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R. v. Breitwieser
Published in the November 2009 issue of Litigation Notes - View Article
In the August 2009 edition of Litigation Notes, we reported on the case of R. v. Lamanna. In R. v. Breitwieser, the Ontario Court of Appeal has addressed substantially the same issue.
Dr. Breitwieser suffers from schizoaffective disorder. In 2004 he was found not criminally responsible on charges of threatening bodily harm and breaching a probation order. He was hospitalized and he improved with treatment.
Dr. Breitwieser was subject to the jurisdiction of the Ontario Review Board (“ORB”) which, in light of his excellent progress, authorized the Person in Charge of the hospital to permit Dr. Breitwieser to live in the community. He began living in his own apartment in the summer of 2008, maintaining contact with an outreach program and obtaining and administering his own medication.
At an annual review held by the ORB in December of 2008, it was argued on behalf of Dr. Breitwieser that he should be granted a conditional discharge, as this was the “least onerous and least restrictive” disposition within the meaning of section 672.54 of the Criminal Code of Canada.
The hospital psychiatrist who testified at the hearing was of the opinion that Dr. Breitwieser was at risk of being non-compliant with his medication and that if he did become non-compliant it would be necessary to intervene early “before anything untoward would happen”. The ORB agreed and ordered that Dr. Breitwieser continue to be detained in hospital (subject to the ability of the Person in Charge of the hospital to permit him to live in the community). Dr. Breitwieser appealed to the Ontario Court of Appeal on the basis that he should have been given a conditional discharge.
The Court of Appeal was of the opinion that the ORB had not given adequate consideration to the possibility of a conditional discharge. Firstly, the ORB had not addressed whether or not Dr. Breitwieser would have consented to a condition requiring him to continue his medication regime. Although the ORB cannot order an accused to take medication, section 672.55 of the Criminal Code allows for a disposition to include a condition regarding treatment “where the accused has consented to the condition and the Court or Review Board considers the condition to be reasonable and necessary in the interests of the accused”.
Because the ORB did not canvass Dr. Breitwieser with respect to whether or not he would agree to a condition that he take medical treatment and in consequence did not consider whether or not a conditional discharge would be a viable option, the matter was remitted to the ORB for a re-hearing.
However, the decision is interesting because the Court of Appeal also acknowledges some of the draw-backs associated with a conditional discharge predicated on the condition that the accused take medical treatment. Where there is a detention order and the accused is living in the community at the discretion of the Person in Charge of the hospital, the accused can be readmitted immediately at the first sign of decompensation, by way of a Warrant of Committal issued by the ORB pursuant to section 672.57 of the Criminal Code, in Form 49. This permits peace officers to convey the accused directly to the hospital, subject to the conditions imposed in his last disposition order. In this way the accused can be “…properly placed, not in a jail, but in an appropriate secure setting, which would make it possible to resume his treatment expeditiously and avoid any further decompensation that could result from a prolonged delay”.
If the accused is subject to a conditional discharge and breaches the condition, he must be arrested pursuant to section 672.91 of the Criminal Code and brought before a Justice of the Peace who, upon being satisfied that there are reasonable grounds, may order the accused returned to hospital if that return is specified as a term of the discharge disposition. This may result in the accused being “detained in the inappropriate setting of a jail with a concomitant delay in receiving medication or other treatment and a potential further deterioration in his or her condition”.
While there is also the possibility of having the accused detained pursuant to the provisions of the Mental Health Act, the threshold set in that Act for detaining a person might be higher than those in section 672.91 of the Criminal Code, depending on the conditions in the conditional discharge disposition.
In conclusion, the Court of Appeal states that the ORB has an obligation to canvass whether the accused will consent to appropriate conditions under section 672.55 of the Criminal Code and must address potential mechanisms for the accused’s return to the hospital in the event of non-compliance. It must determine whether the patient is likely to agree to return to the hospital and consider whether a combination of sections 672.55 and either 672.92 or 672.93(2) of the Criminal Code or another route of return would be sufficient in the circumstances.
R. v. Breitwieser, 2009 ONCA 784 (CanLII)