Court of Appeal for Ontario

Date: 2024-10-25 Docket: COA-24-CR-0345

Judges: Rouleau, van Rensburg and Madsen JJ.A.

In the Matter of: M.L.C.

An Appeal Under Part XX.1 of the Code

Counsel: Anita Szigeti, for the appellant Meghan Tait, for the respondent, Attorney General of Ontario

Heard: September 27, 2024

On appeal against the disposition of the Ontario Review Board dated March 8, 2024.

Reasons for Decision

[1] The appellant, M.L.C., appeals from the March 8, 2024, disposition of the Ontario Review Board (the “Board”) ordering that he continue to be detained in custody at the Forensic Psychiatry Program of St. Joseph’s Healthcare Hamilton (“St. Joseph’s”), with privileges up to and including living in the community in accommodation approved by the person in charge. All parties agree that the appellant remains a significant threat to the safety of the public. The only issue on this appeal is whether the Board’s denial of the appellant’s request for a conditional discharge was reasonable and accordingly, whether the disposition continuing the detention order he was subject to was necessary and appropriate in the circumstances (i.e., the least onerous and least restrictive disposition). For the reasons that follow, the appeal is dismissed.

A. Background

[2] On March 24, 2004, the appellant was found not criminally responsible on account of mental disorder (“NCR”) in relation to charges of sexual assault, sexual interference with a person under 16, and assault with a weapon. The charges arose from two very serious incidents that took place in 2002.

[3] The appellant is currently diagnosed with schizophrenia, severe substance use disorder (alcohol, cannabis, stimulants), in early remission in a controlled environment, and Unspecified Personality Disorder.

[4] Since the index offences and the NCR finding, the appellant has been back and forth between hospital and community living. At times he has been non-compliant with medication. He has had difficulty abstaining from substances for sustained periods of time. On several occasions, he has absconded from the hospital. Although there have been no further charges since the index offences, the appellant has at times displayed violent, threatening, or aggressive behaviour.

[5] However, at the time of the Board hearing in March 2024, the appellant’s trajectory was improving. He had previously agreed to being treated with a long-acting injectable medication, Aripiprazole. He was residing at an all-hours supervised residential care facility and participating in programs in the community. Although he had tested positive for cocaine use in April 2023, resulting in a re-admission to the hospital, at the time of the hearing in March 2024, he had again been residing at the same supervised residential care facility since May 2023 without incident. The appellant was compliant with medication and had not displayed violent behaviour for a considerable period. His attitude was positive, and he was internalizing the risks that substances pose to him. His risk profile for violent recidivism had been downgraded to “low to moderate under a detention order with current levels of supervision and oversight.”

[6] The appellant’s attending psychiatrist, Dr. Yedishtra Naidoo, testified that the appellant had a positive year, and that he was focused on improving his life. Dr. Naidoo testified that he was proud of the appellant and that this was “really the best [he had] seen him.” He stated that the appellant is in “early remission,” that his integration into the community over the prior year was significant, and that he had increased supports from his family. Further, his major mental disorder was under control through the anti-psychotic medications that the appellant takes willingly and consistently.

[7] However, Dr. Naidoo also testified that, in his view — consistent with that of the treatment team — a detention order remained necessary for the appellant. A detention order would permit rapid readmission to the hospital such that the appellant could be held for a sufficient duration to curb his substance cravings and be discharged with a low likelihood of relapse. Dr. Naidoo was concerned that a conditional discharge would be insufficient to manage the appellant’s risk at this juncture. As set out in the hospital report, without external controls in place, the appellant would be at a significantly increased risk for greater expression of violent behaviours.

[8] In thorough reasons, the Board acknowledged that the appellant has had a positive year and that he is working well with his case management team and Dr. Naidoo. However, the evidence before the Board established the following:

[The appellant] has a serious mental disorder; he has limited insight into his mental disorder; he has poor judgment; his index offence included a significant level of violence; he has a long history of substance abuse, associated, in his case, with violence; he had a significant relapse earlier in the year; and he has a history of significant challenges with treatment engagement and supervision.

[9] The Board ultimately concluded that a detention order remains necessary. In doing so, the Board relied on the evidence before it, in the context of the history of this matter. The Board found, on the evidence, that the tools available under the Mental Health Act, R.S.O. 1990, c. M.7, would be insufficient to manage the appellant’s risk to public safety, were he to relapse while on a conditional discharge. The Board concluded:

The high degree of supervision available to [the appellant] on a detention order remain necessary for now. A conditional discharge would put him in a position to relapse, set back his progress and lose momentum, and significantly increase the threat to the public.

