Le Feuvre (Re)

Le Feuvre (Re) Collection Decisions of the Court of Appeal Date 2023-03-01 Neutral citation 2023 ONCA 136 Docket numbers C70813 Judges Gillese, Eileen E.; Benotto, Mary Lou; Coroza, Steve A. Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: Le Feuvre (Re), 2023 ONCA 136 DATE: 20230301 DOCKET: C70813 Gillese, Benotto and Coroza JJ.A. IN THE MATTER OF: Geoffrey Le Feuvre AN APPEAL UNDER PART XX.1 OF THE CODE Anita Szigeti, for the appellant Raoof Zamanifar, for the respondent Attorney General of Ontario Leisha Senko, for the respondent Person in Charge of the Centre for Addiction and Mental Health Heard: February 21, 2023 On appeal from the disposition of the Ontario Review Board, dated May 5, 2022, with reasons dated May 31, 2022. REASONS FOR DECISION I. OVERVIEW [1] In November 2007, Geoffrey Le Feuvre (the “appellant”) was found not criminally responsible on account of mental disorder on multiple charges of assault and mischief under $5,000 (for destroying property), assault with a weapon, and failure to comply with a probation order (the “Index Offences”). He was 56 years old at that time. [2] Since then, the appellant has been under the jurisdiction of the Ontario Review Board (the “Board”). He was detained at CAMH for 14 years and, in April 2021, discharged into supported housing. The Board disposition granting him a conditional discharge required him to reside in a specified LOFT residence and report to the person in charge at CAMH. [3] The appellant is now 71 years old. His physical health has been declining and his cognition may be impaired. He has been diagnosed with bipolar I disorder; substance use disorders (alcohol, crack cocaine, inhalants); and personality disturbance with marked antisocial, narcissistic, and psychopathic traits. He also has a differential diagnosis of schizoaffective disorder. [4] The Board held the appellant’s most recent review hearing by Zoom on April 27, 2022 (the “Hearing”). At that time, the appellant was an inpatient at Mt. Sinai Hospital where he had been admitted after decompensating. He was present for the Hearing, as was his lawyer. [5] The appellant’s position at the Hearing was that he no longer constituted a significant threat to public safety and, therefore, was entitled to an absolute discharge. The hospital and the Attorney General recommended that the conditional discharge be maintained and a condition requiring the appellant to abstain from drugs and alcohol be added. [6] Dr. Bérubé-Fortin, a psychiatric resident who has been involved in the appellant’s care, gave oral evidence at the Hearing explaining why, in her expert opinion, the appellant continues to constitute a threat to public safety. [7] The Board unanimously concluded that the appellant poses a significant threat to the safety of the public as defined in s. 672.5401 of the Criminal Code. The Board’s disposition continued the conditional discharge, subject to a modification of the specified street address to allow him to more generally reside at a LOFT residence (the “Disposition”). [8] On appeal, the appellant asks that the Disposition be quashed and an order made discharging him absolutely. Alternatively, he asks that the matter be remitted to the Board for a rehearing before a differently constituted panel. [9] For the reasons that follow, the appeal is dismissed. II. BACKGROUND [10] The appellant was diagnosed with schizophrenia while living in Mexico. He was deported from Mexico to Canada in December 2001. Following his return to Canada, he has had significant engagement with psychiatric care. He has a longstanding history of treatment noncompliance and lack of insight. The Index Offences [11] The Index Offences arose from three separate incidents that occurred between May and July of 2007. In the first incident, the appellant chased a woman unknown to him. A store owner assisted the woman. The appellant punched the store owner in the face, struck him with his cane, damaged his merchandise, and smashed a parked car. In the second incident, the appellant entered a hospital and punched a security guard in the face. In the third, he forced a streetcar to stop, exposed himself, banged on and damaged the streetcar, forced traffic to stop, banged on and damaged two vehicles, fought with an unknown person, assaulted two security guards, punched and kicked police officers who tried to handcuff him, and smashed the window of the police car in which he was being held. The Index Offences took place while the appellant was on probation requiring him to keep the peace and be of good behaviour, and when he was actively psychotic and abusing alcohol. The Hearing – The Hospital Report [12] The only exhibit at the Hearing was the hospital report dated March 31, 2022. It provides summaries of the appellant’s years under the Board’s jurisdiction. While an inpatient, the appellant had episodes of mania, grandiosity, aggressive behaviour, deteriorations in mental status, and fairly consistent defiance around rules. The report also provides details of the appellant’s continued substance abuse during times he had access to the community and his history of being absent without leave, most recently in 2019. On his most recent absence without leave, he used cocaine and cannabis and returned voluntarily to