COURT OF APPEAL FOR ONTARIO

CITATION: Carrick (Re), 2016 ONCA 963

DATE: 20161220

DOCKET: C61905

Feldman, MacPherson and Hourigan JJ.A.

IN THE MATTER OF: QUENTIN CARRICK

AN APPEAL UNDER PART XX.1 OF THE CODE

Anita Szigeti, for the appellant, Quentin Carrick

Andrew Cappell, for the respondent, the Attorney General of Ontario

Julie Zamprogna Balles, for the respondent, St. Joseph’s Health Care London

Heard: December 15, 2016

On appeal from the disposition of the Ontario Review Board dated February 3, 2016.

ENDORSEMENT

[1] The appellant appeals from the disposition of the Ontario Review Board dated February 3, 2016, with supporting reasons dated February 26, 2016. In its disposition the Board ordered that the appellant continue to be detained at the Southwest Centre for Forensic Mental Health Care, St. Joseph’s Health Care London. The Disposition also provided that the person in charge of the hospital, in his or her discretion, could permit the appellant:

(a) to attend within or outside of the hospital for necessary medical, dental, legal or compassionate purposes;

(b) to enter the community of Southern Ontario, indirectly supervised;

(c) a pass to attend a residential drug rehabilitation program within a 200 kilometre radius of the Southwest Centre for Forensic Mental Health Care, St. Joseph’s Health Care London, indirectly supervised; and

(d) to live in Elgin and Middlesex Counties in accommodation approved by the person in charge.

[2] The appellant appeals from this disposition on the basis that he does not pose a significant threat to the safety of the public and, therefore, the disposition is unreasonable. The proper disposition, asserts the appellant, would be an absolute discharge.

[3] In support of his position, the appellant’s principal submission is that the Board did not take proper account of the reasons of this court in the appeal of the Board’s previous disposition relating to the appellant. In R. v. Carrick, 2015 ONCA 866, this court allowed an appeal from the Board’s disposition dated October 6, 2014 and ordered that the matter be returned to the Board for a fresh determination. The appellant submits that the Board’s fresh determination (the disposition at issue in this appeal) is infected with the same errors as the previous disposition.

[4] We do not accept this submission. We begin by noting that in its decision in 2015 this court did not find that the appellant was not a significant threat to the safety of the public; rather the court found problems with the Board’s reasoning process:

[43] Given the history of the appellant’s detention and the state of the expert evidence, the Board needed to do more than simply assert that the appellant continues to pose a significant threat to the safety of the public. It had to address the conflict in the evidence and explain why it was satisfied that the appellant poses a significant threat. In my view, its failure to do so renders its decision unreasonable.

[44] It does not follow from the conclusion that the Board’s decision is unreasonable that the appellant poses no significant risk to the safety of the public and should be discharged. It is simply the case that the Board has not made a reasonable decision. The risk posed by the appellant is a matter for the Board in the exercise of its expert judgment, not this court.

[5] In its 2016 hearing and disposition, the Board paid heed to this court’s admonition and instruction. It dealt explicitly with the conflict between some of the views of the appellant’s previous threating physician, Dr. Daly, and his current treating physician, Dr. Desjardins. The Board preferred the opinion of Dr. Desjardins, as it was entitled to do.

[6] The Board also identified and relied on a significant new development since the previous hearing:

[T]here is no doubt that he brought a dangerous and potentially de-stabilizing drug [methamphetamine] into a psychiatric facility. This act in itself was risky and irresponsible, and displayed a disregard for the safety of others.

[7] In the end, the Board concluded that the appellant remains a significant threat to the safety of the public as defined in Winko v. British Columbia, 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625. The core of the Board’s reasoning on this issue is:

[The appellant’s counsel] submitted that he does not represent a risk to the safety of the public because he has not committed any acts of physical violence while under the jurisdiction of the Board. However, his antecedents strongly suggest that he is capable of committing them when in need of money for drugs. The Board notes the boldness in which Mr. Carrick carried out the index offence, the potential psychological harm to the five year old in the residence, and his lengthy criminal record containing many entries for violence. He also exhibits aggression towards the staff, and, according to the hospital report at p. 82 is “calm in one moment and then picking fights with peers”.

[8] When coupled with the Board’s review of the medical evidence and its reliance on the appellant’s clandestine carriage of methamphetamine into the hospital, we do not think that the Board’s disposition is unreasonable.

[9] We also observe that there is an important difference between the 2014 and 2016 dispositions. The latter contains a provision permitting the appellant to live in the community if the treatment team thinks that will benefit him. We agree with the respondent Attorney General on this point (Factum, para. 40):

As it stands, the appellant’s disposition affords the appellant a great deal of freedom, as it allows him to live in the community. It is an appropriate disposition in the circumstances.

[10] We trust that the hospital will give careful consideration to this new provision in the Disposition.

[11] The appeal is dismissed.

“K. Feldman J.A.”

“J.C. MacPherson J.A.”

“C.W. Hourigan J.A.”