Court of Appeal for Ontario

Date: 2018-12-11

Docket: C65526

Panel: Hoy A.C.J.O., Feldman and Fairburn JJ.A.

In the Matter of: William Medcof

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• Ken J. Berger, for the appellant
• Holly Loubert, for the respondent Attorney General of Ontario
• Gavin S. MacKenzie, for the respondent Person in Charge of the Centre for Addiction and Mental Health

Heard: December 7, 2018

On appeal against: The disposition of the Ontario Review Board, dated May 22, 2018, with reasons reported at [2018] O.R.B.D. No 1306.

Reasons for Decision

[1] This is an appeal from the Ontario Review Board's May 22, 2018 disposition, continuing the appellant's conditional discharge.

[2] The appellant advances a number of arguments, but fundamentally says that the Board's conclusion that he remains a significant threat to the safety of the public – and corresponding refusal to order an absolute discharge – was unreasonable.

[3] We disagree. The Board's conclusion that the appellant remains a significant threat to public safety fell within the range of reasonable outcomes available on the evidence before the Board. That evidence includes, but is not limited to, the following:

(a) the appellant suffers from a major mental illness;

(b) the index offences were very serious;

(c) the appellant lacks insight into his mental illness, his need to continue treatment, and the role his illness played in the index offences;

(d) the appellant's historic resistance to treatment, and stated intention to discontinue his psychotropic medication if absolutely discharged;

(e) the appellant's history of decompensation when off his medication, or when sub-optimally medicated;

(f) the appellant's "high" scores on actuarial and clinical risk assessments for violence; and

(g) the unanimous conclusion of the appellant's treatment team that he remains a significant risk to public safety.

[4] The appellant argues that the Board failed to give proper weight to the fact that he has not engaged in any violent behaviour during the considerable period of time (17 years) that he has been subject to the jurisdiction of the Board. He points to this court's decision in Medcof (Re), 2018 ONCA 299, concerning the appellant's previous disposition, where the panel directed, at para. 60, that at the appellant's next annual review the Board should:

more fully engage with the issues of the significance of the appellant's continuing non-violent behaviour (assuming it continues), the passage of time and the correlation between these factors and the risk of serious harm in the event of decompensation.

The appellant contends that the Board did not heed that direction.

[5] We disagree. The Board had specific regard to this court's comments, and addressed the issues identified by this court in some detail. In particular, the Board examined all of the evidence before it and concluded that the appellant had been able to live in the community "successfully for as long as he has" only as a direct result of the "protective effect of his medication": at para. 26. The Board appreciated the risk of a "virtually indefinite period of [Board] oversight for [the appellant]", which it specifically noted to be a "concern": at para. 26. The Board also noted that the appellant's treatment team continues to explore other options for managing the appellant, including the possibility of placing him on a Community Treatment Order, which could potentially allow the appellant to transition to an absolute discharge. The Board expressly encouraged those efforts: at para. 27.

[6] When the Board's Reasons for Disposition are read contextually, it is clear that the Board was alive to the fact that the appellant has been subject to the jurisdiction of the Board for a considerable period of time, without engaging in any violent behaviour. The Board engaged with the issues identified by this court in last year's appeal, and ultimately came to the conclusion that, in light of all of the evidence, the appellant remains a significant risk to the safety of the public. We see no error in that approach.

[7] Relatedly, we do not agree that the Board reversed the burden of proof and required the appellant to disprove a presumption of dangerousness. While the Board adverted to the serious nature of the index offences in its analysis, it did not presume that the appellant continued to pose a significant risk to public safety solely because of the index offences. Similarly, while the Board observed, at para. 26, that there was "no expert evidence before [it] that connects, as a matter of logic, the length of time that [the appellant] has been stable with the likelihood that he would maintain that stability without a disposition from the Board", this did not have the effect of requiring the appellant to advance evidence to rebut a presumption of dangerousness. To the contrary, when coming to its conclusion about the appropriate disposition, the Board relied upon positive evidence of risk to public safety, including the evidence enumerated above.

[8] Finally, we disagree that the Board applied the incorrect legal test, and focused only on the likelihood that the appellant would re-offend, while failing to consider the potential gravity of harm if he did. There was cogent evidence before the Board that when not medicated and suffering from active psychosis, the appellant engages in physically violent and other criminal behaviour that poses a significant risk of physical or psychological harm to individuals in the community. His index offence involved kidnapping his mother, restraining her and hitting her with a golf club. The Board explicitly stated that it considered there to be a risk of "grave harm": at para. 28.

[9] For the foregoing reasons, the appeal is dismissed.

"Alexandra Hoy A.C.J.O." "K. Feldman J.A." "Fairburn J.A."