COURT OF APPEAL FOR ONTARIO

CITATION: Luangchaleun (Re), 2015 ONCA 622

DATE: 20150917

DOCKET: C59317

Laskin, Gillese and van Rensburg JJ.A.

IN THE MATTER OF: KEVIN LUANGCHALEUN

AN APPEAL UNDER PART XX.1 OF THE CODE

Anita Szigeti, for the appellant

Kevin Rawluk, for the respondent, Attorney General for Ontario

Ewa Krajewska, for the respondent, Person in Charge of Ontario Shores Centre for Mental Health Sciences

Heard: June 18, 2015

On appeal against the disposition of the Ontario Review Board, dated August 18, 2014.

Laskin J.A.:

A. Overview

[1] The appellant Kevin Luangchaleun appeals the Ontario Review Board’s refusal to grant him an absolute discharge.

[2] In June 2009, Mr. Luangchaleun was found not criminally responsible on account of mental disorder (NCR) on charges of assault with a weapon and criminal harassment. He had been diagnosed with schizophrenia and polysubstance abuse.

[3] The charges arose because of his conduct at The Keg Restaurant where he had previously worked. He had become infatuated with a woman who worked there, and he had gone to the restaurant several times looking for her. On February 16, 2009, he was psychotic and delusional about the woman, whom he believed to be the product of a scientific experiment, and about the employees of The Keg, whom he believed were part of the experiment. When the other employees would not let him talk to the woman, he started waving around a large butcher knife in a threatening manner.

[4] After the NCR verdict, Mr. Luangchaleun was placed under the jurisdiction of the Ontario Review Board and detained at Ontario Shores Centre for Mental Health Sciences. At his annual review in the summer of 2013, he was granted a conditional discharge.

[5] At his last annual review in July 2014, Mr. Luangchaleun sought an absolute discharge. The Board rejected his position and ordered a continuation of his conditional discharge. It unanimously found that the appellant continued to pose a significant threat to the safety of the public. In making that finding, the Board relied on the evidence of Dr. Morgan, Mr. Luangchaleun’s treating psychiatrist. Dr. Morgan testified that if Mr. Luangchaleun were granted an absolute discharge he would likely stop taking his anti-psychotic medication again and would resume using drugs and alcohol. Together his doing so would increase the risk his psychosis would resurface and the risk he would engage in conduct similar to the conduct that had given rise to the charges against him five years earlier.

[6] This appeal turns solely on whether the Board erred in finding that Mr. Luangchaleun continued to pose a significant threat to public safety. If the Board did err, Mr. Luangchaleun is entitled to an absolute discharge; if it did not err then his appeal must be dismissed.

[7] In support of his appeal Mr. Luangchaleun makes two submissions:

• First, the Board erred in law because it did not apply the significant threat test correctly; and
• Second, the Board’s finding that Mr. Luangchaleun continued to pose a significant threat to the safety of the public was an unreasonable finding. This submission has two branches: the Board’s finding is not reasonably supported by the evidence; and Mr. Luangchaleun could be adequately managed by the civil mental health system.

B. Discussion

(1) Did the Board apply the significant threat test incorrectly?

[8] For there to be a significant threat to public safety, “[t]here must be a risk that the NCR accused will commit a ‘serious criminal offence’”: R. v. Ferguson, 2010 ONCA 810, 264 C.C.C. (3d) 451 at para. 8.

[9] Mr. Luangchaleun submits that under this test the Board should have considered whether the appellant was likely to commit a serious criminal offence if freed from the Board’s jurisdiction; instead of applying this test, the Board wrongly focused on whether the appellant would take his prescribed medications and refrain from consuming alcohol or drugs if granted an absolute discharge. I do not agree with this submission. The Board found that Mr. Luangchaleun was a significant threat to public safety because of the risk he would commit a serious criminal offence if he stopped taking his medication and started using drugs and alcohol again. That the Board so found is evident from paragraph 30 of its reasons:

…however it is clear that if he were granted an absolute discharge he would stop his antipsychotic medication, return to cannabis and alcohol use and likely decompensate very quickly with a return to psychosis and behaviours similar to those at the time of the index offence.

[10] That finding is supported by the testimony of Dr. Morgan, who explained that Mr. Luangchaleun’s risk for violence flows directly from his psychosis, which in turn is controlled by anti-psychotic medication and exacerbated by the consumption of drugs and alcohol:

Essentially, Mr. Luangchaleun’s risk for violence flows as a direct result from symptoms of psychosis from his schizophrenia and it’s my opinion that absent an order of the Review Board, Mr. Luangchaleun will discontinue antipsychotic medication without adequate supervision and will likely resume drug or alcohol use. Those would increase the likelihood of him experiencing a relapse of psychosis and thus his risk for acting in a violent manner.

[11] Thus, I would not give effect to this ground of appeal.

(2) Was the Board’s finding unreasonable?

