R. v. Hop-Kit Li

R. v. Hop-Kit Li Collection Decisions of the Court of Appeal Date 2008-09-09 Neutral citation 2008 ONCA 613 Docket numbers C47830 Judges Weiler, Karen Merle Magnuson; Borins, Stephen; MacFarland, Jean Louise Subject Criminal Decision Content CITATION: R. v. Hop-Kit Li, 2008 ONCA 613 DATE:20080909 DOCKET: C47830 COURT OF APPEAL FOR ONTARIO Weiler, Borins and MacFarland JJ.A. BETWEEN: Her Majesty the Queen Appellant and Betty Hop-Kit Li Respondent and The Person In Charge Of The Centre For Addiction & Mental Health Respondent Megan Stephens for the appellant James Hammond for the respondent, the Person in Charge of the Centre for Addiction and Mental Health Anita Szigeti as amicus curiae for the respondent Betty Li Heard: May 15, 2008 On appeal from the Ontario Review Board’s Reasons received on September 26, 2007. By The Court: [1] The Crown appeals from the Ontario Review Board’s (“ORB”) decision granting Ms. Li an absolute discharge. The Crown submits the ORB erred in law in holding, at paras. 20 and 21 of its reasons, that the Centre for Addiction and Mental Health (“CAMH”) had an onus on it to demonstrate that Ms. Li was not a significant risk to the safety of the public. We agree: see Winko v. Forensic Psychiatric Institute (1999), 135 C.C.C. (3d) 129 (S.C.C.), at paras. 54 - 55. [2] The Crown further submits that this error affected the Board’s chain of reasoning and led to an unreasonable result. The Crown’s position may be summarized as follows. Ms. Li’s attempt to seize a police officer’s gun posed a significant risk not only to herself but to the public because of the possibility of the unintentional discharge of the gun. The same psycho-social stressors that led to both Ms. Li’s impulsive behaviour and her lack of insight into her mental condition continue to exist. As a result, in the Crown’s submission, she continues to pose a risk of harm to the public. The evidence of Dr. Flett, Ms. Li’s attending psychiatrist, was that Ms. Li’s lack of insight into her illness and methods for stabilizing it meant that when acting on a suicidal impulse she may put other people at risk. She also has a long history of failing to take her medication. [3] In its reasons the ORB noted Ms. Li’s evidence that she had not given up on attempting suicide, but that, in the future, she would not use a method that put others at risk. The ORB held, at para. 18, “that whatever might flow from her private suicidal ideation there was not the slightest real current chance of her putting any member of the public at risk.” This statement is not only without evidentiary foundation and utterly speculative, but is contrary to the only expert evidence on point. [4] It is the nature of Ms. Li’s particular illness that puts the public at risk. When questioned whether she believed Ms. Li continued to pose a significant risk to the public, Dr. Flett responded: I do. I do in that the behaviour for which her index offence flows from and continues on in her impulsive acts and her suicidality which has increased over the past two months specifically. Dr. Flett stated earlier in her evidence: I think the greatest concern currently with Ms. Li is her level of suicidality and impulsivity that’s related to that. She had quite a lethal attempt a couple of weeks ago and it was very similar behaviour at the time of her index offence that led to that offence and so certainly her suicidality, impulsivity and the activity in which she can become affectively and emotionally aroused when she’s faced with a disappointment or loss if they are significant. [5] The ORB was of the view that the attending psychiatrist, Dr. Flett, and the clinical team at CAMH placed substantial reliance on the episode that generated the NCR finding and on a previous occasion when in the course of an episode of marital discord with her ex-husband she also reached for a police officer’s gun. It was not the episodes themselves which concerned Dr. Flett, but rather the behaviour that preceded these incidents and caused Ms. Li to act as she did. That behaviour continues to date and has not improved. [6] The ORB’s reasons do not reflect a consideration of whether the appellant’s underlying mental illness, continued lack of insight into her condition and impulsiveness demonstrate a propensity to unintentionally to put members of the public risk. Whether or not Ms. Li intends to cause the public harm is irrelevant particularly where her conduct in fact puts the public at risk. [7] The ORB also commented that on the two prior occasions when Ms. Li had attempted to seize a police officer’s gun “on no such occasion was an officer at any real risk and subject to any aggressive conduct or threats.” [8] At the initial hearing there was an obligation on the ORB to inquire whether the victim of a criminal offence has been notified of their right to attend a hearing, present a statement and make a statement. If not, the ORB may exercise its discretion to adjourn the hearing for up to 14 days to obtain the statement. The list of exhibits presented to this Court does not indicate that notice was given. In the circumstances, where the onus is on the ORB to review all relevant evidence (see para. 54 of Winko), it is incumbent on the Board to search this evidence out rather than make assumptions without any evidentiary foundation. The ORB erred in making such assumptions in this case. [9] The ORB also erred in holding that there was an onus on CAMH to prove Ms. Li posed a significant risk to the public, and that this onus had not been met (para. 21 of the ORB’s reasons). The Supreme Court of Canada has decided that there is no burden or onus on any party (see paras. 49 and 54 of Winko) and accordingly the Board erred in placing a burden of proof on CAMH to show that Ms. Li posed a significant risk. [10] The uncontradicted evidence before the ORB was that the psychiatric illnesses precipitating Ms. Li’s index offence continue relatively unabated. Ms. Li is non-compliant in terms of attending appointments with her attending psychiatrist at CAMH and taking her medication. She has no insight into her illness or the potential harm her actions may cause to others. [11] For these reasons, the Board’s finding that the respondent was not a significant threat to the safety of the public is unreasonable and its order granting Ms. Li. an absolute discharge is set aside. Given its conclusion that Ms. Li should be absolutely discharged, the Board did not engage in any analysis as to the least onerous and least restrictive disposition possible. [12] This matter is therefore remitted to a fresh Review Board to consider the case in accordance with these reasons. RELEASED: September 9, 2008 “KM” “K. M. Weiler J.A.” “S. Borins J.A.” “J. MacFarland J.A.”