Court of Appeal for Ontario

Date: January 23, 2017 Docket: C62524

Judges: Doherty, Blair and Lauwers JJ.A.

In the Matter of: Andrew B. Waite

An Appeal Under Part XX.1 of the Code

Counsel

For the Appellant: Erin Dann

For the Attorney General: Kevin Rawluk

For the North Bay Regional Health Center: Janice Blackburn

Heard: January 19, 2017

On appeal from the order of the Ontario Review Board dated April 28, 2016.

Endorsement

[1] The appellant challenges the disposition of the Ontario Review Board by which his previous disposition was continued. Under that disposition he continues to be discharged from the North Bay Regional Health Center – North Bay site, subject to a number of conditions.

[2] The appellant makes two arguments in this appeal. First, he argues that the Board failed to focus on whether he poses a significant risk of serious harm to the public, as it is required to do under s. 672.54 of the Criminal Code. Instead it wrongly focussed on the evidence of Dr. Rachel Henry who testified that if the appellant were no longer under the jurisdiction of the Review Board, he would discontinue his medication.

[3] We do not accept this argument. The appellant suffers from a schizoaffective disorder – bipolar type that is controlled by medication. The evidence is clear that the appellant would discontinue his medication if he could. If he did so, Dr. Henry testified that he would discontinue his medication, decompensate and revert to his previous aggressive behaviour in the community. This raises the risk that he would revert to his previous criminal behaviour. In this case the index offences were one charge each of assault and criminal harassment, and two charges of breach of probation, on July 7, 2005. His criminal record involving violence is more extensive. Moreover, we observe that the Assertive Community Treatment team sees Mr. Waite 12 times per week and that an earlier effort to reduce the frequency of visits was unsuccessful.

[4] It was entirely within the Board's expertise to conclude that if the appellant were given an absolute discharge, he would discontinue medication and would inevitably progress to the behaviour that led to the index offences. The decision was entirely reasonable.

[5] The appellant's second ground of appeal is that the Board erred in failing to consider whether a community treatment order under the Mental Health Act could serve to mitigate any residual risk to the public that would be posed by the appellant if he were absolutely discharged.

[6] We reject this argument, because it was not advanced before the Board and there is no supporting evidence for it: see Re Petroniuk, 2016 ONCA 186. We add that the Board itself has no authority to make a community treatment order. That is the task of a medical doctor under s. 33.1 of the Mental Health Act. Nor is there evidence that the conditions precedent to such an order as set out in s. 33.1(4) of the Mental Health Act have been met.

[7] The appeal is dismissed.

"Doherty J.A."

"R.A. Blair J.A."

"P. Lauwers J.A."