Stolove (Re), 2022 ONCA 594

Court File and Parties

Court of Appeal for Ontario Date: 20220819 Docket: C70117

Before: Doherty, Favreau and Copeland JJ.A.

In the Matter of: Ruben Stolove An Appeal Under Part XX.1 of the Code

Counsel: Stephen F. Gehl, for the appellant Raoof Zamanifar, for the respondent Attorney General of Ontario Julia L. Lefebvre, for the Person in Charge of Waypoint Centre for Mental Health Care

Heard: August 12, 2022

On appeal from the disposition of the Ontario Review Board dated November 1, 2021, with reasons dated November 22, 2021.

Reasons for Decision

Background

1In 2015, the appellant attacked a young woman, whom he did not know, with a large blade, leaving her with serious injuries to her face, neck, abdomen and hands. The appellant was charged with aggravated assault, assault causing bodily harm and possession of a weapon for a dangerous purpose. The appellant is diagnosed with schizophrenia. The appellant was found unfit to stand for trial until 2019. In 2019, he was found not criminally responsible by reason of mental disorder.

2In November 2019, the Ontario Review Board made a disposition order requiring the appellant to be detained at the Waypoint Centre for Mental Health Care in its High Secure Provincial Forensic Programs Division. In May 2021, the appellant was transferred from the unit at Waypoint with the highest level of security to a program the Board described as “the most privileged unit within the high secure programs”.

3At the November 2021 annual review hearing before the Board, the appellant did not dispute that he poses a significant threat to public safety or that a hospital detention is necessary. However, he took issue with the location of his detention, arguing that he should be transferred from Waypoint to St. Joseph’s Healthcare Hamilton, which is a medium security facility and closer to his family. The Board denied the request and found the appellant’s current disposition necessary and appropriate.

4On appeal, the appellant argues that the Board erred in denying his request to be transferred to St. Joseph’s.

5In our view, there is no basis for granting the appeal.

Standard of Review

6On an appeal from the Board to this court, the standard of review is reasonableness: Criminal Code, R.S.C. 1985, c. C-46, s. 672.78(1); R v Owen, 2003 SCC 33, [2003] 1 S.C.R. 779 at paras. 29-37.

Analysis

7In this case, the index offence was very violent. At the hearing, the appellant’s treating psychiatrist testified that the appellant’s continued detention and treatment at Waypoint is necessary because the appellant continues to exhibit violent and volatile behaviour and because he has shown a fluctuating level of commitment to taking his medication which at times has been tenuous. There are documented instances of violent incidents, and at least one of them occurred soon before the hearing. While the appellant’s psychiatrist acknowledged that, more recently, the appellant’s violent behaviour and volatility had decreased and that he had been more compliant with medication, his opinion was that it was still necessary for the appellant to remain at Waypoint and that the appellant could not be managed at St. Joseph’s.

8Besides the psychiatrist’s evidence, the evidence at the hearing was that St. Joseph’s indicated that it was not in a position to manage the appellant.

9Based on these circumstances, there is no doubt that the Board’s conclusion that it continues to be necessary and appropriate for the appellant to remain at Waypoint was reasonable. This determination was based on evidence about the appellant’s condition, including ongoing incidents of violence, and the relative ability of Waypoint and St. Joseph’s to manage the risk posed by the appellant.

10The appellant argues that the Board failed to ensure that the appellant is placed in the least restrictive setting. He pointed to evidence that the appellant has become more manageable and compliant with his medication. We are not persuaded by this argument. The appellant is essentially inviting the court to reweigh the evidence. As held at para. 69 of Owen, once the Board finds that a person who is not criminally responsible poses a significant threat to public safety, the court “should not be too quick to overturn the Board’s expert opinion about how that risk is to be managed.” In other words, the court owes significant deference to the Board’s determination of the least onerous conditions of detention.

11In this case, the Board was aware that there were signs that the appellant’s behaviour was becoming less violent and volatile and that he was becoming more compliant with his medication. But the Board was also aware that these developments were very recent and uncertain, and that the appellant had been involved in at least one recent violent incident. The Board also had evidence that the appellant would best be managed at Waypoint and that St. Joseph’s did not have the ability to manage him.

12The appellant does not argue that Waypoint has reached a “treatment impasse” that would justify the transfer to St. Joseph’s: Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326, at para. 42. Rather, he argues that his condition has progressed to the point where he can be managed at St. Joseph’s. Notably, in its conclusion, the Board stated that “a further cognitive assessment may take place over the upcoming year, which will assist his caregivers in potentially improving the treatment plan for Mr. Stolove.” Accordingly, the Board was aware that the appellant’s circumstances may improve sufficiently in the future for him to be moved to a less secure facility. However, based on the evidence of his current condition, the Board was satisfied that his detention at Waypoint continues to be necessary and appropriate.

13The Board’s decision was supported by the record and is reasonable.

Disposition

14The appeal is dismissed.