Blake (Re)

Blake (Re) Collection Decisions of the Court of Appeal Date 2021-04-12 Neutral citation 2021 ONCA 230 Docket numbers C68353 Judges Feldman, Kathryn N.; Lauwers, Peter D.; Trotter, Gary T. Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: Blake (Re), 2021 ONCA 230 DATE: 20210412 DOCKET: C68353 Feldman, Lauwers and Trotter JJ.A. IN THE MATTER OF: Glenroy Blake AN APPEAL UNDER PART XX.1 OF THE CODE Anita Szigeti, for the appellant Dena Bonnet, for the respondent, Attorney General of Ontario Michele Warner, for the respondent, Person in Charge of the Centre for Addiction and Mental Health Heard: February 19, 2021 by video conference On appeal from the disposition of the Ontario Review Board, dated May 1, 2020, with reasons dated May 7, 2020. Feldman J.A.: A. Overview [1] The appellant’s annual hearing before the Ontario Review Board (the “Board”) on April 29, 2020 was one of its first hearings using zoom technology because of the COVID-19 pandemic that was declared a public health emergency in March 2020. Although the appellant had received a conditional discharge disposition in the past, he was under a detention order at the time of the 2020 hearing. He sought another conditional discharge. The Board concluded that the necessary and appropriate disposition was to continue the detention order, by which, at the time, the hospital required reporting to the Centre for Addiction and Mental Health (“CAMH” or the “Hospital”) in-person five days a week and frequent urine testing for substance abuse. [2] The appellant submits on this appeal that the Board erred in law and in fact by failing to grant a conditional discharge. The appellant argues that the Board erred by 1) failing to consider the significant progress the appellant had made over the last eight months while detained in hospital; 2) failing to give sufficient consideration to the effect of the COVID-19 pandemic on the safety of the appellant and others confined or potentially confined in a congregate hospital setting; 3) giving too much effect to the potential for a restriction of liberty (“ROL”) hearing to protect the liberty interest of the appellant, in light of the Hospital’s unacceptable failure to release the appellant following the Board’s last ROL disposition; and 4) finding that the Mental Health Act, R.S.O. 1990, c. M. 7, provisions would not be sufficient to return the appellant to the Hospital if it became necessary. [3] I would not give effect to the appellant’s submissions. However, if at any future hearing, there is a dispute regarding the proper interpretation and application of the Mental Health Act provisions that allow a hospital to detain a person and about the efficacy of those provisions in the context of a conditional discharge disposition, the Board should require the parties to provide a complete record and full argument. B. Background Facts [4] The appellant, aged 38 at the time of the hearing, was first hospitalized in 2006 for an instance of “First Episode Psychosis.” He was diagnosed with schizophrenia in 2010. His current diagnoses are schizophrenia, unspecified personality disorder, and substance use disorder. He has over 30 convictions as an adult, including for weapons-related offences, uttering threats, assault, and criminal harassment (typically targeting women who did not know him). In 2010, the appellant was found not criminally responsible (“NCR”) in respect of offences that occurred between August 2009 and March 2010. The offences were failure to comply with a recognizance, watching a dwelling house, failure to comply with probation, prowling by night, and carrying a concealed weapon. [5] Following the NCR finding in September 2010, the appellant was an inpatient at CAMH for two years. He was first discharged into the community in August 2012. He returned to the Hospital for one brief admission in June 2014, then again in November 2014, when he was placed on the secure unit under a hybrid order as a result of positive screens for cocaine as well as other issues (specifically, allegations of drug trafficking, of plans to buy a gun, and reports of gambling on hospital grounds). He was transferred to the general unit on September 8, 2015 and discharged to the community on January 7, 2016, but admitted again on January 19 following a positive screen for cocaine, which he denied, and discharged again on January 29. Following four positive screens for cocaine (which he again denied), he was admitted on August 25, 2016 and discharged on September 15, 2016. [6] On January 24, 2018, the appellant was granted a conditional discharge. He had one positive drug screen in February. He was admitted twice to the Hospital, once at his own initiative from March 30 – April 4, and a second time under the Mental Health Act Form 1 psychiatric assessment, as a result of threats to obtain a firearm and to harm two of his previous case managers. A “no-trespass” order was in place at CAMH against him, except for his scheduled appointments. [7] In November 2018, although the appellant was medication-compliant and not psychotic, he began to decline, missing appointments, failing to co-operate with the team or with the Board’s conditions, screening positive eight times out of ten between November 2018 and February 2019 for cannabis, and violating the no-trespass order on several occasions. Also, in that time period, four female CAMH staff members alleged that he had followed them. [8] As a result of this decline, the Hospital