COURT OF APPEAL FOR ONTARIO
Sossin, Madsen and Pomerance JJ.A.
IN THE MATTER OF: Tyler Wheaton
AN APPEAL UNDER PART XX.1 OF THE CODE
Anita Szigeti, for the appellant
Eunwoo Lee, for the respondent, Attorney General of Ontario
Heard: December 20, 2024
On appeal against the disposition of the Ontario Review Board dated June 25, 2024.
REASONS FOR DECISION
1The appellant appeals from the June 25, 2024, disposition of the Ontario Review Board (the “Board”) ordering that he continue to be bound by the terms of his existing conditional discharge, except with his reporting requirement reduced to once per month, and his prohibition on the non-medical use of drugs, alcohol, and other intoxicants removed.
2The issue on this appeal is whether the Board erred in finding that the appellant continued to meet the threshold of a significant threat to public safety per s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46. The appellant argues that he does not meet that threshold, and therefore, he should no longer be subject to the jurisdiction of the Board and is entitled to an absolute discharge.
3For the reasons that follow, the appeal is dismissed.
A. Background
4On April 1, 2015, the appellant was found not criminally responsible on account of mental disorder (“NCR”) in relation to charges of mischief under $5,000, attempt to commit an indictable offence, assault with intent to resist arrest, and failure to comply with a probation order.
5The charges arose from an incident on February 4 and 5, 2015. The appellant had been admitted to hospital on February 4, 2015, on a Form 1 pursuant to the Mental Health Act, R.S.O. 1990, C. M.7, following threats to kill his mother and pacing around their home with a knife. The next day, the appellant escaped from the hospital, approached a vehicle in the parking lot and attempted to break the window with his elbow. When approached by hospital staff, the appellant lost his pants, ran down the highway naked from the waist down, and attempted to stop and enter numerous vehicles. When police attempted to arrest him, he ran away, and continued to resist upon arrest.
6After a period of hospitalization, the appellant moved to a transitional housing facility in February 2022. That facility provided 24-hour supervision, medication administration, programming, and assistance with tasks related to housing, mental health, and overall wellness. In late January 2024, less than four months before the Board hearing, he transitioned to an independent living apartment. This was a significant change from the 24/7 supervision provided in the transitional housing facility. The appellant currently receives follow up services from the Forensic Outpatient Program and meets with his case manager weekly.
7The appellant is diagnosed with schizophrenia and cannabis use disorder, in sustained remission. In 2020, he was prescribed Clozapine, which he self-administers. He is cooperative with mandatory testing for Clozapine levels and all random checks appear to confirm his medication adherence. His father acts as his substitute decision-maker for health care.
8When the Board hearing was held, in May 2024, the evidence was that the appellant was transitioning well to independent living. He was compliant with his medications, his mental state had been stable over the year in review, and he had not required any hospital readmissions. There were no notable incidents of concern or aggression. He had not tested positive for cannabis use since 2016. The appellant was volunteering on a weekly basis, and attending regular social and recreational activities.
9While acknowledging the positive aspects of the appellant’s circumstances and transition, his attending psychiatrist, Dr. Sutton, expressed concern given the recency of the transition to independent living, noting that these were “early days.” He noted the significant loss of structure in the appellant’s daily activities and the necessity, from a risk management perspective, to closely monitor the appellant for a longer period of time to ensure his mental stability, medication compliance, and abstinence from substances.
10Dr. Sutton opined that should the appellant become non-compliant with his medication, he would likely show signs of decompensation within days and symptoms of his illness would again become overt. He expressed concern about the appellant’s internal motivation to comply with his medication regime and testified that the appellant has limited insight into his illness, the need for treatment, and his risk to others. He noted the appellant’s inability to identify benefits of the medication or any potential signs or symptoms he might experience should he suffer a deterioration in his mental status.
11The Board considered a 2023 risk assessment, conducted by Dr. Sheridan, that found that the appellant presents a “low to low-moderate risk of violent recidivism under a Conditional Discharge”, but that “risk would rise to a significantly higher classification if his current level of supervision and oversight was removed in the context of an Absolute Discharge.” The Board accepted the recommendation of the Hospital Report, which opined that an absolute discharge would be premature and that the threshold for significant risk continued to be met. The report stated that the appellant’s mental status remained fragile, and that his mental state would likely deteriorate rapidly in the context of medication non-compliance.
12In careful reasons, the Board acknowledged that the appellant has had a positive year, and that his transition to independent living had been going well in the three and a half months since it had taken place. However, the evidence before the Board established the following:
The Board finds that [the appellant] continues to meet the threshold for significant threat. When unwell, [the appellant] suffers paranoia and persecutory delusions, and in this condition, would be very likely to act aggressively and violently to anyone he perceived as a threat. He continues to present with underdeveloped insight and does not recognize the symptoms of his illness. Further, he has limited insight into his risk of violence behaviour should he mentally decline… if [the appellant] was granted an Absolute Discharge, there is a concern and likelihood that he might discontinue his antipsychotic medication. The expert evidence indicates that without his Clozapine, [the appellant] would be likely to suffer a marked deterioration in his mental state rather quickly.
