Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20240719 DOCKET: COA-24-CR-0059

Miller, Paciocco and Copeland JJ.A.

IN THE MATTER OF: David Simonic

AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel: Anita Szigeti, for the appellant Eunwoo Lee, for the respondent, Attorney General of Ontario Leisha Senko, for the respondent, Person in Charge of Centre for Addiction and Mental Health

Heard: June 18, 2024

On appeal from the disposition of the Ontario Review Board dated, December 11, 2023, with reasons dated December 19, 2023.

Reasons for Decision

[1] The appellant was found not criminally responsible on account of mental disorder on charges of sexual assault, forcible confinement, and failure to comply with probation. The appellant was diagnosed with schizophrenia. The charges arose from an incident in an elevator in a residential apartment building in July 2021. The appellant stood in front of the complainant, pulled out his penis above his waistband and began shaking and stroking it while looking at her. He continued to move towards her as she attempted to move away from him. When the elevator door opened at the 17th floor, the complainant attempted to exit. The appellant pushed her against the wall of the elevator and grabbed her breast. When the doors opened again at the 18th floor, the complainant managed to escape.

[2] On November 9, 2022, the Ontario Review Board ordered the appellant be detained at the Secure Forensic Unit at the Centre for Addiction and Mental Health (“CAMH” or “the hospital”), with privileges including entering the community indirectly supervised.

[3] In the appellant’s 2023 annual review, CAMH recommended two changes to his disposition: (1) a move from the Secure Forensic Unit to the General Forensic Unit; and (2) the added privilege of living in the community in approved accommodation. The appellant sought a conditional discharge, with a term requiring that he live with his parents. In the alternative, he accepted CAMH’s proposed disposition.

[4] The Board found that the appellant remained a significant threat to the safety of the public and that a conditional discharge would not be sufficient to manage that risk. In support of these conclusions, the Board noted that there had been 49 reported incidents in the reporting year, including 22 incidents in which the appellant had to be secluded, one abscondment, and one incident in which the appellant had fractured a bone in his hand from punching another patient. He had also refused to take his medication on 13 occasions.

[5] However, it was reported at the Board hearing that since the time of the preparation of the hospital report there had been no significant incidents. This was attributed both to the commencement of a new drug regime and to new behavioural strategies. Additionally, the appellant had been recently diagnosed with an intellectual development disability, which informed his treatment plan.

[6] The appellant’s treating psychiatrist did not support a conditional discharge, believing it to be premature; the appellant needed more time to consolidate his recent progress. CAMH recommended, however, that the appellant be given a community living provision. The hospital did not expect that the appellant would be in a position to exercise that provision within the next reporting year but believed that it would be therapeutically beneficial to include because the prospect of returning home was identified as a powerful motivator for the appellant.

[7] The Board concluded that a conditional discharge would not be sufficient to protect the public. It also rejected CAMH’s recommendation that the detention order be amended to provide for potential community living and imposed the same terms and conditions as the existing detention order. Its reason for doing so was that there was no realistic prospect of the appellant qualifying for community living within the coming year.

Grounds of Appeal

[8] The appellant appealed on the basis that the Board erred: (1) in failing to find that a conditional discharge was the least onerous and least restrictive disposition necessary to protect the public; and in the alternative, (2) in failing to find that the addition of a community living clause to the existing disposition was the least onerous and restrictive disposition.

Analysis

[9] The Board concluded that, notwithstanding the appellant’s recent progress, a conditional discharge would be premature. Although the Board acknowledged that the appellant had made genuine improvement, this improvement had only been observed over a few months, and more time was needed to predict whether the improvement would prove stable or transitory. But even assuming the appellant would consolidate the gains he had made, both the hospital and the Board concluded he still had some distance to go to be ready for a conditional discharge. That determination was not seriously challenged on appeal, and we conclude the Board made no error in ruling out a conditional discharge.

[10] The argument that the Board erred in rejecting a community living clause rests on a firmer footing. CAMH had concluded that notwithstanding the appellant’s improvement, there was no realistic prospect that he would be ready to move into community living in the current year, particularly to his parents’ house, which is what he desired. He would still need to transition from the Secure Forensic Unit to the General Forensic Unit, and his experience on that unit would provide a better vantage from which to later assess his suitability for community living.

