COURT OF APPEAL FOR ONTARIO
Copeland, Gomery and Osborne JJ.A.
IN THE MATTER OF: Robert Jakaj
AN APPEAL UNDER PART XX.1 OF THE CRIMINAL CODE, R.S.C. 1985, c. C‑46
Anita Szigeti, for the appellant
Martin Heslop, for the respondent, Attorney General of Ontario
Heard: June 8, 2026
On appeal against the disposition of the Ontario Review Board, dated October 16, 2025, with reasons dated November 25, 2025.
REASONS FOR DECISION
1The appellant, Robert Jakaj, appeals from the disposition order of the Ontario Review Board dated October 16, 2025. The Board held that the appellant continues to pose a significant threat to the safety of the public and ordered his continued detention at the Forensic Psychiatry Program of St. Joseph’s Healthcare Hamilton (the “Hospital”) with privileges up to and including community living in approved accommodation. He is also required to abstain from substance abuse and refrain from possessing weapons.
2The appellant seeks an absolute discharge, as he did before the Board.
3The appellant is diagnosed with schizophrenia, cannabis use disorder, and cocaine use disorder. He was found not criminally responsible on account of mental disorder (“NCR”) for arson in 2015.
4For the reasons that follow, the appeal is dismissed.
Relevant Legal Principles
5This court may allow an appeal from a disposition order of the Board where it is of the opinion that it is unreasonable or cannot be supported by the evidence; it is based on a wrong decision on a question of law; or there was a miscarriage of justice. The court may dismiss an appeal if none of the above apply, or if the decision is based on a wrong decision on a question of law, but the court finds that no substantial wrong or miscarriage of justice has occurred: Criminal Code, R.S.C., 1985, c. C-46, s. 672.78.
6Absent a legal error or a decision that results in a miscarriage of justice, the court should defer to the Board’s judgment, upholding it if it is reasonable: Carrick (Re), 2015 ONCA 866, 128 O.R. (3d) 209, at para. 22. The Board’s decision will be reasonable where it is supported by reasons that bear a “somewhat probing” examination: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 33.
7The reasonableness review focuses on both the reasoning process and the outcome. The role of courts, as a general rule, is to refrain from deciding the issue themselves. A court applying the reasonableness standard does not ask what decision it would have made in the place of that of the administrative decision-maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision-maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem. Instead, the reviewing court must consider only whether the decision made – including both the rationale for the decision and the outcome to which it led – was unreasonable. A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 83-85.
8To order the continued supervision of an accused found to be NCR, the Board must find that they are a significant threat to the safety of the public. An NCR accused who is not a significant threat must be absolutely discharged, and if the accused is a significant threat, a detention or conditional discharge must be ordered: Code, s. 672.54; Marchese (Re), 2018 ONCA 307, 359 C.C.C. (3d) 408, at para. 6; Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at paras. 48-49 and 57. The paramount consideration is the safety of the public.
9For the purposes of s. 672.54, a significant threat to the safety of the public means a risk of serious physical or psychological harm to members of the public – including any victim of or witness to the offence, or any person under the age of 18 years – resulting from conduct that is criminal in nature, but not necessarily violent: Criminal Code, s. 672.5401.
10For the threat to be significant, there must be a real, foreseeable risk that criminal action leading to harm will occur, and the potential harm must be serious, not merely trivial or annoying: Winko, at paras. 57, 62, 68; R. v. Ferguson, 2010 ONCA 810, 264 C.C.C. (3d) 451, at para. 8.
11No single factor is determinative, but it is open to the Board to place emphasis on the opinion and recommendations of the experts who have examined the NCR accused. As explained in Winko, at para. 62, and McAnuff (Re), 2020 ONCA 676, at para. 17, other relevant factors include, but are not limited to:
a. the past and expected course of the NCR accused’s treatment;
b. the present state of the NCR accused’s medical condition;
c. the NCR accused’s plans for the future;
d. the NCR accused’s insight into the index offence and their mental illness;
e. support services existing for the NCR accused in the community; and
f. the circumstances of the index offence.
12There is no presumption that an NCR accused poses a significant threat to the safety of the public. A past offence committed while the NCR accused suffered from a mental illness is not, by itself, evidence that the NCR accused continues to pose a significant risk to the safety of the public. However, the fact that the NCR accused committed a criminal act in the past may be considered together with other circumstances where it is relevant to identifying a pattern of behaviour and hence to the issue of whether the NCR accused presents a significant threat to public safety: Winko, at para. 62.
