COURT OF APPEAL FOR ONTARIO

CITATION: Warner (Re), 2013 ONCA 181

DATE: 20130326

DOCKET: C56212

Sharpe, Watt and Hoy JJ.A.

IN THE MATTER OF: Michael Warner

AN APPEAL UNDER PART XX.1 OF THE CODE

Michael Warner, acting in person

Anita Szigeti, as amicus curiae

James P. Thomson, for the Centre for Addiction and Mental Health

Randy Schwartz, for the Attorney General

Heard: March 19, 2013

On appeal against the disposition of the Ontario Review Board, dated April 23, 2012.

ENDORSEMENT

[1] Michael Warner appeals the April 23, 2012 Disposition of the Ontario Review Board (the “Board”).

[2] The Board found that if Mr. Warner were granted an absolute discharge, he would stop medication, the symptoms of his medical illness would quickly resume and he would “present a clear and palpable risk to the safety of the public.” It concluded that the least onerous and least restrictive disposition in the circumstances was a continuation of his conditional discharge.

[3] Mr. Warner argues: (1) that the Board’s finding that he is a significant threat to public safety is unreasonable and not supported by the evidence; and (2) if he does present such a risk, a Community Treatment Order (“CTO”) is a less onerous and restrictive disposition and would manage the risk he poses to the public and the Board, accordingly, erred by failing to order a CTO.

[4] In our view, the opinion of the attending outpatient psychiatrist at the Centre for Addiction and Mental Health (“CAMH”), Dr. Earys, provided a basis upon which the Board could reasonably conclude that Mr. Warner would pose a significant threat to the safety of the public if discharged. Dr. Eayrs indicated that Mr. Warner has no intention of continuing on his antipsychotic medications indefinitely and will decompensate and become a significant threat to public safety if he ceases to take his medication.

[5] Mr. Warner takes issue with the Board’s conclusion that the evidence of his mother, Ms. Rhodine Kirlew, and Mr. Fred Williams, who has been part of Mr. Warner’s life since he was a young boy, should be given no weight in assessing the potential risk Mr. Warner poses if discharged. The Board concluded that Ms. Kirlew and Mr. Williams were attempting to frame their evidence to downplay the risk that Mr. Warner poses. There is no basis for this court to interfere with the Board’s assessment of the credibility of these witnesses.

[6] As amicus notes, the index offences with which Mr. Warner was charged – criminal harassment and failure to comply with a recognizance – were relatively minor and non-violent. They arose out of his repeated, uninvited phone calls to a female police officer in March of 2006 and subsequent attendance at a shopping mall in September of 2007, unaccompanied by his surety or an adult approved by his surety, with five butcher knives in his backpack.

[7] In assessing the risk that Mr. Warner would present if discharged, the Board had specific regard to the evidence that Mr. Warner thought family members were clones and had expressed the belief that “if the clone dies, it’s not a problem.” It identified this as “an example of the disturbed thinking Mr. Warner experiences when he is unwell and which could lead to a real risk to the public.”

[8] In Winko v. British Columbia (Forensic Psychiatric Institute) (1999), 1999 CanLII 694 (SCC), 135 C.C.C. (3d) 129 (S.C.C.), the Supreme Court held that “significant threat to the safety of the public” means a “real risk of physical or psychological harm to members of the public … [that goes] beyond the merely trivial or annoying. The conduct giving rise to the harm must be criminal in nature.” In our view, the Board applied this test.

[9] As to Mr. Warner’s second argument, it was not open to the Board to order a CTO. Only a physician can issue a CTO: s. 33.1(4) of the Mental Health Act, R.S.O. 1990 Chapter M. 7. Dr. Eayrs had not issued one; her opinion was that a conditional discharge represented the least onerous disposition. This may well be a matter that she will wish to reconsider in advance of Mr. Warner’s next disposition hearing. Amicus suggests that Dr. Eayrs did not fully appreciate that where, as here, the person at issue has been found incapable of making his own treatment decisions and a substitute decision maker has been appointed, and assuming the support of the substitute decision maker, a CTO can be utilized to compel medication compliance and certification under the Mental Health Act is facilitated.

[10] In the result, this appeal is dismissed. However, we add the following. Mr. Warner has been subject to the jurisdiction of the Board since December 13, 2007, when he was found not criminally responsible on account of mental disorder of the index offences. Given the relatively minor nature of the index offences and the fact that any danger he poses to public safety can be avoided through medication, he should not remain under Board oversight indefinitely and it is important that transitional mechanisms leading to his ultimate discharge be fully explored.

“Robert J. Sharpe J.A.”

“David Watt J.A.”

“Alexandra Hoy J.A.”