Court of Appeal for Ontario

Date: 2017-09-14 Docket: C63410

Judges: Watt, Huscroft and Trotter JJ.A.

In the Matter of: Abraham Wall

An Appeal Under Part XX.1 of the Code

Counsel

For the appellant Abraham Wall: Anita Szigeti

For the respondent the Person in Charge of St. Joseph's Health Care Hamilton: Janice Blackburn

For the respondent Attorney General of Ontario: Rebecca Schwartz

Heard: August 31, 2017

On appeal from the disposition of the Ontario Review Board, dated February 10, 2017, with reasons dated February 23, 2017.

BY THE COURT:

[1] Abraham Wall appeals from the February 10, 2017 disposition of the Ontario Review Board. A majority of the Board concluded that the appellant constitutes a "significant threat to the safety of the public" and ordered his continued detention at St. Joseph's Health Care Hamilton with community living privileges.

[2] The appellant argues that he is not a significant threat to the safety of the public and seeks an absolute discharge. The Crown and the Person in Charge of St. Joseph's oppose the appellant's release and seek to uphold the Board's disposition.

[3] For the reasons that follow, we have concluded that the Board's conclusion that the appellant is a significant threat to the safety of the public is not reasonable. Mr. Wall is entitled to an absolute discharge.

Background

[4] The appellant is a 37 year-old man diagnosed with bipolar disorder, attention deficit hyperactivity disorder, polysubstance abuse, and antisocial personality disorder. He is capable of consenting to treatment and complies with his medication. He has good insight into his mental disorder and his need for medication.

[5] The appellant has an extensive criminal record that includes 44 convictions that were committed before the index offence. This includes numerous convictions in youth court. His adult record includes robbery, assault, assault with a weapon, and many property offences, in addition to several failures to comply.

[6] The index offence occurred in 2011. The appellant threatened two police communications staff during 911 calls he made in the course of seeking treatment. The appellant told them he had a .50 calibre gun on their foreheads. He was arrested at St. Joseph's, where he received treatment for his aggressive behaviour and then was released into police custody. In the course of investigating the 911 calls, the police found that the appellant had also made numerous calls to his ex-girlfriend, who was in hiding from him.

[7] The appellant was found not criminally responsible on account of mental disorder (NCR). The Board issued a disposition ordering his detention in the general forensic unit at St. Joseph's. The disposition included the possibility of community living in approved accommodation.

[8] The appellant was discharged to the community and returned to the hospital on several occasions. He was discharged in February 2013, but was returned after absconding to Alberta. He was discharged in July 2015 and returned following positive drug tests. He was discharged in May 2016 following substance abuse treatment, but readmitted to St. Joseph's on four occasions in 2016 following positive drug tests. On the last two admissions, the hospital report notes that the appellant showed signs of cognitive impairment and hypomanic symptoms.

The Legislation

[9] The Supreme Court of Canada summarized the operation of the NCR process in Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, and at para. 33 emphasized the obligation to accord maximum liberty to offenders compatible with the goals of public protection and fairness to the NCR accused:

The only justification there can be for the criminal law detaining a person who has not been found guilty (or is awaiting trial on an issue of guilt) is maintaining public safety. Once an NCR accused is no longer a significant threat to public safety, the criminal justice system has no further application.

[10] The Board is charged with determining whether an NCR accused poses a significant threat to public safety. An NCR accused is not presumed to be dangerous and bears no burden of proof in proceedings before the Board.

[11] The Board's obligations are set out in s. 672.54 of the Criminal Code:

When a court or Review Board makes a disposition under subsection 672.45(2), section 672.47, subsection 672.64(3) or section 672.83 or 672.84, it shall, taking into account the safety of the public, which is the paramount consideration, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is necessary and appropriate in the circumstances:

(a) where a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused and, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely.

[12] A "significant threat to the safety of the public" is defined in s. 672.5401 as "a risk of serious physical or psychological harm to members of the public – including any victim of or witness to the offence, or any person under the age of 18 years – resulting from conduct that is criminal in nature but not necessarily violent."

[13] The likelihood of a risk materializing and the seriousness of the harm that might occur must be considered together. As the Supreme Court noted in Winko (in discussing s. 672.54, as it then read), at para. 57:

[T]he threat posed must be more than speculative in nature; it must be supported by evidence. The threat must also be "significant", both in the sense that there must be a real risk of physical or psychological harm occurring to individuals in the community and in the sense that this potential harm must be serious. A minuscule risk of a grave harm will not suffice. Similarly, a high risk of trivial harm will not meet the threshold. Finally, the conduct or activity creating the harm must be criminal in nature. [Citations omitted.]

The Board's Decision

[14] The Board heard testimony from the appellant's treating psychiatrist, Dr. Prat, in addition to the appellant and his friend, Mr. McRae.

[15] Dr. Prat testified that he observed hypomanic symptoms on the appellant's most recent admission to St. Joseph's. In his view, the rapid emergence of these symptoms provided clear evidence that the appellant's chronic marijuana use was affecting his mental status and put him at risk of a full manic episode. Dr. Prat acknowledged that the appellant had not been violent since 2004 and that he had not abstained from substance abuse during this period. He also confirmed that the appellant was compliant with treatment and would continue with treatment if granted an absolute discharge. However, the appellant would continue to use marijuana, and Dr. Prat stated that he was "extremely dangerous" when hypomanic.

[16] The appellant testified that he was not a threat and that the last thing he wanted to do was to commit a crime. He was amenable to a community treatment order and would be willing to return to hospital if his condition deteriorated and he experienced symptoms of mania.

