R. v. Head

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL Citation: R. v. Head, 2016 NLCA 45 Date: September 13, 2016 Docket: 201501H0094 BETWEEN: VINCENT TROY HEAD APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: White, Harrington, Hoegg JJ.A. Court Appealed From: Newfoundland and Labrador Review Board (Section 672 Criminal Code of Canada) Appeal Heard: June 10, 2016 Judgment Rendered: September 13, 2016 Reasons for Judgment by White J.A. Concurred in by Harrington and Hoegg JJ.A. Counsel for the Appellant: Jennifer Curran Counsel for the Respondent: Frances Knickle Q.C. Page: 2 White J.A.: [1] Pursuant to section 672.72 of the Criminal Code the appellant, Vincent Troy Head appeals a disposition of the Newfoundland and Labrador Review Board ordering his continued detention. He argues that the decision of the Board is unreasonable as it does not represent the least onerous and restrictive disposition in his case. FACTS [2] Mr. Head was born in Ontario, but spent most of his early life in Newfoundland and Labrador, where his parents are from. He has suffered from chronic schizophrenia since at least 2003. Prior to coming under the jurisdiction of the Review Board, he was admitted to hospital in 2003, twice in 2004 and from August 2005 to January 2006. [3] Mr. Head came under the jurisdiction of the Review Board after being found not criminally responsible on account of mental disorder (“NCRMD”) in Halifax Nova Scotia on July 26, 2006, having been charged with mischief contrary to section 430(4) and possession of a weapon for a purpose dangerous to the public peace contrary to section 88(1) of the Criminal Code. [4] The events which led to the charges occurred in April 2006 when Mr. Head was observed acting strangely by tenants of the building where he resided in Dartmouth, Nova Scotia. He was seen following tenants down the road with a large stick. Subsequently, the mother of one of the tenants saw him sitting on the steps of the building with a knife and a large stick. She realized that he had slashed the tires on her daughter’s car. He followed her inside the building and asked if he could enter her daughter’s apartment and have a cup of tea. She entered the apartment and called 911. Mr. Head was found by police, unkempt and disheveled, in possession of a walking cane and two paring knives. He was talking to himself. He explained that the people that he listened to told him to slash the car tire so that the car could be identified in the future. [5] Mr. Head was admitted to Nova Scotia’s East Coast Forensic Hospital where he was detained for treatment until November 2007. He was given some privileges which he used with mixed success. Although he remained ill at first, his mental health improved in 2007 to the point where he was able to Page: 3 work for a short period of time. Nonetheless, he did not abstain from substance abuse. [6] In November 2007, Mr. Head was transferred to the Waterford Hospital in St. John’s and has been under the jurisdiction of the Newfoundland and Labrador Review Board ever since. [7] After an initial order of detention in 2007, the Review Board ordered that Mr. Head be conditionally discharged in 2008. He went to live with his parents, but the arrangement did not work out. He then moved to Grand Falls, then St. John’s, until he returned to the Waterford Hospital voluntarily in January 2009. He was irregular about keeping his appointments with his psychiatrist during this time, but his return to hospital appears to have been necessitated by substance abuse and a lack of community support and stable housing rather than an inability to administer his medication. [8] The Review Board ordered a conditional discharge again in 2009 and 2010. Each time Mr. Head was discharged into the community, he was re- admitted into the hospital a short time after. In January 2011, while living in the community, Mr. Head got into an altercation with another resident in his building which resulted in him being charged criminally. He has been detained in hospital since that time. [9] Mr. Head has used his hospital privileges with mixed success. He takes his medication when under the supervision of medical staff and that medication appears to adequately manage the symptoms of his illness. However, he has also been diagnosed with substance abuse disorder and apart from a brief period of abstinence in 2012, has made only minimal efforts to control his use of cannabis, which is known to aggravate his symptoms. It appears that this substance abuse is what prevented him from successfully re-integrating into the community during the attempted discharges. Moreover, since 2011 Mr. Head has been away without leave (AWOL) from the hospital on several occasions, in breach of the Review Board’s detention orders. [10] The evidence before the Review Board at the most recent hearing concerning Mr. Head on December 1, 2015 shows that Mr. Head has made improvements in the treatment of his mental illness. While he continues to have substance abuse issues which are unlikely to change, they are considered to be manageable. The Assertive Community Treatment (ACT) team has accepted him into their program and agreed to monitor him should Page: 4 he be discharged. Both Mr. Head’s treating psychiatrist and the forensic mental health coordinator recommended that Mr. Head be discharged. Counsel for Mr. Head