COURT OF APPEAL FOR ONTARIO
CITATION: Afemui (Re), 2016 ONCA 689
DATE: 20160920
DOCKET: C61656
Gillese, Rouleau and Brown JJ.A.
IN THE MATTER OF: MAUNALOA AFEMUI
AN APPEAL UNDER PART XX.1 OF THE CODE
Mercedes Perez, for the appellant
Andrew Hotke, for the respondent Crown
Michele Warner, for the respondent Person in Charge of the Centre for Addiction and Mental Health
Heard: September 14, 2016
On appeal from the disposition of the Ontario Review Board dated December 8, 2015.
ENDORSEMENT
[1] Mr. Afemui has been detained under the jurisdiction of the Ontario Review Board (the “Board”) since October 6, 2006, when he was found not criminally responsible on account of mental disorder on charges of sexual assault and attempt to choke or strangle (the “index offences”). He has been diagnosed with schizophrenia and has been found to be incapable of consenting to treatment. Mr. Afemui’s son is his current substitute decision maker.
[2] Mr. Afemui’s most recent review hearing (the “Hearing”) took place on November 25, 2015. The Board had before it the hospital report on Mr. Afemui, dated October 22, 2015. The hospital report provided extensive information on Mr. Afemui, including his personal and mental health history, details of the index offence, and information on Mr. Afemui’s course in hospital and in the community following his NCR finding. The hospital report also contained information on Mr. Afemui’s convictions for three counts of criminal harassment for events that occurred while Mr. Afemui was on bail in the community pending the determination of the index offences.
[3] In addition to the documentary evidence, the Board heard the oral evidence of Dr. T. Wilkie. Dr. Wilkie has been Mr. Afemui’s attending psychiatrist since his discharge into the community in December 2010.
[4] At the conclusion of the Hearing, the Board ordered that Mr. Afemui again be conditionally discharged into the community.
[5] On December 8, 2015, the Board issued its disposition (the “Disposition”), conditionally discharging Mr. Afemui into the community. The Disposition was amended by order made on January 4, 2016, to remove a term requiring Mr. Afemui to participate in a program for rehabilitation created by CAMH.
[6] On January 15, 2016, the Board released fresh reasons for the Disposition. A majority of the Board ordered the continuation of Mr. Afemui’s conditional discharge but, for the second year in a row, the dissenting Board member would have granted him an absolute discharge.
[7] Mr. Afemui appeals, asking for an absolute discharge. He argues that:
the Disposition is unreasonable because the evidentiary basis underlying the majority’s conclusion that he remains a significant risk to public safety is not explained in the reasons nor supported by the record. In particular, he says that the majority did not reconcile its decision with evidence that he has consistently exhibited pro-social behaviours since 2006, even while continuing to suffer residual delusions.
the majority focused on the potential for future medication non-compliance, rather than determining whether he remained a significant risk to the safety of the public; and
the majority failed to explain why legal mechanisms available under the civil mental health system in the event of an absolute discharge were insufficient to safely manage any episodes of future medication non-compliance and/or decompensation.
[8] For the reasons that follow, we do not accept these submissions.
ISSUE #1: Is the Disposition unreasonable?
[9] The majority finding that Mr. Afemui remains a significant risk to public safety is entitled to significant deference. As it is reasonable and supported by the evidence, we see no basis for interfering with it.
[10] In making this finding, the majority accepted Dr. Wilkie’s expert opinion that Mr. Afemui is compliant with treatment (injectable medicine) because of the external controls associated with being under the Board’s jurisdiction. Dr. Wilkie also opined that if Mr. Afemui received an absolute discharge, he would “fall away” from treatment, resulting in a greater intensity of his psychotic symptoms, increased psychosis, and an increased risk of violent behaviour. This expert opinion is shared by the Forensic Outpatient Team, psychiatrist Dr. Leblanc and the Archway team and amply supports the majority’s finding.
[11] This court has repeatedly accepted that reliance on expert medical evidence to the same effect as that given by Dr. Wilkie is a valid basis for finding that an NCR accused remains a significant threat to the safety of the public. See, for example, Schutzman (Re), 2013 ONCA 48, at para. 5.
[12] The reasons of the majority also refer to a number of pieces of evidence of Mr. Afemui’s ongoing lack of insight into his mental illness and the need to be treated with medication, and his persistent delusional themes.
[13] As the reasons of the majority explain the basis for their decision and allow for meaningful appellate review, we do not accept that they are inadequate.
[14] Counsel for Mr. Afemui also says that the majority did not reconcile its decision with evidence that Mr. Afemui has consistently exhibited pro-social behaviours since 2006, even while continuing to suffer residual delusions.
[15] Dr. Wilkie’s acknowledged that there have been no behavioural concerns for the five years that Mr. Afemui has lived in the community, despite continuing to suffer from delusions. The majority expressly accepts this. Thus, the majority did not disregard the evidence in question. However, as we have noted, the Board was entitled to rely on Dr. Wilkie’s expert opinion that despite this pro-social behavior, if Mr. Afemui were granted an absolute discharge, he would discontinue treatment which would result in an increased risk of violent behaviour.
ISSUE #2: Did the majority improperly focus on potential non-compliance?
[16] It can be seen from our discussion of the first issue that the majority did not focus on the potential of non-compliance instead of determining whether Mr. Afemui remained a significant risk to public safety. Rather, the majority’s discussion of non-compliance was tied to the evidence of the active symptoms of mental illness from which Mr. Afemui continues to suffer, his lack of insight into his mental illness, the significant likelihood that he would discontinue treatment if absolutely discharged, and Dr. Wilkie’s evidence that if he falls away from treatment, he would experience greater psychotic symptoms giving rise to an increased risk that he would act out in an aggressive or violent manner.
ISSUE #3: Were other legal mechanisms insufficient to manage the risks?
[17] Counsel for Mr. Afemui concedes that a conditional discharge was the necessary and appropriate disposition if the majority’s finding that Mr. Afemui was a significant threat stands. However, she argued that the majority erred in making that finding without first adequately exploring whether his risk could be managed by the civil mental health system in the event of an absolute discharge.
[18] The record shows that the Board was aware of the tools of the civil mental health system available under the Mental Health Act, R.S.O. 1990, c. M.7 and of Mr. Afemui’s position on their suitability as an alternative for managing his risk. However, it can be inferred from their reasons that it concluded that those tools would not adequately contain the risk. It can also be inferred that this conclusion was reached, at least in part, because of an absence of evidence of a plan establishing that the Box “B” tools would be effective.
DISPOSITION
[19] Accordingly, the appeal is dismissed.
“E.E. Gillese J.A.”
“Paul Rouleau J.A.”
“David Brown J.A.”