13Ultimately, the decision of whether a given individual poses a significant threat to public safety is a judgment call by the Board, drawing on its expertise and requiring it to weigh the evidence. Such a judgment call is one that the Board is especially well-placed to make given “the inherent difficulty of the subject matter and the expertise of the medical reviewers.”: Ahmadzai (Re), 2020 ONCA 169, at para. 18, citing Owen, at para. 40.
14On appeal, the Board’s decision is entitled to deference. The court does not make its own judgment on the significant threat question and use that judgment as the benchmark for assessing the reasonableness of the Board’s decision. Nor does the court re-weigh the considerations that were before the Board: Wall (Re), 2017 ONCA 713, 417 D.L.R. (4th) 124, at para. 21.
Analysis
15We are satisfied that the Board’s finding that the appellant was a “significant threat to the safety of the public” was reasonable.
16As required by Vavilov, the Board’s “reasoning process and the outcome” reflected an internally coherent and rational chain of analysis that was justified in relation to the facts and law: Vavilov, at paras. 83 and 85.
17The appellant submits that the disposition was not reasonably supported by the totality of the evidence since the evidence did not reasonably support a link between the appellant’s incomplete abstinence from substances and a significant threat to the public safety. We disagree.
18As reflected in its reasons, the Board reviewed the appellant’s criminal history in the two years prior to the index offence. It included two convictions for assault, impaired driving, failure to comply with a recognizance, assault of a peace officer, break and enter, failure to comply with conditions of an undertaking, and failure to comply with a probation order. The Board also reviewed the appellant’s psychiatric history prior to the index offence, which included the admitted use of hallucinogens.
19Notably, in April 2014, the appellant was admitted and later discharged from St. Catharines General Hospital, after he had approached his father and described hearing critical messages from the television, with a diagnosis of substance-induced psychosis. In May 2014, he returned to the same hospital, escorted by police, after filing a report to the effect that his father planned to kill his mother. He was admitted once again and found to be experiencing auditory hallucinations as well as paranoid delusions. With medication, his symptoms began to resolve. However, he left the hospital against medical advice, which was concerning, given that there were questions regarding his medication compliance.
20The appellant committed the index offence during a psychotic episode in February 2015, after he had ceased taking his prescribed medication and was using marijuana daily for months. He smashed the interior of the residence where he was living with a sledgehammer and then set fire to his father’s car parked in the garage before leaving the property. The fire destroyed the car and rendered the home uninhabitable. The appellant fled the residence on foot, making no attempt to report the fire, and was subsequently arrested.
21As noted in the Board’s reasons, the appellant provided an inculpatory statement in which he said that he started the fire as the voices in his head told him to do so. The record includes his statement to the effect that he also started the fire to “get even” with his father, whom he believed was going to have an affair with his ex-girlfriend. He described the interior damage to the residence he caused with the sledgehammer as an effort to “redecorate”.
22The reasons reflect the Board’s finding that the appellant has had a variable course under its jurisdiction, the details of which are outlined in the Hospital Report. He has required numerous readmissions to hospital on many occasions since 2014 through November 2020 as a result of substance abuse and acute changes in his mental status.
23In June 2019, the prohibition against using cannabis was removed from the appellant’s disposition, and in July 2020, the Board granted a conditional discharge. Following this, the appellant began using crack cocaine with increasing frequency and quantity. The appellant’s father made concerning reports to the Forensic Outpatient Clinic. Ultimately, the appellant was readmitted to hospital under the Mental Health Act, R.S.O. 1990, c. M.7, but he discharged himself against medical advice when the Form 3 expired. An early Board hearing was requested, and a detention order was reinstated in September 2020.
24As reflected in the Hospital Report summarized in the reasons of the Board, the appellant continued to use cocaine, resulting in readmissions to hospital with an acute change in his mental status. In June 2021, he absconded from the hospital while on an indirectly supervised pass to attend school. He was located at his apartment three days later and police had to return him to the hospital. He was charged with escaping lawful custody and was in breach of his disposition.
25The Board found that in and around this time, the appellant was “deceptive, impulsive, and he exercised poor judgment” and that he was “evasive and reckless by driving under the influence of cocaine and cannabis while unlawfully at large.” He had subsequent relapses to cocaine use in each of 2022, 2023 and 2024. His diagnoses at the time of the decision were listed as schizophrenia, cannabis use disorder and cocaine use disorder. He was, however, considered capable to consent to treatment and capable to manage his property.