submitted that, until the Review Board orders a discharge, housing arrangements in the community cannot begin. [11] The Review Board ordered that Mr. Head remain detained in custody for six months, at which point in time his case would be reconsidered. The Review Board reasoned that given his previous unsuccessful attempts at reintegration and a recent change in his medication, Mr. Head continued to be a significant threat to public safety and was not ready for a discharge. Thus continued detention was, in the opinion of the Board, the least onerous and restrictive disposition available for him. [12] Mr. Head appeals arguing that the Board’s decision is unreasonable. THE STANDARD OF REVIEW [13] The standard of review of the Board’s decision is reasonableness (R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779 at para. 34). THE LAW [14] This case is governed by section 672.54 of the Criminal Code which reads: Dispositions by a Court or Review Board Terms of Dispositions Dispositions that may be made 672.54 When a court or Review Board makes a disposition under subsection 672.45(2), section 672.47, subsection 672.64(3) or section 672.83 or 672.84, it shall, taking into account the safety of the public, which is the paramount consideration, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is necessary and appropriate in the circumstances: (a) where a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused and, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely; Page: 5 (b) by order, direct that the accused be discharged subject to such conditions as the court or Review Board considers appropriate; or (c) by order, direct that the accused be detained in custody in a hospital, subject to such conditions as the court or Review Board considers appropriate. [15] Prior to July 11, 2014 this section required the Review Board to impose a disposition which was the “least onerous and restrictive to the accused”. After that time the section was amended to read that the Board is required to impose a “necessary and appropriate” disposition. However, I agree with the Ontario Court of Appeal that the two standards are synonymous, that is, a “necessary and appropriate” disposition is the “least onerous and restrictive” one (see for example, McAnuff (Re), 2016 ONCA 280, 130 O.R. (3d) 440 at para. 22). The jurisprudence developed prior to the amendment thus continues to apply. [16] Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625 at paragraph 62 summarizes the duties of the Review Board in every case: 62 On this interpretation of Part XX.1 of the Code, the duties of a court or Review Board that is charged with interpreting s. 672.54 may, for practical purposes, be summarized as follows: 1. The court or Review Board must consider the need to protect the public from dangerous persons, the mental condition of the NCR accused, the reintegration of the NCR accused into society, and the other needs of the NCR accused. The court or Review Board is required in each case to answer the question: does the evidence disclose that the NCR accused is a “significant threat to the safety of the public”? 2. A “significant threat to the safety of the public” means a real risk of physical or psychological harm to members of the public that is serious in the sense of going beyond the merely trivial or annoying. The conduct giving rise to the harm must be criminal in nature. 3. There is no presumption that the NCR accused poses a significant threat to the safety of the public. Restrictions on his or her liberty can only be justified if, at the time of the hearing, the evidence before the court or Review Board shows that the NCR accused actually constitutes such a threat. The court or Review Board cannot avoid coming to a decision on this issue by stating, for example, that it is uncertain or cannot decide whether the NCR accused poses a significant threat to the safety of the public. If it cannot come to a decision with any certainty, then it has not found that the NCR accused poses a significant threat to the safety of the public. Page: 6 4. The proceeding before the court or Review Board is not adversarial. If the parties do not present sufficient information, it is up to the court or Review Board to seek out the evidence it requires to make its decision. Where the court is considering the matter, it may find in such circumstances that it cannot readily make a disposition without delay and that it should be considered by the Review Board. Regardless of which body considers the issue, there is never any legal burden on the NCR accused to show that he or she does not pose a significant threat to the safety of the public. 5. The court or Review Board may have recourse to a broad range of evidence as it seeks to determine whether the NCR accused poses a significant threat to the safety of the public. Such evidence may include the past and expected course of the NCR accused’s treatment, if any, the present state of the NCR accused’s medical condition, the NCR accused’s own plans for the future, the support services existing for the NCR accused in the community, and the assessments provided by experts who have examined the NCR accused. This list is not exhaustive. 