requested an early review of the conditional discharge disposition. On March 26, 2019, he was placed on a detention order that authorized his readmission to hospital if necessary. He was readmitted from July 11 to August 1, 2019 after screening positive for cannabis and cocaine. He required restraint and seclusion and was described as “a high risk for violence.” He was released from the Hospital on August 1, 2019, when he was discharged back into his residence in the community. On August 9, 2019, the Board convened a hearing to review the appellant’s ROL from July 11 to August 1. On August 15, 2019, the Board concluded that the appellant’s ROL had been warranted. [9] The appellant, however, was readmitted to the Hospital later in August after he again tested positive for cocaine, he missed appointments, he met with his case manager in an alleyway to give a urine sample, and then the next day was not reachable. [10] A second ROL hearing was held on October 9, 2019, and on November 4, 2019, the Board released a decision where the majority found that while his initial detention in hospital was warranted, the appellant’s continued admission was not. In reasons for that decision released January 14, 2020, the Board found that “his continuing admission is not warranted and is neither necessary nor appropriate.” Despite that finding, the appellant’s physicians did not discharge him to the community. The appellant’s lawyer advised this court that she had made repeated requests for a discharge between November 2019 and March 2020. After his March 2020 annual review was postponed until April 2020 due to COVID-19, the appellant was discharged on April 28, 2020 – the day before his hearing. During the period of extended detention, the appellant made significant progress in hospital. C. Decision of the board [11] The Board summarized its findings and reasons for its decision that the appellant remained a significant threat to the safety of the community, and that a detention order was the least onerous and least restrictive disposition for the appellant at para. 50 of its reasons: The Board finds that a detention order is necessary and appropriate. Mr. Blake's early hearing and two ROL hearings in 2019 attest to the ongoing risk he poses in the community. The early hearing in 2019 arose from reports of drug use and allegations that Mr. Blake had followed female staff from CAMH. Later in 2019 he was admitted twice, for reasons that included positive drug screens (i.e, including cocaine), as well as missed appointments and a refusal to attend or co-operate with the team. The Board is not hesitant to find that a detention order is necessary so that Mr. Blake can be re-admitted to hospital. The MHA is not a viable alternative because it is not adequate to protect public safety. The primary concern is Mr. Blake's pattern of drug use and disinhibited behaviour, which creates a risk, especially to women but also of weapon use and other criminal behaviour. This risk has crystallized in the community when Mr. Blake is compliant with medication, is not experiencing psychotic symptoms, and is not certifiable. Mr. Blake's two ROLs in 2019 confirm the pattern and the hospital's need for the authority of a detention order to readmit him. (1) Dr. Toguri’s evidence [12] The Board heard evidence from the appellant’s treating psychiatrist, Dr. Toguri. He advised that while the appellant was detained in hospital from September 2019 to the day before the hearing, April 28, 2020, he had received psychosocial and pharmacological treatment and one-to-one counselling as well as group programming to address his substance abuse problem. He advised that the appellant uses olanzapine as needed for calming, and that his long-acting injectible, aripiprazole, had been increased during this period. While in hospital, the appellant had had a positive change in his interactions with staff. He also had no positive drug screens. [13] Dr. Toguri explained that before the appellant could be discharged into the community, as had been ordered by the Board in November 2019, the Hospital had to co-ordinate with an outpatient team because of the requirement for a staff safety plan. They had implemented a “zero tolerance policy” for the appellant while in the community, which meant that any positive screen or non-compliance related to substance use or reporting would result in the appellant being readmitted to hospital. He had to report daily during the week with frequent urine tests, and his reporting had to be to the West Wing of CAMH in order to comply with the no-trespass order that had been imposed on him for the safety of female staff. There was no COVID-19 outbreak in the West Wing. [14] Dr. Toguri gave his opinion that a detention order was necessary and appropriate because the Hospital required the authority to return the appellant to its care. He stated that the Mental Health Act does not address the risk that the appellant’s personality and substance abuse issues could lead to behavioural problems without any change to his mental status. Those problems can manifest with disinhibited behaviour and following women in the community. [15] With respect to the applicability of the Mental Health Act, Dr. Toguri stated that with substance abuse the appellant could become a risk to the public, even without the return of his psychosis. In those circumstances, admission to the Hospital under Box B would not be available (since the appellant has capacity), and he