Ontario (Review Board) v. Vlachos

Ontario (Review Board) v. Vlachos Collection Decisions of the Court of Appeal Date 2010-10-22 Neutral citation 2010 ONCA 695 Docket numbers C51712 Judges Weiler, Karen Merle Magnuson; MacPherson, James C.; Armstrong, Robert Patrick Subject Criminal Decision Content CITATION: Ontario (Review Board) v. Vlachos, 2010 ONCA 695 DATE: 20101022 DOCKET: C51712 COURT OF APPEAL FOR ONTARIO Weiler, MacPherson and Armstrong JJ.A. BETWEEN The Person in Charge of Centre for Addiction and Mental Health Appellant and Her Majesty the Queen Respondent and L’Ambros Vlachos Respondent Janice E. Blackburn, for the appellant Robert Gattrell, for the respondent Her Majesty the Queen Anik Morrow, for the respondent L’Ambros Vlachos Heard: October 7, 2010 On appeal from the disposition order of the Ontario Review Board under s. 672.81(1) of the Criminal Code, R.S.C. 1985, c. C-46, dated December 22, 2009, with reasons dated February 4, 2010, and reported at [2010] O.R.B.D. No. 224. Weiler J.A.: [1] The Centre for Addiction and Mental Health (“CAMH”), the hospital supervising the treatment of the respondent L’Ambros Vlachos for persecutory delusions, appeals the decision of the Ontario Review Board (“the Board”) granting him an absolute discharge. CAMH submits that the decision of the Board is unreasonable in two respects. First, because the same concerns with respect to Mr. Vlachos remained from the year before, the Board’s decision contradicts the decision it made a year earlier and is, itself, self-contradictory. Second, the Board recommended that Mr. Vlachos be monitored by a psychiatrist in the community to ensure that he would continue to take his medication and to detect signs of mental illness in the event he ceased taking it. Although no arrangements had been made in this regard, the Board granted Mr. Vlachos an absolute discharge. [2] On May 12, 2003, L’Ambros Vlachos was found not criminally responsible (NCR) of first degree murder by reason of mental disorder. Mr. Vlachos had been suffering from delusions that various individuals, including his friend Joe Pesa, were conspiring to harm him and his family. One morning, he drove to the gym where Mr. Pesa was employed, followed Mr. Pesa down a flight of stairs, and shot him in the back of the head with a loaded handgun. To this day, it remains unclear how Mr. Vlachos came into possession of the handgun.[1] [3] The mental disorder Mr. Vlachos suffered from was a persecutory delusionary disorder. From 2003 to June 2009, he remained under the jurisdiction of the Ontario Review Board and, with the assistance of medication, made remarkable progress. By June 2009, Mr. Vlachos was subject to a conditional discharge and was living with his family in the community. [4] In June 2009, the Board convened to conduct Mr. Vlachos’s annual review and to make a disposition pursuant to s. 672.81(1) of the Criminal Code. The question for the Board was whether Mr. Vlachos still posed a significant threat to the safety of the public or whether he should instead be discharged absolutely. [5] In Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 47, the Supreme Court of Canada held that “if the court or Review Board fails to positively conclude, on the evidence, that the NCR offender poses a significant threat to the safety of the public, it must grant an absolute discharge.” [6] “Significant threat” is interpreted as a real risk of physical or psychological harm from conduct that is criminal in nature. The question of whether an NCR offender poses a significant threat to the safety of the public is not dependent on the continued existence of a mental disorder at the time: see R. v. Peckham (1994), 19 O.R. (3d) 766 (C.A.), at p. 776; R. v. Wodajio (2005), 194 C.C.C. (3d) 133 (Alta. C.A.), at paras. 39-46. [7] The Board was unable to make a decision as to whether or not Mr. Vlachos posed a significant threat due to both the conflicting expert opinions before it and an absence of certainty about Mr. Vlachos’s past. Dr. Derek Pallandi, Mr. Vlachos’s treating psychiatrist, was of the opinion that Mr. Vlachos did not pose a significant threat. After doing a file review and independent reading, Dr. Phil Klassen, the Deputy Clinical Director of the Law and Mental Health Program at CAMH, in effect opined that the threshold of significant threat had been met: Dr. Klassen stated that he feels that in treating the accused his caregivers have perhaps missed those underlying social values and attitudes that might make the accused vulnerable to delusions and to criminal peer