[12] Mr. Luangchaleun submits that the Board’s refusal to grant him an absolute discharge was not reasonably supported by the evidence. He points to a list of considerations in favour of his submission:

• He has no criminal record and, other than the index offence, no incidents of threatening behaviour. He has not assaulted anyone before or after these two offences.
• Since October 2010 – now for nearly five years – he has lived in the community without engaging in any serious disruptive behaviour.
• He is capable of making treatment decisions, and mostly he has taken the medications prescribed for him, even though he does not agree that he needs them.
• He has not used marijuana, though he admits he would prefer to do so, and though his friends have used it in his presence, even in his own home.
• While living in the community his mental state has changed only when his medication regime was changed. Otherwise his mental condition has remained stable.
• He has generally complied with the rules imposed on him for reporting, supervision and follow-up. And he has agreed to additional close monitoring and supervision.
• Dr. Morgan’s concern that he would not be adequately supervised if he were absolutely discharged can be addressed in two ways. He has the support of a forensic out-patient service worker, and he is willing to work with an Assertive Community Treatment (ACT) team with whom he expected to be linked soon after the 2014 hearing took place. The ACT team is expected to provide seven days a week coverage, including visits to his home. And if needed, he could be managed and supervised by the services provided under the civil mental health system.

[13] Despite these favourable considerations, on the record before it, the Board’s finding that Mr. Luangchaleun continued to pose a significant threat to public safety was a reasonable finding. It is supported by the evidence before the Board.

[14] Mr. Luangchaleun has been diagnosed with schizophrenia. Schizophrenia is a major mental disorder, which requires treatment to be controlled. Yet Mr. Luangchaleun refuses to accept his diagnosis and refuses to accept that he requires anti-psychotic medication. Instead he claims that his anti-psychotic medications “do nothing”.

[15] The appellant persists in this claim, even though the evidence suggests otherwise. During the year leading up to his last hearing, Mr. Luangchaleun’s treatment team noted that when his medication was decreased his thought processes deteriorated, and when his medication was increased his thought processes improved. In addition to his refusal to accept the benefits of ant-psychotic medication, Mr. Luangchaleun refuses to accept that marijuana and alcohol use could adversely affect his mental state.

[16] And Mr. Luangchaleun made it clear to Dr. Morgan that if he were granted an absolute discharge and freed from the Board’s jurisdiction he would stop taking his medication and would resume using drugs and alcohol. Dr. Morgan gave this evidence in response to a question from one of the Board members:

Q. Right. The last thing, I’m not sure if it – it borders on more of a comment than a question, but as I understand your evidence in reading the report, his plan really, absent the Board, is to return to drug and alcohol use and to discontinue his medication?

A. Yes.

Q. If I had to really distil it down, that’s his plan?

A. Yes.

[17] In Dr. Morgan’s opinion, if Mr. Luangchaleun were to carry out this plan, he would increase his likelihood of relapsing and his risk of acting violently. Dr. Morgan’s opinion was not speculative. It was grounded in the diagnosis of Mr. Luangchaleun’s mental disorder, his previous incidents of acting violently and the recent deterioration in his mental state when he decreased his medication regime.

[18] Mr. Luangchaleun’s entire treatment team had a similar opinion. In its view, the appellant remained a significant threat to public safety because of the risk that he would commit a serious criminal offence if he stopped taking his medication and again used drugs and alcohol. The treatment team also noted that if Mr. Luangchaleun relapsed, early intervention would be “very difficult”.

[19] The Board was reasonably entitled to rely on the opinions of Dr. Morgan and Mr. Luangchaleun’s treatment team in rejecting an absolute discharge and in finding that the appellant remained a significant threat to public safety.

[20] Dr. Morgan’s opinion, however, contained a qualification. That qualification turned on the issue of adequate supervision and was a matter of some debate during the argument of this appeal. For convenience I reproduce Dr. Morgan’s key opinion which I quoted earlier:

Essentially, Mr. Luangchaleun’s risk for violence flows as a direct result from symptoms of psychosis from his schizophrenia and it’s my opinion that absent an order of the Review Board, Mr. Luangchaleun will discontinue antipsychotic medication without adequate supervision and will likely resume drug or alcohol use. Those would increase the likelihood of him experiencing a relapse of psychosis and thus his risk for acting in a violent manner. [My emphasis.]

[21] Mr. Luangchaleun contends that if granted an absolute discharge he could be adequately supervised by the ACT team and by the services of the civil mental health system. His contention may have merit and if so, can be explored at his next Board hearing.

[22] But, I would not give effect to Mr. Luangchaleun’s contention on this appeal for two reasons. First, the ACT team was not in place before Mr. Luangchaleun’s last hearing and we have no evidence of how effectively it can supervise the appellant. And second, the effectiveness of the provincial mental health system in supervising Mr. Luangchaleun was not canvassed before the Board. The Board, for example, had no evidence that the appellant would consent to a community treatment order under the Mental Health Act if he were granted an absolute discharge.

[23] On the evidence before it, the Board’s finding that Mr. Luangchaleun remained a significant threat to public safety was reasonable. I would therefore dismiss his appeal.

Released: September 17, 2015 (“J.L.”)

“John Laskin J.A.”

“I agree. E.E. Gillese J.A.”

“I agree. K. van Rensburg J.A.”