Re: Michelle Emily Grace Cowan
ORB File No: 8439
Hearing held on: Tuesday, April 8, 2025
Place of hearing: Ontario Shores Centre for Mental Health Sciences Via Zoom Video-Conference
Pursuant to: Section 672.81(2.1) of the Criminal Code
Before: Alternate Chairperson: Ms. L. Banks Members: Dr. R. W. Hill Dr. J. Cheston Ms. K. Tomaszewski Ms. K. Brisson
Parties Appearing: Accused: Michelle E.G. Cowan Counsel: Mr. M. Schloss
The person in charge of hospital: Counsel: Ms. J. Szabo
Attorney General of Ontario: Counsel: Ms. N. MacDonald
REASONS FOR DECISION
(Dated: April 24, 2025)
Introduction:
On December 5, 2023, Michelle Emily Grace Cowan was found not criminally responsible (“NCR”) on account of mental disorder on a charge of aggravated assault, contrary to the Criminal Code of Canada. She is currently subject to a Disposition of the Ontario Review Board (“ORB” or the “Board”) dated November 26, 2024, which orders her detained at the Forensic Program of the Ontario Shores Centre for Mental Health Sciences (“Ontario Shores” or the “hospital”), with privileges up to living in the community in accommodation approved by the person in charge of the hospital. This Disposition requires that Ms. Cowan abstain absolutely from the non-medical use of alcohol or drugs or any other intoxicant and it prohibits her from driving a motor vehicle.
On January 24, 2025, the ORB received notice from the Clinical Forensic Coordinator of the hospital advising that Ms. Cowan had been was readmitted to the hospital from her residence in the community on January 16, 2025. The re-admission was due to the fact that Ms. Cowan had been consistently testing positive for illicit substances while living in the community The letter was to be considered notice pursuant to s. 672.56(2)(b) of the Criminal Code.
On April 8, 2025, Board convened a hearing to review the increased restrictions of Ms. Cowan’s liberties pursuant to s. 672.81(2.1) of the Criminal Code. Ms. Cowan was in attendance at the hearing and was represented by her counsel, Mr. Schloss. All parties participated at the hearing by Zoom video-conference.
Position of the Parties:
At the commencement of the hearing, the parties were canvassed as to their recommendations to the Board. Counsel for the hospital submitted that Ms. Cowan’s readmission to the hospital on January 16, 2025 was the least restrictive and least onerous intervention in the circumstances and that it remained so up to the hearing date.
Counsel for the Attorney General anticipated supporting the hospital’s recommendation but she wished to hear the hospital’s evidence. At the conclusion of the evidence, Ms. MacDonald expressed her support of the hospital’s recommendation.
Counsel for Ms. Cowan indicated that he took no position with regard to the initial restriction of his client’s liberty however, he indicated that his client objected to the ongoing restriction of her liberty.
All parties maintained their respective recommendations to the Board in closing submissions and all parties confirmed that there was no need to review the terms of Ms. Cowan’s existing Disposition.
Index Offences:
- The circumstances giving rise to the index offence are extracted from the Board’s Reasons for Disposition dated January 3, 2025, as follows:
“The victim of the index offence is a 58-year-old man, Howard Cohen, who at the time of the offence resided at 111 Irene Avenue in Fenelon Falls. For some years prior, he had had an intimate relationship with the accused’s mother, Christine Cowan. At the time of the offence, Christine Cowan was renting a room from the victim in the Irene Avenue residence. Prior to the index offence, the victim had seen the accused three or four times. Just prior to the time of the index offence, the accused had been evicted from a women’s shelter in Cobourg and had moved in with Howard and Christine. She had been living there for about a week prior to the assault.
In the early morning hours of April 28, 2018, according to a friend of the victim who was socializing with them that evening, the victim and the accused got into an argument over a comment the victim made about the accused’s deceased father. The accused became angry and began to break multiple things in the house with a baseball bat and took a swing at the victim and the friend. She then hit the accused several times with her fists and the victim returned this by punching her in the side of the head. The friend was able to break them up. The victim went outside the house to the front yard to have a cigarette. The accused told the friend that she was going to go inside to apologize to the victim but instead she ran up behind the victim and stabbed him in the upper back.
All in the house, including the accused, had been drinking and used marijuana that evening.”
Background Information:
Details of Ms. Cowan’s background is set out fully in the Hospital Reports made exhibits at the hearing, so this information is not herein repeated. The following material information is highlighted.
Ms. Cowan is presently 39 years of age. Of relevance to the index offence is her history of several years of seizures that could occur as frequently as once or twice per week. She ended up in a coma in May 2018 and was thereafter diagnosed with anti-NMDA receptor encephalitis. Ms. Cowan’s psychotic disorder is secondary to NMDA receptor encephalitis, active the time of the index offence. She has been stable without signs of psychosis, delirium, or other gross neurological disturbance in the community for several years.