pressure. Since the accused became paranoid and delusional within the context of a criminal lifestyle and attitudes then the hospital argues that that is surely relevant to whether he’ll place himself in that position again. [8] The Board expressed concern and uncertainty about the degree to which Mr. Vlachos had been involved in criminal activity before committing the index offence, whether Mr. Vlachos would be inclined to return to that lifestyle if he were to be absolutely discharged, and whether that might render him a risk to public safety. It should be noted that the Board raised similar concerns in its reasons for disposition at Mr. Vlachos’ss previous annual review, and that these unresolved issues formed the chief reason why the Board denied Mr. Vlachos an absolute discharge in 2008. [9] In his self-reporting over the years, Mr. Vlachos has given inconsistent evidence about his association with the Hells Angels motorcycle gang and his involvement in the illegal sale of handguns and perhaps narcotics. Mr. Vlachos told one doctor that he had sold “maybe a dozen” guns, told another doctor that he sold “perhaps up to 250 handguns”, and, in the 2009 reporting year, told Dr. Pallandi that he had never sold or possessed a firearm but knew someone who did. Upon further questioning by Dr. Pallandi, Mr. Vlachos stated that he did not know the name of the individual from whom he got the handgun to commit the index offence, even though he had made previous statements that he got it from a family member or purchased it himself. [10] Although Dr. Pallandi had been asked to inquire further into Mr. Vlachos’s inconsistent accounts about his previous involvement in criminal activities, at the June 2009 hearing the Board found that “Dr. Pallandi’s questioning of the accused ... lacked any probing qualities and ... failed to shed any light on whether he still has any propensity to involve himself with criminal elements as he did prior to the index offence.” The extent of Mr. Vlachos’s past criminal lifestyle therefore remained vague. [11] The Board concluded that, given the seriousness of the index offence of first degree murder, and given Mr. Vlachos’s “inclination towards criminal behaviour, an exploration into the accused’s values and attitudes” relating to his involvement in crime was “required”. [12] Since the Board could not make a decision on disposition without additional evidence on the accused’s history of illegal activity, it adjourned its hearing and ordered an independent assessment of Mr. Vlachos to determine what led to his involvement with crime and what effect this might have on his risk to the public. [13] Pursuant to an Assessment Order issued by the Board on July 16, 2009, Dr. Brian Butler did a direct psychiatric examination of Mr. Vlachos and reviewed a number of documents provided by the Board. Dr. Butler expressed concerns about Mr. Vlachos’s past anti-social behaviour and what could potentially happen if Mr. Vlachos did not comply with his treatment plan. He described Mr. Vlachos’s illness as a “lethal disorder”. He believed that there was a real and serious risk of Mr. Vlachos committing violence if he relapsed into his delusions and, in that respect, Mr. Vlachos was a significant threat. Dr. Butler was of the opinion that Mr. Vlachos should continue treatment with a forensic psychiatrist who would be able to detect any subtle signs of decompensation. Due to Mr. Vlachos’s background history and mental illness, Dr. Butler advised that caution was warranted and Mr. Vlachos should remain under the authority of CAMH by being subject to a conditional discharge. [14] When the Board reconvened in December 2009, a majority of the Board considered Dr. Butler’s opinion but nonetheless concluded that Mr. Vlachos no longer represented a significant threat to the safety of the public. In the disposition under appeal, dated December 22, 2009, the Board ordered that Mr. Vlachos be discharged absolutely. In reasons dated February 4, 2010, the majority of the Board conceded that, without medication and treatment, Mr. Vlachos would probably relapse into his delusions and “would more than likely commit a serious criminal offence”. However, it held that the likelihood of Mr. Vlachos suffering a relapse was not great. It noted that Mr. Vlachos had been symptom-free for at least four years and had invited intramuscular injections to establish the certainty of medication compliance. The Board observed that Dr. Butler’s evidence did not answer the question of whether Mr. Vlachos had in fact been involved with criminal