Her Majesty the Queen v. Nakhostin-Ansari et al. [Indexed as: R. v. Nakhostin-Ansari]

73 O.R. (3d) 478

[2004] O.J. No. 4642

Docket: C41486

Court of Appeal for Ontario,

Weiler, Simmons, Juriansz JJ.A.

November 12, 2004

Criminal law -- Mental disorder -- Dispositions -- Elderly accused found not criminally responsible after killing his wife while under delusion she was trying to poison him -- Review board finding that accused not posing significant threat to public safety and granting absolute discharge -- Crown appeal allowed -- Evidence indicating that accused continued to pose significant threat as poorly motivated to continue medication and showed no insight into his mental disorder -- Review board unreasonably basing conclusion largely on accused's frail physical appearance at hearing and failing to reconcile that impression with medical evidence -- Crown appeal allowed.

The elderly accused was charged with second degree murder after killing his wife while under the delusion that she was trying to poison him. He was diagnosed with a delusional disorder, persecutory type, with differential diagnosis of psychotic disorder and major depressive disorder, severe with psychotic features. He was found not criminally responsible. The Ontario Review Board granted the accused an absolute discharge. The majority doubted that the accused posed a significant threat to the safety of the public. The two medical members dissented. The Crown appealed.

Held, the appeal should be allowed.

The Board's finding that the accused no longer represented a significant threat to the safety of the public was unreasonable and not supported by the evidence, which indicated that the accused had no appreciation of his illness and was poorly motivated to continue to take his medication, and as a result continued to represent a significant risk to the community. The majority did not dispute the identified risk factors, but rather arrived at their conclusion based on their assessment of the accused's physical presentation at the hearing, without reconciling that assessment with the medical evidence that had been presented. That approach was unreasonable. [page479]

APPEAL from a decision of the Ontario Review Board, dated February 25, 2004, granting an absolute discharge.

Riun Shandler, for the Crown, appellant. Anthony Paas, for respondent. Janice Blackburn, for the Centre for Addiction.

[1] Endorsement BY THE COURT: -- The Crown appeals the decision of the Ontario Review Board dated February 25, 2004, granting the respondent an absolute discharge.

[2] On August 7, 2001, the 81-year-old respondent killed his wife by repeatedly stabbing her in the chest, apparently under the delusion that she was trying to poison him. He was charged with second degree murder and found not criminally responsible on December 4, 2002. The respondent had no prior criminal record. He had, however, been hospitalized on one occasion prior to the murder in February 2001 following a suicide attempt. Moreover, at the time of his trial, the respondent had been diagnosed with a delusional disorder, persecutory type with differential diagnosis of psychotic disorder and major depressive disorder, severe with psychotic features.

[3] The majority of the Board noted that they were "impressed with the age of the elderly accused and his frailty" and that they were therefore "in doubt that [the respondent] poses a significant threat to the safety of the public". In light of that finding, the majority of the Board granted the respondent an absolute discharge.

[4] The two medical members of the Board dissented from the majority's reasoning, indicating that in their view the respondent continued to pose a significant threat to the safety of the public and therefore should be the subject of an ongoing detention order. The minority noted that the respondent showed no insight into his illness, had no explanation for his violent behaviour and was unable to connect his illness to the index offence. The minority also pointed out that the respondent's actuarial assessment was incomplete.

[5] We accept the Crown's submission that the Board's finding that the respondent no longer represents a significant threat to the safety of the public was unreasonable and not supported by the evidence.

[6] The hospital report filed on the hearing indicated that "[i]n the context of the respondent's poor motivation to continue with medications and resultant probability of return to psychosis and ... violent re-offence, ... he continues to represent a significant risk to the community." In testimony before the [page480] Board, Dr. Swayze confirmed this assessment and in addition testified that the respondent continues to pose a significant threat because he showed no appreciation whatsoever of his illness and showed no awareness or understanding of the need for medications either acutely or in the long term. Further, in response to a question concerning whether the respondent was so frail that he would be unlikely to commit an act of violence as extreme as the one that had occurred two and one-half years ago, Dr. Swayze said, "[i]f he was psychotic and had access to a weapon, I believe he would re-offend, yes, absolutely.["]

[7] In reaching its conclusion, the majority of the Board did not dispute the risk factors that had been identified concerning the respondent. Rather, the majority arrived at its conclusion based on their assessment of the respondent's physical presentation at the hearing and without reconciling their assessment with the medical evidence that had been presented. In our view, this approach was unreasonable.

[8] Finally, we reject the respondent's submission that the evidence before the Board demonstrated that the respondent's delusions ceased spontaneously prior to his arrival at the Centre for Addiction and Mental Health and without treatment with psychotic medications. The Board's January 17, 2003 Reasons for Disposition disclose that there was evidence at the respondent's previous hearing indicating that he remained delusional.

[9] In the result, the appeal is allowed. Particularly in light of the fresh evidence indicating that the respondent is now suffering from cancer, this matter is remitted to the Board for a re-hearing on an expedited basis.

Appeal allowed.