Ms. Cowan also has presented in the past with mood and anxiety concerns, including an impulsive suicide attempt in December 2020.
She has a significant history of substance abuse. Her use of alcohol has been involved in two separate instances resulting in criminal charges. Ms. Cowan has used cannabis to deal with anxiety, despite reporting that it can worsen her anxiety and cause mild paranoia. As well, she historically abused opioids and was treated with opioid agonist therapy (until early 2011).
Current Diagnoses:
- Ms. Cowan’s current diagnoses as set out in the Hospital Report are:
Psychotic disorder due to medical condition, with delusions, Resolved; and
Substance Use Disorder (stimulants).
Evidence at the Hearing:
Dr. D. Pallandi, Ms. Cowan’s out-patient forensic psychiatrist, testified at the hearing to supplement the documentary evidence before the Board including, the Hospital Report and the Restriction of Liberties Report dated February 6, 2025 (the “ROL Report”). He adopted the contents of these Reports.
Dr. Pallandi advised the Board that at Ms. Cowan’s last annual ORB hearing in November 2024, the ORB ordered that her Disposition be changed to a Detention Order from a Conditional Discharge. The hospital had recommended that a Detention Order was warranted as it allowed the hospital to have oversight with regard to her community housing which was considered necessary at that time for her management. Further, a Detention Order also allowed the hospital to intervene at an early junction to require her re-admission to hospital if that became necessary and appropriate to safely manage her risk given her ongoing use of substances at that time.
Ms. Cowan continued to reside in the community until January 9, 2025, at which time she was admitted because of breaches of her ORB Disposition. Ms. Cowan admitted to the use of her mother’s oxycontin; however, when confronted with positive urine drug screens that indicated cocaine use, Ms. Cowan denied such use and advanced the explanation that she had been exposed to secondhand crack cocaine smoke from her mother’s partner. She was advised that such exposure would not yield a positive UDS result.
Ms. Cowan contracted with the treatment team to abstain from further substance use and the plan that was agreed to was that she move to Victoria Harbour to reside with her aunt and uncle who did not use street drugs.
To her credit, throughout December 2024, Ms. Cowan presented as clinically stable, had negative UDSs, and was engaged with her concurrent disorders’ counsellor. Unfortunately, on December 31, 2024, Ms. Cowan advised that she had been exposed to second hand crack smoke and she told the team that her urine screen would likely be positive. She provided a diluted urine sample.
In the first week of January 2025, Ms. Cowan went to a local hospital for treatment of a tooth infection and was prescribed morphine, which she took. While at the hospital, it was discovered that she continued to suffer from a urinary tract infection. Dr. Pallandi commented that Ms. Cowan failed to disclose to her treatment team that she was prescribed morphine. However, as referred to in paragraph 34 below, Ms. Cowan stated that she did disclose to the team that she was prescribed morphine. The doctor advised that Ms. Cowan admitted to consuming alcohol. On January 16, her UDS was positive for benzodiazepines (not prescribed), morphine and cocaine metabolites.
It was also discovered that Ms. Cowan had not been informing her treatment team when she was not staying at her approved accommodation in Victoria Harbour with her relatives and that she was driving a car in breach of her Disposition. Dr. Pallandi stated that in consequence of all of above, Ms. Cowan was admitted to hospital on January 16, 2025.
Ms. Cowan was displeased with her admission to hospital and she has presented as “…defiant, entitled, duplicitous” according to the ROL Report. She has continued to deny substance use despite positive UDSs. In hospital, she has declined substance use programming or counseling. Dr. Pallandi stated that Ms. Cowan did not present as psychotic on admission. In response to questions posed by Mr. Schloss, the doctor advised that Ms. Cowan has been stable with no overt evidence of psychotic symptoms. She has not engaged in any incidents of violence while in hospital.
In response to questions from a panel member, Dr. Pallandi testified that Ms. Cowan appears to be at her clinical baseline and there is no evidence of psychosis; however, there are concerns regarding her risk management when returned to the community in light of her ongoing substance use, dishonesty, and lack of engagement with the treatment team.
While in hospital, she has exercised privileges on an indirectly supervised passes into the community appropriately. Additionally, while in hospital, she engaged in recreational programming. She has used these liberal privileges appropriately.
