Public safety under consideration as Court of Appeal considers Review Board decision

Law360 Canada (September 6, 2024, 1:03 PM EDT) --

John L. Hill

Luis-Fernando Manrique tried to kill his wife. When his trial on an attempted murder charge concluded in 2010, he was found not criminally responsible. The court heard that until his spousal attack, Manrique had no criminal record, nor was there any indication of drug use. Psychiatric testimony revealed Manrique suffered from schizoaffective disorder. He was found not criminally responsible and was confined to a psychiatric facility.

Manrique came before the Ontario Review Board to be discharged from hospital supervision. He argued that even though he had decompensated during periods of non-compliance with his medication regime in 2016 and 2017 and a substitute decision-maker needed to be brought on board to continue his medications, he was not aggressive during these periods. Since January 2023, he has been receiving a long-acting medication. Invega Trinza is a drug injected every three months, and even if there is a lapse, the drug will remain active in his system for a year. Manrique promised to remain on his medications and continue supervision by an outpatient psychiatrist and his priest. He sought an absolute discharge from the order requiring his hospitalization.

Manrique’s treating psychiatrist testified before the board that her patient was not ready for an absolute discharge. Change has been a stressor for Manrique. She pointed out that even though Manrique had recently accepted a referral to the Assertive Community Treatment Team (ACTT) for post-discharge followup, the waiting list for ACTT is 18 months. The psychiatrist advised the board that she could provide monthly followups for only six months.  

On hearing Manrique’s and the hospital’s evidence, the board concluded that Manrique’s psychiatric disorder required continuation of his medication and without regular oversight, there is a likelihood the patient would decompensate and become a heightened risk to public safety. However, if an absolute discharge were granted, he would not receive weekly assessments and would have to await acceptance by ACTT for over a year. The best the hospital could provide would be a monthly review for a six-month duration. This would create a risk that the Board would be unwilling to approve. Accordingly, it granted a conditional discharge. That would loosen the state’s control over Manrique but ensure the continuation of treatment.

Manrique was dissatisfied with that outcome and appealed the Ontario Review Board’s decision to the Ontario Court of Appeal. The appeal court issued its decision on Sept. 3, 2024 (Manrique (Re), 2024 ONCA 649).

In a brief 10-paragraph decision, the unanimous three-judge panel agreed that there was evidence before the board supporting its conclusion that without board oversight, there was a high likelihood that Manrique would discontinue taking his injections.

However, the appeal court decided that the board’s written reasons fell short of establishing how public safety would be put at risk. The appeal court remained unconvinced that the board’s assertion that there would be “a predictable decline in [Manrique’s] mental status leading to decompensation and a heightened risk to public safety” explained how public safety was likely to be endangered.

Unfortunately, the Court of Appeal did not cite precedents for the threshold to be met to establish grounds for denial of a discharge due to a threat to public safety. However, we can expect that the appeal court had in mind cases such as R. v. Centre for Addiction & Mental Health, 2014 ONCA 740. In that case, the appeal court reviewed the case of a patient named Furlan. At the time of Furlan’s Board hearing, he did not pose a significant threat to the public’s safety. This dispositive conclusion was based on the board’s acceptance of evidence that Furlan had “excellent insight into his mental illness, [and] the importance of medication compliance and of abstaining from substances.” The board’s ruling also rested on undisputed evidence that Furlan had been fully compliant, for more than one year before the hearing, with all the terms of his conditional discharge and had not presented with any symptoms of his mental illness. Further, he sought help when required, and he anticipated continuing to do so.

All parties before the board accepted that Furlan no longer represented a significant risk to the public’s safety and that he was, therefore, entitled to an absolute discharge. Once the board concluded that Furlan did not represent a significant threat to the public’s safety, the only available disposition was an absolute discharge, as a matter of law.

Manrique did not have the positivity that Furlan initially brought to the board. There was insufficient evidence of the degree to which he posed a safety risk for the appeal court to either order an absolute discharge or confirm the Board’s findings. Accordingly, the appeal court set aside the board’s order for a conditional discharge and ordered a review hearing before a differently constituted panel.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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