Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210409 DOCKET: C68713

Judges: Hourigan, Zarnett and Coroza JJ.A.

IN THE MATTER OF: Michael Kaminski

AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel: Daniel Medd, for the appellant Madeline Lisus, for the respondent, Attorney General of Ontario Leisha Senko, for the respondent, Person in Charge of the Centre for Addiction and Mental Health

Heard: April 1, 2021 by video conference

On appeal from the disposition of the Ontario Review Board dated July 7, 2020, with reasons dated September 14, 2020.

Reasons for Decision

Overview

[1] The appellant appeals from the disposition of the Ontario Review Board (the “Board”) continuing his conditional discharge. He submits that the Board misapplied the significant threat test and that its decision was otherwise unreasonable. He contends that the Board should have granted him an absolute discharge. For the following reasons, we dismiss the appeal.

Background

[2] On January 26, 2016, the appellant was found not criminally responsible on account of mental disorder (“NCRMD”) on charges of criminal harassment and failure to comply with a condition of judicial release. The index offences arose out of the appellant’s fixation on his art schoolteacher, fueled by auditory hallucinations and delusional thoughts symptomatic of his diagnosis of schizophrenia.

[3] The disposition under appeal continues a positive trend of increased liberty for the appellant. Following the appellant’s initial Board hearing, he was ordered detained within a secure unit at the Centre for Addiction and Mental Health. At the appellant’s first annual review hearing, the Board agreed with the parties’ joint position that the appellant posed a significant risk and crafted a detention order with privileges including community living. After the appellant’s second annual hearing, the Board continued his detention order with community living privileges. At the appellant’s third annual hearing, the Board imposed a conditional discharge with a condition that the appellant live with his parents and report every two weeks. This disposition was based on a joint request by the parties.

[4] At the appellant’s latest hearing, the evidence before the Board included: the hospital’s report; the testimony of Dr. Darby, a forensic consultant; and the appellant’s testimony. Aspects of this evidence were positive, including how the appellant had successfully obtained full-time employment.

[5] However, the evidence also demonstrated that the appellant continued to have limited insight into his mental illness, his need for medication, and the index offences. Dr. Darby explained that the clinical team’s unanimous opinion was that the appellant continued to pose a significant threat to public safety. These concerns were reflected in the appellant’s testimony that he wanted to find a psychiatrist who might discontinue his medication to determine whether he could live without it. He also believed that his mental illness was not permanent.

[6] The Board found that the appellant continued to pose a significant threat to the safety of the public. The Board continued his conditional discharge, while decreasing the reporting period and removing the residence requirement. In reaching their conclusion, the Board emphasized their concerns about the appellant’s lack of insight into his illness and need for medication; the appellant’s plan to find a psychiatrist he could experiment with were he no longer under the Board’s jurisdiction; and the opinions of Dr. Darby and the appellant’s clinical team.

Analysis

[7] Considerable deference is owed to the Board’s determination on whether an NCRMD accused is a significant threat to the safety of the public: Wall (Re), 2017 ONCA 713, 417 D.L.R. (4th) 124, at para. 21; Abdulle (Re), 2020 ONCA 698, at para. 15. The appellant argues that the Board did not clearly explain what evidence in the record led it to conclude that the appellant posed a significant threat. A significant threat to the safety of the public means that there exists a foreseeable and substantial risk of serious physical or psychological harm to individuals in the community: Marmolejo (Re), 2021 ONCA 130, at para. 37; Marchese (Re), 2018 ONCA 307, 359 C.C.C. (3d) 408, at para. 9.

[8] In our view, the Board’s decision is based on an internally coherent, rational chain of analysis and is justified in relation to the facts and the law: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, at para. 85. The Board explained why it believed the appellant posed a significant threat at paras. 44 and 45 of its reasons. This determination was based upon, among other things, the evidence of Dr. Darby, the opinion of the clinical team, the gravity of harm arising from the index offences, and the likelihood of similarly serious harm occurring in the future. The Board explained that these concerns stemmed primarily from the appellant’s lack of insight into his own condition and need for medication, as well as his desire to engage a community psychiatrist who would eventually permit him to discontinue medication. We see no basis to interfere with the Board’s conclusion that the appellant’s plans were not realistic and would result in significant decompensation, creating a significant risk to members of the public. The Board’s decision to continue the appellant’s conditional discharge, while removing the residence requirement and decreasing the reporting obligation, was reasonable.

Disposition

[9] The appeal is dismissed.

“C.W. Hourigan J.A.”

“B. Zarnett J.A.”

“S. Coroza J.A.”