CITATION: R. v. Crago, 2010 ONCA 506

DATE: 20100712

DOCKET: C51451

COURT OF APPEAL FOR ONTARIO

Moldaver, Simmons and Juriansz JJ.A.

BETWEEN:

Her Majesty The Queen

Respondent

And

Andrew Crago and the Centre of Addiction and Mental Health

Appellant

Andrew Crago, in person Anita Szigeti, amicus curiae Jean D. Buie, for the respondent Centre for Addiction and Mental Health Robert Gattrell, for the respondent Her Majesty The Queen

Heard and released orally: July 6, 2010 On appeal from the Disposition of the Ontario Review Board dated September 28, 2009.

ENDORSEMENT

[1] The issue before us is whether the disposition made by the Ontario Review Board in September 2009 was unreasonable or tainted by legal error. We commend the appellant for the strides he tells us today that he has made since September 2009. However, those matters are not properly before us.

[2] The appellant, supported by amicus curiae, raises two main issues on appeal. First, he claims that the Ontario Review Board erred in finding that he continues to pose a significant risk to the safety of the public. Second, he claims that the Board erred by applying the wrong principles in concluding that a conditional discharge was not the appropriate disposition.

[3] We are unable to accept these submissions.

[4] The appellant did not contest the issue of whether he posed a significant threat before the Board.

[5] In finding that the appellant continues to pose a significant threat to the safety of the public, the Board noted that the appellant killed his parents in 2004 while in a severe psychotic state caused by schizophrenia and related, in part, to extensive use of cannabis.

[6] Although the appellant had experienced a positive response to anti-psychotic medication and was free of active symptoms at the time of the Board hearing, the appellant had been living in the community for only seven months and was exposed to a peer group using cannabis on an ongoing basis.

[7] In all of the circumstances, the Board concluded this was too short a time to accept the appellant's commitment to abstinence. Particularly having regard to the nature of the appellant's illness and the significant potential consequences of decompensation, we see nothing unreasonable about the Board's conclusion that the appellant continued to pose a significant threat.

[8] As for the issue of a conditional discharge, we question the Board's comments to the effect that the availability of a conditional discharge depends to some extent on who bears primary responsibility for managing the risk to the public safety.

[9] However, reading its reasons as whole, it is apparent that the Board believed that a cautious approach to moving the appellant towards a discharge was warranted. The Board obviously took note of the fact that the appellant was making steady progress in this regard and that the Hospital was gradually reducing the level of supervision to which he was subject.

[10] Nonetheless, taking account of the very serious nature of the index offences, and the level of risk created by the possibility of the appellant's return to cannabis use or of decompensation for another reason , we do not find the Board's disposition unreasonable. In the circumstances of this case, it was open to the Board to insist on a greater history of independent compliance before moving to a conditional discharge.

[11] In this regard, we do not read, as a statement of general principle, the Board's finding that:

A person who is not considered by the treatment team to be sufficiently reliable in the independent ingestion of oral medication and must be observed by staff is not suitable for a conditional discharge.

[12] Read in context, the words "a person" refer to the appellant. Moreover, we read this finding as one made in the context of the overall circumstances of the case.

[13] The appeal is therefore dismissed.

Signed: “M. J. Moldaver J.A.”

“Janet Simmons J.A.”

“R. G. Juriansz J.A.”