Court of Appeal for Ontario

Date: June 11, 2018 Docket: C64041 Judges: Feldman, Roberts and Trotter JJ.A.

In the Matter of: Elvis Krivicic

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• Jill R. Presser and Jeff Marshman, amici curiae
• Elvis Krivicic, acting in person
• Megan Petrie, for the respondent, the Attorney General of Ontario

Heard: April 18, 2018

On appeal from the disposition of the Ontario Review Board dated June 22, 2017.

Trotter J.A.:

A. Introduction

1More than a decade ago, the appellant was found not criminally responsible ("NCR") of one count of criminal harassment and two counts of failing to comply with a recognizance. Ever since, he has been under the supervisory jurisdiction of the Ontario Review Board ("the Board"). Each time the Board has reviewed the appellant's case, it has determined that he poses "a significant threat to the safety of the public" pursuant to section 672.54 of the Criminal Code.

2On his prior appeal to this court, a new risk assessment was received as fresh evidence. It indicated that the appellant was at a low risk to re-offend. In light of this evidence, all three members of the panel agreed that the Board's disposition detaining the appellant could not stand. The majority (Weiler and Huscroft JJ.A.) remitted the case to the Board to consider the appellant's situation in light of the new risk assessment. Feldman J.A. would have granted an absolute discharge: see Re Krivicic, 2017 ONCA 379, 139 W.C.B. (2d) 55, leave to appeal refused, [2017] S.C.C.A. No. 317.

3At the appellant's most recent hearing, the Board considered the fresh evidence admitted by this court, along with a more recent risk assessment. Again, the Board determined that a detention order was appropriate.

4The appellant argues that the Board's decision was unreasonable. I agree. I would allow the appeal and substitute an absolute discharge.

B. Background

(1) The Appellant and the Index Offences

5The appellant is 40 years old. In late 2006, he was involuntarily admitted to the Grand River Mental Hospital under the Mental Health Act, R.S.O. 1990, c. M.7. Earlier that year, the appellant was charged with producing a controlled substance (marijuana). In 2007, he received an eight-month conditional sentence for that offence, his only recorded conviction. The appellant was also charged with assault, mischief, and uttering threats in 2006, but those charges were withdrawn after he was found NCR for the index offences.

6The index offences commenced in the fall of 2006. The appellant made repeated calls and sent 17 letters to a woman with whom he had attended high school, but did not otherwise know. The letters were vulgar and sexually explicit. The woman lived with her parents at the time, and the appellant lived close by. The appellant was charged with criminal harassment on November 16, 2006. He was subsequently charged with two counts of failing to comply with his recognizance. He was found NCR on February 27, 2007.

7The appellant's past diagnoses have included schizophrenia with antisocial and schizoid traits, and polysubstance dependence in remission in a controlled environment. At the most recent Board hearing, his attending psychiatrist testified that delusional disorder, rather than schizophrenia, is a more appropriate diagnosis.

8The appellant has refused treatment while under the Board's jurisdiction. Aided by his substitute decision maker ("SDM"), his mother, the appellant refuses anti-psychotic medication and prefers to seek natural remedies for his physical ailments. As discussed below, the appellant's failure to accept treatment for his mental illness troubled the Board.

9The appellant's detention in psychiatric institutions has not been problem-free. There have been angry outbursts and aggressiveness, sometimes directed at hospital staff. However, over the course of the past 11 years, incidents of violence have been few and far between. In 2007, the appellant threatened two patients and took a swing at another when that patient called the appellant a "fucking goof." In 2010, he punched and spat on another patient. His most recent verbal aggression, in 2013, involved three incidents within the span of a month at the Regional Mental Health Centre in St. Thomas. That same year, the appellant was transferred to the Centre for Addiction and Mental Health ("CAMH") in Toronto.

10In 2014, the appellant twice eloped from CAMH, for a combined duration of over two months. While he was AWOL, there were no further criminal charges. The appellant made no effort to contact the victim. Instead, he focused on obtaining treatment for his physical ailments, the principal one being Crohn's disease.