would likely not meet the strict criteria of “serious harm” in Box A either. (2) The Board’s findings on the Hospital’s failure to discharge [16] The Board expressly addressed the issue of the Hospital’s failure until April 28, 2020, to implement the Board’s order of November 2019 following the ROL hearing, where the Board held that the appellant’s detention in hospital was no longer necessary or warranted. The Board stated that “[t]he clear purpose of s. 672.81(2.1) [of the Criminal Code, R.S.C. 1985, c. C-46] is to protect NCR offenders from restrictions of their liberties that are not authorized by their disposition, and to ensure that such ROLs are subject to review by the Board,” and found that the appellant’s “prolonged admission to hospital contrary to a Board Decision is unacceptable.” It also found that the Hospital was effectively in breach of the Board’s order. [17] The Board explained that its orders are not self-executable, and that it is up to the Hospital to accept the guidance of the Board. The Board did not accept the explanations provided by the Hospital that it misunderstood the Board’s November 2019 decision and that the appellant’s discharge was very complex. The Board noted in respect of the appellant’s discharge plan, that over the eight month period when the appellant was detained in hospital, there were no reports of positive screens or drug use concerns, and that counsel for the Hospital had described the period as the “longest period of stability” for the appellant. (3) The Board’s 2020 disposition [18] Counsel for the appellant’s position was that the appellant should receive a conditional discharge. She submitted that the zero tolerance policy, in the context of the COVID-19 pandemic, would subject him to detention at the first sign of trouble and place him at enormous risk of contracting the disease. This would be “risk enhancing” rather than “risk diminishing,” especially since the appellant was agreeable to both a residence requirement and a s. 672.55(1) consent treatment provision as part of his conditional discharge. She also submitted that in crafting the appellant’s disposition, the Board should take full account of the COVID-19 pandemic, and endeavour to protect his safety and the safety of others by limiting congregate settings for mental health patients. [19] In response to the first submission, the Board found that in light of the appellant’s history with drug use and disinhibited behaviour since November 2018, without a detention order that allows the Hospital to readmit him if necessary, the risk to the public safety would be significant. The detention order was therefore necessary to satisfy the statutory mandate of the Board to treat the safety of the public as a paramount consideration. [20] The Board also addressed the COVID-19 issue. It rejected jurisprudence regarding the effect of COVID-19 on bail decisions as of limited relevance, because while the safety of the public is the second bail criterion, it is the Board’s paramount consideration under s. 672.54 of the Criminal Code. The Board quoted with approval the following statement from the bail decision in R. v. Williams, 2020 ONSC 2237, at para. 125: “The law continues to require that accused who pose a substantial risk of endangering the public, like Mr. Williams, must remain in custody, even during the COVID-19 pandemic”. [21] Additionally, the Board consulted the CAMH statement on the pandemic, and after considering the appellant’s circumstances, concluded that a detention order would not entail an inappropriate risk of exposure to COVID-19. There were no outbreaks at the time in the West Wing where the appellant would be required to report, meaning that any potential risk was from readmission, which he could avoid by complying with the conditions of his detention. If the appellant were to be brought back into hospital under the detention order, an ROL hearing would be triggered after seven days, and the admission would only be warranted under s. 672.81(2.1) when it is “the least onerous and least restrictive alternative in the circumstances.” D. Issues [22] The appellant’s position is that the Board erred by failing to grant a conditional discharge as the least onerous and least restrictive disposition order, and raises four grounds of appeal in support: 1. The Board erred by failing to take account of the significant progress the appellant made while detained in hospital. 2. The Board erred by failing to give sufficient consideration and effect to the presence of the COVID-19 pandemic and the danger it poses to the appellant and others who are confined or required to attend at the Hospital. 3. The Board erred by relying on the ROL hearing as a procedural safeguard for the appellant, when the Hospital had unacceptably failed to implement the Board’s previous order that his ongoing admittance to the Hospital was not warranted or necessary. 