R. v. Runnalls, 2008 ONCA 93

CITATION: R. v. Runnalls, 2008 ONCA 93

DATE: 20080212

DOCKET: C47668

COURT OF APPEAL FOR ONTARIO

FELDMAN, LANG and JURIANSZ JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

NELSON RUNNALLS

Appellant

Nelson Runnalls in person

Michael Davies amicus curiae

Frank Au for the respondent

Heard & released orally: January 25, 2008

On appeal from the disposition of the Ontario Review Board dated April 18, 2007.

ENDORSEMENT

[1] The Ontario Review Board ordered the appellant’s continued detention finding that he would stop his medication and probably abuse alcohol and drugs if given an absolute discharge. The Board did not explicitly address the potential availability of a conditional discharge in its reasons. Crown counsel argues the reasons and dispositions of the Board show that it did implicitly consider and reject the availability of a conditional discharge. We do not agree.

[2] At the hearing the appellant requested an absolute discharge and the hospital recommended that the appellant’s continued detention in a minimum security facility with the person in charge being given the discretion to allow him to live in the community in approved accommodation. The Board seems to have focused only on these two alternatives and failed to consider a conditional discharge.

[3] The appellant testified that, while he disagreed he should be forced to take his medication, he would comply with any order in effect. He also indicated that he understood the recommendation that he abstain from alcohol. He was not asked about other substances. Dr. Adams, his treating psychiatrist at the institution, said that the appellant understood his legal circumstances and seemed to understand he had to act in accordance with valid orders. Dr. Adams also testified that “if his medication-taking was supervised, even sort of minimally, that he would comply.” This testimony required further inquiry and consideration whether a conditional discharge was appropriate. As the Supreme Court of Canada stated in Winko v. British Columbia (Forensic Psychiatric Institute) (1999), 135 C.C.C. (3d) 129, the Board is required to specifically inquire into the availability and propriety of a conditional discharge.

[4] The Board did not inquire whether the appellant would consent to conditions that he continue to take his medication and abstain from alcohol and drugs being included in a conditional discharge order and what supervision could be provided. Rather, the Board found “If given an absolute discharge, he would immediately stop his medication and probably continue to abuse alcohol and drugs. For these reasons the Board finds that he continues to present a significant risk to the public.”

[5] In our view the Board did not inquire into and consider the availability of a conditional discharge as the least onerous disposition. Nor did it address whether if he took his medication while on conditional discharge, he would continue to present a significant risk to the public. Its failure to do so is an error of law.

[6] We also note in its reasons, the Board set out the appellant’s C.P.I.C. document that it described as listing his convictions but which also included charges stayed, withdrawn and dismissed. This C.P.I.C. document has appeared repeatedly in the appellant’s hospital records. The Board’s assessment of risk cannot take into consideration charges that did not result in convictions.

[7] We would allow the appeal, quash the disposition and refer the matter back to the Board for a new hearing.

“K. Feldman J.A.”

“S.E. Lang J.A.”

“R.G. Juriansz J.A.”