11The appellant was transferred from CAMH to Waypoint Centre for Mental Health Care ("Waypoint") in February 2015. During his stay at Waypoint, a few incidents of verbal aggression were recorded. Additionally, on a single occasion, the appellant was observed alone in his room speaking in a threatening manner ("I will get you") to a non-existent person.

12The appellant was moved to the North Bay Regional Health Centre ("North Bay") in April 2016. Due to a shortage of psychiatrists, the hospital requested an early Board hearing to transfer the appellant. At this hearing, held in August 2016, the Board detained the appellant, ordering that he be placed at the secure forensic unit at Providence Care Centre in Kingston ("Providence"). He appealed that disposition to this court.

(2) The Prior Appeal to This Court

13On the appeal from the disposition resulting in the appellant's placement at Providence, both Providence and North Bay filed as fresh evidence the affidavit of Dr. Michael Chan, the appellant's attending psychiatrist. The affidavit addressed the risk posed by the appellant, based on new psychological testing that occurred after the Board hearing.

14It is necessary to place this new testing in context. At his initial disposition hearing in 2007, the appellant's risk of recidivism was assessed as "extremely high, if not approaching certainty." In December 2015, while he was at Waypoint, the appellant was assessed using the HCR-20, a clinical judgment tool designed to predict violent recidivism. He was assessed as a high risk for violent re-offence.

15In January 2017, before the hearing of the appeal, the appellant was assessed by Dr. Jan Looman, a clinical forensic psychologist. He met with the appellant for six hours over the course of three days, and reviewed previous hospital reports prepared for Board hearings, including previous risk assessments. In a written report, Dr. Looman addressed the appellant's December 2015 rating on the HCR-20:

This assessment suggested that [Mr. Krivicic] was [a] high risk for violent re-offence. However, Mr. Krivicic does not have a history of previous violence. Given this, it is not clear that this instrument is appropriate for assessing the risk for violence in this case. In addition, Mr. Krivicic has not acted out violently while in hospital, despite his obvious anger and frustration with what he sees as his unjust detention and inadequate medical care. Given that he is 38 years old and that risk for violence begins to decrease after the age of 40, it seems reasonable to assume that if Mr. Krivicic has not engaged in violence to this point he is unlikely to do so in the future. Previous research related to the initiation of violent offending indicates that the peak period is in the late teens and early 20s and very few people commit their first violence offence beyond that age. [Internal footnote omitted.]

16Dr. Looman was concerned that, given the appellant's index offences and lack of violent history, risk assessment tools predicting general violent recidivism may fail to meaningfully evaluate the appellant's risk. He administered a more specific test – the Stalking Risk Profile ("SRP"), as the appellant's index offence was "best characterized" as stalking. The SRP measures risk in three categories – risk of stalking violence, risk of persistence, and risk of reoccurrence. The appellant was determined to be a "low risk" across all three measures. Dr. Looman concluded that overall, the appellant presented a low risk for violence. These results formed the basis of an up-to-date medical report prepared by Dr. Chan, in which he endorsed Dr. Looman's conclusion and opined that the appellant no longer met the significant threat threshold. Counsel who appeared on behalf of both North Bay and Providence supported this conclusion. Counsel for the Ministry of the Attorney General opposed it.

17As already noted, this court unanimously concluded that the Board's finding that the appellant ought to be detained could not stand in light of the new risk assessment. Writing for the majority, Huscroft J.A. held that the Board should make the ultimate determination as to the impact of this new evidence "alongside the evidence it relied on in making its prior dispositions" (para. 15). In remitting the appellant's case back to the Board for an early hearing, Huscroft J.A. said, at para. 18:

It is not for the court to reconcile the competing psychiatric evidence in this case. That is the responsibility of the Board, an expert body charged with responsibility for evaluating the medical evidence, and the Board must be permitted to do its job.

