Court of Appeal for Ontario

Date: 2024-10-03 Docket: COA-24-CR-0333

Before: Fairburn A.C.J.O., Gillese and Dawe JJ.A.

In the Matter of: Alexander M. Wheeler

An Appeal Under Part XX.1 of the Code

Counsel: Anita Szigeti, for the appellant Maria Anghelidis, for the respondent, the Attorney General of Ontario No one appearing for the respondent, the Person in Charge of St. Joseph’s Healthcare Hamilton.

Heard: September 12, 2024

On appeal from the disposition of the Ontario Review Board, dated March 12, 2024, with reasons dated March 22, 2024.

Reasons for Decision

[1] On December 23, 2016, the appellant was found not criminally responsible on account of mental disorder after a series of incidents in which he made threats against one of his brothers, threatened to burn down his father’s house, and later assaulted his brother while purporting to attempt to “arrest” him.

[2] The appellant has been diagnosed with schizoaffective disorder, bipolar subtype. At the time of the index offences he was using cannabis and had used other drugs. He had also been off his medication for some time.

[3] From July 2018 to October 2023 the appellant lived in the community, although he was voluntarily readmitted to hospital a number of times. He received a conditional discharge on February 19, 2020. Shortly thereafter he began to test positive for cannabis, and did so for much of that year. He was voluntarily readmitted to hospital between November 17 and December 9, 2020 to help curb his use of cannabis. Together with his treatment team, the appellant began a “harm reduction” approach. In April 2022, the appellant moved to his father’s home where he helped him with chores on the large property.

[4] In October 2023, the appellant was readmitted to the hospital due to his ongoing cannabis use. His treatment team noted some changes to his mental state around this time. On December 7, 2023, a restriction of liberty hearing was held, at which time the Board changed his disposition to a detention order, with privileges up to and including living in the community in approved accommodation, as well as passes for up to seven days indirectly supervised in the community of southern Ontario. The appellant’s annual review was held on March 5, 2024, at which point a different panel of the Board concluded that he remained a significant threat to the safety of the public and that a detention order was the least onerous and least restrictive disposition to manage the risk.

[5] The appellant appeals from this latter disposition. We would allow the appeal and remit the matter to be reheard by a differently constituted panel of the Ontario Review Board.

[6] Under s. 672.54(a) of the Criminal Code, R.S.C. 1985, c. C-46, the Board was obliged to consider whether discharging the appellant absolutely would present a “significant threat to the safety of the public”. As Doherty J.A. explained in R. v. Ferguson, 2010 ONCA 810, 264 C.C.C. (3d) 451, at para. 8:

The meaning of the phrase “significant threat to the safety of the public” has been authoritatively set down in Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at paras. 49-62, 69. The phrase refers to a foreseeable and substantial risk of physical or psychological harm to members of the public that is serious and beyond the trivial or annoying. A very small risk of even grave harm will not suffice. A high risk of relatively trivial harm will also not meet the substantial harm standard. While the conduct must be criminal in nature, not all criminal conduct will suffice to establish a substantial risk. There must be a risk that the NCR accused will commit a “serious criminal offence”.

Doherty J.A. explained further, at para. 3, that:

Unless the Review Board could be satisfied that the appellant’s conduct would pose that threat, the Review Board was obliged to absolutely discharge the appellant regardless of the negative effect that order might have on both the appellant’s ability to function in society and health care professionals’ ability to treat the appellant.

[7] The foreseeable risk of harm to the public cannot be based upon mere speculation, but must be rooted in evidence that satisfies the Board that the appellant is not an appropriate candidate for an absolute discharge: Carrick (Re), 2015 ONCA 866, 128 O.R. (3d) 209, at paras. 16-17.

[8] The appellant contends that the Board’s conclusion that he remains a significant threat to the public was unreasonable and unsupported by the evidence.

