R. v. Head, 2016 NLCA 45

Vincent Troy Head (appellant) v. Her Majesty the Queen (respondent) (15/94) Indexed As: R. v. Head 2016 NLCA 45 1 C.A.N.L.R. 6 Court of Appeal of Newfoundland and Labrador White, Harrington and Hoegg JJ.A. September 13, 2016

Summary: Pursuant to s. 672 of the Criminal Code , Mr. Head appealed from an order of the Newfoundland and Labrador Review Board. Mr. Head had previously been found not criminally responsible on account of mental disorder and ordered detained. At an annual review of detention, the Board found that Mr. Head remained a significant threat to the public and continued detention was the least onerous and restrictive disposition to manage the threat he posed. Held: Appeal allowed and conditional discharge ordered.

White J.A. (Harrington and Hoegg JJ.A. concurring): The standard of review on an appeal of a disposition of the Review Board is reasonableness. Despite a change in the language of the statute, it continued to require the Board to impose the least onerous and restrictive disposition in accordance with previous jurisprudence. Although the Board’s reasoning in previous decisions could have been expressed more clearly, the Board’s current decision that Mr. Head continued to pose a significant threat to the safety of the public was reasonable and not contested by him.

However, the Board’s decision to order continued detention was not reasonable. To determine the least onerous and restrictive disposition, the 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. It should be intelligible from the Board’s reasons how detention or the conditions imposed on the NCR accused manage the significant threat in the least restrictive and onerous manner. In this case, the Board failed to address relevant evidence that Mr.

Head’s risk in the community could be managed with the Assertive Community Treatment Program, into which he had been accepted. Where significant evidence contradicts the Board’s findings, its reasons must reveal that the Board grappled with the substance of the matter. Otherwise, a gap in the reasons is indicative of a gap in the analysis. Moreover, the date set for the next hearing, while shorter than usual, was arbitrary. The Board should be proactive in dealing with the fundamental rights of NCR accused.

If the Board wanted to observe the effect of new medication, it was required to ascertain how long was reasonably necessary to do so. On the other hand, the Board could not base its decision on the fact that housing is not usually arranged until a conditional discharge is ordered. While the availability of housing is a relevant factor to consider, the Board cannot base its decision on the action or non-action of third parties.

At the same time, not every disposition is alike and the Board may be required to attach conditions or structure a disposition in a way that manages the accused in the least onerous and restrictive manner, for example with trial periods of living in the community. The Board has developed a practice of attaching conditions precedent to its discharge orders. This practice is not common and has been rejected in other jurisdictions. While the Court was not prepared to say conditions precedent were never appropriate, the Board must be careful not to sub-delegate its decision to a third party’s unfettered discretion.

Similarly, those who administer the Board’s orders must

do so with diligence, as no person other than the Board can modify an order for discharge. Since a conditional discharge was the least onerous and restrictive disposition, the appeal was allowed and a conditional dischargeordered. Cases cited: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779 McAnuff (Re), 2016 ONCA 280, 130 O.R. (3d) 440 Winko v. British Columbia (Forensic Psychiatric Institute), (SCC), [1999] 2 S.C.R. 625 Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20, [2004] 1 S.C.R. 498 Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528 R. v.

Normore, 2004 NLCA 76, 242 Nfld. & P.E.I.R. 304 Penetanguishene Mental Health Centre v. Magee (2006), (ON CA), 80 O.R. (3d) 436, 208 C.C.C. (3d) 365 (Ont.C.A.) Clifford v. Ontario Municipal Employees Retirement System, 2009 ONCA 670, 98 O.R. (3d) 210 Pasha (Re), [2015] O.R.B.D. No. 208 (Ontario Review Board) Weldon (Re), [2008] O.R.B.D. No. 1747 (Ontario Review Board) Brant Dairy Co. v. Milk Commission of Ontario, (SCC), [1973] S.C.R. 131 Counsel: Jennifer Curran, for the appellant; Frances Knickle Q.C., for the respondent. This appeal was heard on June 10, 2016 before White, Harrington and Hoegg JJ.A.

The following judgment was delivered on September 13, 2016 by White J.A. for the Court. ______________________________________________________________ White J.A.: [1] Pursuant to

section 672.72 of the Criminal Code the appellant, Vincent Troy Head appeals a disposition of the Newfoundlandand Labrador Review Board ordering his continued detention. He argues that the decision of the Board is unreasonable as it does notrepresent 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. Hehas suffered from chronic schizophrenia since at least 2003.

