COURT OF APPEAL FOR ONTARIO

CITATION: McLellan (Re) 2015 ONCA 888

DATE: 20151214

DOCKET: C60333

Feldman, Gillese and Watt JJ.A.

IN THE MATTER OF: Daniel McLellan

AN APPEAL UNDER PART XX.1 OF THE CODE

Anita Szigeti, for the appellant Daniel McLellan

Philippe Cowle, for the Crown

Kathryn Hunt, for the Centre for Addiction and Mental Health

Heard: December 3, 2015

On appeal against the disposition of the Ontario Review Board, dated March 23, 2015.

ENDORSEMENT

[1] On March 23, 2012 the appellant was found NCRMD on counts of criminal harassment and uttering death threats. The offence of criminal harassment included a variety of conduct extending over a period of nearly three years. The targets were his ex-wife and children. The object of the death threats was his ex-wife.

[2] In March, 2015 the Review Board ordered that the appellant be discharged subject to conditions. One condition required the appellant to report not less than once per month to the person in charge of the Centre for Addiction and Mental Health (CAMH).

[3] The appellant seeks an absolute discharge. He says that he is not now and was not at the Review Board hearing a significant threat to the safety of the public.

[4] The appellant contends that the Review Board erred in concluding that he was a significant threat to the safety of the public. Its conclusion, he says, was the product of several errors:

i. an incorrect interpretation and application of the significant threat standard;

ii. a failure to adhere to its inquisitorial mandate;

iii. an improper shift in the onus of proof; and

iv. an uncritical acceptance of the evidence of Dr. Ian Swayze, which amounted to an abdication of its obligations.

The appellant argues further that the Board’s finding of significant threat is unreasonable.

[5] For the reasons that follow, we are not prepared to interfere on any ground advanced by the appellant.

Ground #1: Incorrect Interpretation and Application of the “Significant Threat” Standard

[6] The appellant’s current diagnoses are Delusional Disorder, Persecutory Subtype; and Polysubstance Dependence in sustained remission. His differential diagnosis is Antisocial Personality Traits/Disorder. He is competent to consent to psychiatric treatment and has declined psychiatric medication for over two and one half years.

[7] The reasons of the Board belie any misinterpretation or misapplication of the “significant threat” standard in reaching its conclusion that the standard had been met. The issue of significant threat was almost the exclusive focus of the hearing and the submissions of the parties. The Board recognized the inherent difficulty of this task of risk assessment but expressed no uncertainty about its conclusion. Nothing said, or left unsaid, during the hearing or in the reasons for disposition reflects any departure from the rigorous standard to be met to establish “significant threat”.

[8] This standard is a concept with which the Board grapples on a daily basis. Nothing here persuades us that the Board diluted or lost sight of the standard. Nor are we persuaded that its comment about the “uncontradicted evidence” on the issue is indicative of an impermissible shift of the onus of proof to the appellant or a failure to be faithful to its inquisitorial mandate. The unanimous nature of the expert evidence was a factor the Board could consider in reaching its conclusion. That it did so does not reflect the imposition of any burden on the appellant or an abdication of its inquisitorial mandate.

[9] The basis upon which the Board reached its conclusion extended beyond the viva voce testimony of Dr. Swayze. The Board had before it, in accordance with its usual practice, a lengthy Hospital Report and an Addendum to that report to ensure currency. The report chronicled the appellant’s lengthy history of harassing behaviour towards his family. It also described his refusal to take any medication and his longstanding lack of insight into his illness. It acknowledged some recent recognition by the appellant of his illness but queried its authenticity.

[10] When read as a whole, the reasons negate the claim advanced by the appellant that the Board simply deferred uncritically to the opinion of Dr. Swayze.

Ground #2: The Unreasonableness of the Finding of “Significant Threat”

[11] The appellant also contends that the finding of the Board that he was a “significant threat to the safety of the public” was unreasonable.

[12] In our view, this ground of appeal fails.

[13] The Board heard evidence that the appellant suffers from a Delusional Disorder, Persecutory Subtype. His delusions led him to engage in a campaign of criminal harassment against his ex-wife and children over a period of nearly three years. He threatened to burn down their house and kill his ex-wife.

[14] As a result of his delusions, the appellant became heavily preoccupied with the well-being of his children and a connection he was convinced existed between his ex-wife, motorcycle gangs and “drug cops”.

[15] The appellant continued to display symptoms of delusional thinking until at least 2014. He refuses to take medication recommended by the clinical team. Dr. Swayze testified that, in the absence of medication, the symptoms of the appellant’s delusional disorder will return. The appellant has a low level of ability to recognize the recurrence of symptoms, especially because of his denial that he suffers from a major mental illness.

[16] It was against the background just described that the Board was required to evaluate the appellant’s recent expression of insight. Its conclusion is entitled to deference and is not unreasonable. It did not, as the appellant argues, proceed from the presence of a delusional disorder to a finding of “significant threat”.

Conclusion

[17] For these reasons, the appeal is dismissed.

“K. Feldman J.A.”

“E.E. Gillese J.A.”

“David Watt J.A.”