activities and to what degree; yet it decided to grant Mr. Vlachos an absolute discharge anyway. [15] CAMH’s appeal, launched February 22, 2010, had the effect of placing Mr. Vlachos back on a conditional discharge. He thus continues to be monitored by the hospital pending the outcome of this appeal. [16] At the hearing of this appeal, CAMH sought to tender as fresh evidence an affidavit by Dr. Padraig Darby, who is now the Acting Clinical Director of the Law and Mental Health Program at CAMH. Attached to the affidavit are the hospital’s clinical records for Mr. Vlachos. The records indicate that on January 11, 2010, after his absolute discharge, Mr. Vlachos attended an outpatient clinic at CAMH and asked that he be given a prescription that enabled him to take his medication orally and to allow discontinuation of reporting for intramuscular injections. His request was granted. In my opinion, the records meet the test for admissibility of fresh evidence and I would admit them. [17] With this background, I now turn to my analysis of the Board’s decision dated December 22, 2009 with reasons dated February 4, 2010.The majority of the Board stated that Dr. Butler’s inquiry had not addressed their concerns, expressed at the June 2009 hearing, of whether or not Mr. Vlachos was in fact involved with criminal activities in the past and to what degree. However, it then decided that the potential risk posed by Mr. Vlachos’s past criminal behaviour was sufficiently minor, having regard to the current state of his mental health and other positive reinforcement in his life and family situation. [18] The Board’s majority decision did not say why the unresolved concerns they had—expressed both at the June 2009 hearing and in the previous reasons for disposition in 2008—were no longer relevant to the assessment of Mr. Vlachos’s risk to the public, such that the Board could now make a disposition without having those concerns addressed by Dr. Butler. [19] The Board noted, “Dr. Butler was unable to extract from the accused a fulsome explanation as to why he gave differing histories over time”. Mr. Vlachos suggested that his differing accounts might have been delusional, and Dr. Butler agreed that after Mr. Vlachos’s medication was increased in 2005, his statements regarding past criminal activity were more in line with what he now described. Yet during cross-examination by the accused’s counsel, Dr. Butler stated that he was concerned about the vague answers that Mr. Vlachos gave concerning his involvement in the sale of guns. Dr. Butler stated that he “would have expected a better answer and more transparency on this by now”. Dr. Butler was also less confident that Mr. Vlachos’s earlier history of significant drug abuse was explained by his delusionary disorder. He concluded that Mr. Vlachos’s involvement on the fringes of criminality was relevant to a consideration of his future risk to public safety, having regard to the index offence being a murder. [20] Whether or not Mr. Vlachos’s account of his past criminal involvement with the Hells Angels was the product of his delusional disorder, the fact remains that Mr. Vlachos was able to acquire a real gun to commit the index offence. Mr. Vlachos’s suggestion, apparently accepted, that his contradictory explanations about a past involvement in the illegal sale of guns were the product of the delusion from which he suffered, do not explain his present refusal to give context as to how he came to obtain the gun. The Board thought that a thorough explanation of that issue was relevant to an assessment of his risk when it made its disposition in March 2008 and when it adjourned its hearing in June 2009. The Board does not explain why it was no longer of the opinion that a thorough explanation of that issue was relevant to an assessment of Mr. Vlachos’s risk. The logical process by which the majority’s conclusions were drawn contains a gap. This constitutes a reasoning error. [21] Having regard to the Board’s reasons for disposition in March 2008 and to the concerns it expressed in June 2009, as well as Mr. Vlachos’s continuing lack of candour, the decision of the majority of the Board to order an absolute discharge on the basis that Mr. Vlachos no longer represented a significant threat to the public was unreasonable. In the end result, the Board’s conclusion that Mr. Vlachos no longer represented a significant risk to the safety of the public is not supported by a reasoning process that could stand up to a probing examination as required by Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748. [22] The