18Feldman J.A. held that, in light of the fresh evidence, "and with no contradictory evidence either tendered or proposed" (para. 22), the appellant was entitled to an absolute discharge. Noting that both hospitals endorsed Dr. Chan's opinion, Feldman J.A. concluded, at para. 40:

In this case, although the Board has not had an opportunity to assess the fresh evidence, that evidence is unequivocal and one-sided. 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.

(3) Most Recent Board Hearing

19The Board convened on June 14, 2017, to consider the appellant's status. The appellant sought an absolute discharge. This was supported by counsel for Providence and reflected in the hospital report prepared on May 17, 2017. The Attorney General again opposed this result, recommending a detention order with hospital privileges, or a conditional discharge.

(a) The Evidence

(i) Updated Risk Assessment

20Prior to the hearing, Dr. Looman conducted another risk assessment. In the excerpted passage from his January 2017 report, reproduced in para. 15 above, Dr. Looman administered the SRP on the assumption that the appellant had "not acted out violently while in hospital." At some point before the new hearing, Dr. Looman learned that the appellant had engaged in violent and aggressive behaviour while hospitalized. However, in fairness to Dr. Looman, the only information he missed is referenced in para. 9 above. It is minor and mostly dated.

21In light of this information, Dr. Looman administered the HCR-20 V3 – a revised version the HCR-20 test administered to the appellant in 2015. As Dr. Looman wrote in his Updated Risk Assessment, dated June 14, 2017:

[A]ccording to the HCR-20 V3 [Mr. Krivicic] presents a moderate long-term risk for violent re-offence, moderate risk according to clinical factors and moderate-high in terms of risk management factors, thus, overall, he presents a moderate risk for violent re-offence.

Mr. Krivicic was previously assessed using the HCR-20 in 2015 at the Waypoint Centre for Mental Health. He was assessed as presenting a high risk at that time. Thus, the current assessment assigns him a lower level of risk than the previous assessment. In part this can be attributed to changes in the instrument, as the current assessment uses the HCR-20V3. As well, Mr. Krivicic's behaviour appears to be somewhat less problematic than while he was at Waypoint. [Emphasis added.]

(ii) Dr. Looman's Testimony

22Dr. Looman testified before the Board and explained that he did not consider the most recent test results indicative of the appellant's real risk. In terms of clinical and risk management factors, a number of the items that the appellant scored poorly on relate to the fact that he is hospitalized and refuses treatment. Also, the HCR-20 V3 does not reflect the fact that violence tends to decrease with age.

23Dr. Looman was of the view that, in the community, the appellant would be better able to attend to his medical needs in the way he desires, in terms of accessing services and buying his preferred foods. Consequently, his irritability would likely diminish because the pressures affecting his behaviour in detention would no longer exist. Dr. Looman said, "There's a lot of people who have delusions and preoccupations who live in the community and function okay and without getting themselves into trouble and I don't know that he wouldn't be one of those."

24The Board pressed Dr. Looman on his views. He explained that the appellant's delusions are currently persecutory and somatic in nature. While refusing treatment is generally an important factor in assessing risk, it has less of a role to play in the appellant's case. As he explained:

If it wasn't for his refusing treatment, he would be at [a] low risk. What I'm saying is a lot of the symptoms he's currently presenting are unrelated to risk to the public in the community.

He's got the somatic delusions, if we think they're delusions, somatic complaints and they're related to our refusing to provide him the appropriate medical care and appropriate diet. So if he was out in the community where he could seek out the care that he wants and eat the food that he wants, that would be gone. Right now none of his symptoms of mental illness actually create a risk to the public. [Emphasis added.]

25The Board challenged Dr. Looman on the notion that the appellant's risk assessment was the result of "where he is." As Dr. Looman said:

No, like I said, there's lots of people out in the community who are walking around with all sorts of somatic complaints and being a burden to the health care system because they're never satisfied with the treatment they get, but we don't lock them up in the forensic system because they aren't a threat to the public.

