COURT OF APPEAL FOR ONTARIO
Paciocco, Madsen and Pomerance JJ.A.
IN THE MATTER OF: A.B.
AN APPEAL UNDER PART XX.1 OF THE Criminal Code, R.S.C. 1985, c. C‑46
A.B., acting in person
Russell W. Browne, appearing as amicus curiae
Lilly Gates, for the respondent Attorney General of Ontario
Dominic Lamb, for the respondent Person in Charge of the Brockville Mental Health Centre
Heard: May 11, 2026
On appeal against the disposition of the Ontario Review Board, dated September 17, 2025, with reasons dated November 4, 2025.
REASONS FOR DECISION
1The appellant, A.B., appeals a September 17, 2025, disposition of the Ontario Review Board that ordered his continued detention at the Secure Forensic Unit of the Brockville Mental Health Centre, with conditions permitting the person in charge to allow him various privileges, including "to live in the community of Eastern Ontario in accommodation approved by the person in charge."
2With the assistance of amicus, the appellant argues that the Board's findings that he remained a significant threat to the safety of the public, and that a continuation of his detention order was the least onerous and least restrictive disposition that could manage his risk, were unreasonable decisions that cannot be supported by the evidence. In his oral submissions, the appellant emphasized the unreasonableness of the disposition, claiming that the only reason he was not discharged into the community was the administrative unavailability of accommodation rather than his risk to the community.
3We must dismiss the appeal. Deference is owed to Board decisions if they are internally coherent, demonstrate a rational chain of analysis, and are justified in relation to the facts and the law: Sim (Re), 2020 ONCA 563, at paras. 67-68. We are persuaded that based on a probing examination of the record and reasoning, the Board's determination that the appellant continues to pose a significant threat to the safety of the public is a reasonable one, available both on the law and the evidence. Its decision that a continued detention order reflects the least onerous and least restrictive appropriate disposition is also reasonable. To be clear, these outcomes are each debatable, but they were conclusions open to the Board. It is not for us to interfere with the Board's decision. We therefore dismiss the appeal.
4By way of background, at the time of the disposition, the appellant was diagnosed with Post-Traumatic Stress Disorder, Persistent Depressive Disorder, and Cluster B Personality Disorder (anti-social and/or borderline personality disorders) after a lifetime of psychiatric difficulties. He has a history of aggression that has culminated in physical violence in the past, including against other hospital residents. There is also a pattern of the appellant verbally threatening others that, while it was reduced in frequency during the review period, continued during the review period.
5The Board also had evidence before it of the details of the serious index offence that led to the 2006 finding that he was Not Criminally Responsible, which resulted in the appellant's continued detention in psychiatric hospitals for all but a brief six-month period of his adult life. That brief six-month interlude occurred in 2010, when the appellant was permitted to live in supportive housing in the community, and ended when the appellant threatened his community nurse with a hunting knife, an incident that resulted in his conviction for uttering threats.
6There was also evidence before the Board that the appellant had a long-standing sexual interest in pre-pubescent females, including proof of his conviction in December 2021 for possession of child pornography2 while detained in a hospital and his continued acknowledgement of his sexual interest.
7Against this general backdrop, there was significant evidence favourable to the appellant's claim that he no longer presents a significant risk to the public, including the following. First, the appellant does not have a psychotic illness and does not require psychiatric medication. Second, during most of the review period, he lived in the least restrictive unit of the hospital and accessed the community appropriately when granted the privilege of doing so, including when indirectly supervised. Third, the appellant's treating psychiatrist, Dr. Gray, confirmed that the appellant had done "relatively well"/"reasonably well" since the last disposition, without incidents of physical violence. That finding is tempered by Dr. Gray's evidence that despite his "good progress" during the review period, the appellant continued to suffer, albeit less frequently than before, from a low frustration threshold and a tendency to engage in verbal aggression with little provocation.
8Amicus submitted on behalf of the appellant that in coming to its decision, the Board "improperly relied on [his] history and failed to properly consider his condition at the time of the hearing." He argued that the Board did not give proper weight to the fact that there had been no physical violence for several years and that the appellant had exercised indirectly supervised privileges without problems. We are not persuaded that the Board ignored this evidence. It not only described the gains the appellant has made but also commended him for his improvements. What evidently drove the Board's decision that he remained a significant threat was an extensive "psychological risk assessment" that was included in his hospital report, as well as Dr. Gray's opinion and testimony.