majority’s decision to grant Mr. Vlachos an absolute discharge was also unreasonable in that it ignored the inadequacies in Mr. Vlachos’s proposed treatment plan for monitoring medication compliance. [23] In reviewing Dr. Butler’s assessment, the Board noted: Dr. Butler concluded that the risk of the accused acting out violently if he relapsed is a real one and a serious one and in that respect he is a significant threat. He further states that the risk of relapse is also sufficiently high to be significant if the accused were discharged from the Review Board system and his medical treatment is changed from a forensic psychiatrist to a non-forensic care provider. [24] The majority of the Board was of the opinion that while it might be advantageous for Mr. Vlachos to continue treatment with a forensic psychiatrist, it was not satisfied “that there is evidence that treatment by a qualified psychiatrist, albeit a non-forensic one, would likely lead to a break down in the accused’s treatment to the point where he would become a real and substantial risk”. [25] The Board’s comment that Mr. Vlachos’s compliance with medication could be appropriately monitored in the community by a non-forensic psychiatrist ignored the fact Mr. Vlachos was not proposing to be monitored by any psychiatrist. Mr. Vlachos proposed that his family doctor, who was also a family member, monitor his condition. In the event he decompensated, he would not have any psychiatric expert monitoring him in the community who would notice subtle changes in his mental health. If Mr. Vlachos were to stop taking his medication or if his medication were no longer effective, he would relapse, although the initial signs of such relapse might be subtle. There was no evidence that Mr. Vlachos’s family doctor was qualified to detect signs of Mr. Vlachos decompensating. In this respect the Board’s decision was also unreasonable. [26] I agree with the minority opinion, which held that in assessing the level of Mr. Vlachos’s risk to the community, one has to look at more than just how well Mr. Vlachos has done. The illness he suffers from is chronic and incurable. He has no psychiatrist to monitor his condition and to detect changes. The lack of insight into Mr. Vlachos’s pro-criminal attitude and values, which enabled him to access a dangerous weapon, are not resolved. He should therefore not have been discharged absolutely. [27] Furthermore, the Board’s order of an absolute discharge was premised on the belief that Mr. Vlachos would take his medication by intramuscular injections, which would provide certainty that he was complying with his treatment regime. That is no longer the case as Mr. Vlachos has switched to oral medication, which requires no reporting. Basically, Mr. Vlachos is saying, trust me to keep taking the medication I need. [28] Mr. Vlachos has no track record of taking his medication orally via pills as opposed to by injection. Before discharging him, the majority ought to have inquired what Mr. Vlachos’s plans were respecting the methodology by which he would ensure he took his medication and factored that into its assessment of risk to the community. [29] Accordingly, I would allow the appeal, set aside the disposition of the Board, re-instate the disposition order from February 6, 2008, and order that his annual review be on the anniversary date in December. “K.M. Weiler J.A.” “I agree Robert P. Armstrong J.A.” MacPherson J.A. (Dissenting): [30] I have read the draft reasons prepared by my colleague Weiler J.A. With respect, I do not agree with her analysis or her proposed disposition of this appeal. In my view, the decision of the majority (four of five members) of the Ontario Review Board (ORB) was reasonable. Accordingly, I would dismiss the appeal. [31] I begin with three preliminary jurisprudential points that provide the framework within which this appeal must be considered. [32] First, the Ontario Review Board is a specialized tribunal with expert membership. Referring to the ORB in R. v. Owen, [2003] 1 S.C.R. 779, at paras. 