4. The Board erred by relying on the evidence of Dr. Toguri that the Mental Health Act provisions would not apply to the appellant when his psychosis remained under control, but his risk to public safety arose from his personality disorder and substance abuse. E. Analysis (1) Did the Board err by failing to take account of the significant progress the appellant made while detained in hospital? [23] The appellant submits that the Board did not take his recent positive progress while in hospital into account in arriving at its disposition. I do not accept this submission. The Board fully outlined the appellant’s history and the testimony of Dr. Toguri, whose opinion was based on his knowledge of the appellant’s history and his progress while under treatment in hospital. Dr. Toguri’s opinion was that despite the appellant’s progress, the detention order was necessary, and that the current requirement for a zero tolerance compliance regime was also necessary to ensure that the appellant would not use substances that had the effect of causing his mental condition to deteriorate and increasing his risk of being a danger to the public. (2) Did the Board err by failing to give sufficient consideration and effect to the presence of the COVID-19 pandemic and the danger it poses to the appellant and others who are confined or required to attend at the Hospital? [24] The appellant submits that in response to the COVID-19 pandemic, it is the Board’s obligation to depopulate the Hospital as a congregate living setting, to the extent possible, in order to protect both the appellant’s and the public’s safety from the pandemic. To that end, he submits that the low threshold for readmission under the zero tolerance policy that the Hospital would implement as part of his detention order would needlessly expose him and others to the risk of contracting the disease. This submission was supported at the hearing by the affidavit of Dr. A. Orkin, a public health physician, and a written statement from the Bazelon Center for Mental Health Law. In other words, to protect the appellant as part of the public as well as to protect the rest of the public from COVID-19, the Board should have imposed a conditional discharge with appropriate conditions as the least onerous and least restrictive disposition, and that it erred by not doing so. [25] In my view, the Board made no error in its approach to its obligation, including its consideration of how to factor in the COVID-19 pandemic. The Board was acutely aware of the pandemic, and its effect on the Hospital and on the whole of society. It considered the evidence presented by the appellant as well as the CAMH policy on COVID-19 and the current conditions at the Hospital. It noted that the reporting requirement for the appellant was to the West Wing where there was no outbreak. The Board also addressed its primary statutory obligation to protect the safety of the public, in the context of the appellant’s history of substance abuse and disinhibited behaviour. The Board recognized the need to be able to return the appellant to the Hospital because he could become dangerous to women as he had in the past. The Board concluded, at para. 55: In light of Mr. Blake’s history since November 2018 – as discussed above – the Board finds that the risk to public safety would be significant absent a detention order granting the hospital authority to re-admit Mr. Blake, if necessary. As noted above, the Board is required, under its statutory mandate, to treat the safety of the public as a paramount consideration. [26] A similar argument regarding the effect of COVID-19 on the Board’s obligations was made to the Board and to this court, and rejected, in the recent appeal in Scalabrini (Re), 2021 ONCA 212. There, Fairburn A.C.J.O. emphasized, at para. 45, that it would be contrary to the statutory scheme for the Board to impose a conditional discharge “in circumstances where a detention order is called for, only to make it more difficult for the appellant to be returned to the hospital in circumstances where he is decompensating and in need of stabilization.” She added the important observation, at para. 46, that it will be for the healthcare professionals who administer the detention order “to keep COVID-19 in mind at the time that decisions are being made about whether to intervene in the context of decompensation, and, if so, how,” including using strategies other than re-hospitalization. In this case, as the respondent Attorney General points out, the Board’s order only required the appellant to report “once per month, or as required” giving the Hospital the flexibility to reduce the reporting conditions from five days per week if that should become appropriate. [27] The Board in this case also made two important observations when weighing the risk to the appellant of being exposed to COVID-19 by his potential readmission to the hospital. The first was that the appellant could avoid readmission to hospital by complying with his reporting requirements and abstaining from substance use. The appellant had been compliant while in hospital. It was a fair expectation that he would remain so in order to be able to remain in the community. The second, which will be discussed in further detail below, was that the appellant had the procedural safeguard of an ROL hearing requiring the Board to re-consider his admission to hospital after seven days. (3) Did the Board err by relying on the ROL hearing as a procedural safeguard for the appellant, when the Hospital had unacceptably failed to implement the Board’s previous order that his ongoing admittance to the Hospital was not warranted or necessary? [28] The Board’s second observation was that the appellant had the protection of s. 672.81(2.1) of the Criminal Code, which requires the Board to hold an ROL hearing after seven days to ensure that the appellant would be returned to the community as soon as possible. The appellant objects that in light of the Hospital’s recent failure to abide by the order of the Board following an