9With respect to the risk of physical violence, that evidence showed that the concerning level of aggression that led to past acts of physical violence remained. The psychological risk assessment concluded, based on testing that had been performed, current circumstances, and the appellant's history, that his risk of violent recidivism under his current level of supervision is moderate, but if released into the community without conditions of supervision that risk would increase to "moderate-high".
10Dr. Gray also concluded that the risk that the appellant would engage in non-sexual violence, although currently well managed"remains moderate to high". To be sure, Dr. Gray's focus was decidedly on the risk of threatening behaviour rather than direct physical violence. However, the Board accepted Dr. Gray's testimony that "If [the appellant] were very upset and angry and screamed at or threatened someone, they might experience psychological harm because they feared him." The Board recognized that it was their role to make that ultimate determination, and it is evident from the decision that this assessment was accepted.
11The appellant was critical of this conclusion in his oral submissions, arguing that it was speculative, and that aggression that simply causes fear is not a foundation for a substantial risk conclusion. The concerns he raises warrant attention. In our view, to avoid disproportionate outcomes and speculation about the psychological impact that non-physical aggression may have, the Board must exercise caution before finding a substantial risk of serious psychological harm based on screaming and threatening. But in this case, the Board recognized explicitly that to meet this standard, the conduct giving rise to the risk must be criminal: see Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 57. This, of course, would confine the relevant risk to threats of bodily harm or death, including threats with a weapon. Although the Board did not describe the incidents it was considering (which it would have been better to have done) it also had evidence before it that the appellant's problems with aggression continued during the review period, and that his history of aggression included at least two extreme incidents of criminal threatening accompanied by weapons. Seen in this broader evidentiary context, we take the Board to have accepted that the risk it apprehended was that the appellant could engage in criminally threatening behaviour that would be of sufficient intensity to bear realistic potential to give rise to a substantial risk of serious harm to the public.
12There was also evidence that the appellant posed varying degrees of risk of serious harm to the public by sexually offending against children. The appellant was at a significant risk of sexually offending against children by accessing child sexual abuse and exploitation material ("CSAEM") online. Though there was a lower risk of the appellant physically sexually assaulting children, it nevertheless existed. Although Dr. Gray described the risk of sexual contact against children as "low" and said he believed it could be managed in the community indirectly supervised, he recommended that the appellant "should not be permitted to take on volunteer opportunities or employment involving access to underaged females." I do not read his evidence or the Board's decision as accepting that there was no risk of serious harm relating to the physical abuse of children and without question, the Board accepted that there was a risk that he could cause serious harm to children by accessing CSAEM.
13Finally, the appellant has been institutionalized virtually all his adult life. Dr. Gray was adamant that given his history, the risks he presented needed to be controlled by conditions when he was in the community.
14In this context, although the substantial risk finding is arguable, it was not unreasonable for the Board to make the finding that it did.
15The Board's decision to continue the appellant's detention order was also reasonable. It accepted the direct opinion of Dr. Gray that the existing detention disposition was the least onerous and least restrictive disposition to manage the appellant's risk, given that he has been in hospital since he was 17, save for a brief period, and that his release required "a gradual transition to ensure that it is successful." After recognizing that the paramount consideration is safety of the public, the Board loosened the condition that authorizes the person in charge to permit the appellant to live in the community while under the detention disposition to allow community living anywhere in the broader community of Eastern Ontario.
16We see no basis for interfering with the disposition the Board imposed. It had a coherent basis for reaching this conclusion and ensured that there were conditions attached to the detention disposition that would make it as unrestrictive as possible.
17The appeal is dismissed.
"David M. Paciocco J.A."
"L. Madsen J.A."
"R. Pomerance J.A."
Footnotes
- This appeal is subject to a publication ban under ss. 110 and 111 of the Youth Criminal Justice Act, S.C. 2002, c. 1.
- As a result of An Act to amend the Criminal Code and to make consequential amendments to other Acts (child sexual abuse and exploitation material), S.C. 2024, c. 23, the term "child pornography" was replaced with "child sexual abuse and exploitation material" in the Criminal Code. We use the term "child pornography" because that was the term used at the time of the appellant's conviction.