Medcof (Re), 2020 ONCA 105

Court File and Parties

Court of Appeal for Ontario Date: 20200212 Docket: C66962

Before: Doherty, Watt and Hourigan JJ.A.

In the Matter of: William R. Medcof

An Appeal Under Part XX.1 of the Code

Counsel: Mercedes Perez, for the appellant Lisa Fineberg, for the respondent, Her Majesty the Queen Michele Warner, for the Person in Charge of the Centre for Addiction and Mental Health

Heard: January 31, 2020

On appeal against the disposition of the Ontario Review Board dated, April 4, 2019.

Reasons for Decision

1On November 29, 2002 the appellant was found not criminally responsible on account of mental disorder (NCRMD) of several offences committed on three separate victims over a period of two days. The offences included aggravated assault; assault with a weapon; kidnapping; uttering death threats; and criminal harassment, as well as breach of probation and of a form of judicial interim release. The victims included his roommate and his parents in separate incidents.

2During the first decade of his supervision by the Ontario Review Board, the appellant was generally detained in the minimum and medium secure units of two local mental health facilities. He was found treatment incapable in 2006 and remains so to this day. The Public Guardian and Trustee is his substitute decision-maker.

3In 2012, the appellant was discharged to reside in the community in supportive housing. He has been re-hospitalized on many occasions as a result of urine screens positive for cannabis. Once transitioned to an injectable form of anti-psychotic medication in 2013, the appellant has remained compliant.

4The appellant, currently 52 years old, has not been involved in any violent or other criminal behaviour in the community since his discharge to the community in 2012. Since May 8, 2017, the appellant has been subject to a conditional discharge.

The Current Disposition

5On April 4, 2019 the Review Board ordered that the appellant be conditionally discharged. He lives in the community in a supervised residence. Among other terms, he is required to report to the Hospital not less than once every four weeks. The frequency of his reporting is linked to the schedule for injections of his anti-psychotic medication. He is also entitled to travel passes for up to four weeks duration with the prior approval of the Person in Charge of the Hospital.

The Grounds of Appeal

6The appellant seeks an absolute discharge, in the alternative, a new hearing before a differently constituted panel of the Review Board. He advances two grounds of appeal. He says that:

i. the Board's determination that he remains a significant threat to the safety of the public is unreasonable and cannot be supported on the evidence adduced on the hearing; and

ii. the Board misapprehended the sufficiency of the availability of civil mechanisms to manage the appellant's risk were he to be discharged absolutely.

7In our view, this appeal fails.

Ground #1: Unreasonable Finding of “Significant Threat”

8The appellant says that the Board's finding that he remained “a significant threat to the safety of the public" nearly two decades after he was found NCRMD is unreasonable and not supported by the evidence adduced at the hearing. Several factors, the appellant argues, taken together, support this conclusion. Among them are these:

i. since the index offence, the appellant has not engaged in any violent conduct in or out of hospital;

ii. the appellant has not been hospitalized since 2016;

iii. the appellant, apart from two brief lapses several years ago, has been compliant with his anti-psychotic medication even in the absence of direct legal compulsion to do so;

iv. the Board failed to expressly analyse the likelihood, timing, nature and gravity of recidivistic violence;

v. the Board equated lack of insight and the prospect of non-compliance with anti-psychotic medication with the requirement of “significant threat";

vi. the Board relied on the appellant's history of decompensation when not medication-compliant or suboptimally medicated, but failed to consider the absence of violence on these occasions; and

vii. the Board cut and pasted into its reasons several paragraphs of a prior Board's Reasons for Disposition which included recitals of evidence by the treating psychiatrist and reference to certain test results which were not before the Board on the hearing in this case.

9In our view, the Board's conclusion on the issue of’ “significant threat” falls within the range of reasonable outcomes available on the evidence adduced at the hearing. That evidence included several factors identified by this court, on a prior appeal by the appellant; as relevant to the “significant threat" determination:

i. the appellant suffers from a major mental illness;

ii. the serious nature of the index offences;

iii. the appellant's lack of insight into his mental illness, his need for continuing treatment and the role his illness played in the index offences;

iv. the appellant's historic resistance to treatment and his declared and unwavering intention to discontinue his psychotropic medication if absolutely discharged;

v. his history of decompensation when not medication-compliant or when suboptimally medicated; and

vi. the unanimous conclusion of the treatment team that he constitutes a “significant threat".

See, Medcof (Re), 2018 ONCA 1011, at para. 3.

10In our assessment of the reasonableness of the finding of “significant threat" in a case such as this where violent recidivism has not occurred during the Board's supervision of the appellant, we also keep in mind the exhaustive definition of “a significant threat to the safety of the public" in s. 672.5401 of the Criminal Code:

For the purposes of section 672.54, a significant threat to the safety of the public means 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.

11In addition, there was evidence before the Board that on the two prior periods of decompensation occasioned by medication non-compliance, the behavioural changes – increased antagonism, hostility and persecutory beliefs – were the very factors afoot when the index offences were committed.

12In a portion of its Reasons for Disposition under the heading, Evidence at the Hearing, the Board cut and pasted seven paragraphs of the Reasons for Disposition of the Board on the previous year's annual review. This was ill-advised and should not be repeated. The phrase “Evidence at the Hearing" is self-explanatory. It means what it says. Nothing more. Nothing less. And nothing other than “Evidence at The Hearing".

13Despite this error, we are not persuaded that it resulted in an unreasonable finding of “significant threat". In large measure, the copied information was contained in the Hospital Report to the Board on which both parties relied at the hearing. The actuarial risk assessments referred to in the incorporated paragraphs were re-administered within a month of the hearing with which we are concerned without inclusion of the actual scores on the relevant tests. The conclusions replicated those of the prior year.

14We do not give effect to this ground of appeal.

Ground #2: Misapprehension of the Availability of Civil Mechanisms

15The second ground of appeal alleged error in the Board's failure to appreciate the sufficiency of available civil mechanisms, coupled with an absolute discharge, to contain the risk to the public arising from the need to ensure that the appellant remained medication-compliant.

16On the annual hearing with which we are concerned, the appellant was subject to a Community Treatment Order (“CTO”) on the basis of the consent provided by his substitute decision-maker, the Public Guardian and Trustee. The order was issued under the provisions of s. 33.1 of the Mental Health Act, R.S.O. 1990, c. M. 7 on the basis that if the appellant does not receive continuing treatment or care while residing under supervision in the community, he is likely at risk of causing serious bodily harm to another person or suffering substantial mental deterioration. The order was monitored by the appellant’s attending psychiatrist in the Extended Forensic Outpatient Service at CAMH. The order was in force for six months and could be renewed for a further six-month period.

17On the hearing of the appeal, we were advised that the appellant's CTO expired four months after the hearing. It was not renewed. In these circumstances, the appellant did not press this ground of appeal and we see no reason to consider it further.

18The Crown respondent applied to introduce a victim impact statement from the appellant’s father as fresh evidence on the hearing of the appeal. We did not receive submissions from the parties on the admissibility of this proposed fresh evidence. As a result, we have not considered this statement in reaching our conclusion on this appeal.

Disposition

19The appeal is dismissed.