Dr. Pallandi testified that Ms. Cowan remains in hospital so that she can continue to engage in concurrent disorder programming. The doctor advised that Ms. Cowan’s substance use is her most significant risk factor. Unfortunately, at the present time, Ms. Cowan continues to deny that she has used substances while living in the community or that substance use has ever caused any problems or challenges for her. Dr. Pallandi stated that her denial of substance use is not per se unusual; however, it is somewhat of a barrier for her progression under the ORB. Dr. Pallandi stated that this has been canvassed with Ms. Cowan on many occasions.
With regard to discharge planning, Dr. Pallandi stated that it would be optimal if Ms. Cowan were to reside in closer proximity to the hospital. The doctor advised that Ms. Cowan does not have a major mental illness and she does not qualify for ODSP. She is not financially able to reside in market-rent independent housing. The doctor opined that Ms. Cowan’s housing in Victoria Harbour is appropriate for her because her aunt and uncle are prosocial influences and they do not use substances. Unfortunately, this home is not in proximity to the hospital. Dr. Pallandi stated that the hospital’s in-patient team is assessing available housing options at this time.
The inpatient and outpatient treatment teams are considering available community housing opportunities to best address her risk factors and management. Ms. Cowan expresses her desire to return to her aunt and uncle’s home in Victoria Harbour at this juncture.
With regard to Ms. Cowan’s assertions that her positive UDS are passive results from her being in proximity to others who are using substances, Dr. Pallandi has stated that Ms. Cowan should not be in the presence of individuals if they are using substances and that is within her ability to control.
If the hospital approves her discharge back to her extended family’s home in Victoria Harbour, it will be managed by a hybrid model of both in-person assessments and remote assessments through Telehealth Ontario. Dr. Pallandi stated that such a care model would be likely to hamper the frequency of collection of urine drug samples for drug screening. The doctor advised that Waypoint Centre is approximately 10-minute drive from Victoria Harbour. It may be possible for the hospital to request a transfer of Ms. Cowan’s care from Ontario Shores to Waypoint so that the proposed transferee hospital can more closely manage her risk.
Dr. Pallandi stated that if Ms. Cowan is returned to her extended family’s home in Victoria Harbour there would have to be a further meeting with Ms. Cowan’s aunt and uncle to underscore to them the importance of their agreement to forthwith disclose to the hospital should Ms. Cowan be absent from their home overnight or should there be any concerns regarding Ms. Cowan’s drug use or any changes in her presentation.
In hospital, Ms. Cowan is abstaining from substance use, she is not driving a car, and she is attending programming. What is likely to transpire should she be discharged to Victoria Harbour, remains to be seen. The greatest concern from Dr. Pallandi’s perspective, is Ms. Cowan’s risk to the safety of the public should she engage in substance use and operating a motor vehicle.
In response to question posed by a panel member, Dr. Pallandi advised that Ms. Cowan’s ongoing detention is necessary and appropriate to allow the hospital to continue in its efforts to engage her in concurrent disorders programming as well as to determine suitable housing for Ms. Cowan in the community.
Ms. Cowan also testified at the hearing. She advised that she has spoken with her aunt and her aunt is prepared to have Ms. Cowan to return to live with her.
Ms. Cowan advised that her aunt is available to drive her to all hospital appointments.
She advised that she was prescribed morphine to treat a tooth infection and she stated that she advised the FOS treatment team with a photo of the prescription.
No further evidence was called.
Analysis and Conclusions:
Pursuant to the decision of the Ontario Court of Appeal in Regina vs. M.L.C. (2010 ONCA 843), the Board must consider not only the reason for the restriction and the initial decision to impose a restriction but also the ongoing circumstances of the accused for the period of time that the restriction remains in place including up to the time of review. The initial restriction of liberty and ongoing restriction of liberty must be the least onerous and least restrictive necessary for public safety and for the accused.
The Board finds that the initial restriction of Ms. Cowan’s liberty on January 16, 2025 was warranted and that the actions taken by the hospital at that time were the least restrictive and least intrusive in the circumstances. In this panel’s assessment, Ms. Cowan was engaging in substance use and was not forthcoming with her treatment team. Further, at times, she was not residing in her approved community housing.
The Board finds that the restriction of Ms. Cowan’s liberty from January 16, 2025 until the hearing date was the least restrictive and least onerous intervention in the circumstances in order to interrupt her use of illicit substance use, undergo an assessment of the continued appropriateness of her community residence, and consider alternative housing options. It is clear from the expert evidence that stable housing and Ms. Cowan’s abstinence from substance use are the cornerstones of her safe risk management in the community.
In reaching our decision the Board considered public safety, Ms. Cowan’s mental condition, her integration into society and her other needs.
DATED this 24^th^ day of April 2025, at the City of Toronto, in the Toronto Region.
Ms. L. Banks Alternate Chairperson
____________________________
Office of the Registrar Ontario Review Board