Court of Appeal for Ontario

Citation: Buksar v. Ontario, 2010 ONCA 520

Date: 20100721

Docket: C51495

Before: Doherty, Gillese and Armstrong JJ.A.

Between:

Her Majesty the Queen

Appellant

and

Edward Buksar

Respondent

The Person in Charge of Brockville Mental Health Centre (Division of Royal Ottawa Health Care Group)

Respondent

Counsel:

Robert Gattrell, for the appellant

Michael Davies, for the respondent, Mr. Buksar

Heard and released orally: July 19, 2010

On appeal from the disposition order of the Ontario Review Board dated December 8, 2009.

Reasons for Decision

[1] This is an appeal from a disposition of the Ontario Review Board. Three members of the panel granted the respondent, Edward Buksar, a conditional discharge. They were of the view that the risk to society posed by Mr. Buksar could be adequately managed under a conditional discharge, given the provisions in s. 672.91 of the Criminal Code. The two dissenting members of the Board would have maintained the existing hospital detention order, with permission to live in the community.

[2] The index offences occurred in 1999 after Mr. Buksar stopped taking medication for his paranoid schizophrenia and became psychotic. He believed he was being pursued and was at risk of being captured and tortured. He intentionally drove his car into an OPP vehicle that was parked at the side of the road, causing the death of an OPP officer and injuring two occupants of another car.

[3] At the hearing that underlies this appeal, the hospital and the Attorney General recommended a continuation of the hospital detention order.

[4] We are of the view that the determination of the majority that the risk to society can be adequately managed under a conditional discharge is unreasonable. We reach this view for the following reasons.

[5] The Board was unanimous in finding that Mr. Buksar remains a significant risk to public safety. This finding was made, in part, because Mr. Buksar has a history of non-compliance in respect of his medications. If Mr. Buksar fails to take his medications, the uncontroverted medical evidence is that he will decompensate, become very ill, and commit further dangerous offences. Dr. Ahmed is Mr. Buksar’s attending psychiatrist. He testified that because Mr. Buksar has no relationship with his treatment team, he does not believe that Mr. Buksar would come to the hospital voluntarily, should he begin to decompensate.

[6] The uncontroverted evidence shows that Mr. Buksar is a socially isolated individual who has minimal interaction with his treatment team. In light of these factual considerations, it is foreseeable that should Mr. Buksar begin to decompensate, this would either not come to the attention of the nurse or treatment team in a sufficiently timely fashion, or even if it did, as it would not constitute a breach of condition, s. 672.91 would be of no assistance.

[7] For these reasons, which are substantially the same as those given by the dissenting members of the board, we would allow the appeal, set aside the current disposition and reinstate the prior existing disposition, namely, a hospital detention order permitting residence in the community.

“Doherty J.A.”

“E. E. Gillese J.A.”

“Robert P. Armstrong J.A.”