Court of Appeal for Ontario

Date: May 10, 2017 Docket: C62629

Judges: Weiler, Feldman and Huscroft JJ.A.

In the Matter of: Elvis Krivicic

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• Jill R. Presser, Amicus Curiae
• Elvis Krivicic, in person
• Craig Harper, for the Respondent Crown
• Janice Blackburn, for the Respondent persons in charge of Providence Health Care Kingston and North Bay Regional Health Centre

Heard: April 26, 2017

On appeal from the disposition of the Ontario Review Board dated August 11, 2016.

Opinion of Huscroft J.A.

[1] The appellant, Elvis Krivicic, appeals the August 11, 2016 Disposition of the Ontario Review Board, which concluded that he constitutes a significant threat to the safety of the public and transferred him from the Secure Forensic Unit of the North Bay Regional Health Centre (North Bay) to the Secure Forensic Unit at Providence Health Care Kingston (Providence) with escorted hospital and grounds privileges.

[2] Amicus submits that the Board erred in failing to grant the appellant's request for an absolute discharge. The Crown seeks to uphold the Board's disposition. The persons in charge of Providence and North Bay submit that the Board's disposition was reasonable at the time it was made, but it is appropriate for the court to grant the appellant an absolute discharge on the basis of fresh evidence. Amicus and the appellant also bring fresh evidence applications in support of their positions.

[3] For the reasons that follow, I would admit the fresh evidence of the persons in charge of Providence and North Bay, allow the appeal, and remit the matter to the Board for a fresh determination.

A. Background

[4] The appellant is a 38 year-old man. On February 27, 2007, he was found not criminally responsible (NCR) on account of mental disorder in connection with one count of criminal harassment and two counts of failure to comply with recognizance.

[5] The index offences involved repeated telephone calls and attempts to contact a woman the appellant did not know. The appellant has been detained in the mental health system pursuant to Board dispositions for over ten years since the index offence.

[6] The appellant has been diagnosed with delusional disorder, erotomoaniac type, and adjustment disorder with depressed mood. He has a history of cannabis abuse as well as anti-social and schizoid personality traits. He has Crohn's Disease and problems with his skin and is concerned that he has not been able to receive the medical treatment he requires.

B. The Decision of the Board

[7] The Board's August 11, 2016 Disposition was based on the Board's prior Disposition, dated March 3, 2016. In that disposition, the Board noted that the appellant continued to deny that he has a mental illness and that he remains untreated and continues to be in a paranoid and delusional state. However, the Board also noted that the appellant had not been involved in any violent acts and had not made any attempt to contact the victim of the index offences. Nevertheless, the Board concluded that the appellant poses a significant threat to the safety of the public and that he should be transferred from the Waypoint Centre for Mental Health Care to North Bay.

[8] In the normal course, the appellant would not have had another Board review for 12 months. However, as a result of a shortage of psychiatrists, North Bay requested an early Board review for the purpose of moving the appellant to an institution where he could receive psychiatric care. The result was the Board's August 11, 2016 Disposition that is the subject of this appeal.

[9] The Board concluded that nothing had changed since its March 2016 disposition and that the appellant continued to pose a significant threat to the safety of the public. The Board ordered that he be transferred from the Secure Forensic Unit of the North Bay to the Secure Forensic Unit at Providence, with escorted hospital and grounds privileges. A minority of the Board would have granted the appellant additional privileges.

C. The Fresh Evidence

[10] Amicus' fresh evidence application consists of the full evidentiary record of the hearing that resulted in the Board's March 2016 Disposition. The appellant's fresh evidence application concerns his medical condition, in particular Crohn's Disease, and treatment regime. The fresh evidence proffered by the persons in charge of Providence and North Bay is a report prepared by the appellant's current psychiatrist, Dr. Chan, who expresses the view that the appellant does not meet the significant threat threshold and is entitled to an absolute discharge.

D. Analysis

[11] The Board's decision is subject to review on the reasonableness standard. The question for the court is whether, in all of the circumstances, the Board's has reached an acceptable and defensible outcome.

[12] In my view, the Board's decision is unreasonable in light of the fresh evidence proffered by the persons in charge of Providence and North Bay, which I would admit.

[13] The appellant had not been seen by a regular psychiatrist between his transfer to North Bay and the August Board hearing. As noted above, the purpose of that hearing had been to transfer the appellant to an institution that could provide the psychiatric care not available at North Bay. The Board had no new information to go on in determining whether the appellant posed a significant threat to the safety of the public, and so relied on the information provided at the prior hearing in March in denying his request for an absolute discharge.

