Carrick (Re), 2015 ONCA 866

In the Matter of Carrick

[Indexed as: Carrick (Re)]

Ontario Reports

Court of Appeal for Ontario,

Doherty, Tulloch and Huscroft JJ.A.

December 10, 2015

128 O.R. (3d) 209 | 2015 ONCA 866

Case Summary

Criminal law — Mental disorder — Dispositions — Ontario Review Board concluding that appellant constituted significant threat to safety of public and varying his disposition to remove his community living privilege — Appellant's appeal allowed — Board's decision unreasonable as board failed to address conflicts and ambiguities in expert evidence before it and to explain why appellant was significant threat to safety of public.

The appellant's last violent offence was in 2003. In 2007, he was found not criminally responsible for the commission of breaking and entering an occupied dwelling and several property-related offences. He had been subject to dispositions of the Ontario Review Board ever since. Several times, he had breached his disposition orders by consuming alcohol or drugs or by committing non-violent offences to obtain these substances. Most recently, his community living privileges were withdrawn after he tested positive for substances for the fourth time. He appealed the 2014 disposition of the board, which concluded that he constituted a significant threat to the safety of the public and ordered his [page210] detention at the hospital without the community living privileges, apart from attending a residential treatment facility for substance abuse.

Held, the appeal should be allowed.

It was clear that the appellant would likely continue to violate the terms of any disposition banning him from consuming alcohol and drugs and is also likely to commit property crimes in order to obtain such substance. However, the board was confronted with expert evidence that was at times equivocal and contradictory about whether the appellant posed a significant threat to the safety of the public. The board's decision was unreasonable because it failed to address the conflicts and ambiguities in the evidence before it and to explain its conclusion that the appellant was a significant threat to the safety of the public.

Cases referred to

Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.EL. (3d) 1, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65, D.T.E. 2008T-223, 164 A.C.W.S. (3d) 727; R. v. Carrick, [2010] O.J. No. 3114, 2010 ONCA 523, 89 W.C.B. (2d) 144; R. v. Owen, [2003] 1 S.C.R. 779, [2003] S.C.J. No. 31, 2003 SCC 33, 225 D.L.R. (4th) 427, J.E. 2003-1142, 173 O.A.C. 285, 174 C.C.C. (3d) 1, 11 C.R. (6th) 226, 57 W.C.B. (2d) 192; Ranieri (Re), [2015] O.J. No. 3201, 2015 ONCA 444, 336 O.A.C. 88, 122 W.C.B. (2d) 569; Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31, 175 D.L.R. (4th) 193, 241 N.R. 1, J.E. 99-1277, 124 B.C.A.C. 1, 135 C.C.C. (3d) 129, 25 C.R. (5th) 1, 63 C.R.R. (2d) 189, 42 W.C.B. (2d) 381

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 672.54 [as am.], 672.5401, 672.78(1), 672.81(2.1)

APPEAL from the disposition of Ontario Review Board, [2014] O.R.B.D. No. 2628.

Anita Szigeti, for appellant Quentin Carrick.

Daniel Di Fonzo, for respondent Her Majesty the Queen.

Julie Zamprogna Ballès, for respondent person in charge of Southwest Centre for Forensic Mental Health Care, St. Joseph's Health Care London.

The judgment of the court was delivered by

HUSCROFT J.A.: —

Introduction

1The appellant, Quentin Carrick, appeals from the October 6, 2014 disposition of the Ontario Review Board, which concluded that he constitutes a "significant threat to the safety of the public" and ordered his detention at the Southwest Centre for Forensic Mental Health Care, St. Joseph's Health Care London, [page211] without the community living privilege he had enjoyed under his previous disposition.

2The appellant argues that he is not a significant threat to the safety of the public and seeks an absolute discharge. The Crown and the hospital oppose the appellant's release and seek to uphold the board's disposition.

3For the reasons that follow, I would allow the appeal and return the matter to the board for a fresh determination.

Background

4The appellant is a 38-year-old man with a criminal record that dates to 1993. His record includes break and enter, theft, possession of property obtained by crime, and mischief, in addition to three violent offences, including assault. The appellant's last violent offence was robbery with violence in 2003 -- several years prior to commission of the index offences, which did not involve violence.