His persecutory delusions are related to the fact that he's involuntarily in the hospital. It's all focused on that. So, the risk to the public in holding those delusions, there is none. He comes out as high risk because he's refusing treatment and he's lacking insight and he's not complying with, you know, he's not cooperating with the things we want him to cooperate with, but does that mean he's a high risk to the public? I can't see it. [Emphasis added.]

26Dr. Looman was asked about the appellant being released without conditions, and how he would establish himself in the community. Dr. Looman acknowledged that the appellant is probably not "adequately prepared for just being turned loose", but added, "The question is, does he meet the threshold of risk, it's not how prepared he is to move out." However, Dr. Looman agreed that stressors could have a significant impact on the appellant's risk.

27In follow-up questions, Dr. Looman agreed that the appellant would score the same on the HCR-20 V3 whether hospitalized or not, and agreed that the HCR-20 V3 is considered to be a "valid and helpful" instrument for assessing violent risk. Nevertheless, he maintained his opinion that, in all of the circumstances, the test artificially inflated the appellant's risk.

(iii) Dr. Chan's Testimony

28Dr. Chan described the appellant's stay at Providence over the previous 10 months, noting that the appellant had not engaged in any violence with staff or other patients. He testified that a more accurate diagnosis for the appellant was delusional disorder, rather than schizophrenia. This was based on his observations that the appellant did not exhibit recurring disordered thought patterns that are typical of schizophrenia. Recognizing that delusional disorder is more difficult to treat, Dr. Chan said that the appellant's current pre-occupations are somatic; he exhibits no inclination to stalk the victim of his offences, nor anyone else.

29It was Dr. Chan's decision to involve Dr. Looman in the appellant's case. Dr. Chan was concerned that the appellant had been detained for over 10 years as a result of stalking behaviour. As he said, "I felt we needed to have the best fit between the risk instrument used and the index problem." Referring to the HCR-20 V3 results, Dr. Chan observed that the appellant's score had improved. Still, he echoed Dr. Looman's concerns that the test overstated the appellant's actual risk.

30Dr. Chan testified that, based on the risk assessments and "our clinical contact with him over the time he has been with us, [the appellant does] not present a significant risk to the safety of the public."

31Dr. Chan acknowledged that the appellant remains untreated. Efforts to treat him have been thwarted by his SDM. He referred to the appellant as "pretty much legally untreatable." In light of this history, when the appellant came to Providence, Dr. Chan did not wish to instigate an adversarial relationship with him. Given that efforts to treat the appellant in the previous 10 years had been unsuccessful, Dr. Chan thought future attempts would be futile and unproductive.

32In terms of the risk posed by the appellant if released into the community, Dr. Chan said that it could be looked at in two ways. On the one hand, the appellant could be less stressed because he would be able to seek the treatments that he desires for his medical needs. On the other hand, there was an "outside possibility" that the day-to-day stress of living could create fluctuations in his mental state. However, Dr. Chan observed that, while detained, the appellant's frustrations have not led to violence; instead, he has used legal means to pursue his grievances. Dr. Chan said, "At this point I don't foresee that it will necessarily lead to disturbed or violent behaviour, but his mental state can fluctuate given new environments and new challenges."

33A number of Board members challenged Dr. Chan on his opinion. Concerns were expressed about the appellant apparently responding to voices and saying, "I will get you." This happened almost two years prior to the hearing. Because so little was known about the circumstances, Dr. Chan did not acknowledge that the appellant was hallucinating at the time. Dr. Chan agreed that the appellant's symptoms could worsen if he consumed THC. Dr. Chan testified that the appellant "might be" tempted to smoke marijuana in a non-controlled environment.