29 and 30, Binnie J. said: To make these difficult assessments of mental disorders and attendant safety risks, the Board is provided with expert membership and broad inquisitorial powers. While the chairperson is to be a federally appointed judge, or someone qualified for such an appointment, at least one of the minimum of five members must be a qualified psychiatrist. ... It is evident that the assessment of whether the respondent’s mental condition renders him a significant threat to the safety of the public calls for significant expertise. [33] In the present case, the panel conducting the respondent’s annual review consisted of two lawyers (including the chairperson), two psychiatrists and a retired nurse. [34] Second, the standard of review for the decisions of the ORB is reasonableness: see Owen at para. 31. Based on the language used in a series of Supreme Court of Canada decisions in recent years, it is clear that the reasonableness standard is, as it should be, a significant shield for most decisions made by specialist tribunals. [35] For example, in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at para. 56, Iacobucci J. described the reasonableness standard of review in this fashion: An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. [36] In a similar vein, Iacobucci J. again discussed the reasonableness standard of review in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at para. 55: A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination then the decision will not be unreasonable and a reviewing court must not interfere. [37] Finally, in Owen, at para. 33, Binnie J. defined the reasonableness standard in the context of ORB decisions: [T]he Court of Appeal should ask itself whether the Board’s risk assessment and disposition order was unreasonable in the sense of not being supported by reasons that can bear even a somewhat probing examination... If the Board’s decision is 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. [38] The third preliminary jurisprudential point is this: both the wording of s. 672.54 of the Criminal Code and the case law establish that if the NCR accused ceases to be a significant threat to the safety of society, the ORB must grant an absolute discharge: see Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 47. [39] Against the backdrop of this jurisprudential framework, I turn to a consideration of my colleague’s reasons. Essentially, she finds the ORB’s majority analysis and disposition unreasonable on two bases. [40] First, my colleague concludes that there is a crucial gap in the majority’s reasoning: Whether or not Mr. Vlachos’s account of his past criminal involvement with the Hells Angels was the product of his delusional disorder, the fact remains that Mr. Vlachos was able to acquire a real gun to commit the index offence. Mr. Vlachos’s suggestion, apparently accepted, that his contradictory explanations about a past involvement in the illegal sale of guns were the product of the delusion from which he suffered, do not explain his present refusal to give context as to how he came to obtain the gun. The Board thought that a thorough explanation of that issue was relevant to an assessment of his risk when it made its disposition in March 2008 and when it adjourned its hearing in June 2009. The Board does not explain why it was no longer of the opinion that a thorough explanation of that issue was relevant to an assessment of Mr. Vlachos’s risk. The logical process by which the majority’s conclusions were drawn contains a gap. This constitutes a reasoning error. [41] With respect, I do not agree with this analysis. The ORB was unable to reach a decision at its hearing in June 2009. Accordingly, it ordered “an independent assessment of the accused to focus on the accused’s involvement with organized crime and attempt to arrive at an understanding of what led to the accused’s involvement and whether these values and attitudes remain and what effect if any this has on the accused’s risk to the public and maintaining stability in his mental illness.” [42] Dr. Brian Butler provided the independent assessment. He wrote a full report and was examined at length by counsel and the members of the ORB panel when the hearing resumed in December 2009. In its reasons, the majority considered Dr. Butler’s evidence in great detail. Near the end, the majority stated: “Significant weight is given to Dr. Butler’s analysis, but in the end his evidence has not advanced the answer to the question of whether or not the accused was in fact involved with criminal activities and to what degree.” It is this conclusion that my colleague regards as creating the crucial gap in the majority’s reasoning process. [43] In my view, the alleged gap dissolves in the very next passage of the majority’s reasons: The majority of the Panel accept Dr. Butler’s opinion that the accused was likely involved in a fringe way with the associations that he has described variously over the years. Dr. Butler agrees that that antisocial activity is relevant to considering