Court of Appeal for Ontario

Date: October 7, 2019 Docket: C66396

Justices: Juriansz, Pepall and Roberts JJ.A.

In the Matter of: Erick Krist

An Appeal Under Part XX.1 of the Criminal Code

Counsel

For the Appellant: Anita Szigeti

For the Respondent, Attorney General of Ontario: Sean Horgan

For the Respondent, Centre for Addiction and Mental Health: Kathryn Hunt

Hearing and Decision

Heard: September 17, 2019

On Appeal From: The December 28, 2018 disposition of the Ontario Review Board, with reasons dated January 14, 2019.

Reasons for Decision

Background and Disposition Under Appeal

[1] The appellant appeals from the Ontario Review Board's ("Board") most recent disposition that he be detained at the General Forensic Unit of the Centre for Addiction and Mental Health ("CAMH"), but with the ability to live in the community in approved accommodations, in CAMH's discretion.

[2] On December 1, 2004, the appellant was found not criminally responsible ("NCR") for the offences of sexual assault against his roommate's girlfriend and breach of probation. At the time of the index offences, the appellant was bound by two separate probation orders in relation to 2002 and 2003 convictions involving threats against his family members and an assault against his former girlfriend.

[3] The appellant has been under the Board's supervision since December 1, 2004. The appellant has been subject to a detention order ever since, except for two occasions when the appellant was granted conditional discharges in October 2009 and December 22, 2017.

Appellant's Mental Health and Treatment History

[4] The diagnosis of the appellant's mental illness includes schizoaffective disorder (bipolar subtype); stimulant use disorder; cannabis use disorder in partial remission; and specified personality disorder (narcissistic and antisocial personality traits). He does not accept this diagnosis. While he is capable of consenting to treatment, he has not been consistently compliant with his medications or other treatment recommendations. He has often expressed the view that if he were absolutely discharged, he would discontinue his medications and treatments.

[5] Over the past 15 years, the appellant has experienced ups and downs: he has successfully operated his own businesses and attended university courses towards a degree; but has often struggled with his cocaine addiction and his living arrangements, which have resulted in breaches of his detention and conditional discharge orders.

Appellant's Arguments

[6] The appellant submits that the Board erred in failing to continue the December 22, 2017 conditional discharge order 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 engaged in any criminal, violent, aggressive or threatening behaviour in the last 15 years. According to the appellant, he should be granted an absolute discharge. In the alternative, the appellant submits that a conditional discharge with his new residential address that he provided at the hearing of the appeal would be the least onerous and least restrictive, and the most appropriate disposition. In the further alternative, the appellant requests that the matter be returned to the Board for a re-hearing.

Court's Preliminary Position

[7] For the reasons that follow, we disagree that the Board erred in concluding that the appellant continues to pose a significant threat to the safety of the public and in determining that a detention order was the least onerous and least restrictive, and the most appropriate disposition in the circumstances of this case.

Analysis: Significant Threat to Public Safety

Legal Framework

[8] There is no question of the analysis that the Board was required to undertake under section 672.54 of the Criminal Code. As this court most recently explained in Sheikh (Re), 2019 ONCA 692, at para. 34:

An NCR accused is entitled to his liberty absent a reasonable finding that he constitutes a significant threat to the safety of the public: Wall (Re), 2017 ONCA 713, 417 D.L.R. (4th) 124. A significant threat is defined in s. 672.5401 of the Criminal Code as "a risk of serious physical or psychological harm to member of the public ... resulting from conduct that is criminal in nature but not necessarily violent." There must be a risk that the NCR accused will commit a serious criminal offence, and a minuscule risk of grave harm is not sufficient: R. v. Winko, [1999] 2 S.C.R. 625, at paras. 57, 69. The significant threat must be more than speculative and supported by evidence: Winko, at para. 57. That is, there must be both a likelihood of a risk materializing and the likelihood that serious harm will occur: Re Carrick, 2015 ONCA 866, 128 O.R. (3d) 209, at para. 16.

Board's Finding Not Speculative

[9] We are of the view that it was open to the Board on the evidence before it to conclude that the appellant continues to pose a significant threat to the safety of the public. We do not accept that the Board's finding was speculative: as stated in its reasons, the Board unanimously found that the appellant "continues to pose a significant threat to the safety of the public" (emphasis added). We also disagree with the appellant's submissions that the Board allowed certain factors, such as his psychiatric diagnoses, lack of insight into his illness or chronic substance abuse, to overwhelm its analysis. The Board's reasons demonstrate that it considered all the relevant factors and conducted an even-handed review of the evidence. As such, the present case is distinguishable from Sim (Re), 2019 ONCA 719 and Sheikh (Re) on which the appellant relies, where the Board erred in its analysis.