the hospital. [13] The report also includes the results of two PCL-R risk assessments. In 2009, the appellant scored 30 out of a possible 40. In 2018, his score was 27.4 out of 40. These scores are indicative of significant psychopathic traits. Dr. Bérubé-Fortin confirmed those traits are consistent with problems the appellant has had in the past including disregard for rules, rule breaking, and deceitful behaviour. [14] The report also included HCR-20 v3 and SAPROF analyses, which are structured professional judgment schemes that consider both static (historic) and dynamic (clinical and risk management) factors. The HCR-20 v3 analyses in the report, from April 2021 and March 2022, include summaries of the risk factors of particular relevance to the appellant. The most recent HCR-20 v3 analysis estimated the appellant’s future risk of violence was low in the context of a conditional discharge but concluded that if he were granted an absolute discharge he was at higher risk of becoming “inobservant to medication”, using drugs and alcohol, engaging in rule breaking behaviours, and decompensation. [15] The SAPROF analysis highlights protective factors currently relevant to the appellant, including his important family connections, co-operation with the treatment team, medication compliance, and participation in programming. [16] The hospital report provides a detailed summary of the criminogenic risk factors applicable to the appellant. It cites episodes of aggression in 2009, 2011, and 2012, highlighting that in all cases of reported violence the appellant had been using alcohol, street drugs, or a combination of both, and was observed to be experiencing mood and psychotic symptoms. The Hearing – The Expert Evidence [17] Dr. Bérubé-Fortin’s expert opinion was that the appellant continued to pose a significant threat to the safety of the public. She testified that the appellant has a history of aggression in the context of substance use and mental illness, and has limited insight into his substance use and the risks of decompensation. He continues to experience chronic grandiosity, although not to the level of delusion. His other maladaptive personality traits include duplicity, poor self-monitoring, impulsivity, and lack of realistic long-term plans. He has a history of significant absences without leave. [18] In Dr. Bérubé-Fortin’s opinion, absent close Board supervision, the appellant would likely use more substances, become medication non-compliant and relapse, becoming manic and potentially psychotic with associated aggression. Despite the appellant’s increasing physical infirmities, Dr. Bérubé-Fortin was firm that the appellant is still capable of violence and the risk he poses remains significant. She also remained firm that the use of substances could lead to setbacks for the appellant that result in decompensation. [19] Dr. Bérubé-Fortin also gave evidence about the appellant’s prior clinical year, his first year under a conditional discharge disposition. There were no incidents of aggression in the community. Aside from the circumstances leading to his two readmissions, discussed below, there was no evidence of mania, but he did continue to express grandiose ideas and exhibit poor judgment. He continued to be medication compliant apart from his most recent readmission when he had been partially non-compliant with his lithium. While he was very happy in the LOFT residence, his persistent rule breaking behaviours – largely centred around his insistence on smoking and vaping indoors – put him at risk of eviction. [20] There were two readmissions in the last clinical year. The first was from May 26 to June 24, 2021. While described as a “manic episode with psychotic symptoms”, possible causes for the appellant’s decompensation were physical symptoms of a vertebral compression fracture and fecal loading. However, during this admission, there were episodes of aggression, including when the appellant broke a hospital window. While the appellant was admitted in May 2021 as an involuntary patient under the Mental Health Act, R.S.O. 1990, c. M.7, he continued as a voluntary patient after that form expired. [21] The appellant’s second readmission started in March 2022 and was ongoing at the time of the Hearing. It followed another fall and there was a suspicion that cannabis use may have contributed to it. This admission was completely on a voluntary basis. [22] Although the appellant was initially discharged when first assessed after his fall, the following day he remained confused, disoriented, and disorganized. He was then sent back to the hospital for a further assessment. Dr. Bérubé-Fortin provided the Board with additional details regarding the appellant’s second readmission that were not available in the hospital report. She said that it was the opinion of the Mt. Sinai psychiatrist that the appellant had decompensated in the days following his admission. He appeared to be agitated and manic and blood work indicated his lithium levels were low. It was concluded that the appellant had been partially non-compliant with his lithium. [23] The appellant regularly uses cannabis and confirmed he did not intend to stop. There is no evidence of violence or aggression associated with his regular consumption of