the accused’s risk to the public. In that respect the majority of the Review Board Panel agrees, but this must be considered in the context of the accused’s overall situation after a number of years in treatment and his present circumstances. It is the majority’s conclusion that the potential risk posed by the accused’s past criminal or antisocial behaviour, although a risk to be considered, is sufficiently minor when one considers the accused’s current state of mental health and other positive reinforcement in his life and family situation. [44] In short, the majority’s reasoning process is as follows: (1) Dr. Butler has not been able to establish the nature and degree of Mr. Vlachos’s criminal activity (if any) when he was a young man; (2) however, we accept Dr. Butler’s opinion that Mr. Vlachos was “likely involved in a fringe way” with people engaged in criminal activities whom he described in various interviews with treating psychiatrists; (3) these previous criminal associations constitute anti-social activity that is relevant to the ORB’s assessment of Mr. Vlachos’s risk to the public; and (4) however, an assessment of the overall situation after a number of years of successful treatment supports the conclusion that the risk is “sufficiently minor” to permit an absolute discharge. In my view, it is possible to disagree with the result that flows from this reasoning, as Dr. Sheppard does in his minority reasons. However, it is, with respect, incorrect to say that there is an impermissible ‘gap’ in the majority’s reasoning process. Their reasoning is sound; it does not rest on a ‘logical process defect’ as contemplated by Southam. [45] My colleague’s second reason for concluding that the majority’s decision was unreasonable is that the majority ignored “the inadequacies in Mr. Vlachos’s proposed treatment plan for monitoring medication compliance.” [46] With respect, I do not accept that the majority of the ORB ignored this issue. The majority specifically mentioned that Mr. Vlachos “has committed to follow-up care with either Dr. Pallandi if he can or with another psychiatrist in the community”. The majority obviously regarded this as a desirable goal. However, in the end the majority’s view after reviewing all of the evidence, was that there were many strong factors – Mr. Vlachos’s symptom-free condition for four years, the unanimous opinion of all doctors that he was in complete remission, Mr. Vlachos’s complete compliance with his medication, his own and his wife’s clear understanding of his illness and what is required to control it, his perfect attendance at medical appointments, the absence of any evidence of a return to antisocial or criminal activity or associations, and Mr. Vlachos’s commitment to follow-up care with either Dr. Pallandi or another psychiatrist in the community – that, taken together, justified an absolute discharge order. In doing so, the majority was well aware of the implications of such an order, including the removal of Mr. Vlachos from the supervision of the Centre for Addiction and Mental Health. [47] I return to the standard of review jurisprudence. [48] In Ryan, at para. 55, Iacobucci J. said: “A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived.” In my view, a fair reading of the 27-page reasons of the ORB majority in this case renders virtually impossible a conclusion that those reasons are unreasonable within the ambit of this description of the standard of review. [49] In Owens, at para. 33, Binnie J. observed: If the Board’s decision is 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. [50] That is this case. Dr. Sheppard’s minority opinion is, in a legal sense, a perfectly reasonable decision. So is the majority’s opinion. Accordingly, this court should not intervene. [51] Finally, I return to the leading case dealing with the NCR review process. Winko is clear: if the ORB determines that the NCR accused has ceased to be a significant threat to the safety of society, it must grant an absolute discharge. That too is this case. Accordingly, the ORB did precisely what Winko requires. [52] I would dismiss the appeal. RELEASED: Oct. 22, 2010 “KMW” “J.C. MacPherson J.A.” [1] Initially, Mr. Vlachos maintained that he acquired the handgun from a family member and that he had carried it around for two or three days. In 2009, he told Dr. Derek Pallandi that he didn’t know the name of the person who gave him the gun. In 2010, he denied that he acquired the gun from a family member. Instead, he told Dr. Brian Butler that he purchased it from a “family friend.”