6. A past offence committed while the NCR accused suffered from a mental illness is not, by itself, evidence that the NCR accused continues to pose a significant risk to the safety of the public. However, the fact that the NCR accused committed a criminal act in the past may be considered together with other circumstances where it is relevant to identifying a pattern of behaviour, and hence to the issue of whether the NCR accused presents a significant threat to public safety. The court or Review Board must at all times consider the circumstances of the individual NCR accused before it. 7. If the court or Review Board concludes that the NCR accused is not a significant threat to the safety of the public, it must order an absolute discharge. 8. If the court or Review Board concludes that the NCR accused is a significant threat to the safety of the public, it has two alternatives. It may order that the NCR accused be discharged subject to the conditions the court or Review Board considers necessary, or it may direct that the NCR accused be detained in custody in a hospital, again subject to appropriate conditions. 9. When deciding whether to make an order for a conditional discharge or for detention in a hospital, the court or Review Board must again consider the need to protect the public from dangerous persons, the mental condition of the NCR accused, the reintegration of the NCR accused into society, and the other needs of the NCR accused, and make the order that is the least onerous and least restrictive to the NCR accused. [17] I have reviewed the record and the Review Board’s decision in light of this jurisprudence. Page: 7 ANALYSIS Significant Threat [18] The parties agree that Mr. Head continues to pose a significant threat to the safety of the public. He did not contest this at the latest hearing before the Review Board. Nonetheless, the Board has a duty to make an independent evaluation in every case. If the Board is unable to find that the person concerned constitutes, at the time of the review, a significant threat then the accused must be discharged absolutely. A “significant threat” means that the person poses a “real risk of physical or psychological harm to members of the public that is serious in the sense of going beyond the merely trivial or annoying” (Winko at para 62). [19] I emphasize this point because, while the Board is no doubt aware of the law and its obligations, this has not always been evident from the record respecting Mr. Head. The “significant threat” standard is not always referenced and where it is referenced, this is often done in a cursory manner. By way of example, one ruling of the tribunal detaining Mr. Head makes no reference to the significant threat standard, instead finding that Mr. Head is “unfit for any type of discharge”. Another ruling finds that, if discharged, Mr. Head will “rapidly become a serious risk” without explaining whether or how he constitutes a significant threat at the time of the hearing as expressly required by Winko (emphasis added.) In yet another ruling, which concerned Mr. Head breaching the Board’s conditions by being AWOL, the Board comments that while he was AWOL he “posed no particular risk to the community”, but continues his detention without explaining why he constitutes a significant threat to the safety of the public when back in hospital. [20] None of the previous decisions of the Board are under review here and I do not propose to comment on whether or not those decisions taken as a whole would have met the reasonableness standard. I simply highlight that the analysis of “significant threat” must be careful and precise. While the Board is not required to discuss every piece of evidence in the record, the Board must make evidence-based findings of fact and give transparent and intelligible reasons for doing so. If the Board provides reasons in the form of conclusory statements which demonstrate no obvious logical link between the evidence recited and its legal conclusions (as derived from the evidentiary record in the context of the issues that are necessarily engaged), it risks being overturned on appeal. Page: 8 [21] Nevertheless, in this case I agree that the record supports the conclusion that Mr. Head currently constitutes a significant threat to the safety of the public. His history shows that the symptoms of his mental condition, when it is not regularly treated, cause him to suffer from delusions and engage in altercations which have exposed members of the community to a real risk of physical harm. The index offence and a subsequent incident have involved threatening behaviour with knives and Mr. Head has had other violent encounters with other members of the community and patients in hospital. [22] Moreover, Mr. Head’s symptoms and hence the threat that he poses, are exacerbated by substance abuse and improved by the regular administration of medication. He does not appear to have insight into the effects of either. I agree with counsel for the Attorney General that in this regard Mr. Head is his own worst enemy. He refuses to make genuine efforts to control his substance abuse. As a result, when he is in the community he becomes ill and unable to keep his appointments for the administration of medication, resulting in a downward spiral which quickly leads him back into detention - either in the hospital or by the police. His response to his detention has not been appropriate. He has become flippant about complying with the Board’s orders and been AWOL from the hospital. I