[14] The fresh evidence provides an up-to-date medical report from the appellant's current psychiatrist, Dr. Chan, based on a thorough psychological assessment conducted by a clinical forensic psychologist, Dr. Looman. He administered a different test than had been previously used to assess the appellant's risk to the public if released. Dr. Chan expresses the opinion that the appellant does not meet the significant threat threshold.

[15] This is significant evidence, as it is clearly at odds with the evidence relied on by the Board in its August 11 Disposition. However, Dr. Chan's evidence has not been tested by the Crown, nor has it been evaluated by the Board. If Dr. Chan's evidence had been before the Board in August, the Board would have had to evaluate it alongside the evidence it relied on in making its prior dispositions.

[16] This is an unusual situation, in which the appellant's new treating psychiatrist and the person in charge of his current treatment centre agree that he should be absolutely discharged.

[17] In these circumstances, I would conclude that the Board's decision is now unreasonable. Through no fault of the Board, its decision is based on an incomplete picture. If Dr. Chan's evidence is accepted by the Board, the appellant is entitled to an absolute discharge.

[18] It is not for the court to reconcile the competing psychiatric evidence in this case. That is the responsibility of the Board, an expert body charged with responsibility for evaluating the medical evidence, and the Board must be permitted to do its job.

[19] Accordingly, I would allow the appeal and remit the matter to the Board for a fresh determination in light of Dr. Chan's evidence, and any other evidence it considers relevant.

[20] The Board should hold its hearing as soon as possible, and in any event no later than June 14.

Grant Huscroft J.A.

I agree. K.M. Weiler J.A.

Opinion of Feldman J.A. (Dissenting as to Remedy)

[21] I agree with my colleagues that the fresh evidence tendered by the person in charge of the hospital should be admitted and considered by this court. That evidence is that in the opinion of the psychologist who tested the appellant, and the psychiatrist charged with his care, he does not pose a significant threat to the safety of the public and should be absolutely discharged.

[22] In my view, based on the fresh evidence, and with no contradictory evidence either tendered or proposed, in accordance with s. 672.54 of the Criminal Code, the appellant should be granted an absolute discharge.

[23] The fresh evidence tendered by the person in charge of Providence Care is the affidavit of Dr. Chan, the appellant's treating psychiatrist, as well as the report of Dr. Looman, the psychologist who conducted the testing of the appellant.

[24] Following the Board's disposition of August 11, 2016, the appellant was transferred to Providence Care, where he told Dr. Chan that he no longer posed a significant threat to the safety of the public. Dr. Chan decided that that issue should be reviewed. In particular, he noted that given the index offence of criminal harassment of a woman with whom the appellant had no prior relationship or romantic contact, it might be appropriate for the appellant to be assessed using psychological risk assessments that have been developed to address that type of issue.

[25] Dr. Chan referred the appellant for a "[thorough] psychological assessment with respect to risk" to Dr. Looman, an "experienced clinical forensic psychologist who practises at Providence Care".

[26] Dr. Looman met with the appellant for six hours over the course of three days and reviewed the previous hospital reports prepared for Board hearings, including the appellant's risk assessments. He noted that the last assessment was prepared at Waypoint Center in December 2015. It was done using the tool HCR-20. The appellant scored 28/36 with 2 items omitted. There were also clinical concerns of: lack of insight, negative attitude, active symptoms of major mental illness and unresponsiveness to treatment. His risk management concerns were lack of appropriate personal support and non-compliance with remediation attempts.

[27] Dr. Looman reported that the appellant told him that the index offence occurred because a friend told him that the victim liked him. He said that once he understood that she did not want contact with him he stopped, and that his attempted contacts from jail were to extricate himself.

[28] Dr. Looman noted that the HCR-20 assessment tool was specifically designed to predict risk for violent recidivism and doubted its applicability, given that the appellant has no history of violence, nor has he been violent in hospital despite his anger over his legal situation and his medical treatment. He noted that as the appellant was 38 years of age and the risk of violence decreases after age 40, it was reasonable to assume that the appellant was now unlikely to engage in violence into the future.

[29] Dr. Looman decided that given the nature of the index offence, a stalking-specific risk assessment was the most appropriate. The results of the three parts of the Stalking Risk Profile were as follows: 1) risk of stalking violence, 2/15 factors = low risk; 2) risk of persistence, 2 or 3/12 factors (lack of empathy is questionable) = low risk; risk of reoccurrence, 2/8 factors = low risk.

[30] I quote his summary and conclusion in full:

Mr. Krivicic is thus considered to present a low risk for violence overall. While he continues to refuse treatment and remains delusional, his delusions focus on persecutory themes and he no longer thinks about the victim of his index offence. While he experiences anger regarding what he perceives as injustices he is subject to; he channels this anger into writing letters and complaints.

