Clarke (Re), 2023 ONCA 59

Court of Appeal for Ontario

Date: 2023-01-27 Docket: C70679

Judges: Huscroft, Trotter and Harvison Young JJ.A.

In the Matter of: James Clarke

An Appeal Under Part XX.1 of the Code

Counsel: Anita Szigeti and Michael Schloss, for the appellant Joshua W.P. White, for the respondent His Majesty the King Gavin S. MacKenzie, for the respondent Person in Charge of Ontario Shores Centre for Mental Health Sciences

Heard: January 20, 2023

On appeal from the disposition of the Ontario Review Board, dated March 21, 2022, with reasons dated April 11, 2022.

Reasons for Decision

1The Board found that the appellant continues to pose a significant risk to public safety and that his continued detention at Ontario Shores, with privileges including the opportunity to live in the community in housing approved by the hospital, was necessary and appropriate.

2The appellant does not challenge the Board’s finding that he remains a significant risk. The appellant argues that the Board’s detention order is not the least onerous, least restrictive disposition in the circumstances. He seeks a conditional discharge or, in the alternative, a rehearing before a differently constituted panel.

3The appeal is dismissed for the reasons that follow.

Background

4The appellant has been under the Board’s supervision since 2009, following the commission of the index offences against his former spouse. The appellant lit a firecracker in her home, struck her in the face several times with his fist, and forced her to ingest the drug Lorazepam. His current diagnosis is Substance Use Disorder in sustained remission in a controlled setting, Mixed Personality Disorder with antisocial and narcissistic traits, Malingering, and Substance Induced Psychosis. The appellant has an extensive criminal record prior to the index offence that includes assault and sexual assault against former partners, as well as aggravated assault, property crimes, and drug offences.

The Board did not fail to consider the evidence or conduct an even-handed analysis

5The appellant argues that the Board did not solicit or consider evidence in favour of a conditional discharge, discussed only evidence weighing against a conditional discharge, and misstated some of the evidence. In particular, the appellant says that the Board ignored evidence that the appellant had a successful reporting year and ignored evidence from his father that supported a conditional discharge. This evidence included the appellant’s successful completion of an addiction treatment program and continued attendance at counselling sessions, where his cooperation and progress were noted.

6We accept that the Board did not refer the appellant’s success in completing a treatment program, and his otherwise successful year. However, this does not have the effect of rendering the Board’s decision unreasonable. The Board is not required to address every piece of evidence in reaching its decision.

7The Board heard evidence from Dr. Pytyck that although completion of the treatment program was a positive thing, it “does not give the Hospital a very high level of confidence, that means that he will abstain going forward, especially if not adequately supervised in the community.” The Board noted that the appellant recently declined the option of supportive housing and indicated that he would prefer to stay in hospital until he is discharged unconditionally. It was open to the Board to find that there was a concern of relapse given the appellant’s history regardless of the evidence of the past year.

8We are not satisfied that the Board’s analysis is uneven or otherwise unfair to the appellant.

A conditional discharge was not appropriate

9We do not accept that the Board failed to consider all of the evidence in determining that a conditional discharge was not appropriate. The Board’s treatment of the issue is brief, but it is plain that the Board rejected a conditional discharge because it considered that the appellant continued to require professional supervision that the proposed conditional discharge could not provide. The appellant’s history of absconding and relapsing made rapid intervention necessary, and this was not possible if the appellant stayed at his father’s home in Guelph, a long distance away from the hospital.

10The Board’s possible misstatement as to the father’s social use of alcohol does not undermine the reasonableness of the Board’s finding that the plan to live with his father was not appropriate. The appellant had relapsed when he last lived with his father. The appellant’s father had not been that involved in the treatment planning and staff could not appropriately monitor the appellant in Guelph. In these circumstances, the Board’s decision that a conditional discharge was not appropriate cannot be said to be unreasonable.

11We do not accept that the Board wrongly acted on the evidence of Dr. Pytyck concerning the Mental Health Act, R.S.O. 1990, c. M.7 (“MHA”). The Board recounted Dr. Pytyck’s evidence that the MHA would not be sufficient to provide the protection required. Dr. Pytyck was questioned by the Board and Dr. Pytyck referred to the MHA in her submissions to the Board. We do not accept that the Board wrongly relied on these submissions concerning the MHA. In any event, the Board’s decision was clearly based on the inappropriateness of the proposed conditional discharge.

12We make these concluding observations.

13The Board’s reasoning is somewhat brief. As noted, the appellant’s progress during the year under review was not noted in the Board’s reasons. The appellant is to be commended for his efforts in this regard. Should his success continue, a conditional discharge may be appropriate, provided the specific terms of any proposed conditional discharge plan are sufficient. The decision is ultimately for the Board to make.

14The appeal is dismissed.