accept the submission of counsel that this is due to understandable frustration caused by not being able to achieve independence. However, under the applicable legal framework, frustration is not a mitigation of significant threat. [23] Even though Mr. Head continues to pose a significant threat to the safety of the public, it must be determined whether the Board’s disposition was reasonable. Least Onerous and Restrictive Disposition [24] In order to determine the necessary and appropriate disposition for the person concerned, the Board must determine the least onerous and restrictive way of managing any risk that the person concerned poses to the public (Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20, [2004] 1 S.C.R. 498 at para. 24, and Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528). To do so, the Review Board should consider the need to protect the public from dangerous persons, the mental condition of the NCR accused, the reintegration of the NCR accused into society, and the other needs of the NCR accused (section 672.54, Winko at para. 62). Page: 9 [25] If the Board chooses to impose a conditional discharge or attaches conditions to an order of detention, it must consider how the conditions it is imposing respond to the factors in section 672.54. It should be intelligible from its reasons how the conditions manage the significant risk posed by the person concerned in the least restrictive and onerous manner (R. v. Normore, 2004 NLCA 76, 242 Nfld. & P.E.I.R. 304 at paras. 25-27; Penetanguishene Mental Health Centre v. Magee (2006), 80 O.R. (3d) 436, 208 C.C.C. (3d) 365 (Ont. C.A.) at paras. 59-60). [26] In this case, Mr. Head argues that all of the evidence before the Board supported a conditional discharge and that the Board’s decision is therefore contrary to the overwhelming weight of the evidence and without a solid foundation. Moreover, Mr. Head argues that the Board’s decision leaves him stuck in a Catch-22 situation: on the one hand, the Board ordered him to re- appear before it in 6 months to present a plan for discharge; on the other hand, discharge planning, including housing arrangements, does not begin until a conditional discharge is ordered. [27] This Court has held previously in Normore, that the Review Board’s decision will be unreasonable if, in reaching its disposition the Board gives no indication of having applied the “least restrictive and onerous” standard. In Normore, the Board made no reference to the standard in its reasons. In this case, the Board did note that it was aware of the standard. However, the holding of Normore was not that it is enough for the Board to merely state that it is aware of the standard – the decision must satisfy the Court that it was applied. Accordingly, the disposition of the Review Board in this case was unreasonable. [28] At the hearing, Mr. Head’s treating psychiatrist, Dr. Ladha, and the forensic mental health coordinator, Mr. Tuton, recommended a conditional discharge and noted that Mr. Head had been accepted into the program of the ACT team, which, in the view of the treating psychiatrist, would assist Mr. Head in complying with his treatment regime. [29] In ordering continued detention, the Board did not address this fact, despite reasoning that Mr. Head was not ready to be discharged into the community because he could not be relied upon to comply with treatment. The Board did not consider whether the ACT team would be a source of qualified support, which would assist Mr. Head and ensure his compliance with treatment, thereby sufficiently minimizing any risk that he poses. While the Board is not required to recite every piece of evidence before it, where Page: 10 there is evidence significantly contradicting the Board’s key finding, the Board’s reasons must show that it “grappled with the substance of the matter” (Clifford v. Ontario Municipal Employees Retirement System, 2009 ONCA 670, 98 O.R. (3d) 210 at para. 30) and resolved the inconsistency. This type of gap in the reasons is indicative of a gap in the analysis in this case. The decision cannot stand. [30] Moreover, it is neither transparent nor intelligible how the Board arrived at the conclusion that the next review should be held six months down the road. Even though this review is early compared to the timeline of 12 months which is usually followed, it appears to be an arbitrary number, unrelated to imposing the least onerous and restrictive disposition. [31] The Board is undoubtedly aware that it is ordering dispositions which affect the liberty and fundamental rights of the person concerned. If the person before it is close to being discharged pending the resolution of a discrete issue, the Board should take a proactive approach. For example, the Board in this case appeared to be concerned about the potential effects of a medication change. However, there was nothing in the record to support that six months were necessary to see how the medication would affect Mr. Head. His psychiatrist and medical staff did not give evidence that any further observation was required, and if the Board wished to detain him to observe the effects of this medication, its duty to impose the least onerous and restrictive disposition required the Board to ascertain how long was reasonably necessary to do so. Otherwise, the timeline is arbitrary and cannot be justified. [32] Mr. Head