Prior to coming under the jurisdiction of the Review Board, he was admittedto 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 mentaldisorder (“NCRMD”) in Halifax Nova Scotia on July 26, 2006, having been charged with mischief contrary to section 430(4) andpossession 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 thebuilding where he resided in Dartmouth, Nova Scotia. He was seen following tenants down the road with a large stick. Subsequently, themother 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 slashedthe 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 cupof tea. She entered the apartment and called 911. Mr. Head was found by police, unkempt and disheveled, in possession of a walkingcane 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 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 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; (

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), (SCC), [1999] 2 S.C.R. 625 at paragraph 62summarizes 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. 672.54may, 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 NCRaccused, the reintegration of the NCR accused into society, and the other needs of the NCR accused. The court or Review Board isrequired in each case to answer the question: does the evidence disclose that the NCR accused is a “significant threat to the safety of thepublic”? 2.

A “significant threat to the safety of the public” means a real risk of physical or psychological harm to members of the public thatis 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 herliberty can only be justified if, at the time of the hearing, the evidence before the court or Review Board shows that the NCR accusedactually 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 adecision with any certainty, then it has not found that the NCR accused poses a significant threat to the safety of the public. 4. The proceeding before the court or Review Board is not adversarial. If the parties do not present sufficient information, it is up tothe court or Review Board to seek out the evidence it requires to make its decision.

Where the court is considering the matter, it mayfind 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 asignificant 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 accusedposes a significant threat to the safety of the public.

Such evidence may include the past and expected course of the NCR accused’streatment, if any, the present state of the NCR accused’s medical condition, the NCR accused’s own plans for the future, the supportservices existing for the NCR accused in the community, and the assessments provided by experts who have examined the NCRaccused. 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 accusedcontinues to pose a significant risk to the safety of the public.

However, the fact that the NCR accused committed a criminal act in thepast may be considered together with other circumstances where it is relevant to identifying a pattern of behaviour, and hence to the issueof whether the NCR accused presents a significant threat to public safety. The court or Review Board must at all times consider thecircumstances 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 anabsolute 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 twoalternatives. 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 mustagain consider the need to protect the public from dangerous persons, the mental condition of the NCR accused, the reintegration of theNCR accused into society, and the other needs of the NCR accused, and make the order that is the least onerous and least restrictive tothe NCR accused. [17] I have reviewed the record and the Review Board’s decision in light of this jurisprudence. 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 thelatest hearing before the Review Board. Nonetheless, the Board has a duty to make an independent evaluation in every case. If the Boardis unable to find that the person concerned constitutes, at the time of the review, a significant threat then the accused must be dischargedabsolutely.

A “significant threat” means that the person poses a “real risk of physical or psychological harm to members of the publicthat 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 evidentfrom the record respecting Mr. Head. The “significant threat” standard is not always referenced and where it is referenced, this is oftendone in a cursory manner. By way of example, one ruling of the tribunal detaining Mr.

Head makes no reference to the significant threatstandard, 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 asexpressly required by Winko (emphasis added.) In yet another ruling, which concerned Mr.

Head breaching the Board’s conditions bybeing AWOL, the Board comments that while he was AWOL he “posed no particular risk to the community”, but continues hisdetention 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 thosedecisions taken as a whole would have met the reasonableness standard. I simply highlight that the analysis of “significant threat” mustbe 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 conclusorystatements which demonstrate no obvious logical link between the evidence recited and its legal conclusions (as derived from theevidentiary record in the context of the issues that are necessarily engaged), it risks being overturned on appeal. [21] Nevertheless, in this case I agree that the record supports the conclusion that Mr. Head currently constitutes a significant threat tothe safety of the public.

His history shows that the symptoms of his mental condition, when it is not regularly treated, cause him to sufferfrom delusions and engage in altercations which have exposed members of the community to a real risk of physical harm. The indexoffence and a subsequent incident have involved threatening behaviour with knives and Mr. Head has had other violent encounters withother 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 theregular administration of medication.

He does not appear to have insight into the effects of either. I agree with counsel for the AttorneyGeneral that in this regard Mr. Head is his own worst enemy. He refuses to make genuine efforts to control his substance abuse. As aresult, when he is in the community he becomes ill and unable to keep his appointments for the administration of medication, resulting ina downward spiral which quickly leads him back into detention - either in the hospital or by the police. His response to his detention hasnot been appropriate.

He has become flippant about complying with the Board’s orders and been AWOL from the hospital. I accept thesubmission of counsel that this is due to understandable frustration caused by not being able to achieve independence. However, underthe 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 theBoard’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 leastonerous and restrictive way of managing any risk that the person concerned poses to the public (Penetanguishene Mental Health Centrev. Ontario (Attorney General), 2004 SCC 20, [2004] 1 S.C.R. 498 at para. 24, and Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC21, [2004] 1 S.C.R. 528).