cannabis. Dr. Bérubé-Fortin’s concern about his use of cannabis is that the appellant is slightly more disinhibited, which could lead to him using more cannabis, potentially resulting in the use of other substances and more symptoms. The Board’s Conclusion [24] The Board unanimously concluded, based on all the evidence before it, that the appellant poses a significant threat to the safety of the public for reasons that include the following: • Dr. Bérubé-Fortin’s expert opinion that he constitutes a significant threat. • The appellant suffers from a major mental illness and, although he has not harmed anyone for many years, he decompensated on two occasions during the past clinical year. Even if the hospital window breaking incident in the prior clinical year was not directed at an individual, it underscores how the appellant’s anger and impulsiveness can quickly move towards violence when he decompensates. • In the May 2021 readmission, even if triggered by physical ailments, the appellant demonstrated elements of mania and grandiosity that the Board accepted can contribute to elevating the threat he represents to a significant level. • Concern over the appellant’s history of substance abuse. While there has been no sign in recent years of the appellant using cocaine and crack cocaine – the riskiest of the substances he has historically used – he has not been entirely abstinent from alcohol or its cravings. This can be seen from the incident where he consumed mouthwash. The Board also put some weight on Dr. Bérubé-Fortin’s evidence that his admitted cannabis use could lead to disinhibition for further substance use which, if uncontrolled, would likely contribute to increased risk of harm to members of the public. • The Board accepted Dr. Bérubé-Fortin’s evidence that the psychopathic traits shown in the appellant’s behaviour and identified through PCL-R scoring contributes to the significant threat he represents. [25] The Board reasons on significant threat concluded with the following paragraph. It is set out in full because the appellant relies on the emphasized sentence (the “Impugned Sentence”) for its submission that the Board erred in law in reaching its conclusion that the significant threat threshold was met. [66] The Board has also carefully considered [the appellant’s counsel’s] submissions regarding the passage of time since the index offences, which she characterized as minor, and since the last incident of [the appellant] harming anyone. However, he has periodically, including in the last clinical year, shown impulsive aggressivity. With respect, the Board is satisfied that absent any disposition, there is more than a miniscule risk of grave harm and there is not just a high risk of trivial harm. Based on all the evidence before it, the Board finds that there is a real risk of serious physical or psychological harm to members of the public resulting from conduct that is criminal in nature. This risk is real and not merely speculative. [Emphasis added.] III. THE ISSUES ON APPEAL [26] The appellant submits that the Board: (1) unreasonably concluded that he met the significant threat threshold; and (2) failed to grapple with, or give sufficient weight to, the protective factors militating in favour of his absolute discharge. IV. ANALYSIS Issue 1: No basis on which to interfere with the Board’s significant threat determination [27] The appellant submits the Board erred in law and in fact in finding the significant threat threshold was met. The alleged legal error arises from the last words in the Impugned Sentence, namely, “conduct that is criminal in nature”. The appellant says the absence of the word “serious” shows that the Board did not use the correct legal standard relating to serious criminal conduct. [28] We do not accept this submission. The Impugned Sentence must be read as a whole, within the balance of the paragraph, the entirety of the Board’s reasons, and the record. From the Board reasons, it is clear that the Board understood the legal test. In the sentence preceding the Impugned Sentence, the Board states that it is satisfied that “absent any disposition, there is more than a miniscule risk of grave harm and there is not just a high risk of trivial harm”, the legal test established in Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 62. [29] Indeed, in our view, it is clear from the Impugned Sentence itself that the Board understood that the criminal conduct must be serious because that sentence begins with the Board finding that there “is a real risk of serious physical or psychological harm to members of the public”. As counsel for the appellant candidly admitted in response to court questions, it is hard to conceive of how the infliction of serious physical or psychological harm could not amount to serious criminal conduct. [30] Further, although not explicitly stated, it is evident that the risk of serious criminality contemplated by the Board was conduct similar to the appellant’s previous assaultive criminal behaviour and conduct that, in Dr. Bérubé-Fortin’s expert opinion, she believed the appellant was at risk of engaging in absent Board supervision. [31] We also reject the appellant’s submission that the Board erred in fact in finding that the significant threat threshold was met. As an