COURT OF APPEAL FOR ONTARIO

CITATION: McKinney (Re), 2013 ONCA 384

DATE: 20130611

DOCKET: C56414

Blair, Hoy and Tulloch JJ.A.

IN THE MATTER OF: Scott Andrew McKinney

AN APPEAL UNDER PART XX.1 OF THE CODE

Scott Andrew McKinney in person

Erin Dann as amicus

Matthew Asma for the respondent Attorney General of Ontario

Julie Zamprogna Ballès for the respondent, Person in Charge of Regional Mental Health Care, St. Thomas

Heard and released orally: June 4, 2013

On appeal against the disposition of the Ontario Review Board dated, June 27, 2012.

ENDORSEMENT

[1] Mr. McKinney challenges the disposition of the Ontario Review Board dated June 27, 2012, finding that he continued to pose a significant risk to the safety of the community and ordering him detained subject to certain conditions permitting him to live in the community.

[2] Mr. McKinney had been charged with two counts of uttering a threat to cause death or bodily harm and one count each of uttering a threat to damage property and the possession of an explosive device contrary to a prohibition order. The charges arose from an incident when the appellant was at home living with his parents. He called the police seeking assistance, and in the course of the 911 call he made threatening remarks about his parents. He was arrested, and later was found not criminally responsible on account of a mental disorder.

[3] Mr. McKinney and amicus on his behalf advance one principal submission. They contend that the Board’s determination that Mr. McKinney poses a significant risk to the community is not supported by the evidence and is therefore unreasonable.

[4] This was “close call” case before the Board, given Dr. Norris’ candid acknowledgment that Mr. McKinney was “just on that 51%” line in terms of being satisfied on the criteria of significant harm. It is apparent that the view of Dr. Norris and the hospital that Mr. McKinney required further therapeutic treatment in his in his own interest was also a factor in this determination. In the end however, Dr. Norris was of the opinion that the appellant still posed a significant risk to the community. He said:

We want him to be successful. We don’t think he will be able to do that on his own and he needs an authoritative body. If he is unsuccessful, we think there is a risk and he will slip to that fire- setting threatening behaviour again.

[5] A “fire-setting threatening behaviour” is a significant risk beyond a simple threat. It may not arise. However, it was open to the Board, an expert tribunal in this area, to conclude on this evidence and on the basis of further questioning from the medical Board members themselves that Mr. McKinney continued to pose a significant to the safety of the public. We therefore see no basis for interfering with its decision in that regard.

[6] That said, the Board and everyone involved recognize that Mr. McKinney has made considerable progress in ridding himself of his drug addiction, and he is now drug-free and living in the community. We commend him for this progress. We understand that his next ORB hearing is scheduled for September of this year.

[7] For the foregoing reasons, the appeal is dismissed.

“R.A. Blair J.A.”

“Alexandra Hoy J.A.”

“M.H. Tulloch J.A.”