ROL hearing, this was a hollow observation. [29] I do not agree. The Board strongly reprimanded the Hospital in its reasons for failing to abide by the Board’s order following the ROL hearing, and made its expectations for future compliance abundantly clear. By adding that the ROL gives the appellant further protection from any unwarranted extended stay in hospital, and therefore exposure to COVID-19, the Board was reinforcing its message to the Hospital, and its confidence that the Hospital would not be in breach in the future. I would endorse the Board’s reprimand and its approach. (4) Did the Board err by relying on the evidence of Dr. Toguri that the Mental Health Act provisions would not apply to the appellant when his psychosis remained under control, but his risk to public safety arose from his personality disorder and substance abuse? [30] In this case, the appellant had a history of remaining medication-compliant in respect of his injectable medications and keeping his psychosis under control, but then decompensating and becoming dangerous as a result of cocaine or cannabis use. [31] The appellant objects that when deciding whether the Mental Health Act committal provisions would be sufficient to bring him back to hospital for breach of a condition of discharge, the Board relied on what his counsel alleges was erroneous testimony from Dr. Toguri that the Mental Health Act provisions cannot be used to detain a person for substance abuse where there is no manifestation of psychosis. [32] The appellant submits that as an expert tribunal, the Board should have understood the proper interpretation and application of the Mental Health Act. Counsel added, in reply submissions, that when Dr. Toguri was asked questions by one of the psychiatrist Board members during the hearing, the Board member referred to language used in a previous version of the Mental Health Act that no longer applies, and thus called into question its own expertise. [33] The appellant submits that, contrary to the evidence of Dr. Toguri, the applicable Mental Health Act provisions that allow a person to be detained in prescribed circumstances can apply to substance abuse, and therefore could be used in the appellant’s circumstances to bring him back to hospital if he were to decompensate. The appellant also relies on the fact that he consented to a treatment clause under s. 672.55 of the Criminal Code, which he submits would allow readmission to the Hospital for treatment under a conditional discharge disposition. [34] The issue of the extent to which the Mental Health Act provisions may be of sufficient efficacy that they may be used effectively in the context of a conditional discharge disposition to return a decompensating person subject to the disposition to hospital, and keep him or her in for treatment as required, has been raised in appeals to this court in a number of cases over the last twelve years: see, for example, R. v. Breitwieser, 2009 ONCA 784, 99 O.R. (3d) 43, at paras. 7-18; R. v. Lamanna, 2009 ONCA 612, 252 O.A.C. 280, at paras. 14-17; Young (Re), 2011 ONCA 432, 273 C.C.C. (3d) 512, at para. 26; Coburn (Re), 2016 ONCA 536, at para. 19; Munezero (Re), 2017 ONCA 585, at paras. 4-9; Marchese (Re), 2018 ONCA 307, 359 C.C.C. (3d) 408, at paras. 19-23; Valdez (Re), 2018 ONCA 657, at paras. 21-24; Leger (Re), 2018 ONCA 1035, at paras. 9-14; Negash (Re), 2018 ONCA 179, at paras. 10-13; Esgin (Re), 2019 ONCA 155, at paras. 19-21; Davies (Re), 2019 ONCA 738, 380 C.C.C. (3d) 552, at paras. 33-39; Ahmadzai (Re), 2020 ONCA 169, at paras. 22-24; Yunus-Ali (Re), 2020 ONCA 669, at paras. 10-12; and Williams (Re), 2021 ONCA 90, at paras. 19-22. [35] These cases make it clear that in deciding whether a detention order is required and is the least onerous and least restrictive disposition, the Board must consider the committal provisions of the Mental Health Act as one of the available mechanisms for securing the person’s attendance at hospital for breach of a discharge condition. However, in order to do that, the Board must have an accurate understanding of how the committal provisions of the Mental Health Act operate. [36] Ms. Szigeti, who is an expert in mental health law, has argued that both the treating psychiatrist and one of the Board psychiatrists did not have that accurate understanding of the Mental Health Act. However, neither this court, nor the Board, can be in a position to rule on that submission without a full record. Such a record could include expert evidence from a legal expert in mental health law, expert evidence from specialist psychiatrists with significant experience with the committal provisions of the Mental Health Act, as well as legal briefs on behalf of the appellant, the Hospital and the province. [37] In this case, the Board, which had only the evidence of Dr. Toguri on this issue, was entitled to accept and act on that evidence. However, in a future case where the efficacy of the Mental Health Act committal provisions is going to be a disputed issue before the Board, it will be incumbent on the Board, as an inquisitorial body, to require the parties to place a sufficient evidentiary and legal record before it, to enable it to determine the issue in the context of supporting its disposition as the least onerous and least restrictive. F. Conclusion [38] For these reasons, I would dismiss the appeal. Released: April 12, 2021 “K.F.” “K Feldman J.A.” “I agree. P. Lauwers J.A.” “I agree. Gary Trotter J.A.”