Court of Appeal for Ontario

Citation: Schoeler (Re), 2016 ONCA 328

Date: 2016-05-04

Docket: C61062

Judges: Weiler, Simmons and Epstein JJ.A.

In the Matter of: John Schoeler

An Appeal Under Part XX.1 of the Code

Counsel: Suzan E. Fraser, for the appellant Janice E. Blackburn, for St. Joseph’s Healthcare Chris Chorney, for the respondent Attorney General of Ontario

Heard: April 26, 2016

On appeal against the disposition of the Ontario Review Board dated June 29, 2015.

Endorsement

[1] In 1967, the appellant, a 78 year old man, was diagnosed with paranoid schizophrenia. Sadly, for several decades, the appellant’s mental disorder has caused him to be involved with the criminal justice and mental health systems.

[2] In 2008, the appellant was found Not Criminally Responsible (“NCR”) on a charge of criminal harassment. The charges arose out of contact the appellant made with a woman with whom he had become infatuated. This woman had also been the victim in criminal harassment charges for which the appellant had been convicted in 1991.

[3] Since the NCR verdict, the appellant has had annual hearings before the Ontario Review Board that have resulted in detention orders. In the most recent hearing in June 2015, the appellant sought an absolute discharge. The Board ordered a continuation of the detention order, then in place.

[4] In this appeal, the appellant submits that the Board erred in maintaining its jurisdiction over him. Specifically, the appellant argues that the Board erred in law in equating the harm contemplated in the offence of criminal harassment with the harm contemplated in s. 672.5401 of the Criminal Code, the section that defines “significant threat to the safety of the public”, for the purposes of s. 672.54.

[5] We disagree that the Board committed this error.

[6] The appellant’s submission is based on the following sentence in the Board’s reasons:

We are unanimous in finding there is a foreseeable and substantial likelihood that Mr. Schoeler would cause serious psychological harm to members of the public resulting from conduct that is criminal in nature, similar to the index offence, if not under the jurisdiction of the Board. [Emphasis added.]

[7] The appellant submits that although causing the complainant to fear for his or her safety is an element of the offence of criminal harassment, absent evidence of harm experienced by the complainant in the index offence, it was not open to the Board to conclude that the index offence resulted in serious psychological harm – which is required to meet the threshold of significant threat to the safety of the public – or that the risk of the appellant’s engaging in conduct similar to the index offence would meet that threshold.

[8] Reading the reasons as a whole, the Board did not focus only on the index offence in coming to its conclusion that the appellant continued to pose a significant threat to the safety of the public. Immediately following the sentence set out above, the Board stated:

Upon consideration of all the evidence, our findings and the submissions of the parties, we are unanimous in finding that Mr. Schoeler continues to pose a significant threat to the safety of the public as codified in s. 672.5401. [Emphasis added.]

[9] The evidence before the Board supported a finding that, if granted an absolute discharge, the appellant would discontinue his medication leading to a rapid deterioration in his mental health to active psychosis. This would create a serious risk that he would likely engage not only in behaviours similar to the index offence but also in physical and aggressive behaviour. He had done so in the past.

[10] The Board’s conclusion that the appellant continues to pose a significant threat to the safety of the public was reasonable on the record before it. The appeal is therefore dismissed.

“K.M. Weiler J.A.”

“J. Simmons J.A.”

“Gloria Epstein J.A.”