Court of Appeal for Ontario
Judges: Roberts, Wilson and Madsen JJ.A.
In the Matter of Alexander M. Wheeler
An Appeal Under Part XX.1 of the Criminal Code
Counsel:
- Anita Szigeti, for the appellant
- Maria Anghelidis, for the respondent, Attorney General of Ontario
- Julia L. Lefebvre, for the respondent, Person in Charge of St. Joseph's Healthcare Hamilton
Heard: May 27, 2025
On appeal from the disposition of the Ontario Review Board, dated November 20, 2024, reported at [2024] O.R.B.D. No. 2519, with Reasons for Disposition, dated December 3, 2024, reported at [2024] O.R.B.D. No. 2520.
Reasons for Decision
Overview
1The appellant has been under the supervision of the Ontario Review Board ("the Board") since he was found to be not criminally responsible on December 23, 2016. He was under a detention order until February 19, 2020, when he was conditionally discharged. On March 17, 2023, a detention order was reinstated. On December 7, 2023, the Board held a restriction of liberty hearing and maintained the previous detention order with conditions that the appellant could live in the community. The appellant was readmitted to the Hospital on October 19, 2023, and has remained in hospital since. On March 5, 2024, the Board held the appellant's annual review and concluded that he remained a significant threat to the safety of the public and that a detention order was the least onerous and least restrictive disposition to manage the risk. The appellant's appeal of this disposition was allowed by this court and a new hearing ordered.
2The appellant argues that in its review of the December 7, 2023 disposition, the Board erred in concluding that he represents a significant threat to public safety and continuing a detention order. He seeks an absolute discharge; alternatively, a conditional discharge, or a new hearing before a differently constituted panel.
3The index offences that occurred in 2016 included threats against his father to burn down his house and to assault one of his brothers by smashing his skull, and later an assault of his brother while purporting to attempt to "arrest him" and saying that he had "guns". When police apprehended the appellant, they found in the trunk of his vehicle a fully operational airsoft rifle resembling a military style AR-15 assault rifle.
4It is unchallenged that since the index offences, the appellant has not engaged in any violent or threatening conduct, even from July 2018 to October 2023, when the appellant lived unsupervised in the community, including with his father from April 2022, and even on the occasions when he has tested positive for cannabis. The Hospital Report indicates that there is no reason to believe that the appellant has had guns in his possession since at least February 19, 2019. The evidence further establishes that the appellant has been entirely compliant with medication taken for his diagnosed condition of schizoaffective disorder, bipolar subtype and has not exhibited a florid episode of his illness since the index offences in 2016.
5The issue that divides the parties is the appellant's chronic addiction to cannabis and the implication of his continued use in relation to the question of significant threat to public safety.
6Since 2016, all the appellant's dispositions have included conditions that he "abstain absolutely from the non-medical use of alcohol or drugs or any other intoxicant" and that he submits urine and/or breath samples to the Hospital "for the purpose of analyzing whether [Mr. Wheeler] has ingested alcohol, drugs or any other intoxicant." Over the years, the appellant has returned frequently to the Hospital, not due to any changes in his mental status, but when he has tested positive for cannabis consumption. While the Hospital noted at his July 2023 admission that the appellant experienced some mental health status changes, such as some grandiosity, irritability and loud speech, at no time did he deteriorate to the state at the time of the index offences, nor did he exhibit any violent or threatening behaviour.
7The appellant maintains the view that he can control his cannabis use and highlights that he has not become violent or threatening over the last nine years nor stopped taking his medication, even though he has continued to use cannabis. He points out that at the time of the index offences he was unmedicated and used methamphetamine, as well as cannabis.
8The appellant's attending psychiatrist, Dr. Naidoo, testified at the most recent hearing held on November 13, 2024 that if the Hospital was unable to bring the appellant back rapidly, at the first signs of psychotic symptoms, his ongoing use of cannabis would very likely result in a full recurrence of his illness, even if he remained adherent to his medication regimen, and that such a recurrence would elevate his risk to public safety to a similar level as at the time of the index offences. As a result, the Hospital would not recommend any disposition but a detention order until the appellant entirely ceases the use of cannabis. As the Board noted in its March 22, 2024 reasons: "If [the appellant] was able to stop using cannabis, he would likely have had an Absolute Discharge by this time." The Hospital's position in this respect was supported by Dr. Naidoo's evidence at the November 13, 2024 hearing that if the appellant remained completely abstinent from cannabis use, he could be discharged in a couple of months.