13The Board ultimately concluded that an absolute discharge was premature and that the appellant should continue under the terms of his conditional discharge, with a reduced frequency of reporting and removal of the prohibition on the non-medical use of alcohol, drugs, and other intoxicants. The Board accepted the evidence that a longer transition period is necessary to ensure mental stability and medication compliance while the appellant continues to live in the community with less supervision.
B. The appellant’s position
14The appellant argues that the Board’s decision is unreasonable and that it erred in law in finding that the appellant continues to meet the threshold for significant risk to public safety. He argues that taken as a whole, the evidence simply does not establish that there is a substantial likelihood that he poses a risk of serious psychological or physical harm without the continued oversight of the Board.
15Specifically, the appellant asserts the Board failed to address the likelihood of harm materializing, noting that the risk must be “foreseeable and substantial”: R. v. Ferguson, 2010 ONCA 810, 264 C.C.C. (3d) 451, at para. 8. He argues that the Board did not find any evidence that his non-compliance with medication was likely, stating only that in the event of an absolute discharge, he “might” discontinue his medication. Further, the appellant argues that the Board allowed a concern about his “insight” to dominate its analysis, in the face of evidence that he had consistently taken his medication for eight years, demonstrating that the Board was focused on minimizing risk, rather than on properly assessing whether he met the significant threat threshold. Finally, the appellant asserts that lack of insight may not be a bar to an absolute discharge when the contemplated harm falls on the “lower end of the spectrum”: Kalra (Re), 2018 ONCA 833, at para. 52. He argues that guidance should apply in this case, as he claims he has never been violent.
C. Discussion
16Under s. 672.54 of the Criminal Code, the Board’s obligation is to determine the least onerous and least restrictive disposition necessary to protect the public, considering the mental condition of the accused, that person’s reintegration into society, and the other needs of the accused person: see also Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at paras. 47, 55.
17Under s. 672.78(1) of the Criminal Code,this court may set aside an order of the Board only where it determines that: (a) the decision is unreasonable or cannot be supported by the evidence; (b) the decision is based on a wrong decision on a question of law (unless no substantial wrong or miscarriage of justice has occurred); or (c) there was a miscarriage of justice: see also R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 31. The standard is whether the Board’s decision was reasonable, not whether this court would have reached the same conclusion: Owen, at para. 45. As held by the Supreme Court of Canada, “[i]f the Board’s decision was such that it could reasonably be the subject of disagreement among Board members properly informed of the facts and instructed on the applicable law, the court should in general decline to intervene”: Owen, at para. 33.
18This court recognizes the progress of the appellant and the strides that he has made. However, we are unable to accept his arguments on appeal.
19On the record, the Board carefully considered all of the evidence, including the positive evidence that the first several months in independent living have gone well for the appellant and that he is compliant with his medication. While the appellant argues that the Board did not refer to the positive evidence in the “Analysis” section of the reasons, it is clear, reading the reasons as a whole, that the Board reviewed and considered the evidence of his successful transition to date.
20In determining that the significant threat threshold was met, the Board considered and accepted the evidence of Dr. Sutton, the results of the risk assessment, and the hospital report. The Board reasonably accepted the evidence of Dr. Sutton that a longer transition period is required in order to be satisfied that the appellant no longer poses a significant threat to public safety.
21The Board also reasonably accepted evidence that if the appellant ceased compliance with his medication, he would likely suffer a marked and rapid deterioration in his mental state. The Board was entitled, against the evidence of the appellant’s lack of insight into his illness, how the medication helps him, or his symptoms when unwell, to find that a longer period of medication compliance under the reduced supervision terms is required before granting an absolute discharge. We do not accept the appellant’s argument that this reflects an over-reliance on the lack of insight as a factor. It was one factor among several.
22Finally, we are unable to accept the argument that the appellant’s risk of harm falls at the “lower end of the spectrum” such that it could not meet the threshold of “foreseeable and substantial risk that the NCR accused would commit a serious criminal offence”: see Winko, at para. 69. During the index offence, the appellant threatened to kill his mother, ran into traffic unclothed, and attempted to break into several vehicles on a highway. After his hospitalization and prior to his consistent medication adherence, the appellant continued to demonstrate violent and threatening behaviours such as attempted escapes of secured areas by punching and kicking windows, attempting to punch a staff member, and making violent threats to those around him. A repeat of such conduct cannot be characterized, as the appellant posits, as “trivial harm.”
23Dr. Sutton testified that the appellant had been referred to the hospital’s Schizophrenia Clinic and he was hopeful that if accepted, and if the appellant’s positive transition continues, the hospital would consider calling an early ORB hearing to recommend an absolute discharge. Absent any new concerns, it may well be that the period of monitoring recommended by the hospital and Dr. Sutton would be nearing completion.
D. Disposition
24For the foregoing reasons, the appeal is dismissed.
“L. Sossin J.A.”
“L. Madsen J.A.”
“R. Pomerance J.A.”