequently did not address this mechanism in its analysis. The appellant argues that the Board’s failure to consider the potential application of a CTO constituted a breach in its duty to search out and consider all the evidence.

[20] Contrary to what the appellant asserts, in our view, the Board’s questions demonstrate that it was aware of the various mechanisms available to the appellant. When the Board’s reasons are read in the context of the record – and, in particular, Dr. Naidoo’s evidence about the need to adjust the appellant’s medication – it is safe to assume that the Board implicitly rejected a CTO as an alternative to a conditional discharge: see e.g., Reisher (Re), 2015 ONCA 929, 344 O.A.C. 132, at para. 29.

[21] Second, the appellant submits that the Board’s one-sided treatment is evidenced by the way it accepted the hospital report’s findings regarding her attitude towards medication. The Board had written that the appellant “continues to ask for reductions in her medication” and “has repeatedly stated that she will discontinue her medication if not required to take them.” Yet, when asked about this finding in the hospital report, Dr. Naidoo had said that this was “likely” an “exaggeration”. The differences in views on this piece of evidence were not addressed by the Board in its reasons.

[22] While we agree that the Board could have provided a more fulsome analysis of this point, we would ultimately reject the appellant’s argument. Dr. Naidoo’s statement must be read in context of the record. Immediately after making this statement, Dr. Naidoo explained that even though the appellant will likely not stop taking her medication altogether, she is at risk of negotiating a reduction in the dosage. And, because of the brittle nature of the appellant’s illness, any reduction in medication can lead to an exacerbation of her illness. Consequently, the Board’s characterization of the appellant’s attitude towards medication was reasonable. Moreover, this was a relevant factor to consider in the “significant threat” assessment. While the appellant has a substitute decision maker, i.e., her father, who can consent to her treatment, the appellant retains the choice on whether to take the medication or not, as she lives alone.

(2) The Evidence Supports the Board’s Finding of Significant Threat to Public Safety

[23] Finally, the appellant submits that the evidence before the Board failed to satisfy the threshold of “significant threat.”

[24] In our view, the Board’s conclusion is amply supported by the evidence on record. The appellant suffers from a serious mental illness that is brittle in nature. While in an acute state of psychosis, she committed a serious index offence which led multiple individuals to be injured. Even though the appellant’s index offence was not violent, “the absence of violent behaviour by the appellant does not serve by itself to eliminate the risk of significant harm to the public.”: Krist (Re), 2019 ONCA 802, at para. 15. Section 672.5401 of the Criminal Code, RSC 1985, c C-46, provides that “a significant threat to the safety of the public means a risk of serious physical or psychological harm to members of the public … resulting from conduct that is criminal in nature but not necessarily violent.”

[25] This court has previously held that an individual’s non-compliance with medication, and fluctuating insight, may support a finding of “significant threat” to the public: see e.g., Dhingra (Re), 2014 ONCA 902, 327 O.A.C. 391, at para. 22; Kaminski (Re), 2021 ONCA 220, at para. 8. The Board found that these risk factors existed in the present case, and there is evidence to support this finding. Dr. Naidoo had stated that the appellant often asks for reductions in her medication. In addition, the appellant’s poor sleep hygiene – a factor that exacerbates her risk of psychosis – was documented by the hospital report, Dr. Naidoo, and community support letters.

[26] This court has also recognized that an individual’s mental stability and a re-emergence of symptoms present at the time of the index offence can be relevant considerations in the “significant threat” assessment: see e.g., Marchese (Re), 2018 ONCA 307, 359 C.C.C. (3d) 408, at paras. 12-14; Woods (Re), 2019 ONCA 87, at para. 15. Here, the Board accepted the hospital record and Dr. Naidoo’s evidence that the appellant’s mental status had been fluctuating throughout the reporting year. The appellant was hospitalized three times. The latest hospitalization had been involuntary, and the appellant was presenting symptoms similar to those at the time of the index offence. She was the “most unwell” that Dr. Naidoo had seen her.

[27] Finally, both the hospital report and Dr. Naidoo were of the opinion that the appellant continues to meet the test for “significant threat”, and this evidence was considered and accepted by the Board in its reasons.

[28] Of course, it is important to recognize the appellant’s improvements thus far. It is promising to see that the appellant has developed some insight into the impact of her substance use, and that she is engaging with community treatments. The appellant resides in her own home, which she maintains. She is close with her family, and she is intent on finding employment. However, in our view, the Board did consider these positive elements, and reduced the appellant’s restrictions accordingly. The disposition “continues a positive trend of increased liberty for the appellant.”: Kaminski (Re), at para. 3

D. DISPOSITION

[29] We see no basis to interfere with the Board’s conclusion that the appellant remained a significant risk to members of the public. The Board’s decision to continue the appellant’s conditional discharge with reduced restrictions was reasonable.

[30] We note that the appellant’s annual disposition hearing is scheduled for February 2023. This hearing will provide another opportunity for the Board to evaluate the appellant’s status and consider whether granting an absolute discharge would be the least onerous and least restrictive disposition.

“M. Tulloch J.A.”

“M.L. Benotto J.A.”

“Gary Trotter J.A.”