9The appellant argues that the evidence on the issue of significant threat has essentially not changed since the March 5, 2024 hearing and the Board's March 12, 2024 disposition (Wheeler (Re), [2024] O.R.B.D. No. 495, with reasons dated March 22, 2024 at [2024] O.R.B.D. No. 496) that was overturned by this court on October 3, 2024 (Wheeler (Re), 2024 ONCA 726).
10In its October 3, 2024 reasons, allowing the appeal and remitting the matter for a new hearing, this court set out the deficiencies with the Board's analysis and with the evidence on which it was based. At para. 12, this court stated that it was "unable to discern from the Board's reasons how it concluded, on the evidence as a whole, that the appellant's continued use of cannabis would create a substantial risk of serious harm to the public." Specifically, this court went on to note at paras. 14-15 that"the Board's reasons do not show that it properly considered whether the final step in Dr. Naidoo's cascading risk scenario was supportable on the evidence as a whole", remarking that "Dr. Naidoo does not seem to have squarely addressed what would happen if the appellant continued to use cannabis but also kept taking his prescribed medication, as he had done despite his regular cannabis use since 2020, and which he had not being doing when he committed the index offences." This court articulated the question that the Board should have considered, namely: whether the appellant's continued use of cannabis "presented a foreseeable and substantial risk of physical or psychological harm to members of the public, based on a scenario in which the appellant committed serious criminal conduct resulting in harm that is 'serious and beyond the trivial or annoying'" (citations omitted).
Analysis
11The appellant says that the Board's most recent disposition of November 20, 2024, which is the subject of this appeal, did no more than repackage its March 22, 2024 reasons for its March 12, 2024 disposition to correspond with this court's October 3, 2024 reasons. He argues further that the Board erred in failing to consider the least restrictive order.
12The standard of appellate review under s. 672.78(1) of the Criminal Code, R.S.C. 1985, c. C-46, is uncontroversial. As this court explained in Kalra (Re), 2018 ONCA 833, at para. 38:
This court may set aside an order of the Board only where it is of the opinion 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. [Citations omitted.]
13We agree that neither Dr. Naidoo in his evidence nor the Board in their analysis grappled with this court's directive that they explain how "the appellant's continued use of cannabis would create a substantial risk of serious harm to the public" and how "the final step in Dr. Naidoo's cascading risk scenario was supportable on the evidence as a whole". We also accept that the Board did not meaningfully consider the least restrictive disposition that responded to the appellant's circumstances. The appellant is therefore entitled to a new hearing before a differently constituted panel.
(1) The Board's decision was unreasonable
14We start by noting that the November 13, 2024 hearing was based almost entirely on the previous evidence before the Board. This is significant because it resulted in neither the appellant's treatment team nor the Board meaningfully tackling the appellant's actual circumstances and the issues that this court required them to address.
15Although the Hospital submitted an updated report dated November 7, 2024, other than additional positive drug tests, it is substantially the same as the last report. Importantly, it did not reveal any deterioration in the appellant's mental condition or any incidents of psychological or physical violence or threats of violence.
16The only significant difference between the March 5 and November 13, 2024 hearings was the manner of questioning and the reframing of Dr. Naidoo's answers by the Hospital's counsel who led Dr. Naidoo through his evidence in chief. Specifically, counsel for the Hospital indicated at the outset of Dr. Naidoo's examination in chief that he was "going to … approach this in a slightly different way because the Court of Appeal has ordered this hearing, and I think it behooves us to address the issue that the Court of Appeal set out square." He then pointedly referenced this court's October 3, 2024 reasons for overturning the previous disposition and asked Dr. Naidoo to respond to the particular deficiencies highlighted by this court. Counsel asked leading questions of Dr. Naidoo to frame his answers in specific language and to fill in the gaps identified by this court.
17The following examples suffice to illustrate this point. Confirming that Dr. Naidoo had this court's decision in front of him, counsel for the Hospital proceeded to ask:
In Paragraph 15, about halfway down, sort of money quote from the Court of Appeal begins as follows. "Dr. Naidoo, does not seem to have squarely addressed what would happen if the appellant continued to use cannabis but also kept taking his prescribed medication as he had done despite his regular cannabis use since 2020 and which he had not been doing when he committed the index offence. It may be that the appellant's continued use of cannabis will exacerbate the symptoms of his mental illness. However, the question the Board had to consider was whether this presented a foreseeable and substantial risk of physical or psychological harm to members of the public based on a scenario in which the appellant committed serious criminal conduct resulting in harm that is serious and beyond the trivial or annoying." Speak to us about that.
