Court of Appeal for Ontario

Date: 2017-02-24 Docket: C62164

Judges: Cronk, Rouleau and Miller JJ.A.

In the Matter of: Jerome Williams

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

Anita Szigeti and Tara Mimnagh, for the appellant
Kathleen Farrell, for the respondent

Heard: February 22, 2017

On appeal against the disposition of the Ontario Review Board dated May 13, 2016.

Endorsement

[1] On December 22, 2011, the appellant was found not criminally responsible on account of mental disorder on charges of robbery, uttering threats, assault causing bodily harm, and other offences. He was diagnosed as suffering from schizophrenia, anti-social personality disorder, cannabis use disorder, and borderline intellectual functioning.

[2] He now appeals the disposition of the Ontario Review Board dated May 13, 2016, with Reasons for Disposition issued May 31, 2016, ordering that he remain on the secure forensic unit of St. Joseph's Healthcare, Hamilton, with privileges, or be transferred to the general forensic unit at that institution, in the discretion of the person in charge. He had sought an order permitting him to be placed on the general forensic unit, with seven day passes to visit his mother. Before this court, he seeks an absolute discharge or, in the alternative, a conditional discharge.

[3] The Board, in its reasons, noted that the appellant had made progress since his transfer to St. Joseph's. He had not been violent and had participated in some hospital programs. The Board noted, however, that he lacked insight into his illness and expressed concern at his decision, which was ratified by his substitute decision maker, to markedly reduce his dose of anti-psychotic medication. The hospital accordingly reduced his medication six weeks prior to the date of the hearing. Although the only behaviours of concern that had been noted to the date of the hearing were an occasional increase in irritability and (to a limited extent) anti-social behaviour, the Board, based on the expert evidence before it, found that he was "more likely than not en route to a psychotic relapse" as a consequence of the reduction in medication. The Board also accepted the opinion of the appellant's clinical team, based on psychological testing, that the appellant poses a moderate to high risk of violence.

[4] The appellant appeals the finding that he poses a significant risk of threat to the public, and argues that the Board erred in law by concluding that a custodial order was the least onerous and least restrictive disposition to manage his risk.

[5] With respect to the finding that the appellant poses a significant risk to public safety, the appellant argues that the Board's conclusion is mere speculation, based on insufficient evidence.

[6] We disagree. The Board's decision is grounded in the evidence that: (1) the appellant lacks insight into his mental disorder and need for medication; (2) the appellant would stop treatment at the first opportunity; and (3) psychological testing indicates that the appellant's risk of psychotic relapse and engaging in violent behaviour would be high if he ceased treatment.

[7] Additionally, the appellant, through his counsel, conceded before the Board that the appellant remains a significant risk to public safety. Given this concession, it is not surprising that the Board's decision does not dwell at length on the evidence in support of this finding.

[8] With respect to the remedy sought, the appellant argues that the Board's concerns about his non-compliance with medication could be addressed through either an absolute or conditional discharge, coupled with a community treatment order.

[9] A difficulty with the appellant's argument is that the prospect of a community treatment order was not argued before the Board, and so there is no supporting evidence in respect of such an order, and no findings as to the potential terms of an appropriate community treatment order. A more fundamental problem, however, is this court's holding in Re Waite, 2017 ONCA 56 that the Board has no authority to make a community treatment order. Such an order is to be made by a physician under s. 33.1 of the Mental Health Act, R.S.O. 1990, c. M.7, where the conditions precedent in s. 33.1(4) of that statute have been met.

[10] In all these circumstances, we conclude that the Board's disposition was reasonable based on the evidence before it and there is, therefore, no basis for appellate interference with it.