[11] CAMH nevertheless believed that a community living clause would be of therapeutic value to the appellant. That is, regardless of whether there was any realistic prospect that the appellant could exercise the community living privilege in the upcoming year, the provision would nevertheless provide him with a goal to work towards. Knowing how deeply the appellant wished to return to the family home, the hospital believed that the community living clause would encourage the appellant to work towards this goal and make substantial improvement, even if his ultimate goal could not be immediately achieved.

[12] The Board rejected the hospital’s submission and concluded that if the community living privilege could not realistically be exercisable in the coming year, the privilege should not be granted. It did not accept that a community living clause would have any therapeutic benefit. It gave two reasons. First, that the appellant could be similarly motivated by the prospect of moving from the Secure Forensic Unit to the General Forensic Unit. Second, that the appellant was not motivated by community living generally, but by the prospect of returning to the family home. The suitability of the home had not been assessed and there remained some question about whether the appellant’s parents understood the appellant’s condition and would be able to properly supervise him.

[13] The Board’s unexpected rejection of the parties’ joint position on the community living clause meant that neither party was alerted to the Board’s concerns, and so the parties did not develop the record as fully as they otherwise would have to respond to the Board’s concerns. Nevertheless, we are able to conclude on the record before us that the Board erred in rejecting the inclusion of the community living clause.

[14] What motivates the appellant is a matter of clinical expertise, and the record did not support the Board’s position that the appellant would be similarly motivated by the prospect of moving to the General Forensic Unit. Neither did the record support the Board’s conclusion that a community living clause could not provide motivation because the appellant is motivated specifically by the prospect of returning to the family home, and if the appellant was eligible for community living it would not likely be in the family home. It was the opinion of the hospital that having a community living clause in his disposition, and being placed on a waitlist for community living, would provide a valuable incentive.

[15] Beyond the therapeutic benefit of being provided with an incentive to improve his behaviour, appellant’s counsel argued that there are practical benefits to a community living clause even where there is no realistic prospect of it being exercised in the upcoming year. Given that at least some providers of community living will not place a patient on a waitlist until they are granted community living privileges, the denial of a community living clause could mean that a patient would face the prospect of remaining in an inappropriately restrictive environment for an excessive length of time while waiting for the disposition to be revisited at the next annual review. This court explained that refusal to provide a community living clause in such circumstances – where the treatment team accepts that it would be therapeutically beneficial and practically necessary – would be “to subject the appellant to a more severe restraint than is warranted by his condition”: Kelly (Re), 2014 ONCA 269, at para. 11.

[16] Accordingly, we agree that the appeal should be allowed, and the disposition of the Board should be varied to include a community living provision. We would not otherwise interfere with the Board’s disposition.

[17] Finally, although it is unnecessary for the resolution of the appeal, we must address a significant and troubling misapprehension of the record made by the Board. We make particular note of it, lest it be repeated in error in the Board’s future reasons.

[18] The Board, in reciting the appellant’s diagnostic results from the PCL-R test for psychopathy, stated that the appellant had received the maximum score. This was an error. His score was in fact 30 out of 40. It is a high score, but the appellant’s treating psychiatrist said it was difficult to make firm conclusions of its clinical significance, given the appellant’s intellectual disability, major mental illness, and recent period of stabilization. In short, the erroneous statement that the appellant had scored a maximum on his PCL-R test could easily lead the Board to incorrect assumptions about the appellant, and the appellant reasonably sought to draw our attention to the error. Although it does not affect the disposition of the appeal, we are sufficiently alarmed that such a serious factual error was made that we are required to bring it to the attention of the Board.

Disposition

[19] The appeal is allowed to vary the Disposition by adding the following community living provision to section 2:

(g) to live in the community of the Greater Toronto Area in accommodation approved by the person in charge.

[20] The Disposition remains otherwise unaltered.

“B.W. Miller J.A.”

“David M. Paciocco J.A.”

“J. Copeland J.A.”