5The index offences involved charges of break and enter a dwelling house, possession of property obtained by crime under $5,000, attempted theft over $5,000, and break and enter with intent. The appellant broke into a family home and was discovered by a five-year-old child, who reported the information to her mother, who then informed her boyfriend. The appellant attempted to drive off in the family car but was blocked by the boyfriend's truck. He ran off and was pursued by the boyfriend to an apartment. The appellant surrendered to the police shortly afterwards.

6The appellant was found not criminally responsible ("NCR") for the commission of these offences on August 14, 2007, and has been subject to dispositions of the board since that time.

7The appellant has been hospitalized for a period longer than he would have been incarcerated for the index offences had he not been found NCR. He has been diagnosed with a range of things including psychosis-not otherwise specified, mood disorder, bipolar disorder, personality disorder-mixed antisocial and paranoid traits, and polysubstance abuse. The most recent report on the appellant, prepared by Dr. B. Daly, indicates that the appellant may not have an Axis I illness (at the board hearing, Dr. Daly clarified that he meant an Axis I psychotic disorder) and notes that he did not exhibit symptoms of psychosis for nearly five months, despite not being on psychotropic medication.

8On October 2, 2014, the board convened a hearing to review the 2013 disposition, pursuant to which the appellant was detained at the General Forensic Unit of Regional Mental Health Care St. Thomas with community privileges, and to [page212] review further restrictions on the appellant's liberty imposed by the hospital pursuant to s. 672.81(2.1) of the Criminal Code, R.S.C. 1985, c. C-46. These restrictions resulted from the appellant breaching the terms of his previous disposition on four occasions. Despite the term in his disposition ordering him to abstain absolutely from the non-medical use of alcohol, drugs and other intoxicants, the appellant tested positive for substance use each time he was re-admitted to the hospital.

9The board concluded that the restrictions on the appellant's liberty were warranted and ordered that his detention continue. The appellant appeals from this disposition.

10The hospital brought an application to adduce fresh evidence concerning the conduct of the appellant since the disposition under appeal. In light of our decision in this case, it is unnecessary to consider that evidence.

The Legislation

11Section 672.54 of the Criminal Code sets out the board's obligations in this matter:

672.54. When a court or Review Board makes a disposition under subsection 672.45(2), section 672.47, subsection 672.64(3) or section 672.83 or 672.84, it shall, taking into account the safety of the public, which is the paramount consideration, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is necessary and appropriate in the circumstances:

(a) where a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused and, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely[.]

12The history of the law governing the NCR designation and its consequences is set out by the Supreme Court of Canada in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31. The court summarized the effect of the legislation, at para. 43:

In summary, the purpose of Part XX.1 is to replace the common law regime for the treatment of those who offend while mentally ill with a new approach emphasizing individualized assessment and the provision of opportunities for appropriate treatment. Under Part XX.1, the NCR accused is neither convicted nor acquitted. Instead, he or she is found not criminally responsible by reason of illness at the time of the offence. This is not a finding of dangerousness. It is rather a finding that triggers a balanced assessment of the offender's possible dangerousness and of what treatment-associated measures are required to offset it. Throughout the process the offender is to be treated with dignity and accorded the maximum liberty compatible with Part XX.1's goals of public protection and fairness to the NCR accused. [page213]

13For present purposes, the most important point was that emphasized by the court in Winko, at para. 33:

The only justification there can be for the criminal law detaining a person who has not been found guilty (or is awaiting trial on an issue of guilt) is maintaining public safety. Once an NCR accused is no longer a significant threat to public safety, the criminal justice system has no further application.

14The board is tasked with determining whether an NCR accused poses a significant threat to public safety. An NCR accused is not presumed to be dangerous and bears no burden of proof in proceedings before the board.

15If the board concludes that an NCR accused poses a significant threat, it is required to fashion a "necessary and appropriate" disposition pursuant to s. 672.54 -- which this court has held means the least onerous and least restrictive disposition: Ranieri (Re), [2015] O.J. No. 3201, 2015 ONCA 444, at para. 20. If, however, the board concludes that an NCR accused does not pose a significant threat to public safety, it must order that he or she be discharged absolutely.

