Medcof (Re), 2021 ONCA 168

Court of Appeal for Ontario

COURT OF APPEAL FOR ONTARIO DATE: 20210319 DOCKET: C68714

Watt, Benotto and Jamal JJ.A.

IN THE MATTER OF: William Medcof

AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel: Ken J. Berger, for the appellant Erica Whitford, for the respondent, Attorney General of Ontario Leisha Senko, for the respondent, Person in Charge of the Centre for Addiction and Mental Health

Heard: March 4, 2021 by video conference

On appeal from the disposition of the Ontario Review Board dated, July 8, 2020, with reasons dated September 16, 2020.

Reasons for Decision

Background

1The appellant has been under the jurisdiction of the ORB since 2002. In 2001, he attacked his roommate, kidnapped his mother, and threatened and assaulted his father. On November 29, 2002 he was found not criminally responsible on account of mental disorder. Thereafter, the appellant generally resided in minimum and medium secure units of mental health facilities.

2The appellant has been diagnosed with schizophrenia, substance use disorder, personality disorder, and exhibitionistic paraphilic disorder. He was found treatment incapable in 2006 and the Public Guardian and Trustee is his substitute decision-maker. In 2012 he was discharged to reside in the community in supportive housing. Since that time, he has been living in housing run by Ecuhome. He has his own room and shares a kitchen, bathroom and common areas. He has not been involved in violent or criminal behaviour. He was granted a conditional discharge in 2017, which was continued in 2018 and 2019.

The Current Disposition

3The appellant had a positive year following the 2019 disposition. However, he also began testing positive for cocaine in 2019. This, together with his regular use of marijuana, became a concern of his treatment team headed by Dr. Pearce. While there were no incidents of violence, on March 4, 2020 he threatened Dr. Pearce and his staff. His family expressed concern with respect to potential violence.

4The appellant contends that the medical treatment does nothing for him and he wants to go on a “medication holiday” to prove that he does not need to be medicated. He said he will stop his medication if he receives an absolute discharge. In Dr. Pearce’s opinion, the medication holiday would need to be carefully monitored and he would need to abstain from drug use for at least a month before conducting the medication holiday. If the appellant does not agree to abstain, then there is a significant risk of decompensation and relapse to violent behaviour.

5The Board determined that, based on these facts, he remained a significant threat to the safety of the public and his conditional discharge should be continued.

Issues on Appeal

6The appellant seeks an absolute discharge. He raises two arguments:

1. He submits that Dr. Pearce’s conclusion that he would stop treatment and decompensate if given an absolute discharge was not supported by the evidence.
2. The Board’s reasons were insufficient to support the conclusion that the appellant is a significant risk to public safety.

Discussion

7The appellant says that the Board’s findings that he remains a significant threat to the safety of the public defies logic and amounts to a “life sentence” for something that happened decades ago. In particular, he points to the fact that there have been no incidents of violence and he has not been hospitalized for five years. There was no evidence, he submits, that he would decompensate and become a risk.

8Dr. Pearce’s conclusions were based on the fact that the appellant suffers from a major mental illness for which he continues to exhibit symptoms. He has a lack of insight to the illness and the corresponding risks. As set out in the hospital report, the appellant intends to stop all medication, and this creates a serious risk that he will decompensate. The appellant is not willing to abstain from drug use, which he claims is irrelevant. In fact, a combination of non-compliance with medication and substance abuse would lead to a return to psychotic symptoms, which led to the index offences.

9In our view, the Board’s conclusion that the appellant poses a significant threat is reasonable based on the evidence at the hearing.

10We do not agree that the reasons of the Board were insufficient. They clearly indicate the reasons for the disposition. The Board referred to the appellant’s progress, lack of violent acts and need to abstain from drugs, particularly cocaine, for at least one month. However, the appellant did not demonstrate that he is prepared to remain abstinent.

11The Board concluded:

It is clear from the evidence in the Hospital Report and the viva voce evidence of Dr. Pearce that there is a substantial risk of his continuing to use marijuana and cocaine which will produce a psychotic reaction and trigger his tendency to do violence.

12We conclude that the disposition of the Board is reasonable.

13For these reasons, the appeal is dismissed.