26As the Board noted, the appellant’s treatment team members were of the unanimous view that he continued to meet the threshold for significant threat to the safety of the public, particularly if forensic oversight were absent. This was based on the historical and dynamic risk factors, the serious nature of his index offence, and his repeated relapses on cocaine and cannabis which undermined his stability, insight and engagement.
27The Hospital’s Report took the position that a detention order provides the structure, supervision and support that continues to be essential for the appellant’s treatment, rehabilitation and risk management. In the absence of a detention order, or in the event of an unsupervised discharge, the appellant would be at high risk of discontinuing treatment, relapsing into substance abuse, disengaging from services, decompensating psychiatrically, and reoffending to the same or similar degree as his index offence.
28At the Board hearing, Dr. Kolawole, the appellant’s attending psychiatrist for over ten years, further explained why, in his opinion, the appellant met the threshold for significant threat, as outlined in the Hospital Report. The Board accepted this evidence.
29The appellant submits that the Board acted unreasonably when it accepted Dr. Kolawole’s opinion since the opinion amounted to a “cascading risk scenario that does not withstand the ‘somewhat probing examination’ required to determine whether the decision is justifiable, transparent and intelligent.” We reject the submission also.
30The Board accepted Dr. Kolawole’s evidence that the appellant’s substance use was a significant risk factor for relapse of his mental disorder and violence and aggression. Dr. Kolawole testified that the appellant’s substance abuse, especially the use of crack cocaine, directly impacted his mental health and his ability to live safely in the community. He stated that absent the legal framework of a detention order, the appellant had a significant risk of reoffending to the same or similar degree as the index offence. The Board accepted Dr. Kolawole’s evidence that the mechanisms of a detention order together with the quick actions of the hospital are what have prevented the appellant from engaging in threats, further aggression, physical violence, or other criminal behaviour during the time he has been subject to that detention order.
31These findings were entirely reasonable on the record before the Board.
32The appellant also challenges as unreasonable the finding of the Board that he has poor insight into the potential impact that substance abuse has on his mental health and his risk for violence. In support of this submission, the appellant relies on his evidence to the effect that he in fact does have insight into the connection between his substance abuse, mental state and his risk for violence since he acknowledged that he is afraid of the consequences of cocaine and knows the difference between right and wrong. He testified that: “I know that if I continue to use cocaine, that it puts anyone at risk, whether or not they have a mental disorder.”
33The appellant further submitted at the hearing of the appeal that the fundamental underlying issue is substance abuse, and that it was both unreasonable and inappropriate for the Board not to order an absolute discharge. He submitted that the practical result of the decision is that he is left in hospital with no plan for his discharge into the community.
34If the appellant’s substance abuse were the only issue, the decision of the Board might well be unreasonable. However, the record goes well beyond substance abuse, as noted above, and a review of all of the evidence reflects that the disposition was not unreasonable and is entitled to deference.
35The Board accepted Dr. Kolawole’s opinion as to what would occur if the appellant was granted an absolute discharge, to the effect that there was a very high likelihood that the appellant would engage in unfettered use of cocaine and cannabis again, given his recent history of relapse, which would likely lead to acute psychosis, discontinuance of medications, aggression and violence. His opinion was that this would likely occur very rapidly, and he noted the appellant’s significant history of assault toward family prior to the index offence.
36The reasons reflect that the Board carefully considered all of the evidence before it, and the submissions of the parties, against the factors and analysis described in Winko.
37The Board concluded that the appellant had a significant history of violence and criminal behaviour prior to the index offence in the context of his major mental illness and substance abuse. The Board also noted a pattern of increasing substance abuse over time, which was concerning, and that based on the appellant’s history and his current poor insight into the connection between his substance abuse, his mental state and his risk for violence, it accepted that he was at high risk of relapsing into unfettered substance abuse, disengaging from services, decompensating psychiatrically, and engaging in criminal behaviour similar to the index offence. Accordingly, the Board found that a continuation of the existing detention order was the necessary and appropriate, as well as the least onerous and least restrictive disposition for the appellant at that time.
38Finally, the Board concluded that a conditional discharge, let alone an absolute discharge, was not appropriate for the same reasons.
39The Board’s analysis meets the reasonableness standard and reflects no reviewable error. Its findings and the basis for the decision were open to it on the record.
Disposition
40For all of these reasons, the appeal is dismissed.
“J. Copeland J.A.” “S. Gomery J.A.” “P.J. Osborne J.A.”