Court of Appeal for Ontario
Date: 2019-07-04 Docket: C66056
Justices: Sharpe, Brown and Roberts JJ.A.
In the Matter of: Brandon Mott
An Appeal Under Part XX.1 of the Code
Counsel:
- Dean F. Embry, for the appellant
- Linda Shin, for the respondent, Attorney General of Ontario
- Julie A. Zamprogna, for the respondent, Southwest Centre for Forensic Mental Health Care St. Joseph's Health Care London
Heard: June 18, 2019
On appeal from: The October 3, 2018 disposition of the Ontario Review Board, with Reasons for Disposition dated October 15, 2018.
Reasons for Decision
[1] On October 28, 2014, the appellant was found not criminally responsible ("NCR") for the offence of theft under $5,000, which occurred on August 5, 2013. In the early hours of the morning, he entered into the complainants' residence while they were asleep, moved around papers and took a cigarette and a lighter. When confronted by one of the complainants, he fled.
[2] The appellant has been under the Ontario Review Board's supervision since October 21, 2014. The trial judge granted him a conditional discharge directly after his trial. He lived in the community until July 9, 2015, when the Board ordered him detained at the respondent facility. The diagnosis of his mental illness includes schizophrenia, anti-social personality disorder and substance abuse disorder. He has been found incapable of consenting to treatment and his mother is his substitute decision maker.
[3] The appellant appeals from the Board's most recent disposition. He submits that the Board erred in ordering his continued detention because there was no evidence that he poses any significant risk of physical or psychological violence to the public. In particular, the appellant argues, there is no evidence that the appellant has been violent or engaged in violent ideation for several years, including the last review period. According to the appellant, he should be granted an absolute discharge or a new hearing.
[4] We disagree.
[5] It is well-established that there is no presumption that an NCR accused poses a significant threat to the safety of the public and that restrictions on his liberty can only be justified if, at the time of the hearing, the evidence before the Board shows that he actually constitutes such a threat: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.J. No. 31, at para. 62. In our view, there was ample evidence to support the Board's finding that the appellant posed a significant threat to the safety of the public.
[6] In determining that the appellant posed a significant threat to the safety of the public and that a detention order was the least onerous disposition, the Board did not simply focus on the appellant's mental illness as determinative but, rather, in accordance with s. 672.54 of the Criminal Code, R.S.C. 1985, Chap. C-46, it conducted a broad inquiry, including the myriad factors suggested by the Supreme Court in Winko, at para. 61:
[T]he circumstances of the original offence, the past and expected course of the NCR accused's treatment if any, the present state of the NCR accused's medical condition, the NCR accused's own plans for the future, the support services existing for the NCR accused in the community and, perhaps most importantly, the recommendations provided by experts who have examined the NCR accused.
[7] In particular, the Board examined the appellant's serious history of mental health and substance abuse issues, his lengthy criminal record, including assault, break and enter, and failures to comply, his paranoid and aggressive behaviour while in detention at the respondent facility, his resistance to treatment, including medications, his moderate to high risk scores on risk assessment tests, his breach of hospital rules, including attempting to abscond, and his lack of insight into the index offence, his condition and his need for treatment. The Board accepted the opinion of the appellant's treating psychiatrist that the appellant posed a significant threat to public safety based on these factors.
[8] We do not accept the appellant's submission that the absence of violent behaviour on his part eliminates the risk of significant harm to the public.
[9] First, s. 672.5401 of the Criminal Code provides that "a significant threat to the safety or the public means a risk of serious physical or psychological harm to members of the public … resulting from conduct that is criminal in nature but not necessarily violent."
[10] Further, the absence of a significant or recent history of violence by itself is not determinative of whether an NCR accused poses a significant threat to the safety of the public: evidence of the potential for physical or psychological violence, such as a lack of insight into the index offence and mental illness, rule breaking and concerns over discontinuing medication and substance abuse, which could result in decompensation, psychosis and problematic conduct, like in the present case, may support such a finding: see, for example: Abdikarim (Re), 2017 ONCA 793, at paras. 6-7, 15, 16; Beam (Re), 2018 ONCA 532, at paras. 5-9. Moreover, as the appellant's treating psychiatrist testified, the respondent facility forestalled through immediate intervention in a structured environment the threat of violence the appellant posed by his aggressive conduct towards hospital staff.
[11] While the appellant has been ill, the appellant's treating psychiatrist is hopeful that his new medication will improve his mental state and behaviour on the unit, and that his substance use disorder will be addressed in a concurrent disorder program in the coming year. According to his treating psychiatrist, if the appellant continues treatment and addresses the substance use and personality disorder risk factors, community living could be discussed as a possibility.
[12] In our view, the Board's disposition was reasonable and the least onerous in the circumstances of this case. We see no error that would justify appellate intervention.
[13] Accordingly, we dismiss the appeal.
"Robert J. Sharpe J.A."
"David Brown J.A."
"L.B. Roberts J.A."