COURT OF APPEAL FOR ONTARIO

CITATION: Hart (Re), 2016 ONCA 277

DATE: 20160418

DOCKET: C61013

Doherty, Watt and Miller JJ.A.

IN THE MATTER OF: Dakota Hart

AN APPEAL UNDER PART XX.1 OF THE CRIMINAL CODE

Suzan E. Fraser and Cate Martell, for the appellant

Brock Jones, for the Attorney General of Ontario

Janice Blackburn, for the Person in Charge of St. Joseph’s Healthcare Hamilton

Heard: April 12, 2016

On appeal against the disposition of the Ontario Review Board dated August 14, 2015.

ENDORSEMENT

Overview

[1] The appellant appeals the disposition of the Ontario Review Board (the “Board”) dated August 14, 2015, with reasons issued September 1, 2015. The Board ordered the appellant detained at a secure forensic unit of St. Joseph’s Healthcare, Hamilton, with escorted hospital, grounds, and community privileges. The appellant seeks an absolute discharge or, in the alternative, a conditional discharge, and in the further alternative, an order transferring him to the secure forensic unit at the Centre for Addiction and Mental Health (“CAMH”) in Toronto.

[2] In October 2014, the appellant jumped over a school fence and carried away a four year old child who had been playing in the school yard. The child was terrified. He carried the child down the street and threatened him with a metal pole from an election sign, before the child was able to escape and run free. The appellant was apprehended and detained at St Joseph’s Healthcare. After the appellant had been detained, a nine year old child reported to police that in the previous month he had encountered the appellant on the street, and the appellant had demanded the child’s scooter and iPad, and had lifted the child’s shirt and touched his navel. The child ran away.

[3] On March 11, 2015, the appellant was found not criminally responsible on account of mental disorder on charges of forcible seizure of a child, assault, assault with a weapon, and breaches of probation.

[4] The Board’s initial disposition on August 14, 2015 unanimously found that the appellant poses a significant threat to the safety of the public. The appellant raises three issues on appeal:

1. the Board’s conclusion that the appellant poses a significant risk to the public is unreasonable and not supported by the evidence;
2. the Board failed to give adequate consideration to the appellant’s reintegration needs when it declined to transfer him to CAMH; and
3. the Board erred in law by failing to consider a conditional discharge.

[5] For the reasons that follow, the appeal is dismissed.

Standard of Review

[6] The standard of review of a disposition or placement decision of the Board is set out in s. 672.78(1) of the Criminal Code, and its application was explained in R. v Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at paras. 31-37. This court can only set aside an order of the Board where it is of the opinion that:

1. the decision is unreasonable or cannot be supported by the evidence; or
2. the decision is based on a wrong decision on a question of law; or
3. there was a miscarriage of justice.

Issue 1: Was the conclusion that the appellant poses a significant risk to the public unreasonable or unsupported by the evidence?

[7] The appellant advances three arguments to establish that the Board’s decision was unreasonable: (1) the evidence before the Board was incapable of meeting the significant risk threshold, (2) the Board erroneously relied on allegations that did not result in convictions, and (3) the Board’s finding that the risk posed by the appellant had not changed since the time of the index offences was unreasonable.

[8] We cannot give effect to any of these submissions.

[9] The Board is required to determine whether the appellant poses a significant risk of serious harm to the public. The Board concluded that he does. This decision was supported by the expert evidence of by Dr. J. Ferencz and Dr. M. Mamak.

[10] Dr. Ferencz assessed the appellant’s fitness to stand trial while in detention, and has since seen the appellant in a variety of settings. He diagnosed the appellant with bipolar disorder, a diagnosis which was subsequently confirmed by two other psychiatrists. Dr. Mamak’s assessment was that the appellant continues to present a significant risk to act out violently.

[11] The Board found that the appellant lacks insight into his illness, an illness which remains untreated because the appellant had refused treatment and medication for his mental illness. The appellant has been assessed as incapable to consent to treatment by the Consent and Capacity Board and his appeal of that decision was dismissed by the Superior Court of Justice. He remains untreated pending an appeal of that decision to this court.

[12] The Board accepted Dr. Ferencz’s evidence that the appellant’s risk level has not changed, and that because the appellant remains untreated, the situation that gave rise to the child abduction could happen again if the appellant were released into the community.

[13] The appellant argues that the Board’s decision was unreasonable in that it treated his refusal to accept medication as determinative of his risk to the community. He argues that just as his past psychotic episodes resolved without medication, so too has this episode. He maintains that the totality of the evidence before the Board indicated that he is stable and does not pose a threat to the community.

[14] The appellant also objects to the Board’s reliance on a threat assessment report prepared by Calgary Police Services in assessing the appellant’s risk to the public. That report sets out the appellant’s history of violent threats, which predates the index offence. There was no objection to the admissibility of this report at the hearing, and it was properly admissible. This court has held that such information can be used to assess whether an accused poses a significant threat to the safety of the public and in determining the appropriate disposition: Re Ranieri, 2015 ONCA 444, at para. 17. The Board was entitled to determine what weight to give to the report, and that determination is entitled to deference.

[15] In our view, the Board’s finding that the appellant poses a significant risk of harm to the public is not unreasonable. It is supported by evidence, particularly the evidence of Dr. Ferencz that the appellant remains unstable and requires treatment with psychiatric medication in order to stabilize his mental state. There is no basis for this court to interfere with this finding.

Issue 2: Did the Board err by failing to give adequate consideration to the appellant’s reintegration needs in refusing to transfer him to CAMH?

[16] The appellant requested a transfer to CAMH in Toronto in order to facilitate his integration into the community. Although the appellant resides in Hamilton and the index offence occurred in Hamilton, the appellant desires to ultimately relocate to Toronto where he can draw on the support of a larger gay community.

[17] The Board held that the appellant’s application was premature. There is a significant waiting list at CAMH, and a pending transfer would interfere with treatment planning for the appellant. Additionally, there are no therapeutic options available at CAMH that are not available at St Joseph’s in Hamilton. The Board rejected the appellant’s argument that a transfer to CAMH would benefit him by providing access to a larger gay community in Toronto, as he currently has no community access at all.

[18] The Board attended to the appellant’s submission and rejected it on therapeutic and other grounds. We see no error in the Board’s decision.

Issue 3: Did the Board err in refusing to consider a conditional discharge?

[19] Given the Board’s finding that the appellant poses a significant risk to the community, there was simply no basis for a conditional discharge. As such, the Board committed no error in not considering it.

Disposition

[20] The appeal is dismissed.

“Doherty J.A.”

“David Watt J.A.”

“B. Miller J.A.”