It should be noted that the current risk assessment reaches a quite different conclusion than previous assessments. The most recent assessment was conducted at Waypoint Centre in 2015 and assessed Mr. Krivicic using the HCR-20. As discussed above, I see this as an inappropriate tool for this purpose. Other assessments appear to have been clinical in nature and appear to have focused on his refusal of treatment and his on-going delusions as indicating an elevated risk. This again does not appear to be an appropriate conclusion for a variety of reasons; not least because clinical judgement regarding risk for re-offence is well-known to be inaccurate. Part of this inaccuracy is due to the fact that when making clinical assessments of risk for re-offence the person conducting the assessment tends to focus on factors which [are] NOT related to risk.

The risk assessment in the current report is the first to use a measure specific to Mr. Krivicic's index offence, the Stalking Risk Profile, which is a validated measure of risk for stalking violence; and this assessment places him at low risk.

Mr. Krivicic is asking for an absolute discharge from his disposition. His current risk level would suggest that this is an appropriate result. In addition to his presenting a low risk for violence Mr. Krivicic is current[ly] experiencing a great deal of distress due to what he perceives as the forensic system's denying him access to what he sees as adequate medical care. Granting him a discharge will allow him to access the care he seeks, and may be considered to be in his best interest.

[31] In his affidavit, Dr. Chan explained that the appellant told him he did not wish to proceed with the new evidence to an early Review Board hearing, as that would have the effect of making this appeal moot. That had already happened to the appeal of his March, 2016 Review Board disposition when the August hearing was held to transfer him to Providence Care from North Bay. Dr. Chan understood that the fresh evidence was being presented to this court.

[32] Dr. Chan states that he endorses the conclusion reached by Dr. Looman, and that in his opinion the appellant "does not meet the significant threat threshold for remaining under the jurisdiction of the Ontario Review Board," and that "the person in charge of Providence Care supports the absolute discharge of Mr. Krivicic." He also wanted this court to be aware that if an absolute discharge were to be granted, Providence Care would provide a bed for the appellant for a reasonable period of time in order to facilitate discharge planning.

[33] This case presents a very unusual situation where the person in charge of the hospital brings forward fresh evidence and supports an order of absolute discharge. I note that both respondents, the person in charge of Providence Care, and the person in charge of North Bay Regional Health Centre, where the appellant was held at the time of the Board disposition under appeal and which supported that disposition, support an absolute discharge order from this court.

[34] The opposition comes only from the respondent Ministry of the Attorney General. It was the Ministry's position that the fresh evidence should not be admitted. That position has been rejected. The Ministry has brought forward no evidence to suggest that there is any medical or psychiatric professional who has concerns about the conclusion reached by Dr. Looman and Dr. Chan that should be brought to the attention of the Board.

[35] My colleagues state that this court is not to reconcile competing psychiatric evidence. However, there is no competing psychiatric evidence. There is old evidence that was before previous Boards and the fresh evidence based on new, current testing. The fresh evidence is the un-contradicted opinion of the appellant's treating psychiatrist and of the experienced forensic psychologist at the appellant's hospital. It is tendered by the person in charge of the hospital as reliable.

[36] Under s. 672.78(3)(a), where the court of appeal allows an appeal from a disposition of the Board, it may make any disposition the Board could have made. In this case, had the Board had the fresh evidence we have admitted, it could have ordered an absolute discharge. Under s. 672.78(3)(c) this court may make any order that justice requires.

[37] I would order an absolute discharge under either paragraph (a) or (c).

[38] In R. v. Ferguson, 2010 ONCA 810, 264 C.C.C. (3d) 451, this court ordered an absolute discharge where it concluded that the evidence before the Board did not support the finding of significant threat to the safety of the public. Doherty J.A., writing for the court, reviewed the legal and constitutional basis for the requirement that a person found not criminally responsible (NCR) only have his or her liberty restricted where the person poses a significant threat to the safety of the public. See R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para 25. Otherwise, the Board must order an absolute discharge. See Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at paras. 52, 57 and 62.

[39] The assessment of risk is normally done by the Review Board, an expert panel able to assess complex psychiatric evidence. However, in Ferguson, this court overruled the finding by the Board that the accused posed a significant threat to the safety of the public. The court concluded that the Board had overstated the treating psychiatrist's opinion, which did not go so far as saying that the accused in that case was likely to cause harm to the public in the future, and therefore, at its highest amounted to uncertainty. As a result, the Board should have ordered an absolute discharge. The court therefore made that order.

[40] In this case, although the Board has not had an opportunity to assess the fresh evidence, that evidence is unequivocal and one-sided. Based on the record before this court, there is no evidence that the appellant continues to pose a significant risk to the safety of the public.

[41] For these reasons, I would direct an absolute discharge.

Released: May 10, 2017

K. Feldman J.A.