CITATION: R. v. Medcof, 2007 ONCA 216

DATE: 20070327

DOCKET: C45882

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – WILLIAM MEDCOF (Appellant)

BEFORE:

ROSENBERG, GOUDGE and MacFARLAND JJ.A.

COUNSEL:

Paul Burstein

Amicus Curiae

William Medcof

In Person

Joseph Perfetto

for the respondent

Cindy Clarke

for the Person in Charge

HEARD:

March 15, 2007

On appeal from the Disposition of the Ontario Review Board dated June 16, 2006.

E N D O R S E M E N T

[1] The appellant appeals from the disposition made on June 16, 2006 following a hearing on April 12, 2006. This hearing was held pursuant to s. 672.81(2) of the Criminal Code as a result of an increased restriction on the appellant’s liberty. The Ontario Review Board found that the appellant continues to suffer from a serious mental disorder and that he remains dangerous. The Board held that the present disposition of detention in the minimum secure unit of the Whitby Mental Health Centre (“WMHC”) was the least onerous and restrictive order. The appellant submits that the Board erred in finding that he was dangerous and asks for an absolute discharge.

[2] Since the April 12, 2006 hearing, the Board has held another hearing on August 8, 2006 pursuant to s. 672.81(2.1) because of a request by the person in charge of the WMHC. On November 2, 2006, the Board made a disposition ordering that the appellant be transferred to the medium secure unit of the WMHC. The appellant has filed an appeal against that disposition. Accordingly, the Crown and the person in charge argue that the appeal of the June 2006 disposition is moot.

[3] We need not decide whether the appeal is moot because we have decided that the appeal fails on the merits. The standard of review of a disposition by the Ontario Review Board is reasonableness: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779. We are satisfied that the disposition was reasonable.

[4] The record before the Ontario Review Board at the April hearing consisted of the hospital report, which gave a full picture of the appellant’s history, including his frequent involvement with the mental health system, the testimony of a psychiatrist, Dr. Hill, and the submissions by the parties, including the appellant. While the appellant did not testify and did not call any other evidence, the Board gave him considerable latitude in making his submissions.

[5] We need not recite the history of this case; it is set out in the Board’s reasons for disposition. The critical facts for understanding the issues in this appeal arise out of the Board’s previous disposition in June 2005. At that time, although the Board upheld the detention of the appellant, it was critical of the slow progress in moving him into community living. In August 2005, the appellant was discharged from the hospital and moved to a group home.

[6] In December 2005, however, Dr. Hill recommended that the appellant be removed from the community facility and returned to the minimum secure ward of the WMHC. Dr. Hill had met with the appellant in December. The appellant was not happy at the group home, which he found noisy and chaotic. Dr. Hill did not believe the appellant should be allowed to live on his own. He was concerned that the appellant did not accurately report his feelings and behaviour and although he had obviously become isolated and withdrawn he did not understand this. Admittedly, however, the appellant was reporting anxiety and distress from living at the group home.

[7] The appellant’s treating psychiatrist, Dr. Chapman, had also received a complaint that the appellant was in contact with a member of his family and had committed an act of vandalism against her property. This was a concern because the index offences related, in part, to attacks on the appellant’s family members. In fairness, this complaint of vandalism could not be verified. However, more importantly, on two occasions, the appellant’s urine tested positive for cannabis. Substance abuse increases the likelihood that the appellant will decompensate. In the result, Dr. Hill believed that the appellant needed to be returned to the hospital to clarify major concerns.

[8] The appellant denied that he had used cannabis and alleged that the hospital had tampered with the samples. Before this court, the appellant conceded that this was not a wise position to take, but he continues to deny using cannabis and questions the reliability of the testing. He pointed out to us, as he did to the Board, that he had no money available to purchase drugs.

[9] The Board found as follows:

We are all satisfied that the accused continues to suffer from a serious mental disorder. All of the medical evidence is to this effect. The evidence of the index offence and the fear his wife and parents endured by reason of his conduct leads us to the conclusion that, untreated, the accused is dangerous. We reject his denial as to use of cannabis and his claim that the Hospital’s evidence is not credible. Moreover, we find his use of that substance aggravates his state. We find the accused has little or no insight into his illness, the need for medication or the necessity to cease all use of substances. We think he must be detained and that the least onerous and restrictive order is that there be no change from the present Disposition, save to note that the experience of the last year underlines the caution required when determining when it is appropriate to exercise the privileges provided.

[10] In our view, this finding is supported by the evidence that was before the Board. Dr. Hill’s opinion was rooted in the evidence. The Board had the advantage of hearing that evidence, reviewing the entire record and hearing the appellant’s submissions. It is evident that it did not rely on the alleged act of vandalism but rather on Dr. Hill’s assessment and the appellant’s continued illicit drug use, which was a serious concern given his history. The Board was entitled to reject the appellant’s unsworn submissions denying that he used cannabis.

[11] Accordingly, the appeal is dismissed. For the sake of clarity, obviously our holding on this appeal in no way fetters this court when it comes to deal with the appellant’s further appeal, which will be on the basis of a different record. We urge the parties to arrange to have that appeal heard as soon as possible.

Signed: “M. Rosenberg J.A.”

“S. T. Goudge J.A.”

“M. MacFarland J.A.”