To do so, the Review Board should consider the need to protect the public from dangerous persons, the mentalcondition of the NCR accused, the reintegration of the NCR accused into society, and the other needs of the NCR accused (section672.54, Winko at para. 62). [25] If the Board chooses to impose a conditional discharge or attaches conditions to an order of detention, it must consider how theconditions it is imposing respond to the factors in

section 672.54. It should be intelligible from its reasons how the conditions managethe 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), (ON CA), 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’sdecision is therefore contrary to the overwhelming weight of the evidence and without a solid foundation.

Moreover, Mr. Head arguesthat 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 6months to present a plan for discharge; on the other hand, discharge planning, including housing arrangements, does not begin until aconditional discharge is ordered. [27] This Court has held previously in Normore, that the Review Board’s decision will be unreasonable if, in reaching its dispositionthe Board gives no indication of having applied the “least restrictive and onerous” standard.

In Normore, the Board made no reference tothe standard in its reasons. In this case, the Board did note that it was aware of the standard. However, the holding of Normore was notthat 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, recommendeda conditional discharge and noted that Mr.

Head had been accepted into the program of the ACT team, which, in the view of the treatingpsychiatrist, 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 bedischarged into the community because he could not be relied upon to comply with treatment. The Board did not consider whether theACT team would be a source of qualified support, which would assist Mr. Head and ensure his compliance with treatment, therebysufficiently minimizing any risk that he poses.

While the Board is not required to recite every piece of evidence before it, where there isevidence significantly contradicting the Board’s key finding, the Board’s reasons must show that it “grappled with the substance of thematter” (Clifford v. Ontario Municipal Employees Retirement System, 2009 ONCA 670, 98 O.R. (3d) 210 at para. 30) and resolved theinconsistency. 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 sixmonths down the road. Even though this review is early compared to the timeline of 12 months which is usually followed, it appears tobe 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 personconcerned.

If the person before it is close to being discharged pending the resolution of a discrete issue, the Board should take aproactive 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 himto observe the effects of this medication, its duty to impose the least onerous and restrictive disposition required the Board to ascertainhow 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 findthemselves in with respect to housing arrangements is unfortunate, but it is beyond the control of the Board.

While the availability ofhousing is relevant for the Board to consider, its primary task is determining how any risk that the person concerned poses may be bestmanaged 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. [34] At the same time, as counsel for the Attorney General points out, not all detentions and conditional discharges are alike.

TheBoard has a range of options to craft conditions and, in a factually appropriate situation, may be required to consider a detention orderwith significant “trial” periods of living in the community, so housing might be available by the time the person concerned is ready for aconditional 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 orderscontingent on the occurrence of future events such as a confirmation from hospital staff that discharge is “clinically appropriate” or thearrangement of housing for the person concerned. This practice of effectively attaching conditions precedent to a conditional dischargeorder is not common and has been rejected in other jurisdictions (Weldon (Re), [2008] O.R.B.D.

No. 1747 (Ontario Review Board) atparas. 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 acondition precedent built into a conditional discharge order is never appropriate, for example in order to complete the discharge processfrom the hospital or to provide for the occurrence of a discrete event such as the administration of medication, the Board must be carefulnot to issue orders which take the ultimate issue of whether or not the person concerned is to be detained or discharged outside of itscontrol.

For example, an order making the discharge contingent on the exercise of someone else’s unfettered discretion constitutesimproper sub-delegation (Brant Dairy Co. v. Milk Commission of Ontario, (SCC), [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 aconditional discharge and that order should be followed with diligence and cannot be modified by anyone other than the Board. Forexample, in 2009, the Review Board ordered a conditional discharge for Mr. Head.

He subsequently re-entered the hospital as avoluntary patient, where he fared poorly at first. The record indicates that in response to his poor behavior, discharge planning wascurtailed by medical staff. This was done without the Board being made aware of this change or an application being made to the Boardto address whether the conditions of the discharge needed modification. Mr. Head remained in hospital until the next review by theBoard in 2010.

While this 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 theBoard’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 tosubstitute 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 substanceabuse, it appears that if he takes his medication regularly, simultaneous substance abuse does not cause the threat that he poses to beunmanageable. The ACT team will help to ensure his medication is administered. Thus I conclude the threat he poses can be adequatelymanaged with a conditional discharge.

I would therefore allow the appeal and order that Mr. Head be conditionally discharged on theterms set out in the Order attached to and forming part of this decision. Appeal allowed.