[9] The contention that the appellant presents a significant threat to the safety of the public is based entirely on his ongoing cannabis use. In his evidence before the Board, the appellant’s attending psychiatrist, Dr. Naidoo, explained:

It's well known in the literature that patients with bipolar spectrum illnesses are subject to exacerbations of illness, mania and psychosis in the context of cannabis use. And that's true of greater potencies of THC versus lower potencies. So, for Mr. Wheeler, the team's view is that, left unchecked, regular use of cannabis with likely increasing strains would likely result in an exacerbation of his illness; would result in symptoms of mania and of psychosis. He has fair insight into his symptoms of mania. He has partial insight into his symptoms of psychosis. And under those circumstances, it's highly likely that he would, he would exhibit paranoid beliefs, irritability that would lead to violence to those around him. So, the treatment team's view is that, down the line, left unchecked, it's highly likely that cannabis use ongoing will result in Mr. Wheeler deteriorating and then becoming aggressive or violent.

[10] As the Board noted in its reasons, the hospital’s position at the hearing was that “[i]f [the appellant] was able to stop using cannabis, he would likely have had an Absolute Discharge by this time.”

[11] The Board came to the conclusion, based upon the evidentiary record, that the appellant will continue to use cannabis. Indeed, this is not in dispute. On the appellant’s own account, as well as on the fresh evidence filed on consent, the appellant has been using cannabis, and is continuing to use cannabis. The Board also came to the conclusion, based upon the evidentiary record, that the appellant’s cannabis consumption will likely cause him to experience some side effects, such as changes in mood, irritability, unsteady posture, grandiosity and impulsive ideation.

[12] What the Board’s reasons do not adequately explain is how it concluded that the legal test for continuing the appellant’s detention was met. We are unable to discern from the Board’s reasons how it concluded, on the evidence as a whole, that the appellant’s continued use of cannabis would create a substantial risk of serious harm to the public.

[13] The Board recognized that the evidence showed that the appellant has been using cannabis regularly for years, including for much of the eight years he has been in the ORB system, and that his consumption appears to be increasing. However, the Board also recognized that the appellant “has good insight into his mental illness and the need for medication”, and that the evidence was that for the past eight years he “has always been adherent to his medication.” Apart from the index offences, which were committed over a few weeks in the summer of 2016, the appellant has no history of violence other than a dated conviction for common assault in 2006, when he was 20 years old. Members of the appellant’s treatment team have observed “mental status changes” that they attribute to his cannabis use, and which Dr. Naidoo interpreted “as potential signs of [his] schizoaffective disorder flaring up”. However, the appellant has not made any threats or exhibited any violent behaviour, other than a single incident in the summer of 2021 when he threatened his older brother during an argument about his increased substance use. His treatment team noted that the appellant had “experienced significant stress during the summer months” due to the unexpected death of his younger brother, followed by the death of his mother, and he was voluntarily readmitted to hospital shortly after this incident.

[14] The Board recognized that the appellant “has not engaged in any violence or deteriorated to the point of actually threatening the safety of the public in the past years”, but concluded that this was only “because of the intervention of the treatment team when he has been using cannabis.” The Board appears to have concluded further that the appellant’s detention will remain necessary until he “gain[s] insight into the negative impacts of cannabis use on him to the point that he will be able to remain abstinent once returned to the community.” However, the Board’s reasons do not show that it properly considered whether the final step in Dr. Naidoo’s cascading risk scenario was supportable on the evidence as a whole.

[15] Dr. Naidoo initially testified that he believed the appellant’s cannabis use would have caused his mental condition to worsen to the point of his acting violently but for the treatment team’s intervention. However, he later explained that his concern about the appellant being granted an absolute discharge was that the appellant would “fall through the cracks” and become “unable to get medication.” Dr. Naidoo does not seem to have squarely addressed what would happen if the appellant continued to use cannabis but also kept taking his prescribed medication, as he had done despite his regular cannabis use since 2020, and which he had not been doing when he committed the index offences.

[16] It may be that the appellant’s continued use of cannabis will exacerbate the symptoms of his mental illness. However, the question the Board had to consider was whether this presented a foreseeable and substantial risk of physical or psychological harm to members of the public, based on a scenario in which the appellant committed serious criminal conduct resulting in harm that is “serious and beyond the trivial or annoying”: Ferguson, at para. 8. We are unable to discern from the Board’s reasons how the Board concluded that this test was met.

[17] We would accordingly allow the appeal, set aside the March 12, 2024 disposition, and remit the matter to the Board for a new hearing as soon as possible before a differently constituted panel.

“Fairburn A.C.J.O.”

“E.E. Gillese J.A.”

“J. Dawe J.A.”