also argues that the Board, knowing that housing could not be arranged for him until he was discharged, should have ordered a conditional discharge to facilitate his transition into the community. The Catch-22 situation persons like Mr. Head find themselves in with respect to housing arrangements is unfortunate, but it is beyond the control of the Board. While the availability of housing is relevant for the Board to consider, its primary task is determining how any risk that the person concerned poses may be best managed in the least onerous and restrictive way given the information and resources available. [33] The Board cannot make its decision on the basis of collateral issues such as the action or non-action of third parties. Page: 11 [34] At the same time, as counsel for the Attorney General points out, not all detentions and conditional discharges are alike. The Board has a range of options to craft conditions and, in a factually appropriate situation, may be required to consider a detention order with significant “trial” periods of living in the community, so housing might be available by the time the person concerned is ready for a conditional discharge (see for example, Pasha (Re), [2015] O.R.B.D. No. 208 (Ontario Review Board) at para. 43). [35] It seems that this issue has arisen because the Review Board has adopted a practice of making its conditional discharge orders contingent on the occurrence of future events such as a confirmation from hospital staff that discharge is “clinically appropriate” or the arrangement of housing for the person concerned. This practice of effectively attaching conditions precedent to a conditional discharge order is not common and has been rejected in other jurisdictions (Weldon (Re), [2008] O.R.B.D. No. 1747 (Ontario Review Board) at paras. 30, 124). [36] Generally, a person is either ready for a conditional discharge or they are not. While I am not prepared to conclude that a condition precedent built into a conditional discharge order is never appropriate, for example in order to complete the discharge process from the hospital or to provide for the occurrence of a discrete event such as the administration of medication, the Board must be careful not to issue orders which take the ultimate issue of whether or not the person concerned is to be detained or discharged outside of its control. For example, an order making the discharge contingent on the exercise of someone else’s unfettered discretion constitutes improper sub- delegation (Brant Dairy Co. v. Milk Commission of Ontario, [1973] S.C.R. 131 at 146-148). [37] Furthermore, those who administer the Board’s orders must remember that it is the Board that has the power to order a conditional discharge and that order should be followed with diligence and cannot be modified by anyone other than the Board. For example, in 2009, the Review Board ordered a conditional discharge for Mr. Head. He subsequently re-entered the hospital as a voluntary patient, where he fared poorly at first. The record indicates that in response to his poor behavior, discharge planning was curtailed by medical staff. This was done without the Board being made aware of this change or an application being made to the Board to address whether the conditions of the discharge needed modification. Mr. Head remained in hospital until the next review by the Board in 2010. While this Page: 12 incident is not the subject of the present review, similar incidents are to be avoided in the future. [38] Once the Board decides that the person should be discharged, there is no authority for anyone to decide otherwise without the Board’s supervision. CONCLUSION [39] Having found the Board’s decision to be unreasonable, the Court is empowered by section 672.78(3)(a) of the Criminal Code to substitute its own decision for that of the Board. I am satisfied that although Mr. Head poses a significant risk to the safety of the public, it is not a grave risk. His mental health has remained relatively stable for several years. While he continues to struggle with substance abuse, it appears that if he takes his medication regularly, simultaneous substance abuse does not cause the threat that he poses to be unmanageable. The ACT team will help to ensure his medication is administered. Thus I conclude the threat he poses can be adequately managed with a conditional discharge. I would therefore allow the appeal and order that Mr. Head be conditionally discharged on the terms set out in the Order attached to and forming part of this decision: ______________________________________ C.W. White J.A. I Concur: _________________________________ M.F. Harrington J.A. I Concur: _________________________________ L.R. Hoegg J.A. RE: Vincent Troy Head ORDER It is ordered that: 1. As soon as suitable living arrangements are finalized, Mr. Head be discharged to the community and followed by the ACT team; 2. While in hospital he be given privileges, in the discretion of the treating psychiatrist, to go off the unit and off-grounds when clinically indicated; 3. He continue to see a psychiatrist as needed and take his medications as prescribed; 4. He notify the Review Board when he makes any change of address; 5. He keep the peace and be of good behaviour. This Order made by the Court of Appeal pursuant to s. 672.78(3)(a) of the Criminal Code of Canada on September 13, 2016.