Court of Appeal for Ontario

Date: 2023-11-16 Docket: COA-23-CR-0449

Before: Tulloch C.J.O., Sossin and Copeland JJ.A.

In the Matter of: Reginald Billing

An Appeal Under Part XX.1 of the Code

Counsel: Paul Socka, for the appellant Akshay Aurora, for the respondent Attorney General of Ontario Julia Lefebvre, for the respondent Person in Charge of Waypoint Centre for Mental Health Care

Heard: October 11, 2023

On appeal from the disposition of the Ontario Review Board, dated February 1, 2023, with reasons dated April 14, 2023.

Reasons for Decision

1The appellant, Mr. Billing, was found not criminally responsible (“NCR”) in 2007 on charges of criminal harassment and assault. He was conditionally discharged by the Ontario Review Board (“the Board”) in 2016. In 2022, the appellant sought an absolute discharge, which was not granted. Mr. Billing appeals this disposition, arguing that the Board erred in continuing his conditional discharge rather than granting an absolute discharge.

2For the reasons that follow, we dismiss the appeal.

Background

3The appellant’s index offences occurred in late 2006 and early 2007 and he was found NCR in 2007. In 2006, Mr. Billing was involuntarily hospitalized for around two weeks and refused medication. Shortly after his release from the hospital, Mr. Billing was charged with criminal harassment of his ex-wife and daughter. He pleaded guilty to those charges in December 2006.

4Later in December 2006, while on probation, Mr. Billing physically assaulted a stranger in a public washroom. In early 2007, he continued to contact his ex-wife and daughter in contravention of his release conditions for the 2006 criminal harassment charges. In the fall of 2007, he was found NCR relating to index offences, including the charges of criminal harassment and assault.

5In 2016, the Board granted the appellant a conditional discharge with an order to reside in a care home, where he continues to live. The appellant has asked for an absolute discharge every year since 2017. His current diagnoses include paranoid schizophrenia, substance abuse disorder (in remission), and an unspecified neurocognitive disorder, which is possible early-stage dementia.

6In the decision under appeal, the Board rejected the appellant’s request for an absolute discharge. The appellant’s attending psychiatrist, Dr. P. Ismail was the sole witness before the Board. He adopted the contents of the Hospital Report, which contains details of Mr. Billing’s conditions and history. Dr. Ismail opined that the appellant remained a significant threat to the safety of the public.

7Dr. Ismail noted that the appellant’s paranoia remained unchanged over the years. Mr. Billing also had persecutory delusions and thought broadcasting. Dr. Ismail was also concerned with the appellant’s intrusive behaviour. Dr. Ismail was of the view that the appellant’s cognitive abilities would deteriorate over time and that this would warrant a decrease in Mr. Billing’s anti-psychotic medication. Dr. Ismail noted that, with Mr. Billing’s cognitive decline, he would “definitely” have less impulse control and more intrusive behaviour in the community. For these reasons, Dr. Ismail concluded, “he poses a risk out in the community and the risk is quite real.”

8According to the Board, the evidence provided by both the Hospital Report and Dr. Ismail, supported the conclusion that the appellant remains a significant threat. Due to his cognitive decline, Mr. Billing “will require clinical support from his clinical team.” The Board concluded that since it cannot say with certainty that the appellant’s risk level could be effectively managed in an unsupervised setting, the conditional discharge should continue.

Analysis

9The appellant raises two issues with the Board’s disposition:

a) That the Board’s finding that the appellant posed a significant threat to public safety was unreasonable.

b) That the Board misapplied the significant threat test and reversed the burden of proof.

(1) The Board’s decision to not grant Mr. Billing an absolute discharge was reasonable

10In explaining its disposition, the Board stated:

Also, considering that he has a history of violence and substance abuse, to his credit Mr. Billing has been living in the community since 2009, and he has done fairly well during this time. It is apparent that because of his cognitive mental decline, he will require continued support from his clinical team. In addition, his recovery and rehabilitation efforts are supported by the geriatric psychiatrist that continues to observe him moving forward. The Board is of the view that Mr. Billing’s ongoing needs require that he be under the guidance of the Ontario Review Board for the upcoming review year.

