COURT OF APPEAL FOR ONTARIO
Watt, Tulloch and Roberts JJ.A.
IN THE MATTER OF: Novar W. McAnuff
AN APPEAL UNDER PART XX.1 OF THE CODE
Novar W. McAnuff, acting in person
Paul Calarco, amicus curiae
Dena Bonnet, for the Attorney General of Ontario
Leisha Senko, for the Person in Charge of The Centre for Addiction and Mental Health
Heard: September 18, 2020 by videoconference
On appeal against the disposition of the Ontario Review Board, dated July 4, 2019, with reasons dated July 25, 2019 reported at [2019] O.R.B.D. No. 1798.
REASONS FOR DECISION
1On January 17, 2011, as a result of a finding of not criminally responsible on three counts of assault, the appellant came under the jurisdiction of the Ontario Review Board. Since that time, apart from a brief period of community residency in 2013, he has been detained on various units at The Centre for Addiction and Mental Health (CAMH).
2The appellant is currently subject to a disposition of the Board which detains him on the General Forensic Unit of CAMH subject to certain conditions, including residence in 24-hour supervised accommodation in the community, if approved by the person in charge at CAMH.
3With the assistance of amicus, the appellant asked us to set aside the detention order to which he is now subject and order that he be discharged absolutely, or alternatively, conditionally. At the commencement of oral argument, amicus indicated that the appellant would not be pursuing submissions on a conditional discharge.
4For the reasons that follow, the appeal is dismissed.
The Background Facts
5The index offence took place one evening in early September 2010, in a neighbourhood where the appellant was known as a person who displayed apparent signs of mental illness.
6The appellant approached two women on the street as they walked their dog. He lunged at the dog. One of the women swung her keys at the appellant. He grabbed her in response. As he was pushed away, the appellant began grabbing at the other woman's shirt. Both women fled.
7About five minutes later, the appellant abruptly changed his direction of travel and approached another woman who was walking with her daughter. He grabbed the daughter around her waist. The mother dropped her belongings and started to hit the appellant with her umbrella. The appellant let go of the daughter. He then grabbed what the mother had dropped on the street and fled. Shortly thereafter, he was arrested by police.
The Mental Disorders
8The appellant has been diagnosed as suffering from schizophrenia, substance disorders involving marijuana and crack cocaine, and a personality disorder with antisocial traits. He was first diagnosed with schizophrenia at age 17. He is now 47. His clinical risk factors include residual symptoms of schizophrenia involving religious, somatic, and grandiose delusions, as well as hallucinations. These symptoms are significantly exacerbated when he consumes marijuana and becomes irritable and aggressive.
9Prior to the index offence, the appellant had a significant history of psychiatric care and hospitalization, as well as aggressive conduct towards and in the presence of others. He has a lengthy history of cannabis use and used cocaine for a few years in his 30s.
10Throughout lengthy periods of supervision by the Review Board, the appellant has been a frequent and extensive user of marijuana. A constant feature of this use is post-use decompensation. In July 2018, he used a new designer drug known on the streets as “spice”. It is a highly toxic synthetic cannabinoid with a potency 85 times that of THC. The drug has been linked to multiple hospitalizations and deaths in New York and New Zealand. The appellant’s use was the first documented incident of “spice" intoxication in Ontario.
11About 10 days later, the appellant was involved in a further incident with “spice”. His condition required emergency medical assistance. Hospital staff were subjected to serious medical risks associated with secondhand exposure to the drug. After attending to the incident, several staff members felt unwell and one nurse required transfer to the Emergency Department. Decontamination of the affected area was also required.
The Decision of the Board
12At the conclusion of the hearing under review, the Board was satisfied that the appellant continued to represent a significant threat to the safety of the public. The essence of the Board’s reasoning is contained in three paragraphs of its decision:
The initial question for the board is whether Mr. McAnuff continues to represent a significant risk to the community. Counsel for the hospital and the Attorney General point to his record of physical and psychological violence prior to entering the forensic hospital system. They also contend that Mr. McAnuff’s ongoing insistence that he has a right to consume cannabis renders him a significant threat to public safety. Consuming cannabis consistently causes him to become agitated, impatient and angry. They maintain that this mental state is a precursor to probable threats and/or acts of physical violence to members of the public.
