Court of Appeal for Ontario

Date: 2017-06-28 Docket: C63037

Judges: Strathy C.J.O., Benotto and Miller JJ.A.

In the Matter of: Andrew Wakeling

An Appeal Under Part XX.1 of the Criminal Code

Counsel

For the Appellant: Daniel F. Moore and Taufiq Hashmani

For the Respondent, The Person in Charge of the Centre for Addiction and Mental Health: Gavin S. MacKenzie

For the Respondent, The Attorney General of Ontario: Peter Fraser

Heard: June 20, 2017

On appeal against the disposition of the Ontario Review Board, dated October 31, 2016.

Reasons for Decision

[1] Mr. Wakeling was found not criminally responsible on a charge of criminal harassment. He has been detained at the General Forensic Unit of the Centre for Addiction and Mental Health with privileges to enter the community while accompanied.

[2] On October 31, 2016, the Ontario Review Board declined to expand his privileges or to grant him the absolute discharge he requested. The Board found Mr. Wakeling continued to present a significant threat to the safety of the public. The Board based its finding on the assessment of risk set out in the Hospital Report, which stated Mr. Wakeling's level of insight into his illness is incomplete: he denies psychotic symptoms and does not believe he has a serious mental illness requiring treatment. The Report indicated if Mr. Wakeling discontinues his medication, his risk to re-offend is high. The Board concluded the current disposition was the least onerous and the least restrictive.

[3] Relying on the case of Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, Mr. Wakeling submits both the criminal offence and the risk to the public must be serious. He submits the Board did not engage in a separate and specific analysis of whether his conduct would give rise to "a serious criminal offence" with "a real risk of physical or psychological harm occurring to individuals in the community": see Winko, at para. 57.

[4] An appellate court may only allow an appeal against a disposition of the Board where the disposition is unreasonable, based on an error of law, or results in a miscarriage of justice: Criminal Code, R.S.C. 1985, c. C-46, s. 672.78. We find no such grounds in this case.

[5] The Board's reasons indicate it considered that criminal harassment is a serious offence and that his conduct presents a real risk of psychological harm to members of the community. Before the events giving rise to the index offence, the appellant was convicted of criminal harassment three times. The stalking behaviours he exhibited were directed at adult females and disclosed a level of forethought and planning. The evidence before the Board indicated the victim suffered psychological harm. In particular, at para. 30, the Board found as follows:

The Board also accepts the evidence of the hospital report and the testimony of Dr. Kolla that the offence of criminal harassment is a serious one in light of its severe effect upon the victim. The evidence is that the victim was terrified of [Mr. Wakeling] and suffered real psychological harm from the offence of the criminal harassment and the Board accepts that as a fact.

[6] For these reasons, the appeal is dismissed.

G.R. Strathy C.J.O.

M.L. Benotto J.A.

B.W. Miller J.A.