16What constitutes a "significant threat to the safety of the public"? The term is defined in s. 672.5401 as "a risk of serious physical or psychological harm to members of the public -- including any victim of or witness to the offence, or any person under the age of 18 years -- resulting from conduct that is criminal in nature but not necessarily violent". The likelihood of a risk materializing and the seriousness of the harm that might occur must be considered together. As the Supreme Court noted in Winko (in discussing s. 672.54), at para. 57:

[T]he threat posed must be more than speculative in nature; it must be supported by evidence. The threat must also be "significant", both in the sense that there must be a real risk of physical or psychological harm occurring to individuals in the community and in the sense that this potential harm must be serious. A minuscule risk of a grave harm will not suffice. Similarly, a high risk of trivial harm will not meet the threshold. Finally, the conduct or activity creating the harm must be criminal in nature.

(Citations omitted)

17In short, the "significant threat" standard is an onerous one. An NCR accused is not to be detained on the basis of mere speculation. The board must be satisfied as to both the existence and gravity of the risk of physical or psychological harm posed by the appellant in order to deny him an absolute discharge.

The Decision of the Board

18The board's analysis is set out, at paras. 48-51 of its decision: [page214]

The Board is in agreement that the accused continues to represent a significant threat to the safety of the public. We have reviewed all of the written and oral evidence pertaining to the differences in medical opinions as to Mr. Carrick's diagnosis. We are mindful of Dr. Daly's opinion that while there is substantial evidence to suggest that the accused does not have a primary psychotic disorder or other Axis I diagnosis, this is not certain at this time. More data in the form of observation while not taking medication would add support. The hospital submitted the accused had an antisocial personality disorder and a drug induced psychosis and recommended that the detention Disposition continue and the accused be placed in a drug rehabilitation program followed by transitional housing in the community, indirectly supervised.

We have taken into consideration Mr. Carrick's acceptance of Dr. Daly's evidence and his support of the hospital recommendation.

The Board accepts the recommendations of the hospital that Mr. Carrick have the privilege of attending a residential drug rehabilitation program with a follow-up transitional housing program. The majority of the Board also concluded that it is not realistic to consider community living for the accused in this coming year.

In reaching our Disposition, the Board has taken into consideration the paramount consideration of the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused.

19One member of the board dissented concerning the terms of the disposition. However, he did not dispute the board's conclusion on the "significant threat to the safety of the public" issue.

The Standard of Review

20Although decisions of the board come to this court as appeals rather than applications for judicial review, the court is required to review the decision of the board pursuant to administrative law principles: R. v. Owen, [2003] 1 S.C.R. 779, [2003] S.C.J. No. 31, 2003 SCC 33, at para. 34.

21There is no need to conduct an analysis to determine the appropriate standard of review. A reasonableness standard is prescribed in s. 672.78(1) of the Criminal Code:

672.78(1) The court of appeal may allow an appeal against a disposition or placement decision and set aside an order made by the court or Review Board, where the court of appeal is of the opinion that

(a) it is unreasonable or cannot be supported by the evidence;

(b) it is based on a wrong decision on a question of law; or

(c) there was a miscarriage of justice.

22In short, absent an error on a question of law (b) or a decision that results in a miscarriage of justice (c), the court is [page215] required to defer to the board's judgment, upholding it if it is reasonable.

What does reasonableness require?

23The leading case on the concept of reasonableness is the Supreme Court of Canada's decision in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9. In that case, the court outlined the concept as follows, at para. 47:

Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

24As Dunsmuir makes clear, reasonableness review begins from the premise that questions before specialized tribunals may not give rise to a single, "correct" answer. A range of reasonable decisions may be made in a particular context and that range may be more or less broad, depending on a number of considerations in all the circumstances.

25In this case, it fell to the board to make a binary decision: either the appellant is entitled to an absolute discharge or he is not. The decision depends on an assessment of the nature and gravity of the risk posed by the appellant, an assessment that is not amenable to strict proof. The board was required to exercise its expert judgment based on its evaluation of the relevant evidence, and the reasonableness of its decision must be evaluated by considering the reasons proffered by the board in the context in which the decision was made.

