Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20231124 DOCKET: COA-23-CR-0523

Miller, Paciocco and Coroza JJ.A.

IN THE MATTER OF: Trevor Caruso

AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel: Anita Szigeti, for the appellant Dena Bonnet, for the respondent His Majesty the King in Right of Ontario Gavin S. MacKenzie, for the respondent Person in Charge of Ontario Shores Centre for Mental Health Sciences

Heard: October 24, 2023

On appeal from the disposition of the Ontario Review Board, dated December 16, 2022, with reasons dated January 3, 2023.

Reasons for Decision

1The appellant, Mr. Caruso, suffers from schizophrenia and various substance use disorders. Between May 2019 and June 2020, he was arrested on multiple occasions, detained, and released on conditions. Two of those incidents were violent and linked to Mr. Caruso’s drug addiction, including: (1) pulling an Uber driver from his vehicle, throwing him to the ground, and taking his car in order to obtain money to purchase drugs (the “carjacking incident”); and (2) lunging at a security guard with a hypodermic needle (the “syringe incident”). The substantive charges arising from the carjacking incident and the syringe incident were ultimately withdrawn. However, Mr. Caruso was found guilty of other offences that would become the index offences, resulting in the April 8, 2021 not criminally responsible verdict and the disposition order requiring his detention. Those offences exhibited both his drug seeking behavior and a chronic failure to comply with terms of his release. The index offences included mischief arising from the attempted theft of two bicycles that were locked to a stop sign, breach of probation for failing to report, and three charges of failing to comply arising from two separate incidents. One of those breaches arose from his violation of an order not to possess syringes. As a result of the NCR disposition order, Mr. Caruso was initially admitted and detained at the Centre for Addiction and Mental Health before being transferred to Ontario Shores Centre for Mental Health Sciences (“Ontario Shores”) on April 19, 2022, where he has remained.

2After the most recent disposition hearing, on December 8, 2022, the Ontario Review Board (the “Board”) concluded that the appellant continued to pose a significant threat to the safety of the public. A majority of the Board members ordered that he be detained at the Forensic Program of Ontario Shores, with privileges up to indirectly supervised hospital and grounds privileges. In the minority, one member concluded that the necessary and appropriate disposition would be for the appellant to be detained in a secure forensic unit at Ontario Shores, with no indirectly supervised passes.

3The Board considered Mr. Caruso to remain a significant threat to the public largely due to his aggressive behaviour when unwell. The Board found that an aspect of his substance use disorder is compulsive and aggressive criminal behaviour to get money to purchase drugs. The Board also determined that there is a direct link between Mr. Caruso’s substance abuse, a relapse of symptoms of schizophrenia – particularly paranoia – and risk of violence. The Board concluded that these risks were significant, and the likely physical and psychological harm to the public was serious.

4The Board’s disposition allowed for accompanied community access, but not indirectly supervised community access. Mr. Caruso has a history of absconding from the institution, even when supervised, and not returning voluntarily. While absent, he did not have access to medication, and he had ready access to illicit drugs.

5Although the substantive charges arising from the carjacking incident and the syringe incident were withdrawn, the Board relied on police reports from those incidents in finding that Mr. Caruso continues to pose a significant threat to the safety of the public. The Board reasoned that if Mr. Caruso had access to the community, the hospital would not be able to prevent him from absconding again. He would almost certainly discontinue medication, consume drugs, decompensate, and act violently.

Issues

6On appeal, Mr. Caruso argues that the Board erred by:

1. unreasonably finding that Mr. Caruso remained a significant threat to public safety; and
2. failing to impose the least onerous, least restrictive disposition.

7As explained below, we do not agree that the Board erred on either ground and accordingly dismiss the appeal.

Analysis

(1) A significant risk of serious harm to the public

8With respect to the determination that the appellant continues to pose a significant risk of serious harm to the public, the appellant argues that the Board erred in its approach to the evidence of the appellant’s pre-offence history of violent conduct. With respect to the carjacking incident and the syringe incident, the appellant notes that, although he was charged, there was no adjudication, as the charges were subsequently withdrawn. He accepts that the Board can rely on uncharged conduct, but argues that in these circumstances, the Board ought to have done more to assess the quality of the evidence informing the police reports of the two incidents.

9Similarly, he argues that the Board erred in relying on reports of the fact that the appellant was restrained while in hospital, and that his mother advised the police she was fearful of him. The appellant argues that for this evidence to be saliant, there would need to be some explanation as to why the appellant was restrained (i.e., was it in fact justified?) and why his mother reported being fearful.

10In our view, there is some merit to the appellant’s argument that it is not sufficient for the Board to rely on the sheer fact of other peoples’ reactions to the appellant to find that he posed a significant risk of substantial harm. Conceivably, the appellant could have been restrained for justified or unjustified reasons. His mother could have been justifiably or unjustifiably fearful. The Board would have needed to make further inquiries into the circumstances behind those responses before those facts could be useful to determining whether the appellant posed a significant threat of serious harm.

11However, the carjacking and the assault on the security guard with the syringe stand on a different footing. Sufficient context was provided to enable the Board to assess those allegations. For the Board’s purposes, the allegations did not need to be proven beyond a reasonable doubt. We do not agree with the appellant’s argument that the carjacking could not have been a serious offence because there was no evidence that the driver was seriously injured. That offence, by its very nature, constitutes serious harm regardless of whether there was a serious or lasting physical injury. The act of lunging at a security guard with a syringe is on a similar footing. The Board was entitled to rely on these two historical incidents as some evidence that, when untreated, the appellant poses a substantial risk of serious physical and psychological harm.

(2) The least onerous and restrictive disposition

12The detention order is undeniably onerous and restrictive. The appellant is, by all accounts, a very amiable patient. At first glance, there is a seeming incongruity between any particular act he has done, what he is likely to do, and the comparatively severe restrictions placed upon him. Nevertheless, the Board articulated a clear and compelling rationale for the order it imposed.

13The problem stems from the fact that the appellant is a flight risk. He has absconded – or attempted to abscond – on more than one occasion. He has done so despite being escorted by hospital staff. Essentially, the risk of him absconding when outside the hospital is currently unmanageable.

14The Board explained that his compulsion to flight is driven by an overwhelming drug addiction. It is not something he is currently able to control at this point in his treatment. There are several consequences for his treatment – and his risk to the public – when he escapes from the hospital. The first is that he no longer has access to his medication, which must be taken orally each day. Some patients with schizophrenia can manage their symptoms through long‑lasting injectable medication. The appellant does not respond well to this type of medication. For the appellant, the treatment team has only had success with daily oral medication. The Board accepted evidence from the treatment team that if the appellant missed his medication for even a few consecutive days, it could not simply be restarted at the dosage where he left off. Effectively, the treatment team would be starting over, delaying the projected course of his recovery.

15The Board reasoned that, if untreated and at large, the appellant would likely, as a consequence of the substance used disorder, engage in aggressive crime to fund his drug consumption. There is ample evidence in the record of what that behaviour looks like. It includes breaking and entering and assault. Furthermore, as the appellant decompensates, the symptoms of his schizophrenia would be expected to return, including a paranoia that would manifest itself in misperceiving other peoples’ actions as threatening, and leading him to take defensive and possibly violent action.

16We are of the view that the Board’s disposition, which allows for a progression of liberty up to access to the hospital grounds, is reasonable, and there is no basis which would allow us to conclude that it should be set aside.

Disposition

17The appeal is dismissed.