Cable (Re), 2021 ONCA 288

COURT OF APPEAL FOR ONTARIO DATE: 20210504 DOCKET: C68715

Watt, Roberts and Zarnett JJ.A.

IN THE MATTER OF: Bradley Cable

AN APPEAL UNDER PART XX.1 OF THE CODE

Sarah Weinberger, for the appellant Natalya Odorico, for the respondent, Attorney General of Ontario Julie A. Zamprogna Ballès, for the respondent, Person in Charge of the Southwest Centre for Forensic Mental Health Care, St. Joseph’s Health Care London

Heard: April 23, 2021 by video conference

On appeal from the disposition of the Ontario Review Board dated July 2, 2020, with reasons dated July 29, 2020 and fresh reasons for decision dated July 31, 2020.

REASONS FOR DECISION

1Bradley Cable has been under the supervision of the Ontario Review Board since he was found not criminally responsible on February 5, 2018 for the offences of harassment by repeated communication, uttering threats of physical harm, obstructing and assaulting a police officer, and failing to comply with the conditions of his judicial release. He appeals from the Board’s July 2, 2020 disposition that he be detained at the Southwest Centre for Forensic Mental Health Care, St. Joseph’s Health Care London (“the Hospital”), under the same conditions as the Board’s previous disposition.

2At the conclusion of the argument on behalf of Mr. Cable, we indicated that the appeal was dismissed with reasons to follow. These are those reasons.

3While Mr. Cable conceded before the Board that he continues to pose a substantial risk to the safety of the public, he submits that the Board erred in ordering detention as the least onerous and least restrictive disposition in the circumstances. He argues that the Board failed to consider all the evidence and that his request for a conditional discharge had an air of reality. As a result, the Board erred in failing to consider the possibility of a conditional discharge and its decision was unreasonable.

4We do not accept these submissions.

5An appellate court may allow an appeal from the Board’s disposition under s. 672.78(1) of the Criminal Code where the Board’s disposition is unreasonable or cannot be supported by the evidence; it is based on a wrong decision on a question of law; or there was a miscarriage of justice.

6We see no basis here that would justify appellate intervention.

7The Board’s reasons contain a careful review of the record. While it did not expressly refer to the letter of support written by Mr. Cable’s sister, the Board referred to the evidence given by his mother at the hearing that was consistent with his sister’s expressed views that Mr. Cable has done well during his short visits with his family and that continued detention was extremely stressful to him. The Hospital report and updated report also indicated that Mr. Cable’s few indirectly supervised community excursions and exercises of supervised privileges were similarly without incident. However, the Board’s decision that Mr. Cable continued to represent a significant risk to public safety and that this risk could be managed only by a detention order was amply supported by the evidence as set out in the Hospital report, as updated, and the evidence of Mr. Cable’s attending psychiatrist, Dr. Nnamdi Ugwunze. There was no air of reality to the possibility of a conditional discharge.

8Mr. Cable has serious mental health issues that are untreated because of his refusal to follow the recommendations of his psychiatrist and treatment team, whom he distrusts. His current diagnosis includes Schizophrenia, paranoid type; Paranoid Personality Disorder with anti-social traits; Post-traumatic Stress Disorder (“PTSD”); and Substance Use Disorder, which is in remission in the controlled setting of the hospital. His psychotic symptoms and persecutory delusions are active. Other than in relation to his diagnosed PTSD, he has little insight into his medical condition, disputing his current diagnosis and the recommended treatment of his psychiatrist and treatment team in all other respects.

9Mr. Cable has a history of violent physical and psychological behaviour including aggressive clashes with police and destruction of property. The index offences giving rise to the NCR determination were very serious: between November 2016 and January 2017 he harassed a former classmate whom he barely knew with over 100 unwanted emails and Facebook messages although he was told by the victim and the police to stop sending them. Some of the messages contained physical threats to seriously hurt the victim. He admitted to the police that he wanted to scare her. He demonstrates extremely limited insight into his offences, having sent the victim another email in breach of his judicial release in 2017 and another in 2018 in breach of the Board’s disposition, and he continues to blame her for his situation. His psychological risk assessment indicates that he is at a moderate to high risk of reoffending violently, physically or psychologically, even if detained at the hospital.

10The reporting year prior to the Board’s July 2, 2020 disposition was a challenging year for Mr. Cable. While there have been no incidents of physical violence, Mr. Cable was verbally abusive and aggressive and exhibited physically intimidating postures toward staff such that seclusion was required on eleven occasions. Mr. Cable’s observed lack of stability and refusal of recommended medication resulted in the withdrawal of supervised community passes on February 20, 2020. While the Hospital is hopeful that Mr. Cable will transition one day to community living, he is at present, according to Dr. Ugwunze and the treatment team, “nowhere near community placement”. He requires professional support and supervision in order to manage the risk he presents to others, including the choice of his residence.

11In its consideration of whether a detention or conditional discharge order was appropriate, the Board accepted Dr. Ugwunze and the Hospital’s evidence, as it was entitled to do, including that “the key indicator of success will be Mr. Cable’s response to the efforts by the treatment team to optimize his treatment for Schizophrenia” which “[o]bviously … requires Mr. Cable’s consent to optimize treatment for Schizophrenia, cooperation and commitment, without which any meaningful progress towards community reintegration is doubtful”.

12We see no error in the Board’s analysis or conclusions.

Disposition

13Accordingly, we dismiss the appeal.