COURT OF APPEAL FOR ONTARIO

CITATION: Vancurenko (Re), 2012 ONCA 505

DATE: 20120720

DOCKET: C54732

Laskin, Cronk and Hoy JJ.A.

IN THE MATTER OF: George Vancurenko

George Vancurenko, acting in person

Anita Szigeti and Lucy Saunders, as amicus curiae

Michael Medeiros, for the Attorney General

Heard: July 4, 2012

On appeal against the disposition of the Ontario Review Board, dated July 29, 2011.

By the Court:

[1] The appellant, George Vancurenko, appeals from the July 29, 2011 disposition of the Ontario Review Board, ordering that he remain subject to a conditional discharge. He seeks an absolute discharge.

[2] On October 16, 1985, the appellant was found not guilty by reason of insanity of one count of second degree murder. At the time of the offence he was in a transient psychotic state secondary to alcohol. More than 26 years have since elapsed. The appellant spent some 15 years in various psychiatric facilities. The balance of the time has been spent in the community on conditional release.

[3] He is now 58 years of age and has not used drugs or alcohol since 2001. In 2010, Dr. Hill, the appellant’s designated outpatient forensic psychiatrist, supported the appellant’s request for an absolute discharge, as did the treating hospital. The Board, however, declined to grant the request.

[4] The appellant’s current diagnoses are alcohol and substance abuse, in full and sustained remission, and personality disorder with narcissistic and antisocial traits.

The Board’s Reasons

[5] The Board concluded, at para. 47 of its reasons for disposition, that “absent the supervision of the Board there is a real likelihood that Mr. Vancurenko’s behaviour in the community will escalate to the level where he poses a significant risk of physical and/or psychological harm to others.” This conclusion was founded in the Board’s concerns with the appellant’s criminal behaviour, his lifestyle and his past problems with drugs and alcohol.

[6] The Board was particularly concerned with an assault that took place in 2008. It explained, at para. 43:

It is concerning to the Board that as recently as 2008 Mr. Vancurenko engaged in a criminal act, namely assault, which caused physical and/or psychological harm to another. The Board does not accept the submission of Counsel on behalf of Mr. Vancurenko that because there were no physical injuries noted that the assault charge does not rise to the level contemplated by the Supreme Court of Canada in Winko. On this occasion Mr. Vancurenko physically assaulted an elderly and vulnerable man who had one leg. It is concerning to the Board that this assault occurred during a time when Mr. Vancurenko has been abstinent from alcohol or drugs for almost six years and speaks directly to the risk posed by Mr. Vancurenko even when his addictions are well controlled.

[7] It rejected Dr. Hill’s opinion that the appellant would never relapse with drugs or alcohol, writing at para. 44: “The Board does not share the confidence level expressed by Dr. Hill that Mr. Vancurenko’s addiction issues are behind him and of a historical nature.”

[8] The Board also expressed concern, at para. 45, that the appellant “continues to live a lifestyle that exposes him to greater risk of conflict with the law.” The “lifestyle” concern was founded in the appellant’s choices: to continue a relationship with his spouse, who has drug addiction issues; to live in a trailer park – a “less than desirable setting”; and to continue to engage in gambling.

[9] Finally, the Board inferred, at para. 46, that the appellant had only avoided further criminal charges over the past year because he had been subject to the terms of a recognizance. The recognizance imposed a curfew and required the appellant to live with his father (who did not live at the trailer park).

Analysis and Conclusion

[10] In our view, the Board’s disposition is unreasonable and cannot be supported by the evidence. Accordingly, we allow the appeal and discharge the appellant absolutely.

[11] The evidence does not support the Board’s conclusion that the appellant poses a risk that rises to the level contemplated in Winko v. British Columbia (Forensic Psychiatric Institute), [1992] 2 S.C.R. 625. The Board’s decision placed undue emphasis on relatively trivial conduct, ignored the opinion of the treating psychiatrist and entered into the realm of speculation.

[12] At best, the evidence before the Board revealed, in the words of amicus, “a high risk of trivial harm or a miniscule risk of future grave harm”. In either case, the legal threshold of a “significant threat to the safety of the public” was not satisfied and the decision cannot stand.

[13] First, the 2008 assault that so troubled the Board was, relatively speaking, minor in nature. The appellant went to question his neighbour after his niece told him the neighbour had taken her cat. An altercation ensued. The appellant knocked the neighbour’s arm and boxed his ear. While the neighbour was vulnerable, because he was missing a leg, there was no indication of any physical or psychological harm.

[14] With the exception of a conviction for assaulting a police officer in 1999, which occurred when the appellant was not yet drug and alcohol free, there have been no other convictions for assaultive behaviour since the index offence.

[15] As to the Board’s other concerns with the appellant’s lifestyle, we note the information before the Board that the appellant would like to leave the trailer park, but that it is not economically feasible. His accommodation reflects a lack of financial resources, not a choice to live in a setting that exposes him to greater risk of conflict with the law. Moreover, the evidence of Dr. Hill was that the appellant is showing good judgment and good self-control in handling his living environment. As an example, the appellant called the police to deal with a drunken individual in the trailer park rather than attempting to resolve the problem himself.

[16] With respect to the appellant’s gambling, as amicus argued before us, gambling is legal. The treating hospital reports that the appellant’s gambling is recreational – now once per month or less. Dr. Hill says the appellant does not have a gambling addiction.

[17] On the issue of the effect of the recognizance, we note the opinion of Dr. Hill that the appellant’s good behaviour is a result of conducting himself appropriately, and not his father’s supervision.

[18] Moreover, the Board provided no basis for its rejection of Dr. Hill’s unequivocal opinion that the appellant would not revert to drug or alcohol use. Nor does the record suggest any basis for doing so at this time. In 2006-2007, the appellant’s addictions counsellor reported that the appellant had made such progress that she felt he did not need further counselling. The appellant nonetheless continued counselling. He attends Alcoholics Anonymous regularly. All drug screens have been negative. Although his spouse still has addiction problems and continues to use drugs, the appellant has not been using drugs or alcohol.

[19] As noted above, in 2010, the treating hospital recommended an absolute discharge. The Board declined to follow the hospital’s recommendation, noting that there had been “a number of incidents of concern this past year.” None of those incidents entailed any physical or psychological harm – serious or otherwise – to the public.

[20] Of the two sets of criminal charges outstanding at the time, the appellant has since been acquitted of the charges arising when he intervened after a security guard at Price Choppers retrieved some chocolate bars taken by his spouse. The other criminal matter involved taking $220 out of a wallet found on the floor in a casino and discarded in a washroom. While the matter remains outstanding, the appellant has offered to make restitution.

[21] Importantly, there have been no concerning incidents since the appellant’s 2010 hearing. The substance of the treating hospital’s current report is even more positive than in 2010. In addition to noting that the appellant has not shown any impulsive or illegal behaviour, it reports that his presentation is better. There have been no behavioural concerns. It notes that the appellant is less disposed to antisocial behaviour. Indeed, the hospital reports that the appellant exhibits pro-social behaviour, assisting his aging parents, and attempting to direct his spouse away from her drug addictions. This evidence shows that many of the concerns adverted to by the Board in 2010 are no longer present.

[22] In our view, there is no evidence that the appellant poses a real risk of serious physical or psychological harm to individuals in the community. The Board’s conclusion to the contrary was unreasonable. Accordingly, we order that the appellant be discharged absolutely. We are grateful for the assistance of amicus in this matter.

Released: Jul 20, 2012

“JL” “John Laskin J.A.”

“E.A. Cronk J.A.”

“Alexandra Hoy J.A.”