Criminal Law

OCA orders new mental health hearing for hospitalized man

By Staff

The Ontario Court of Appeal has ordered a new mental health hearing for a non-violent man held in psychiatric hospitals for 10 years after Toronto criminal lawyer Jill Presser, acting as a friend of the court, argued he should be given an absolute discharge.

Two psychiatric hospitals where the man has been held also argued for his release.

“This is an unusual situation, in which the appellant’s new treating psychiatrist and the person in charge of his current treatment centre agree that he should be absolutely discharged,” writes Justice Grant Huscroft.

But in a split decision, the court ruled it should not make the determination on whether to discharge the 38-year-old Kitchener man who was hospitalized for stalking a woman. That assessment should instead be left to the mental health experts on the Ontario Review Board, the court ruled.

The man was appealing the review board’s August 2016 decision that he poses a significant threat to public safety and should not be discharged.

The board’s decision was based on an incomplete picture, through no fault of its own, and can now be declared unreasonable, Huscroft writes, with Justice Karen Weiler agreeing.

The decision has since been contradicted by fresh evidence from Kingston’s Providence Health Care, where the man has been kept, showing he is at low risk to reoffend, Huscroft notes.

But it is not for the court “to reconcile the competing psychiatric evidence,” the judge continues. “That is the responsibility of the board.”

In a dissenting opinion, however, Justice Kathryn Feldman called for his absolute discharge, reasoning that the fresh evidence is “unequivocal and one-sided” that he poses no threat to the public.

“There is no competing psychiatric evidence,” she continues. “There is old evidence that was before previous boards and the fresh evidence based on new, current testing.”

In February 2007, the man was found not criminally responsible on account of a mental disorder on one count of criminal harassment and two counts of failure to comply with recognizance, Huscroft writes. He made repeated telephone calls and tried to contact a woman he did not know, the judge adds.

Diagnosed with erotomanic delusion disorder and adjustment disorder with depressed mood, he has been detained in the mental health system ever since.

The board’s August 2016 decision denying him an absolute discharge was made without substantive evidence about his mental state called at its hearing. It concluded nothing had changed since the board's March 2016 disposition and the appellant continued to pose a significant threat to the safety of the public, Huscroft writes.

“However, the board also noted that the appellant had not been involved in any violent acts and had not made any attempt to contact the victim,” the judge adds.

Presser, as amicus curiae, asked the court to look at the full evidentiary record of the March hearing on which the board’s August ruling was based, Huscroft notes. The man asked the court to consider fresh evidence of his medical condition, in particular, the treatment issues surrounding his Crohn’s Disease, he adds.

This new evidence from his treating psychiatrist at Kingston’s Providence hospital is “clearly at odds” with the facts relied on by the board in 2016, Huscroft says. However, it “has not been tested by the Crown, nor has it been evaluated by the board,” he continues.

In her dissent, Feldman notes that a recent psychological assessment shows the man to be at low risk for violence.

She quotes Dr. Jan Looman, the clinical forensic psychologist who tested him, as noting that while he continues to refuse treatment and remains delusional, his delusions focus on persecutory themes, not on the woman he harassed.

“While he experiences anger regarding what he perceives as injustices he is subject to, he channels this anger into writing letters and complaints,” Looman writes.

The man told the psychologist that he originally tried to contact the woman because “a friend told him that the victim liked him. He said that once he understood that she did not want contact with him he stopped,” Feldman writes.

“Based on the record before this court, there is no evidence that the appellant continues to pose a significant risk to the safety of the public,” Feldman concludes.

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