18Later, counsel asked Dr. Naidoo "[i]s your view that [Mr. Wheeler] is a risk on an Absolute Discharge, or when he continues to use cannabis, of committing serious criminal conduct resulting in harm that is serious and beyond the trivial or annoying?" In closing submissions, counsel went on to say that "respectfully, the hospital and Dr. Naidoo have squarely met in the evidence that they have provided the Board today the, the issue as the Court of Appeal defined it."
19When asked to address this court's concerns with his previous testimony, Dr. Naidoo responded that Mr. Wheeler's ongoing cannabis use, even with medication"would very likely result in full recurrence of his illness and a similar level of risk as he exhibited at the time of the index offence." He briefly commented on a study about the effects of cannabis use on the efficacy of antipsychotic medication and he went on to say that Mr. Wheeler "would represent high risk for high magnitude violence." For comparison, Dr. Naidoo's previous testimony was that Mr. Wheeler's cannabis use is "a significant risk factor for violence" and that it is "highly likely that he would exhibit paranoid beliefs and irritability that would lead to violence to those around him".
20While the Board's management of the hearings before it is entitled to deference, in the particular circumstances of this case, the manner in which Dr. Naidoo was asked to present his evidence meant there was no real grappling with the underlying issues. This also led to the Board failing to meaningfully consider the least restrictive disposition for the appellant.
21As this court instructed in its October 3, 2024 reasons and as the Board noted in its November 13, 2024 reasons, the Board had to determine the issue of whether the appellant was a significant threat to public safety, as defined in s. 672.5401 of the Criminal Code.
22It is well-established that there is no presumption of dangerousness and no burden on the appellant to prove a lack of dangerousness: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 49. There must be evidence of dangerousness that is more than speculative in nature; the threshold for significant risk is "onerous": Winko, at para. 57; Carrick (Re), 2015 ONCA 866, 128 O.R. (3d) 209, at para. 17.
23Moreover, the Board exercises inquisitorial powers and has a general duty to ensure that it has before it and reviews critically the information necessary to apply the criteria of s. 672.54: R. v. Sim (2005), 78 O.R. (3d) 183 (C.A.), at para. 27. This duty was articulated by McLachlin J. (as she then was) writing for the majority in Winko, at paras. 54 and 55:
The system is inquisitorial. It places the burden of reviewing all relevant evidence of both sides of the case on the court or Review Board. The court or Review Board has a duty not only to search out and consider evidence favouring restricting NCR accused, but also to search out and consider evidence favouring his or her absolute discharge or release subject to the minimal necessary restraints, regardless of whether the NCR accused is even present.
As a practical matter, it is up to the court or Review Board to gather and review all available evidence pertaining to the four factors set out in s. 672.54…The court and the Review Board have the ability to do this. They can cause records and witnesses to be subpoenaed, including experts to study the case and provide the information they require.
24The Board's inquisitorial duty requires it to critically examine all evidence, including, but not only, the expert evidence before it. It is not sufficient to simply accept the expert opinion, as the Board did here, without considering the evidence in support or contrary to it. While Dr. Naidoo's expert opinion may have been uncontradicted, in the sense that there was no other expert medical opinion proffered during the appellant's review hearing, the evidence before the Board was contradictory with respect to the issue of significant risk and had to be carefully assessed.
25The Board set out a summary of evidence in support of and contrary to Dr. Naidoo's opinion that the appellant posed a significant risk to public safety. However, it did not engage with this evidence. While it is certainly open to the Board to accept expert opinion on significant risk, it must ensure that it critically examines contradictory evidence for and against that opinion, including the facts of the case and the behaviour of the appellant over time.
26For example, the Board did not reconcile in its reasons the appellant's long history of medication compliance and absence of the recurrence of florid symptoms or problematic conduct while using cannabis with Dr. Naidoo's opinion of significant risk. Nor did the Board grapple with the evidence concerning the timeframe for the emergence of only "subtle symptoms of psychosis" and how that squared with an opinion of significant risk. Dr. Naidoo opined that the appellant would become symptomatic upon increased cannabis use; however, he did not give evidence as to when that would occur if the appellant continued to use medication and appears to have relied heavily on a Swedish theoretical study rather than on the empirical evidence of the appellant's actual circumstances. Moreover, the evidence reflects that the appellant appeared to have been using cannabis for a considerable period of time in the community before his use manifested itself on his urine screens or in anything other than subtle symptoms not anywhere close to those leading to the index offences. As Dr. Naidoo confirmed in his testimony, the appellant's symptoms are so subtle on low dose THC that he would likely not meet the Mental Health Act criteria for detention.
