Court of Appeal for Ontario

Date: 2017-12-06 Docket: C63231

Judges: Simmons, van Rensburg and Nordheimer JJ.A.

In the Matter of: Anton Vethanantham

An Appeal Under Part XX.1 of the Code

Counsel:

• Jonathan Fernandes, for Anton Vethanantham
• Michael Fawcett, for the Attorney General of Ontario
• Barbara Walker-Renshaw, for the Person in Charge of the Ontario Shores Centre for Mental Health Sciences

Heard: October 30, 2017

On appeal against the disposition of the Ontario Review Board, dated November 30, 2016, with reasons dated January 4, 2017.

Reasons for Decision

[1] Anton Vethanantham appeals from the November 30, 2016 disposition of the Ontario Review Board ("the Board"), with accompanying reasons dated January 4, 2017, ordering his detention at the General Forensic Unit of the Ontario Shores Centre for Mental Health. The hearing before the Board was held on November 25, 2016.

[2] The appellant is a 54 year-old man, who was born in Jaffna, Sri Lanka. He immigrated to Canada as a young man and became a Canadian citizen in 1992. He was married. He had three children, but one of those children has passed away. Because of the events leading up to the appellant's current situation, neither his ex-wife nor his children wish to have contact with him.

[3] The appellant is diagnosed with schizophrenia, paranoid type, and alcohol abuse.

[4] On March 5, 2008, the appellant was found not criminally responsible ("NCR") in respect of one count of criminal harassment and three counts of breach of probation. The criminal harassment charge arose from harassing telephone calls that the appellant made to his ex-wife in contravention of an existing probation order. The probation order was imposed as a result of a conviction for assault with a weapon against his ex-wife. The appellant has been subject to the supervision of the Board since 2008. The appellant's psychiatric problems, however, date back to 1998. His criminal record includes several prior convictions for assault and failing to comply with court orders.

[5] Between 2009 and December 2015, the appellant lived in the community subject to a conditional discharge. He was detained in December 2015 after he decompensated following termination of his antipsychotic medication in September 2014. By the fall of 2015, the appellant had left the stable home he had with family, begun living in motels and shelters, resumed drinking alcohol, terminated contact with his treatment team, and made efforts to contact his ex-wife.

[6] On November 25, 2016, a hearing was held to determine whether the appellant remained a significant threat to the safety of the public. The evidence before the Board consisted of a hospital report, the evidence of Dr. Pytyck, the appellant's treating psychiatrist, and the evidence of the appellant.

[7] The Board accepted the evidence of Dr. Pytyck that the appellant remained a significant risk to public safety. Although the appellant had returned to his baseline mental health status three months before the Board hearing, post-detention assessment indicated he was psychotic upon readmission to the hospital in 2015. Dr. Pytyck also gave evidence that the appellant has a complete lack of insight into his mental illness. If he were discharged, he would immediately cease taking his medication; and he would not follow up with his psychiatric care. Those realities, in turn, give rise to the very real concern that the appellant would once again return to consuming alcohol; that he would experience psychosis; and that those factors would lead to potentially violent conduct and/or behaviour that would cause psychological harm to others.

[8] We reject the appellant's submission that the Board's finding that he poses a significant threat to public safety is unreasonable.

[9] The Board's findings that the appellant suffers from schizophrenia, paranoid type; that he lacks insight into his mental illness; and that, if not subject to Board supervision, he would discontinue medication and seek inappropriate housing – leading to additional stressors, deterioration of his mental condition, alcohol abuse, and harmful behavior – are amply supported by the record.

[10] As noted by the Board, in addition to the index offences, the appellant has a history of assaultive behavior and breaches of court orders. Moreover, criminal harassment is a serious criminal offence requiring proof that the victim(s) reasonably feared for their safety: Criminal Code, R.S.C. 1985, c. C-46, at s. 264(1). Further, there was evidence before the Board that after being permitted to resume consumption of alcohol the appellant drove with a blood alcohol level over twice the legal limit[1]. Based on the appellant's history and Dr. Pytyck's evidence, it was open to the Board to conclude that, if not subject to the Board's supervision, the appellant would likely experience psychosis and act out in a violent manner or cause psychological harm to others.

[11] The Board's decision not to grant a conditional discharge and that a detention order is the least onerous and least restrictive alternative is also reasonable. Among other things, the Board noted that the appellant is incapable of consenting to treatment and that the hospital must be in a position to approve housing. These considerations were entirely reasonable. Under the law as it currently stands, no condition relating to treatment can be included in a conditional discharge for a NCR party who is incapable of consenting to treatment: Criminal Code, at s. 672.55(1); R. v. Kalra, 2016 ONCA 390, at para. 19. Further, unlike the situation in the past, the appellant has no suitable place to live. Where, as here, approved housing is an important risk management tool, a conditional discharge is not appropriate because it cannot include an approved residence clause: R. v. Simpson, 2010 ONCA 302, at para. 4.

[12] The appeal is dismissed.

Janet Simmons J.A. K. van Rensburg J.A. I.V.B. Nordheimer J.A.

Footnote

[1] All parties acknowledged that, following the Board hearing, the charges in relation to this conduct were withdrawn. However, the Board was not precluded from relying on evidence of the conduct underlying the charges in the form of reference to information contained in a police report. See Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at paras. 61-62; R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 29; and R. v. Wodajio, 2005 ABCA 45, 194 C.C.C. (3d) 133, at paras. 18-38.