11The appellant argued that the Board did not have evidence in the year under review of conduct that could justify a finding of continuing risk to the community. Rather, the evidence disclosed potential, speculative risk factors in the event of an absolute discharge, such as moving residences and becoming non-compliant with medication. Further, the appellant argues that the conduct referred to as intrusive was not criminal in nature and did not support a conclusion of significant risk.

12We disagree.

13The Board’s findings are reviewed on a reasonableness standard. If the Board’s decision falls within a range of reasonable outcomes, it is entitled to deference, absent an error in law or a miscarriage of justice: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at paras. 31. The test for reasonableness is whether the Board’s risk assessment and disposition order are supported by reasons that can bear an even “somewhat probing” examination: Owen, at para. 33. The court must evaluate reasonableness by considering the reasons given by the Board and the context in which the decision was made to determine whether an acceptable and defensible outcome has been reached: Wall (Re), 2017 ONCA 713, 417 D.L.R. (4th) 124, at para. 22.

14With respect to the conclusion that the appellant continued to pose a significant risk, the Board explained:

In this case, evidence of ‘significant threat’ was linear to the continued recovery and reintegration of Mr. Billing since he has been living in the community for many years now. He has been under the authority of the Ontario Review Board since his NCR finding in 2007, and since then – he has been on a recovery path. Dr. Ismail’s risk scenario was made very clear. Mr. Billing continues to express cognitive and behavioural deficits which negatively impact his interactions with others. Recently, he has been struggling with declining executive brain functioning as illustrated by his continued impulsivity and reaction to others incites. All the evidence presented reaches the threshold – the likelihood of Mr. Billing re-offence scenario is real and ongoing. The Board’s conclusion in this regard considers Mr. Billing’s recent cannabis use, but it is not determinative on this issue.

15Pursuant to s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46, the Board must determine that an NCR accused poses a “significant threat to the safety of the public.” A “significant threat” is a risk of serious physical or psychological harm to members of the public resulting from conduct that is criminal in nature (though not necessarily violent), which must be more than speculative and must be supported by the evidence: Winko v. British Columbia (Forensic Psychiatric Institute), 1999 SCC 694, [1999] 2 S.C.R. 625, at paras. 46, 48-51, 57.

16We are satisfied that the Board’s conclusion met this standard. The Board’s decision was rooted in the evidence provided by Dr. Ismail, whose risk scenario included the appellant’s ongoing symptoms, including paranoia, persecutory delusions, and thought broadcasting, poor impulse control, risk of medication non-compliance, and limited insight, as well as his history of highly intrusive behaviour towards others.

17In light of the evidence of Dr. Ismail, coupled with the evidence of the appellant’s experience under supervision since his index offences, the risks posed by the appellant, as accepted by the Board, were not speculative. It was open to the Board, on the record before it, to conclude that the appellant posed an ongoing, significant risk to the public.

18This ground of appeal fails.

(2) The Board did not misapply the significant threat test or reverse the burden of proof

19The appellant raises a concern based on the following statement by the Board in its reasons: “For the Board to conclude that [the appellant] is reasonably entitled to [an absolute discharge] – the Board must critically find that Mr. Billing is not a significant threat to the safety of the public, among all the other factors to be considered.”

20The appellant argues that the Board should have stated that it must provide an absolute discharge unless it finds that the appellant is a significant risk, and that the Board’s statement constitutes a reversal of the burden of proof. Because of this, the appellant argues that a new hearing of the Board must be ordered.

21Again, we disagree.

22While the Board could have phrased the test more clearly, there is no doubt that it applied the proper standard. Throughout its reasons, the Board repeatedly considered whether the Crown had established that the appellant constituted a significant risk, not whether the appellant had shown that he did not pose such a risk.

23Similarly, the Board did not impermissibly reverse the burden of proof such that the appellant had to show that he was not dangerous. The appellant was not made to prove to the Board that he did not pose a risk, nor did the Board require Mr. Billing to adduce evidence to this effect. Instead, the Board relied on the evidence of the Hospital Report and Dr. Ismail in making its finding. In doing so, the Board applied the correct legal test and found that this test was satisfied by the evidence presented.

24This ground of appeal also fails.

Disposition

25The appeal is therefore dismissed.