COURT OF APPEAL FOR ONTARIO

CITATION: Edwards (Re), 2016 ONCA 901

DATE: 20161129

DOCKET: C61825

LaForme, Rouleau and Brown JJ.A.

IN THE MATTER OF: STEVEN EDWARDS

AN APPEAL UNDER PART XX.1 OF THE CODE

Sia Pashang, for the appellant

Dena Bonnet, for the respondent, Her Majesty the Queen

Michele Warner, for the respondent, Centre for Addiction and Mental Health

Heard: November 23, 2016

On appeal against the disposition of the Ontario Review Board dated, January 26, 2016.

ENDORSEMENT

Introduction

[1] In 2009, the appellant punched a victim in the face after she refused to give him a cigarette. After being confronted by several witnesses, he then entered a nearby TTC bus, walked to the back, poured an accelerant on the rear seats and set the bus on fire. The bus was quickly engulfed in flames and destroyed. All on board escaped without injury.

[2] The appellant was identified by security footage and was later found not criminally responsible on account of mental disorder. On April 30, 2015, he was discharged from detention subject to conditions. On November 30, 2015, he was admitted to CAMH and remained as a voluntary patient.

[3] After his most recent review on January 20, 2016, the Ontario Review Board concluded that a detention order with placement on CAMH’s General Forensic Unit was the necessary and appropriate disposition in all the circumstances. He appeals that order and argues that a conditional discharge is appropriate.

[4] At the Board hearing the appellant conceded that the test for dangerousness is met under s. 672.54 of the Criminal Code as well as Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at paras. 47, 50, 62. In this court, although he no longer concedes dangerousness, the focus of his submission is that a conditional discharge is the least onerous and least restrictive disposition, taking account of all the factors enumerated in the Criminal Code and in Winko. He says that the Board’s decision not to order this disposition is unreasonable and is not supported by the evidence. Further, he says the Board placed undue weight on the areas where improvement was needed.

The Issue

[5] The central issue is whether it was reasonable for the Board to find that the appellant’s risk needed to be managed with a detention order, as compared to his previous disposition, which was a conditional discharge.

[6] The following reasons explain why the Board’s decision is entitled to deference and why the appeal should be dismissed.

Discussion

[7] The Board appreciated that this was a “somewhat unique” case where the hospital was seeking to add an additional restriction to the appellant’s liberty from that ordered on April 30, 2015. The hospital had made a similar request for a detention order at the previous hearing, but the Board declined to order it. However, at that time, the Board did observe that the appellant’s risk factors had been worsening.

(1) The Appellant’s Risk

[8] Before the Board, the appellant conceded that he continues to represent a significant threat to the safety of the public. In spite of this concession, the appellant in this court relies on authorities such as Carrick (Re), 2015 ONCA 866, 128 O.R. (3d) 209, to argue that the Board’s conclusion, both that he represents a significant threat to the safety of the public and that it was appropriate to impose a detention order, are unreasonable. He submits that the Board could not simply focus on the potential for breach, as he says it did, but must also consider the possible consequences of any breach. It is those consequences, he says, which must constitute a significant threat to the safety of the public. The risk of the appellant’s consumption of drugs and other breaches are, he contends, speculative and cannot be said to amount to the requisite level of risk.

[9] The Board, at para. 27 of its reasons, specifically addressed the issue of risk. It referenced Carrick and “carefully considered the direction” mandated by this court. The Board then noted that even if the appellant could be taken as conceding that he continues to represent a significant threat to the safety of the public, it was still required to consider the evidence to support such a conclusion and make its own finding. We accept the approach taken by the Board for the purposes of this appeal.

[10] At para. 28, the Board accepted “without hesitation” that the appellant continued to represent a significant threat to the safety of the public. The Board relied on evidence from the hospital and from Dr. Walton of a significant change in the appellant’s mental health since the appellant’s most recent prior hearing.

[11] Dr. Walton testified that the appellant’s cocaine use is related directly to his major mental illness. The decompensation in his mental state brought with it an increased risk of violence. She said that he demonstrated an acute increase in his risk commencing in September 2015. Her opinion is as follows:

I think the threat for [the appellant] is quite closely related to his mental health problems and substance addictions. He suffers from schizophrenia and substance use disorder; particularly crack cocaine has been the most recent. In the context of both of those issues [the appellant] is at increased risk of violence in the community. There is a significant history outlined in his hospital report of violent behaviour while actively psychotic; making threats, lighting things on fire, even separate from his index offence. And I think that the recent deterioration in the fall of 2015 of his mental state was a significant indicator that his level of risk of violence was acutely increased. [Emphasis added.]

[12] In sum, Dr. Walton’s evidence was that the appellant’s mental illness — schizophrenia — when combined with his substance use disorder, especially when he used crack cocaine, meant that he would begin to show signs of psychosis. When this had happened in the past, the appellant had been violent. Past examples of his violent behaviour included the index offence and his criminal record.

[13] The hospital’s Report, dated November 20, 2015, was an important piece of evidence for the Board’s decision. The Report noted that the appellant’s history over the past reporting period included “two prolonged periods” of substance use relapse, involving cannabis and cocaine, which resulted in a change in his mental state. He also withdrew from structured activities, increased his interaction with antisocial peers and was involved in new criminal charges. The Report stated that the appellant’s risk to the public escalates as his use of drugs continues, because psychotic symptoms will become more likely to emerge.

[14] This evidence was hardly speculative and was more than sufficient for the Board to find that the appellant continued to represent a significant threat to the safety of the public. The decision is entirely reasonable.

(2) The Board’s Disposition

[15] Finally, we also reject the appellant’s submission that his risk could be addressed equally on a conditional discharge or a detention order. The hospital’s reasonable assessment that the appellant should reside in approved, supervised community housing and that the hospital should be able to return the appellant to the hospital in the event of any decompensation in his mental status similar to that which occurred in November and December 2015, meant that a conditional discharge was not the appropriate disposition.

[16] Because of his drug use, decompensation and other recent activities, the hospital concluded that the appellant required placement in approved accommodation with support and supervision to effectively manage his risk in the community. The hospital’s recommendation to the Board was a Detention Order with community living in accommodation approved by the hospital. The Board reasonably accepted this medical recommendation.

[17] We agree with the respondents that it was open to the Board to find that, in these unusual circumstances, the necessary and appropriate disposition was a detention order with community living. This was a fair result in a situation where there were ongoing concerns about the appellant’s risk level and the management of that risk.

Conclusion

[18] The Board carefully considered the evidence before it and reached a reasonable decision. This court recently restated the reasonableness standard of review in Carrick, at para. 24, where Huscroft J.A. described it as follows:

[R]easonableness review begins from the premise that questions before specialized tribunals may not give rise to a single, “correct” answer. A range of reasonable decisions may be made in a particular context and that range may be more or less broad, depending on a number of considerations in all the circumstances.

The Board’s decision in this case conforms to this standard. Therefore, this court owes deference to it. Accordingly, the appeal is dismissed.

“H.S. LaForme J.A.”

"Paul Rouleau J.A."

"David Brown J.A."