34Dr. Chan agreed that it would be preferable to gradually release the appellant into the community, rather than doing so abruptly, without supports. As he said, "I would always prefer that approach." However, he did not intend to release the appellant without any support. Dr. Chan said, "We would do our best to link him up with the mental health community services." He acknowledged that being released from the forensic system could be a huge stressor, but "whether that will lead to risky scenarios, it's possible – I can't rule it out" (emphasis added.) Dr. Chan also expressed doubt that any possible problems would lead to physical violence. He said, "Knowing him the way he's been here he might react verbally but I'm not sure it will necessarily escalate to physical violence honestly."

35According to Dr. Chan, the HCR-20 V3 exaggerated the appellant's risk, largely because the instrument places significance on historical information that will never change. The fact that the appellant has refused treatment did not help. Dr. Chan said, "I'm not saying there would be no risk, I'm not saying that at all. There is risk and there will always be risk given the past. We can't go back and change that." However, by adding the SRP scores to the equation, Dr. Chan said, "We thought [it] would give a bigger picture and we think [his risk is] tempered a little bit, not down to very low, but it's tempered a bit. In our opinion it's dropped below the threshold. I mean, we can always make arguments one way or the other."

36Ultimately, Dr. Chan did not waiver from his view that the appellant could be released safely into the community. As he said, "If I felt that when he walked through that door he would get himself in trouble and get arrested for criminal problems, no, I wouldn't want that…I wouldn't recommend that type of scenario."

(iv) The Appellant's Testimony

37The appellant testified that, if released, he plans to move to Saskatchewan. He was somewhat vague on the details of his plans. He said that on the two occasions when he eloped from CAMH, his main focus was obtaining medical attention for his physical ailments, which he felt were not being adequately addressed during his detention. He attempted to seek asylum in the United States on both occasions, but was returned to hospital. The appellant testified that the main stress he felt while AWOL was being "captured and brought back." He was able to find accommodation and eat as he pleased by drawing on his CPP, along with assistance from his family.

38Questioned by counsel for the Attorney General and Board members, the appellant denied any temptation to smoke marijuana and said he had not thought about the victim of his index offences in many years.

(b) The Board's Reasons

39In its Reasons for Disposition (see [2017] O.R.B.D. No 1686), the Board provided a detailed summary of all of the evidence adduced at the hearing. In its narrative, the Board mentioned the previous decision of this court. Specifically, at para. 25, the Board quoted from Huscroft J.A.'s reasons (at para. 17): "If Dr. Chan's evidence is accepted by the Board, the appellant is entitled to an absolute discharge." As discussed below, this was not the appellant's only route to an absolute discharge.

40The Board rejected the opinions of Dr. Chan and Dr. Looman, the position of counsel for Providence, and the submissions of the appellant's counsel. It agreed with the Attorney General that the appellant should be detained.

41The Board found that the updated HCR-20 V3 risk assessment "significantly contradicts" the testimonial opinions of Drs. Looman and Chan. The Board's ultimate conclusions are reflected in paras. 36-39:

The Board is fully aware that in reaching a conclusion that Mr. Krivicic continues to represent a significant risk, it is reaching a conclusion different from both Dr. Chan and Dr. Looman. With respect, the Board cannot agree with their opinion that Mr. Krivicic no longer represents a significant threat.

Dr. Chan's support for his opinion, both in the Court of Appeal and before this Board, was founded on the assessment using the Stalking Risk Profile (SRP). Dr. Chan maintained this opinion before the Board notwithstanding his acknowledgement that the HCR-20 v3 Risk Assessment Tool reached a fundamentally different conclusion. He did acknowledge that granting Mr. Krivicic an absolute discharge and releasing him to the community without any form of support plan in place would likely be a significant stressor potentially leading to a risk to the safety of the public.

Dr. Looman's conclusion that there was not a significant risk was that the scoring on the HCR-20 v3 overstated the risk of violence. He went on to say that the lack of Mr. Krivicic's insight into his illness is not related to his potential risk. Although it seemed that the main reason for rejecting the outcome of this assessment tool was that it was scored while Mr. Krivicic was in the hospital, Dr. Looman did eventually agree that the results would not be any different if scored with Mr. Krivicic in the community.