[17] The majority of the Board concluded that the appellant remained a significant threat to the safety of the public. The majority reasoned as follows, at p. 7:

Significant threat was vigorously challenged at the hearing. In historical terms, Mr. Wall has a criminal record of 44 convictions, which includes firearms offenses, assault and assault with a weapon. In fairness to Mr. Wall, there have been no acts of physical violence since 2004. Yet he "destroyed" two seclusion rooms in 2011 while non-compliant with medication and manic. Though this information is not in the Hospital Report, Dr. Prat told the Board that during this episode Mr. Wall broke off pieces of metal as if to arm himself. In the years since, Mr. Wall has been rude, disrespectful, verbally abusive and verbally threatening, but not physically violent.

To his credit, Mr. Wall is treatment capable and compliant with medication. Until late 2016, his bipolar disorder was well managed by medication and unaffected by his longstanding and ongoing use of marijuana. At the hearing, the question of significant threat was linked to Mr. Wall's cannabis use and its potential impact on his bipolar affective disorder. Dr. Prat's evidence was that Mr. Wall's mental condition changed on his last two admissions to hospital: the doctor saw signs of mental deterioration on October 31, 2016, and hypomanic symptoms on November 16, 2016, only a few hours after Mr. Wall's discharge on November 15th.

In Dr. Prat's opinion, Mr. Wall's symptoms on those occasions were linked to marijuana use and he was clearly concerned that chronic use could lead to a full manic episode. Furthermore, when manic, Mr. Wall may pose a risk of violent and transgressive behavior. The Board does not agree with Dr. Prat that Mr. Wall is "extremely dangerous," but accepts that his marijuana use is potentially linked to problematic symptoms and is sufficient to support a finding of significant threat.

[18] The minority of the Board found that although the appellant's unrepentant use of marijuana was concerning, the link between that use, the rise of symptoms of hypomania, and a consequent risk to public safety was not sufficiently established to meet the significant threat threshold. Accordingly, the minority of the Board concluded that the appellant was entitled to an absolute discharge.

The Standard of Review

[19] The standard of review on this appeal is established by s. 672.78(1) of the Criminal Code:

The court of appeal may allow an appeal against a disposition or placement decision and set aside an order made by the court or Review Board, where the court of appeal is of the opinion that

(a) it is unreasonable or cannot be supported by the evidence;

(b) it is based on a wrong decision on a question of law; or

(c) there was a miscarriage of justice.

[20] The question in this case is whether the Board's decision was reasonable.

Analysis

[21] The task of determining whether or not an NCR accused poses a significant threat to the safety of the public is a difficult one, and the Board's decision is entitled to deference. On appeal, the court does not make its own judgment on the significant threat question and use that judgment as the benchmark for assessing the reasonableness of the Board's decision. Nor does the court re-weigh the considerations that were before the Board.

[22] The reasonableness of the Board's decision must be evaluated by considering the reasons proffered by the Board in the context in which the decision was made. The reasons for the Board's decision and the substantive decision reached by the Board must be considered together in determining whether an acceptable and defensible outcome has been reached, keeping in mind the need to protect the liberty of the NCR accused as much as possible, while also protecting society.

[23] This is not a case in which the Board was required to resolve conflicts in the expert evidence. Dr. Prat was the only medical professional who gave evidence. The Board rejected his evidence that the appellant was "extremely dangerous". However, the Board accepted that the appellant's marijuana use is "potentially linked to problematic symptoms and is sufficient to support a finding of significant threat": at p. 8.

[24] In our view, this conclusion is unreasonable.

[25] Plainly, the appellant has a lengthy history of mental illness and substance abuse and has committed numerous offences. The risk that he will abuse marijuana and commit additional offences if he is given an absolute discharge is substantial. But he cannot be detained indefinitely on this account. The appellant is entitled to be discharged unless the Board concludes that he poses a significant threat to the safety of the public.

[26] As this court stated in Re Carrick, 2015 ONCA 866, 128 O.R. (3d) 209, at para. 17:

[T]he "significant threat" standard is an onerous one. An NCR accused is not to be detained on the basis of mere speculation. The Board must be satisfied as to both the existence and gravity of the risk of physical or psychological harm posed by the appellant in order to deny him an absolute discharge.

[27] It is not contested that, despite his lengthy record, the appellant has not committed an act of violence since 2004. The incident from 2011, in which the appellant damaged seclusion rooms and, according to the evidence of Dr. Prat, broke off pieces of metal "as if to arm himself", was the only evidence connected to the risk of physical harm, and it was dated and speculative.

[28] The Board accepted that the appellant has insight into his mental disorder and need for medication. He has, since 2011, been rude, disrespectful, verbally abusive and verbally threatening, but he has not been physically violent nor has he caused psychological harm. Moreover, in answer to questions from the court during the hearing of the appeal, counsel advised that there have been no further incidents of telephone harassment and the appellant has not contacted his ex-girlfriend.

[29] The Board was concerned about recent signs of deterioration, but at its highest, the Board could do no more than conclude that the appellant's marijuana use is potentially linked to problematic symptoms. It is not reasonable to deny the appellant an absolute discharge on so general a basis. As the minority of the Board recognized, it is not sufficient to meet the high threshold established by the Supreme Court in Winko.

[30] We accept that, as was the case in Re Ferguson, 2010 ONCA 810, 271 O.A.C. 104, an absolute discharge may not be in the appellant's best interests: see para. 45. But that is not relevant to the Board's duty and this court's task on appeal. The appellant is entitled to his liberty absent a reasonable finding that he constitutes a significant threat to the safety of the public.

[31] The appeal is allowed. The order of the Board is set aside and an absolute discharge is granted.

Released

"DW" David Watt J.A.

"SEP 14 2017" Grant Huscroft J.A.

"G.T. Trotter J.A."

Footnote

[1] The Board also concluded that two restrictions on liberty imposed on the appellant in 2016 were warranted and justified. Those ROLs are not at issue in this appeal.