Pellett (Re)

2017 ONCA 753
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The appellant was a 62 year old female diagnosed with schizophrenia. She had a long-standing history of hospitalization, treatment, release, de-compensation, relapse, and re-admission. When psychotic, the appellant had a history of troubling behaviour, including attempts to divert traffic, throwing objects out of a window, crashing her car and smashing other cars with brooms. The appellant had previously been found not criminally responsible for an assault on a five-year-old child, in which she pushed the child to the ground while believing the child was sending her telepathic messages. The appellant was ordered detained at the Centre for Addiction and Mental Health, and was under the jurisdiction of the Ontario Review Board (the “Board”).

Over the course of several hearings, the Board granted the appellant privileges to live in the community under supervision and then a conditional discharge subject only to minimal supervision. At the hearing at issue in this case, the Board refused to grant her absolute discharge and continued her conditional discharge with looser conditions. Under section 672.54 of the Canadian Criminal Code, the Board must order a person be discharged absolutely if they are “not a significant threat to the safety of the public.” The Board noted that the details of the offence did not disclose any physical or psychological harm, but found the appellant’s behaviour met the threshold of significant risk.

The main issue before the Court was whether the Board erred in finding that the appellant remained a significant threat to public safety and therefore was entitled to an absolute discharge.

The Court found that the Board’s decision that the appellant continued to pose a significant threat to public safety was unreasonable. The Court ordered the decision be set aside and the appellant be granted an absolute discharge.

The Court found that the evidence before the Board did not support the conclusion that the appellant was a significant threat to public safety. The Board relied on the testimony of one of the appellant’s psychiatrists to find the standard of risk of serious harm had been met. The psychiatrist testified that if the appellant stopped taking her medication, it could lead to “aggressive behaviour” such as the assault. However, he did not measure this incident or his concept of aggressive behaviour against the onerous standard of “risk of serious physical or psychological harm.” The Court noted that while the assault of a child is always a matter of concern, it does not automatically translate into a finding of serious physical or psychological harm. The Board also failed to address whether the appellant posed a significant risk of repeating similar conduct. The Board did not address the fact that the offence was a one-off incident, and that there was nothing in the appellant’s record to suggest she was pre-occupied with children or at any real risk of harming them.

“The Board’s mandate is set out in s. 672.54 of the Criminal Code, which identifies the safety of the public as the “paramount consideration.” If the individual is “not a significant threat to the safety of the public”, the Board shall order that the person be discharged absolutely.” (para 22)

“Assuming that the index offence met this threshold [of serious physical or psychological harm], the question the Board had to face was whether the appellant posed a significant risk of repeating conduct of a similar nature. The Board did not address the fact that the index offence appears to have been a one-off incident. There is nothing in the appellant’s records, either before or after the index offence, which would suggest she is pre-occupied with children, let alone at any real rik of harming them, or anyone else for that matter. It is completely speculative.” (para 30)

 “We acknowledge that imposing an absolute discharge may not be in the appellant’s best interests. However, this is not relevant to the determination under s. 672.54 of the Code…There is a risk that the appellant will cease taking her medication, and that her condition will worsen, perhaps quite quickly. However, the appellant is entitled to be discharged unless she constitutes a significant threat to the safety of the public.” (para 32)

 

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