This article was first published by the LAW360 Canada Publication, formerly known as Lawyer’s Daily, written by Amanda Jerome, on March 20, 2023.
You can read the article here:
https://www.law360.ca/articles/45017
Criminal
Judgment upholding review board decision on NCR accused ‘fundamentally changes the law’: counsel
Monday, March 20, 2023 @ 12:29 PM | By Amanda Jerome
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The Court of Appeal for Ontario has upheld an Ontario Review Board (ORB) decision, dismissing a not criminally responsible (NCR) accused’s appeal of a detention order. Counsel for the appellant says the decision “fundamentally changes the law in this area and will significantly limit the ability of forensic psychiatric hospitals to discharge patients when they’re ready for community living.”
“Instead, those patients will be designated ALC (Alternative Level of Care), just like those in general hospitals awaiting long-term care, but in this case for many years, costing taxpayers and the health-care system millions of dollars unnecessarily,” explained appellant counsel, Anita Szigeti, noting that her client is “considering seeking leave to appeal to the Supreme Court of Canada.”
In Alexander (Re), 2023 ONCA 176, Mavis Alexander appealed the disposition of the Ontario Review Board, issued Aug. 5, 2022, ordering that Alexander “continue to be detained at the Women’s General Forensic Unit of the Centre for Addiction and Mental Health” and “providing that the person in charge may, in his or her discretion, permit Ms. Alexander hospital and grounds privileges, escorted by staff, and to enter the community, escorted by staff.”
Anita Szigeti, Anita Szigeti Advocates
According to court documents, the board “removed the conditions of her prior disposition enabling the person in charge, in his or her discretion, to permit Ms. Alexander the following privileges: hospital and grounds privileges and to enter the community, accompanied by staff or a person approved by the person in charge or indirectly supervised; and to live in the community in accommodation approved by the person in charge.”
The last condition, the court noted “enabled Ms. Alexander to be placed on waitlists for accommodation in the community.”
On appeal Alexander’s counsel argued that “the Board’s removal of these conditions was unreasonable on the evidence that waitlists for the highly supportive housing Ms. Alexander would need in the community were years’ long.”
“The long wait time is compounded by the fact that” Alexander is “ineligible for most housing programs because her index offence was arson” and the “removal of the community living condition was contrary to this court’s decision in Kelly (Re), 2014 ONCA 269.”
On the other hand, both the Crown and the hospital submitted that “the Board’s decision was reasonable and not contrary to Kelly.”
In a decision released March 16, a unanimous Court of Appeal ruled that the “Board’s decision is entitled to deference” and the court was “not persuaded that it was unreasonable or contrary to Kelly.”
The court noted that Alexander was “first diagnosed with schizophrenia when she was 16 years old.”
According to court documents, Alexander “committed the index offence in early 2008” when she “set a couch on fire in her basement apartment.”
“She was found a short distance away from her residence. Four other residents were in the house. She was charged with Arson, Disregard for Human Life. On November 27, 2008, she was found NCR,” the court added.
The board, the court noted, determined that Alexander “continued to pose a significant threat to the public not only on the basis of her disrobing behaviour,” which was in “response to auditory hallucinations,” but “also on the basis of her physical aggression in the last year while acutely psychotic.”
In the board’s disposition it noted that Alexander’s treating psychiatrist, Dr. Ray, advised that she “will not be ready for community living” in the upcoming year.
“On the basis of this evidence, the Board has concluded that it is not appropriate to include directly supervised privileges or community living in the disposition. In making these changes to the disposition, the Board recognizes that there are long waitlists in placing CAMH patients in supervised community accommodation, but concludes that community living is so unrealistic that the provision should not be included in the disposition,” the board wrote.
Justices Alexandra Hoy, Julie Thorburn and Lise Favreau, writing for the Court of Appeal, noted that this case is “different from Kelly.”
“In Kelly, this court held that the Board mistakenly found that the hospital recommended a community living provision solely in order to place the appellant on a waitlist — when in fact the record showed that therapeutic concerns also motivated the recommendation,” the judges explained, noting that in Kelly the board also “erred in law by refusing to consider the provision solely on the ground that the appellant would not be able to use it during the current year.”
