COURT OF APPEAL FOR ONTARIO

CITATION: Nakra (Re), 2016 ONCA 925

DATE: 20161208

DOCKET: C62006

Feldman, Watt and Huscroft JJ.A.

IN THE MATTER OF: Aakash Nakra

AN APPEAL UNDER PART XX.1 OF THE CODE

Anita Szigeti, for the appellant

Gavin S. MacKenzie, for the Centre for Addiction and Mental Health

Craig Harper, for the Attorney General of Ontario

Heard: November 29, 2016

On appeal against the disposition of the Ontario Review Board dated March 29, 2016.

ENDORSEMENT

[1] On August 13, 2014, the appellant, Aakash Nakra, was found Not Criminally Responsible by reason of mental disorder on charges of attempting to choke in the commission of an offence, assault with a weapon, aggravated assault, theft of a motor vehicle, failure to comply with a condition of judicial interim release, and mischief under $5,000. He has been subject to a detention order since that time.

[2] The appellant appeals from the March 29, 2016 disposition of the Ontario Review Board, which ordered that he remain subject to a detention order with a provision allowing him to live in the community in approved accommodation with weekly reporting obligations.

[3] The appellant submits that the Board erred in denying his request for a conditional discharge. In particular, the appellant submits that the Board erred in law by failing to conduct an individualized assessment of risk as required by the Supreme Court in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625.

[4] We do not accept this argument.

[5] The appellant conceded that he remains a significant threat to public safety and the issue was not contested before the Board. That being so, the Board was required to fashion a “necessary and appropriate” disposition pursuant to s. 672.54 of the Criminal Code.

[6] The appellant’s psychiatrist, Dr. Darani, testified that the appellant could not be managed appropriately under a conditional discharge and that he required a managed transition into the community, including hospital-approved accommodation. She also testified that this was the normal progression that was followed by the team. This is part of the basis for the appellant’s submission that his particular circumstances were not considered. To the contrary, the fact that the team believed that its normal recommendation also applied to the appellant would be based on their expertise and experience, and does not undermine their consideration of his particular needs.

[7] The Board accepted Dr. Darani’s evidence and the evidence in the hospital report without reservation. It made no error in doing so. On a fair reading of the record, it cannot be said that there was a failure to respond to the appellant’s individual circumstances.

[8] The appellant submits that the Board’s decision is unreasonable, among other things because the Board gave no weight to the progress he made; ignored the wishes of his parents; failed to take a “culturally competent” view of his situation; and failed to take into account his young age.

[9] We disagree. In our view, the Board’s decision is amply supported on the record that was before it and is reasonable.

[10] The Board found that the appellant had limited insight into his mental illness and the impact of substance abuse on his illness. He had used illicit substances and attempted to avoid detection by manipulating his urine testing. Furthermore, the Board found that the appellant minimized the offences he had committed against his father and refused anger management counselling. The Board considered the proposed conditional discharge unworkable, among other things because of concerns that the appellant’s parents could not manage the risk and the legal difficulty in returning the appellant to the hospital if he was not under a detention order.

[11] Given the appellant’s violent index offences against his father and limited insight into his mental illness, the Board’s decision not to conditionally discharge him to live in the family home cannot be said to be unreasonable.

[12] The appellant has made progress since the index offence. He is undertaking online education and has been re-certified as a forklift operator. The appellant’s parents are supportive of his release and want to have him live in the family home again. These are all positive factors, but they do not undermine the reasonableness of the Board’s decision that a detention order was the necessary and appropriate disposition at that time.

[13] The appeal is dismissed.

“K. Feldman J.A.”

“David Watt J.A.”

“Grant Huscroft J.A.”