Winko Factors

[10] As required under s. 672.54 of the Criminal Code, the Board conducted a broad inquiry, including the constellation of factors reviewed by the Supreme Court in Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 61:

the 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.

Board's Comprehensive Analysis

[11] In determining that the appellant continues to pose a significant threat to the safety of the public, the Board referenced the absence of any violent behaviour over the last 15 years and did not simply focus on the appellant's mental illnesses, lack of insight or substance abuse as determinative of this inquiry. In particular, the Board examined the appellant's long history of mental health and substance abuse issues, his criminal record, including the index offences, the 2002 convictions involving threats against his family, as well as the other convictions for assaultive offences against former partners dating back to 1999, his resistance to treatment, including medications, his lack of insight into the index offences, his present condition and his need for treatment. The Board accepted the unequivocal opinion of the appellant's treating psychiatrist, Dr. R. Ulrich, that the appellant continues to pose a significant threat to public safety based on these factors.

Absence of Violent Behaviour Not Determinative

[12] We agree that the absence of violent behaviour on the appellant's part is important and commendable. As evident from the references to it in its reasons, the Board took this significant factor into account in its consideration of all factors relevant to its assessment of significant risk. However, the absence of violent behaviour by the appellant does not serve by itself to eliminate the risk of significant harm to the public.

[13] First, s. 672.5401 of the Criminal Code provides that "a significant threat to the safety of 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."

[14] Second, the appellant's abstention from criminal or violent acts is not singularly determinative of whether he poses a significant threat to the safety of the public. As the Supreme Court observed in R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 65: "Part XX.1 of the Criminal Code is designed to take measures to protect the public safety before violence occurs, not (as in the ordinary case) to punish the offender afterwards."

[15] Evidence of the potential for physical or psychological violence, such as a lack of insight into the index offences and mental illness, and concerns over discontinuing medication and substance abuse, which could result in decompensation and psychosis, like in the present case, may support a finding of significant risk to the public: see e.g., Abdikarim (Re), 2017 ONCA 793, at paras. 6-7, 16; Beam (Re), 2018 ONCA 532, at paras. 5-9; and Mott (Re), 2019 ONCA 560, at para. 10.

[16] As a result, we find no error in the Board's conclusion that the appellant continues to pose a significant threat to the safety of the public.

Analysis: Appropriateness of Disposition

Appellant's Submissions on Disposition

[17] The appellant submits that the Board erred in determining that a detention order was the least onerous and least restrictive disposition by unduly focussing on CAMH's requirement that it approve his residence. In particular, it failed to consider this requirement together with the unchallenged evidentiary record as to how the appellant has fared when he has lived in the community over the last 15 years' abstention from violence and the inappropriateness of CAMH's choice of residence for the appellant when he spent five years housed with other substance users.

Court's Rejection of Appellant's Submissions

[18] We do not accept these submissions.

[19] As reflected in its November 10, 2018 report, CAMH's initial position was that the appellant should be conditionally discharged with a specified address. In its December 4, 2018 addendum, CAMH explained that it changed that position to a recommendation of a detention order with community living privileges in approved accommodations because of material changes in the appellant's circumstances since its November 10th report. Most importantly, the appellant had agreed to vacate his approved residence without securing an alternative residence, suffered significant further relapse into drug abuse, could not control or manage his cocaine addiction on his own, and showed some resistance to accepting treatment.

[20] The appellant's residence is a relevant consideration in determining how the significant risk he poses to the safety of the public can be properly managed in the community: Munezero (Re), 2017 ONCA 585, at para. 9. The appellant did not consent to the approval of his residence and, without a detention order, CAMH had no control over the appellant's choice of residence. In our view, the uncertainty of the appellant's living arrangements, combined with his further spiral into uncontrolled substance abuse, supported the reasonableness of the Board's determination that a detention order with community living privileges was the least onerous and least restrictive, and the most appropriate disposition.

Conclusion

[21] As a result, we find no error in the Board's disposition. The Board's decision was supported by reasons that can bear even a somewhat probing examination and was within the range of reasonable, possible outcomes: Owen, at para. 33; Carrick (Re), 2015 ONCA 866, 128 O.R. (3d) 209, at paras. 20-26. As a result, there is no basis for appellate intervention.

[22] Accordingly, we dismiss the appeal.

Closing Remarks

[23] In closing, we are advised that the appellant has secured a new residence and appears to have regained stability. That, coupled with the appellant's abstention from re-offending and violence while he has lived, studied and worked in the community, are commendable and bode well for his imminent annual hearing before the Board.

R.G. Juriansz J.A.

S.E. Pepall J.A.

L.B. Roberts J.A.