B. The appellant’s position

[10] The appellant argues that the Board’s decision is unreasonable and that it erred in law in ordering his continued detention. He argues that the disposition does not reflect, as it must, the least onerous, least restrictive alternative, and that a detention order is neither necessary nor appropriate.

[11] Specifically, the appellant asserts that the evidence before the Board did not reasonably establish that a conditional discharge would place the safety of the public at risk. He challenges the Board’s finding that he becomes aggressive quickly when he is using substances, arguing that the basis for this determination is taken from prior reasons and was not in evidence in this hearing. In support of the same argument, he points to the fact that, for the last several years, there have been no incidents of violence and this despite having used substances on several occasions. He argues that the Board’s finding that the Mental Health Act would be insufficient to manage his risk is not supported by the evidence.

[12] The appellant also argues that the failure of the Board to recognize his improvement and progress through a less intrusive order could itself set back his progress. He emphasizes that he has been under the jurisdiction of the Board for 22 years and that his progress must be recognized so that he does not lose hope.

C. Discussion

[13] Under s. 672.54 of the Criminal Code, the Board’s obligation in arriving at a disposition is to determine the least onerous and least restrictive disposition that is necessary to protect the public, considering the mental condition of the accused, that person’s reintegration into society, and the other needs of the accused person: see also Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 55.

[14] As per s. 672.78(1) of the Criminal Code, this court may set aside an order of the Board only where it determines that: (a) the decision is unreasonable or cannot be supported by the evidence; (b) the decision is based on a wrong decision on a question of law (unless no substantial wrong or miscarriage of justice has occurred); or (c) there was a miscarriage of justice: see also R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 31. The standard is whether the Board’s decision was reasonable, not whether the court would have reached the same conclusion as the Board: Owen, at para. 45. The Supreme Court of Canada has held that “[i]f the Board’s decision was such that it could reasonably be the subject of disagreement among Board members properly informed of the facts and instructed on the applicable law, the court should in general decline to intervene”: Owen, at para. 33.

[15] While this court, like the Board, notes and commends the progress of the appellant, we are unable to accept the appellant’s arguments on appeal.

[16] There was no dispute before the Board that the appellant continues to pose a significant threat to public safety. The index offences were extremely serious. Although there have been no reported incidents of physical violence in the last several years the appellant continues—despite his progress—to struggle with substance use, and the historical evidence of Dr. Naidoo and the hospital is that relapse causes a risk of significant violence for the appellant. While he is currently compliant with his medications, his underlying mental health issues are serious and exacerbated by his use of substances. In conducting its analysis, it was open to the Board to have regard to the history of this matter and findings made on earlier reviews.

[17] The Board carefully considered the evidence, including the evidence of Dr. Naidoo, the results of the risk assessments, and the hospital report. The Board accepted the evidence of Dr. Naidoo that the hospital requires the ongoing authority of the detention order to intervene at an early juncture by readmitting the appellant quickly if the need arises. Dr. Naidoo’s view that a detention order is the only mechanism that would permit the hospital to intervene promptly in the event of prohibited substance use is supported by decisions of this court: see e.g. Shahinjou (Re), 2024 ONCA 667, at para. 19; Young (Re), 2011 ONCA 432, 273 C.C.C. (3d) 512, at para. 32; and Davies (Re), 2019 ONCA 738, 380 C.C.C. (3d) 552, at paras. 34 and 38.

[18] Nor do we accept the argument that the Board’s decision failed to tailor the disposition to the appellant’s specific need for recognition of his progress. While the appellant submitted before the Board that a further detention order could risk damage to his progress, the Board was entitled to accept Dr. Naidoo’s evidence that when the team spoke to the appellant about the possibility of a continued detention order, he continued to have a positive attitude.

[19] Dr. Naidoo testified that if the appellant continued on this trajectory, he could be ready for a conditional discharge by the next annual Board hearing. The Board noted that the detention order remains necessary “for now.” We encourage the appellant to continue his efforts.

D. Disposition

[20] For the foregoing reasons, the appeal is dismissed.

“Paul Rouleau J.A.”

“K. van Rensburg J.A.”

“L. Madsen J.A.”

Note on Publication Ban

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46, that prohibits publication of any information that could identify the victim or a witness in sexual offence cases or a victim under 18 in any other case.