DATE: 20040616
DOCKET: C40951
COURT OF APPEAL FOR ONTARIO
DOHERTY, SHARPE and SIMMONS JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
Anita Szigeti for the appellant
Respondent
- and -
ELMER ALLAN WOOD
Riun Shandler for the respondent
Appellant
Heard: May 26, 2004
On appeal from a disposition of the Ontario Review Board dated October 7, 2003.
SHARPE J.A.:
[1] The appellant appeals the Ontario Review Board’s decision to refuse him an absolute discharge on the ground that he continues to pose a significant threat to public safety. In my view, the appeal should be allowed and an absolute discharge granted.
[2] The appellant has a long history of mental illness. In 1981, at the age of 26, he was charged with attempt murder and other related offences. He was found not guilty by reason of insanity, and diagnosed with paranoid schizophrenia, alcohol abuse, and underlying personality disorder. Over the past twenty-three years, he has made steady progress. He was detained at Oak Ridge for over four years. He then was detained at Lakehead Psychiatric Hospital until 1999, when he was moved into the community. In September 2001, the Board granted him a conditional discharge. His psychiatric illness had been in remission since 1989 and he accepts the continuing need for biweekly injections of anti-psychotic medication. He no longer suffers from a personality disorder. The appellant’s problems with alcohol were major obstacles to his reintegration into the community. While the potential risk posed by alcohol consumption remains an issue, the appellant has controlled his drinking in recent years.
[3] The Board’s central findings were the following:
• The accused has only recently been free of problems, so far as the evidence indicates, as to the use of alcohol and as to criminal activity;
• He does not apparently have a residence as yet to which he can go;
• Without the Board’s Order, in all likelihood, he would revert to the use of alcohol with the consequence of criminal behaviour;
• He continues to have evidence of personality disorder with antisocial traits;
• A further sustained period of stability is required before the accused can be considered to have effected changes in his behaviour and insight which are likely to continue once the Board Order is removed. The Board continues to have concerns about the ongoing potential for impulsive anti-social and potentially criminal behaviour;
• A further year under a conditional discharge would assist Mr. Wood in finding accommodation which would be satisfactory for him and would allow him another year in which to exhibit good conduct, while under the Board’s Order.
[4] The Board’s decision is entitled to deference in this court and will only be interfered with if it is found to be unreasonable. In R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779 at paragraph 46, the Supreme Court of Canada held that the standard of reasonableness, discussed in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, applies to appeals pursuant to s. 672.72 from dispositions of the Board:
[A] court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. An example of the former kind of defect would be an assumption that had no basis in the evidence, or that was contrary to the overwhelming weight of the evidence. An example of the latter kind of defect would be a contradiction in the premises or an invalid inference.
[5] In my view, the Board’s finding that the appellant poses a significant threat to the safety of the public is, on the record, unreasonable. On several crucial points, the Board’s findings are contrary to the evidence and on other points they are unsupported by evidence.
(i) Alcohol abuse
[6] The Board found that the appellant has only recently been free from alcohol related criminal activity and “that without the Board’s Order, in all likelihood, he would revert to the use of alcohol with the consequence of criminal behaviour”. At best, this finding is unsupported by the evidence; at worst, it is contrary to the evidence. The appellant was convicted of sexual assault and assault in 1999 and received a sentence of five months imprisonment, but there has been no repetition of any criminal activity since that time. Indeed, there has been only one incident - when his breath smelled of alcohol in 2001 – to indicate that he had even consumed alcohol. The evidence was that even with progressively lessened restrictions on his liberty and infrequent monitoring, the appellant had control over his drinking problem. The report of his treating physician stated that while there was some potential for alcohol abuse, and while the continuing jurisdiction of the Board provided external motivation, it “seems speculative however, and not supported by the available evidence to suggest that he would return to uncontrolled drinking if granted an Absolute Discharge.”
(ii) Place of residence
[7] The Board found that the appellant did not have a residence to which he could go. The evidence was that he lived with his brother and that he was welcome to continue living there. The appellant enjoys the full support of his siblings. There was no evidence of any threat to public safety arising from the appellant’s current living arrangements. Moreover, under the Board’s proposed disposition, he would continue his current living arrangements in any event.
(iii) Mental health
[8] The evidence does not support the Board’s finding that the appellant “continues to have evidence of personality disorder with antisocial traits.” There was nothing to contradict the opinion of the appellant’s treatment team that “there are no current indications that Mr. Wood’s personality characteristics indicate a significant risk of aggressive behaviour in the future” or the evidence of Dr. Sheppard that the diagnosis of anti-social personality disorder no longer applies.
(iv) Significant threat to the safety of the public
[9] Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625 at paragraph 49, holds that restrictions can only be imposed if the evidence demonstrates that the not criminally responsible (“NCR”) accused actually constitutes a significant threat to public safety. Such a threat is not to be presumed and there is no onus on the NCR accused to demonstrate that he or she is not a significant threat: see paragraph 57.
[T]he threat posed must be more than speculative in nature; it must be supported by the evidence. The threat must also be “significant”, both in the sense that there must be a real risk of physical or psychological harm occurring to individuals in the community and in the sense that this potential harm must be serious. A minuscule risk of grave harm will not suffice. Similarly, a high risk of trivial harm will not meet the threshold. Finally, the conduct or activity creating the harm must be criminal in nature [citations omitted].
[10] The appellant’s treatment team stated that he is not a significant threat to the public and recommended an absolute discharge. There was no evidence to contradict this opinion. The overall effect of the Board’s reasons is to cast upon the appellant the burden of proving that he no longer poses a significant threat to public safety contrary to Winko. While there is no doubt that the Board is entitled to take into account the NCR accused’s past in assessing the risk he or she poses to the public, there must be a factual basis to support a finding of significant threat. The appellant has been living in the community on increasingly lenient conditions without incident for several years. His treatment team gave evidence that he was cooperative and that he recognized and accepted his continuing need for medication and to avoid alcohol. The Board’s fears were speculative in nature and unsupported by the evidence.
[11] For these reasons, I would allow the appeal, set aside the Board’s order and in its place grant the appellant an absolute discharge.
“Robert J. Sharpe J.A.”
“I agree D.H. Doherty J.A.”
“I agree J.M. Simmons J.A.”