26The court does not make its own judgment on the significant threat question and use that judgment as the benchmark for assessing the reasonableness of the board's decision. Nor does this court re-weigh the considerations before the board. The reasons for the board's decision and the substantive decision reached by the board must be considered together to determine whether an acceptable and defensible outcome has been reached. [page216]

The parties' positions

27The appellant submits that the board's decision does not explain its finding of significant risk. The evidence at the hearing was that the appellant poses a high risk of low-level harm, as he is likely to seek out drugs and may commit property offences to pay for drugs. However, this evidence does not establish a risk that justifies his continued detention. The appellant emphasizes that there has been no violence since 2003.

28The appellant says that he did not concede at the hearing that he poses a significant threat to the safety of the public, as the board's decision suggests. But, even assuming he did, the board was required to determine the matter and it has failed to do so.

29The Crown submits that the appellant effectively conceded that he is a significant threat to public safety by abandoning his request for an absolute discharge in his testimony before the board. Nevertheless, the Crown argues that the evidence supports the board's decision finding him to be a significant threat. The Crown and hospital submit that the appellant's substance abuse motivates his criminal activity and that his criminal activity has the potential to cause psychological harm to others and could lead to the commission of more serious offences. The Crown emphasized that the appellant has numerous markers for risk of violence and that this court should defer to the board's decision.

Analysis

30The board was confronted with expert evidence that is at times equivocal and contradictory. There is evidence in the record both to support and to reject the view that the appellant poses a significant threat to the safety of the public. I highlight some of the conflicting evidence below.

Evidence of significant threat to the safety of the public

31In the annual hospital report, dated April 29, 2014, the prior treatment team expressed the opinion that the appellant continues to pose a significant threat of physical or psychological harm to the safety of the public based on seven factors including the symptoms of his mental illness, his uncertain commitment to medication compliance, his limited insight and his ongoing substance abuse. Moreover, a Psychological Risk Assessment Consultation Report (HCR-20 V3), prepared by Dr. R. Balsom and Dr. L. Litman on March 13, 2014, found that nine of the ten core historical items, four of the five core clinical items and four [page217] of the five core risk management items clearly emerged as risk factors for violence.

32The appellant's current treating psychiatrist, Dr. Daly, recommended that the appellant be detained at the Southwest Centre for Forensic Mental Health Care. In his testimony, he described the appellant as "a substantial risk" and in answer to a direct question from Crown counsel, did not deny the suggestion that the appellant was a significant threat to the safety of the public:

Q:

What would you say if I suggested to you both the

Supreme Court of Canada and now Parliament of Canada

have really said we don't care how complex he is. The

issue is is he a significant threat to the safety of

the public and you've already said he is and that

threat will be increased by him living in the

community. You don't deny that?

A:

I don't. I think the issue that makes this

complex is that that's not going to change.

(Emphasis added)

33In another exchange, Dr. Daly agreed with the suggestion that the appellant represents a significant threat to the safety of the public:

Q:

And if I were [to] suggest to you that . . . the test is

whether or not he represents a significant threat to

the safety of the public, you'd agree with that I

think?

A: That is my understanding I think.

Q: You already said in your view he does?

A: Yes[.]

Evidence that the appellant may not present a significant threat

34Dr. Daly's evidence is equivocal at points, including these answers to questions from the appellant:

Q:

Do you believe I possess or pose a violent risk to the

physical or psychological harm to the public due to a

major mental illness?

A:

So I believe that you pose a risk to the public if you

consider major mental illness to be substance abuse.

Violence is the key word there; that is

questionable. Because the evidence that we have is

that you haven't been violent since 2003. So that risk

is lesser than an overall risk of committing a crime.

Q:

So therefore I don't pose a violent risk to the safety

of the public?

A:

Well, I would say -- I wouldn't say not at all.

There are baseline things that cause you to have a

greater risk overall. Substance use disorder and

antisocial personality disorder cause an increased risk

overall, if you take all people and compare them to the

general public, for violent crime.

(Emphasis added) [page218]

35And at other points, Dr. Daly testifies that violence is unlikely:

Mr. Carrick has used drugs in the past and he is likely to use them again in the future, mostly because he has relapsed so many times, including after instances of treatment. And there is the link between the substance abuse and the crimes, including the instant offence. But there is limited evidence to suggest that he would be violent.