The Board is unanimous in rejecting Dr. Looman's evidence on the issue of significant risk. The HCR-20 v3 is a widely recognized and accepted assessment tool used internationally. Dr. Looman agreed with this point. Nothing in the evidence before the Board calls into doubt its value as one of the factors to be considered. When taken together with all the evidence outlined above, the Board is unanimous in concluding that Mr. Krivicic continues to represent a significant threat to the safety of the public. [Emphasis added.]

42The Board was concerned that an absolute discharge would be risky for the appellant, given that he would be in the community without any formal supports. Moreover, the Board was critical of the appellant's resistance to treatment both historically and looking to the future, and of Dr. Chan's "reluctance to engage" with a treatment plan. Remarkably, the Board said, at para. 40, "the Board encourages the hospital to take whatever further steps might be available to pursue a treatment plan." Essentially, the Board recommended that the hospital attempt to override the decisions of the appellant's SDM, in direct opposition to the conciliatory approach taken by Dr. Chan.

C. Positions of the Parties

43The appellant submits that he is entitled to an absolute or conditional discharge. Amici counsel requested an absolute discharge, or alternatively a conditional discharge. The hospital (Providence) did not participate in this appeal.

44Counsel on behalf of the Attorney General conceded in its factum that "it would have been open to the Board to reach a different conclusion on the evidence before it." However, the Attorney General maintained that the disposition "was within the range of reasonable outcomes and as such deference is owed."

D. Analysis

45The jurisdiction of this court in reviewing decisions of the Board is set out in section 672.78(1) of the Criminal Code, which provides:

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.

46Reasonableness is at the heart of this appeal. In reviewing a Board decision for reasonableness, deference is required, owing to its expertise: see R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at paras. 29-30; Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528, at para. 22; and Re Campbell, 2018 ONCA 140, 139 O.R. (3d) 401, at paras. 27-28.

47Notwithstanding the deference that is customarily afforded to the Board, I would allow the appeal. The evidence fell short of establishing that the appellant poses "a significant threat to the safety of the public" within the meaning of section 672.54 of the Criminal Code. The evidence raised speculative concerns about the appellant's risk of re-offending. However, it was no more than that.

48I accept that the Board was not required to agree with the hospital's position that the appellant no longer met the threshold in section 672.54: see Re Hassan, 2011 ONCA 561, 283 O.A.C. 154, at paras. 24-25.

49It was also open to the Board to reject the opinions of Drs. Chan and Looman, for appropriate reasons: see Re Laberakis, 2012 ONCA 70, 99 W.C.B. (2d) 832, at para. 3. However, as discussed below, I am of the view that the opinions of both doctors were not fairly evaluated in the context of all of the evidence that was available to the Board. More fundamentally, the Board's rejection of the May 2017 hospital report, essentially all of the evidence adduced at the hearing, and the submissions of counsel for the hospital and the appellant, did not inexorably lead to the conclusion that the appellant constituted a significant threat to the safety of the public. Positive evidence was still required to reasonably reach this conclusion. There was no other evidence adduced before the Board.

50After sweeping aside all of the evidence and submissions that it did not accept, all that the Board was realistically left with was the appellant's most recent HCR-20 V3 results, which assessed him as a moderate risk to re-offend. Standing alone, this fell short of the mark. The appellant's refusal of treatment, along with his optimistic, yet vague plans for his life after 10 years in hospital, could not properly fill this void. In detaining the appellant based on the record before it, the Board effectively reversed the burden of proof.

51The Board's mandate is set out in section 672.54 of the Criminal Code, which provides:

When a court or Review Board makes a disposition…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… [Emphasis added.]