27The Board did not take a fresh look at the appellant's situation in its review of the December 7, 2023 disposition, as it was required to do. Nor did the appellant's treatment team. This narrow approach led to the failure to really grapple with the appellant's chronic addiction to cannabis and, in light of any problematic conduct approaching the index offences, to consider whether the appellant's cannabis use truly represents a significant threat to public safety. That it may not be in the appellant's best interests to continue to use cannabis and that he may become irritable and annoying is not the test: Carrick (Re), at para. 39.
28Accordingly, the Board's decision is unreasonable and must be set aside.
(2) The Board failed to consider less restrictive measures
29If the Board determined that the appellant was a significant threat to public safety, it had to go on and consider the necessary and appropriate disposition in the circumstances having regard to the factors set out in s. 672.54 of the Criminal Code. This analysis requires the Board to consider the least onerous and restrictive disposition having regard to the risk posed by the NCR accused to public safety. As the Supreme Court instructed in Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20, [2004] 1 S.C.R. 498, at para. 3: "the Criminal Code entitles the appellant to conditions that, viewed in their entirety, are the least onerous and least restrictive of his liberty consistent with public safety, his mental condition and 'other needs' and his eventual reintegration into society." The failure of the Board to carry out this analysis is an error of law: Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 SCR 326, at para. 19; Mental Health Centre Penetanguishene v. Magee, 80 O.R. (3d) 436, at para. 63; and Tompkins (Re), 2018 ONCA 654, at para. 24.
30The Board did not meaningfully explore whether, if the appellant's cannabis addiction does amount to a significant threat, any order short of a detention order would be the least restrictive measure necessary to protect the public.
31The Board's conclusion on the issue of the necessary and appropriate disposition is summarized in the paragraphs 29 and 30 of its reasons:
The evidence indicates that the hospital requires the authority of a Detention Order for risk management purposes. Even if [the appellant] were to become a candidate for a conditional discharge, the hospital would need the authority to approve his community residence, to ensure that he is provided with the requisite level of support to monitor his mental state and substance use.
The Board accepts the doctor's uncontroverted evidence that the Mental Health Act would not be sufficient to protect the safety of the public; because of the balance of significant static violence risk variables and ongoing risk variable, [the appellant] is best managed on a Detention Order.
32The difficulty with the Board's conclusion is that it does not completely address Dr. Naidoo's evidence on the issue of conditional discharge, specifically, whether a detention order was needed to bring the appellant back to hospital if his frequency of cannabis use increased and the symptoms of his illness reappeared.
33When questioned by Board members about what would happen if the appellant were granted a conditional discharge, Dr. Naidoo fairly noted that the appellant had not exhibited violence or florid symptoms of his illness when previously in community but expressed his concern that frequency of cannabis use would increase with greater risk for symptom recurrence. Importantly, he agreed that the appellant could be brought back under the Mental Health Act under a conditional discharge but seemed primarily concerned about the inconvenience to the appellant of the increased returns to the hospital:
So, I think overall net, it will be a greater restriction on his liberty to have him on a Conditional Discharge just given the amount of back and forth that will occur. I can foresee calling an early Board to attempt to change the disposition, to, to change the address, for example. So, I think there'd be a lot of disruption to his, potentially, to his day-to-day and his liberty, even not considering the potential, you know, risk to father in the event of his becoming unwell.
34The Board did not critically examine Dr. Naidoo's evidence about the administrative inconvenience of a conditional discharge in light of the question of significant risk to the public. That frequent returns to the hospital may be annoying to the appellant was not the question. The question was whether a detention order was the least restrictive measure to ensure public safety in the face of a finding of significant risk.
35There is no question that the appellant's chronic addiction to cannabis is a very difficult issue. There is also no question that his treatment team has his best interests in mind. However, after all these years, there appears to be an impasse. The appellant wishes to use low dose cannabis; his treatment team believes only total abstinence will remove the significant risk to public safety that they say he poses when he uses any amount of cannabis. Any options but total abstinence and a detention order do not appear to have been practically explored by his treatment team in circumstances where the appellant has been medically compliant, has exhibited no florid symptoms of his illness, has not engaged in any problematic behaviour for years, and has considerable family and community supports.
36The appellant's treatment team should prepare a Hospital Report in time for the new hearing that meaningfully explores these issues.
Disposition
37Accordingly, we allow the appeal and order that there be a new hearing before a differently constituted panel as soon as possible.
"L.B. Roberts J.A."
"D.A. Wilson J.A."
"L. Madsen J.A."