“In Kelly, the possibility of community living does not appear to have been ‘so unrealistic.’ Indeed, in Kelly, placing the appellant on the waitlist was a treatment ‘to motivate the appellant towards achieving integration in the community and to discourage his tendency to fall back on institutionalization,’ ” the judges added, stressing that there was “no evidence to this effect before the Board in this case.”
“Ms. Alexander’s circumstances are far from those of the appellant in Kelly. Moreover, in this case the Board was alive to the concern about significant waitlists,” the court determined, ruling that the “Board’s decision based on the record that Ms. Alexander should not be placed on waitlists was reasonable.”
Szigeti noted that, “in this case, the review board removed any possibility of community living from the appellant’s disposition, which meant she had to be removed from all waiting lists for housing, even though her name was not likely to come up for years.”
“This now means that when she is ready for discharge to the community, years from now, she will then have to wait many more years before housing is available for her in the community. During those years the cost of her hospitalization will be an unnecessary expense for taxpayers. A forensic psychiatric bed costs about $1,400 a day,” she explained, noting that while the court found the board’s decision to be “reasonable,” it is a “departure from well-established legal principles in relation to the work of this tribunal.”
“Ultimately, the impact of this judgment will be far-reaching and devastating for many of the most vulnerable patients in the system,” Szigeti stressed.
Szigeti told Law360 Canada that Alexander is “47 years old and has been under the Review Board’s jurisdiction since 2008.”
“Since the NCR verdict, supportive and supervised housing she has required has proved to be extremely difficult to find, and she has not been able to live in the community for long. She is not eligible for most housing because her index offence was arson. Even without that added complication, wait lists for the kind of housing she needs are many years long. In the past she has waited three or more years and still was discharged to substandard housing that did not meet her needs, only to be returned to hospital shortly thereafter. She has been on waiting lists for highly supervised supported housing since 2012,” she explained.
According to Szigeti, “in order to maintain a forensic psychiatric patient on various waiting lists for housing, their detention order written by the Ontario Review Board has to include the possibility of discharge to the community.”
“Ever since the Court of Appeal’s judgment on very similar facts in Kelly … in2014, the ORB has routinely included community living in NCR accused’s disposition orders for the sole purpose of maintaining them on these long wait-lists so they can be discharged to live in the community when they are ready,” she added, noting that until the decision in Alexander was released, “Kelly was the leading case on including community living in the privilege envelope of detained clients who faced waiting lists for supportive/supervised or other housing.”
The court’s decision in Alexander, she emphasized, is a “departure from Kelly. It is new law.”
“This new law will adversely impact not only the liberty interests of NCR accused, but also all psychiatric hospitals’ ability to manage their bed space. The court here upholds the board in removing community living, despite established lengthy wait lists, where there is no ‘air of reality’ to discharge in the coming year and discharge is considered ‘unrealistic’ in that coming year,” she added, noting that if “psychiatric hospitals have to wait until an accused is ready for discharge to place them on a wait-list and/or get community living in the privilege envelope, years if not decades of delay will ensue.”
Szigeti emphasized that this “will mean that many NCR accused will languish in hospitals, taking up expensive forensic psychiatric beds, blocking admission from higher secure facilities or from the courts, shutting down movement throughout forensic psychiatric care.”
“The ripple effect could paralyze the entire system,” she added, stressing that the “new law requires an ‘air of reality’ to discharge in the coming year.”
The decision, Szigeti noted, “will have the greatest adverse impact on the most vulnerable mental health patients, those who are dual diagnosis, with serious cognitive impairment as well as major mental disorder, and require to be wait-listed the longest due to the incredible scarcity of housing resources tailored to their needs.”
“Now they cannot be wait-listed by hospitals unless and until there is an ‘air of reality’ to discharge in the coming year, which is something that is likely never going to happen unless the housing is actually available. It’s a devastating Catch-22 for these extraordinarily vulnerable clients,” she concluded, noting that “many NCR accused will now spend many more years detained in hospital than they have done or would have done pursuant to Kelly.”
“This is going to cost our health-care system a fortune,” she said.
Counsel for the respondents did not respond to request for comment before press time.
If you have any information, story ideas or news tips for Law360 Canada, please contact Amanda Jerome at Amanda.Jerome@lexisnexis.ca or 416-524-2152.
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Anita Szigeti
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