52In terms of the nature of the risk contemplated by section 672.54, I rely upon the following, oft-quoted passage from Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, in which McLachlin J. (as she then was) said the following, at para. 57:

To engage these provisions of the Criminal Code, the 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. In short, Part XX.1 can only maintain its authority over an NCR accused where the court or Review Board concludes that the individual poses a significant risk of committing a serious criminal offence. If that finding of significant risk cannot be made, there is no power in Part XX.1 to maintain restraints on the NCR accused's liberty. [Emphasis added, internal citations omitted.]

As Simmons J.A. clarified in Re Medcof, 2018 ONCA 299, 145 W.C.B. (2d) 377, at para. 26: "While the conduct must be criminal in nature, not all criminal conduct will suffice to establish significant risk. There must be a risk that the NCR accused will commit a serious criminal offence." See also Re Carrick, 2015 ONCA 866, 128 O.R. (3d) 209, at para. 17.

53Onus is critical in this context. Dangerousness is not presumed; it is the other way around. As McLachlin J. said in Winko, at paras. 46 and 54:

In my view, properly read, [section 672.54] does not create a presumption of dangerousness and does not, in its effect, impose a burden of proving lack of dangerousness on the NCR accused.

If the court or Review Board is uncertain, Part XX.1 provides for resolution by way of default in favour of the liberty of the individual.

See also Re Sokal, 2018 ONCA 113, 145 W.C.B. (2d) 378, at para. 19.

54In assessing the reasonableness of the Board's decision in this case, I start with its treatment of Dr. Looman's evidence. His evidence was critical because it was the foundation for Dr. Chan's evidence, as well as the hospital's position.

55In my view, the Board misapprehended Dr. Looman's evidence. Dr. Looman was of the view that the HCR-20 V3 exaggerated the appellant's risk because of his refusal to accept treatment while hospitalized, and because the test failed to account for the reduction in violence based on increased age. Dr. Looman's qualification of these test results clearly troubled the Board. As the Alternate Chair said during the hearing, the Board regularly relies on these types of test results.

56However, Dr. Looman did not launch a broad attack on the HCR-20; he agreed that it is a "valid and helpful" instrument. Presumably, that is why he administered the test. "Valid and helpful" is not synonymous with universally reliable. Dr. Looman and Dr. Chan merely used the test as an aid in assessing the appellant's risk, in light of his specific diagnosis, presenting symptoms, and behaviour while detained. In their view, looking to the SRP in addition to the HCR-20 V3 provided a more holistic evaluation of the appellant's risk in his unique circumstances. Their evidence stood uncontradicted.

57At the hearing, it was not disputed that the appellant's delusions are now focused on persecutory themes and somatic complaints, which are very different from how his illness contributed to the index offences. Dr. Looman's evidence must be seen in this light. While he acknowledged that refusing treatment is generally an important factor in assessing risk, it has less of a role to play in the appellant's case because "a lot of the symptoms he's currently presenting are unrelated to risk to the public." Although it was open to the Board to reject Dr. Looman's evidence, I have concerns that his position was not properly understood.

58Having rejected Dr. Looman's and Dr. Chan's evidence, and after lauding the value of the HCR-20 V3, the Board said, at para. 39: "When taken together with all of the evidence outlined above, the Board is unanimous in concluding that Mr. Krivicic continues to represent a significant threat to the safety of the public." It is unclear to what evidence the Board was referring, especially since it had discounted most, if not all, of the testimonial evidence adduced at the hearing.

59Assuming for the sake of argument that the most recent HCR-20 V3 results should be taken at face value (without any explanation by an expert in the field), standing alone, they did not supply the evidence required to meet the threshold in section 672.54 in this case. The Board's decision appeared to be predicated on the assumption of a direct correspondence between the appellant's test scores and the "significant threat" standard in section 672.54. However, the appellant was assessed as only a moderate risk to reoffend. In the absence of expert evidence on this issue, the Board could not reasonably draw a straight line between the test score and the "significant threat" threshold in section 672.54.