expert tribunal, the Board’s determination that the significant threat threshold is met is owed significant deference on appeal: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 37. The Board used its expert judgment, applied the correct legal principles, made unimpeachable findings of fact, and made no error in its application of the law to those factual findings. [32] In sum, after a “somewhat probing examination”[1], we view the Board decision that the appellant poses a significant threat to public safety as reasonable and supported by the evidence. The Board relied heavily on Dr. Bérubé-Fortin’s expert opinion and the evidence on which her opinion was based. In addition, it considered the major mental illness from which the appellant suffers and that he had decompensated twice in the prior clinical year. In one of those incidents, he broke a hospital window out of anger. While this act was not directed toward a person, it indicated how his anger and impulsiveness could quickly move toward violence when he is decompensated. [33] The Board also expressed concerns regarding the appellant’s substance use, the likelihood of resumption without close supervision, and the appellant’s limited insight into the associated risks of decompensation on his major mental illness. While he had not used cocaine and had been mostly abstinent from alcohol since being in the community, the Board was concerned that his cannabis use could result in disinhibition regarding further substance use. The Board also considered the PCL-R risk assessments, conducted in 2009 and 2018, indicating significant psychopathic traits and Dr. Bérubé-Fortin’s evidence on the significance of those assessments. [34] Importantly, the Board also considered the relevant factors favourable to the appellant, as discussed below, before reaching its conclusion on significant threat. Issue 2: The Board duly considered the protective factors favouring the appellant’s absolute discharge [35] The appellant submits that the Board failed to grapple with, or give sufficient weight to, the following factors militating in favour of his absolute discharge: his stable housing, which he loves; his connection to geriatric psychiatric and medical care through that housing; his sustained family support; his general compliance with psychiatric medications; his abstinence from the use of cocaine for at least three years; his absence of aggressive behaviour despite his regular use of cannabis; his antipsychotic medications having been changed to a long-acting injectable formula which provides him with greater stability going forward; his physical impairment in terms of mobility and diminished capacity for causing physical harm. [36] Contrary to the appellant’s submission, before reaching its conclusion on significant threat, the Board considered these factors. The above recitation of the background and facts are all drawn from the Board’s reasons. From those reasons, it is apparent that the Board considered the appellant’s age and physical condition, and whether these matters mitigated the threat he posed. It noted that the appellant “uses a rollator [walker] now, and has trouble negotiating stairs”, and “[h]is hands shake so badly he sometimes cannot hold a glass without spilling its contents”. [37] The Board also considered the appellant’s family support, the lengthy period since his last assault in 2012, his general compliance with medication – with the exception of his recent partial non-compliance with lithium – and that he lives in supportive housing with access to a geriatric psychiatrist and medical care as a result. It noted that there has been no sign in recent years of his use of cocaine and crack cocaine, which are the riskiest substances he has historically used. It addressed the appellant’s aggressivity in a number of ways, and acknowledged that the window breaking incident was not directed at an individual. The Board also identified the Mental Health Act involvement in the appellant’s readmissions and explained that it reasonably managed the risks that the appellant poses but concluded that the support the appellant obtains as a result of a conditional discharge is “an important element” in managing that risk. [38] However, the Board also considered Dr. Bérubé-Fortin’s evidence that the appellant remains capable of violence. Dr. Bérubé-Fortin disagreed that the appellant’s age and physical condition detracted from the possibility that he could harm another person. Even though he now has reduced mobility, the appellant is still physically capable of being aggressive, assaultive, and causing harm to another. She pointed to the window breaking incident at the hospital and observed that, even with reduced mobility, he could still use an object to cause harm to another, as he did as part of the Index Offences when he used his cane to assault someone. [39] Having considered the relevant factors under s. 672.54 of the Criminal Code, including those favourable to the appellant’s discharge, we see no basis for appellate intervention with the Board’s determination that the appellant remains a significant threat to public safety. V. DISPOSITION [40] For these reasons, the appeal is dismissed. “E.E Gillese J.A.” “M. L. Benotto J.A.” “S. Coroza J.A.” [1] See Owen, at para. 33.