The Board readily agrees that based on these grounds, Mr. McAnuff poses a significant risk to public safety. His criminal record and the index offence, while they lie almost a decade behind him, were substantial. The negative combination of his illness, his personality traits and the effect of cannabis on his conduct are undeniable. The likelihood of psychological violence to members of the public is particularly strong in light of past experience and the observable agitation that Mr. McAnuff continues to demonstrate when he is intoxicated. Mr. McAnuff also has virtually no supports in the community.
At the same time, it must be conceded that Mr. McAnuff has gone a long period without having committed any acts of violence. It is known for certain that he consumed cannabis only twice last year, yet neither incident was accompanied by violence. The hospital contends that this is largely due to the fact that he has been closely monitored and contained by his structured existence. This argument makes a good deal of sense. Without the hospital and ORB structures that [govern] him, the evidence supports a clear inference that Mr. McAnuff would revert to cannabis and cocaine use, cease using medication and decompensate. In these circumstances he would likely become as dangerous to public safety as he was at the time of the index offence.
The Arguments on Appeal
13In this court, Mr. Calarco accepts that the significant threat threshold is met when the evidence demonstrates a risk of serious physical or psychological harm to members of the public resulting from conduct that is criminal in nature, but not necessarily violent. There must be not only a likelihood of the risk materializing, but also a likelihood of serious harm occurring.
14Mr. Calarco says that the evidence adduced at the hearing does not support a finding that the appellant is a significant threat as that standard is defined in s. 672.5401 of the Criminal Code and by the governing authorities. Taken at its highest, he submits, the evidence shows a higher level of risk for some unknown form of aggressive behaviour at some future, unspecified time. But that falls short of what is required.
Discussion
15In our view, the Board’s conclusion on the issue of significant threat is neither unreasonable nor flawed by legal error.
16A “significant threat to the safety of the public” 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 threat must be significant both in the sense that there must be a real risk of physical or psychological harm, and in the sense that the harm must be serious: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 624, at para. 57.
17Whether someone meets this threshold requires consideration of a constellation of factors, no one of which is dispositive: The presence or absence of a significant or recent history of violence; the likelihood of physical or psychological violence; lack of insight into the index offence and mental illness; the likelihood of discontinuing essential medication; and substance abuse and its sequelae of decompensation, psychosis, and unlawful conduct: Mott (Re), 2019 ONCA 560, 156 W.C.B. (2d) 44, at para. 10.
18In this case, the experts describe the appellant as suffering from several disorders: Schizophrenia, Cannabis Use Disorder, Cocaine Use Disorder in remission, and Personality Disorder (unspecified) with antisocial traits. He lacks insight into his mental illnesses, which are longstanding and treatment resistant.
19The appellant does not accept that he has ever been violent. He denies the index offence and previous threats to kill his mother in the face of irrefutable evidence to the contrary.
20Risk assessments of the appellant reveal that he is nearly twice as likely to violently reoffend than the average offender with similar scores. In times of drug use, the risk of aggressive or violent behaviour is even more likely.
21The appellant’s substance abuse is an integral part of his delusional beliefs. His treating psychiatrist testified that in absence of Board supervision, it is entirely predictable that the appellant would resume regular use of marijuana and possibly crack cocaine. Thereafter, in all likelihood, the appellant would discontinue treatment with antipsychotic medication. The appellant does not believe either that he needs his medication, or that anything negative would follow should he discontinue it. Decompensation into much more active symptoms of psychosis and a markedly increased risk of aggressive behaviour would follow.
22From time to time, the appellant also uses “spice”, which poses serious medical risks not only to himself but to others, such as medical personnel, through secondhand exposure.
23Unlike the appellant in Wall (Re), 2017 ONCA 713, 417 D.L.R. (4th) 124, the appellant lacks insight into his illnesses and has difficulty monitoring and recognizing his symptoms. There is clear evidence of continual substance abuse that leads inevitably to problematic conduct and instances of physical harm to others: Abdikarim (Re), 2017 ONCA 793, 142 W.C.B. (2d) 248, at para. 16. Recently, this harm has been to medical personnel.
24In our view, the cumulative force of the evidence adduced at the hearing satisfied the onerous standard of significant threat in s. 672.5401 of the Criminal Code. We are not persuaded either that the evidence falls short of what is required, or that the reasons of the Board betray any misunderstanding of the statutory test. The Board’s disposition was the least onerous in the circumstances of this case.
disposition
25For these reasons, the appeal is dismissed.
“David Watt J.A.”
“M. Tulloch J.A.”
“L.B. Roberts J.A.”