60Moreover, HCR-20 V3 results are only capable of feeding into half of the equation mandated by section 672.54. As Winko makes clear, section 672.54 requires an inquiry into: (1) the likelihood of the risk of reoffending and (2) the seriousness or magnitude of that offending. The HCR-20 V3 says nothing of the latter: see R. v. Montgrand, 2017 SKCA 49, 352 C.C.C. (3d) 485, at paras. 14-20, for a discussion of the limits of risk prediction assessments in the context of dangerous offender applications.

61Most importantly, the HCR-20 V3 results did not stand alone. The Board also had the appellant's SRP results, assessing the appellant as a low risk to re-offend in a manner similar to the index offences. The appellant's score on this instrument caused this court to set aside the Board's previous disposition. At the new hearing, while mentioned in its reasons, the Board essentially ignored the SRP score, noting that it was "fundamentally different" than the most recent HCR-20 V3 results.

62This was an overstatement. After all, the appellant was rated as a "low risk" to re-offend on the SRP, and just a "moderate risk" on the HCR-20 V3. Having rejected the explanations of Drs. Chan and Looman, and without evidence to the contrary, the Board was not in a position to make such a categorical finding.

63Taking all of these factors into consideration, I conclude that the Board's conclusions were speculative. As Huscroft J.A. said in Re Carrick, at para. 17: "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." See also Re Wall, 2017 ONCA 713, 141 W.C.B. (2d) 646, at para. 26.

64In the end, the Board's decision was driven by the appellant's most recent risk assessment, his refusal to accept treatment, and the vague plan for his release. It seized upon Dr. Chan's acknowledgement that it would be preferable to gradually release (or cascade) the appellant toward unfettered freedom in the community. Granted, it would probably be in the appellant's interests to proceed in this cautious fashion. But that is not the test under section 672.54: see Re Ferguson, 2010 ONCA 810, 264 C.C.C. (3d) 451, at para. 45; Re Wall, at para. 30.

65Through its questions, the Board revealed its concern that the appellant would be under extreme stress if released without supervision. Dr. Chan acknowledged that this could worsen his symptoms and increase his risk. However, whether the appellant would act out in a way contemplated by section 672.54 was a matter of pure speculation: see Re Pellett, 2017 ONCA 753, 139 O.R. (3d) 651. In fact, Dr. Chan expressed doubts that any problems the appellant could possibly have would rise to criminal conduct or physical violence. If anything, the uncontradicted evidence before the Board (from Drs. Looman and Chan, and the appellant) was that the appellant would likely be less stressed in the community because he would be able to pursue the remedies he desired for his medical ailments, likely with the support of his family. While it was open to the Board to reject all of this evidence, it did not constitute proof positive of the opposite, unless the onus were to be reversed.

66Lastly, the Board was critical of Dr. Chan's evidence, unfairly in my view, because he took a non-adversarial approach to the appellant's refusal of treatment. However, Dr. Chan's description of the appellant as "legally untreatable" reflected the appellant's recorded history while detained – he continued to use the legal process to prevent involuntary treatment, as he was entitled to do. Again, this itself does not translate into a "significant risk to the safety of the public", especially given the appellant's more recent symptomology and the long passage of time since he has acted out in a violent or threatening manner.

67As mentioned above, at para. 53, onus is critical in the application of section 672.54. It was critical in this case. While the appellant may have failed to persuade the Board that he was not a significant risk to the safety of the public, he was not required to do so. As this court said in Re Laberakis, at para. 3:

While the Board does not necessarily err because it declines to follow the expert's or the hospital's opinion and must make its own decision, it must do so on the evidence. The majority's concerns in effect placed an inappropriate burden on the appellant.

68The evidence before the Board fell short of the threshold in section 672.54. As such, the appellant is entitled to be discharged absolutely.

E. Conclusion and Disposition

69I would allow the appeal and set aside the detention order. In its place, and pursuant to section 672.78(3)(a) of the Criminal Code, I would substitute an absolute discharge.