If you're asking me what's going to happen over the last year if you let him out, he would probably use drugs again because that's what the evidence suggests, though there's no way to know for sure and he may go AWOL again because that's what the evidence suggests. But the evidence also tends to suggest that he won't be risky in a violent way, but risky in a criminal way because he will probably procure drugs. And there's an increase that he -- there's an increased chance that he will commit a crime to get money for drugs. That seems to be the pattern in the past.

(Emphasis added)

36In answer to the question whether the appellant poses too great a risk to the public to let him live in the community, Dr. Daly testified:

A: I don't think he does.

Q:

You'd be prepared to have him live in the community

today?

A:

Today, tomorrow, yes. Because I think the risk is going

to be the same a year from now roughly.

37Dr. Litman, who prepared the Psychological Risk Assessment Consultation Report referred to above, endorsed Dr. Daly's view that there would always be a baseline of threat for people with antisocial personality disorder. However, concerning the threat to public safety posed by the appellant, Dr. Litman gave the following testimony:

Q. [the appellant]: And do you believe that I pose a significant threat to commit a violent offence due to a major mental illness?

A: No[.]

A:

I don't think we have any evidence that he is a risk for

-- the evidence we have is that he committed a violent

offence in 2003 and nothing since then. So, you know,

even while he's using drugs, we have no evidence that

he was a threat.

Q:

But based on the test, the legal test that the Board has

to determine whether Mr. Carrick represents a

significant threat or not, have you formed an opinion

with respect to that? [page219]

A:

I think as Dr. Daly said, he's at risk to continue to

use drugs and possibly to commit more offences. If that

fits the criteria of significant threat, then he meets

it, if that's the only criteria being used.

The board's decision is unreasonable

38In order to reach a reasonable decision in this case, it was incumbent on the board to address the conflicts and ambiguities in the expert evidence. The board was entitled to accept some, all or none of the expert evidence, but, whatever it chose to do, the board was required to explain and justify its decision. It could not order the appellant's continued detention without determining that he posed a significant threat to the safety of the public, regardless of any purported concession he may appear to have made.

39There is no doubt that the appellant has a lengthy history of mental illness and substance abuse and has committed numerous offences in order to obtain alcohol and drugs. There is a substantial risk, if not likelihood, that he will abuse alcohol and drugs and commit offences if he is released in the community. Yet the law is clear that the appellant cannot be detained on this account. He is entitled to be discharged unless the board concludes that he poses a significant threat to the safety of the public, as discussed in para. 16.

40The hospital argued that the decision of the board was reasonable because the commission of non-violent offences by the appellant would necessarily cause serious psychological harm to some vulnerable individuals. However, if this argument were accepted the risk that the appellant might commit virtually any offence would be sufficient reason for the board to detain him indefinitely.

41Prior proceedings involving the appellant reflect this concern. In R. v. Carrick, [2010] O.J. No. 3114, 2010 ONCA 523, although this court dismissed the appellant's appeal from a previous board disposition it expressed concern about the board's application of the significant threat standard to the appellant, at paras. 1 and 3:

There is merit to the submission that the Board focused on the risk that the appellant would breach any release order rather than on the risk to public safety that may have been occasioned were the appellant to breach a condition of the release order. The two risks are not the same and it is the latter inquiry that must be made under the relevant provisions of the Criminal Code.

At the next hearing, the Board must focus on the question of whether the risk to the public can be safely managed under terms imposed as part of a conditional discharge and not simply on the risk that the appellant will breach any release order by consuming alcohol or some other illicit substance. [page220]

42Five years later, the appellant remains detained. This is significant because, as Dr. Daly reiterated at several points in his testimony, the risk posed by the appellant -- a risk of continued substance abuse and of ongoing criminal activity to support this addiction -- is unlikely to change.

43Given the history of the appellant's detention and the state of the expert evidence, the board needed to do more than simply assert that the appellant continues to pose a significant threat to the safety of the public. It had to address the conflict in the evidence and explain why it was satisfied that the appellant poses a significant threat. In my view, its failure to do so renders its decision unreasonable.

Conclusion

44It does not follow from the conclusion that the board's decision is unreasonable that the appellant poses no significant risk to the safety of the public and should be discharged. It is simply the case that the board has not made a reasonable decision. The risk posed by the appellant is a matter for the board in the exercise of its expert judgment, not this court.

45Accordingly, I would allow the appeal and return the matter to the board for a fresh determination having regard to the reasons outlined in this decision.