Court of Appeal for Ontario

Date: 2018-12-27 Docket: C65420

Judges: Juriansz, Benotto and Trotter JJ.A.

In the Matter of: Baseo v. Persaud

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• Erin Dann, for the appellant
• Emma Haydon, for the respondent

Heard: December 21, 2018

On appeal against the disposition of the Ontario Review Board dated April 16, 2018.

Reasons for Decision

[1] The appellant came under the jurisdiction of the Board in January 2008 when he was found not criminally responsible by reason of a mental disorder on charges of attempted murder, aggravated assault, assault, and assault with a weapon. He had attacked and injured his mother with a knife and assaulted his father. He was diagnosed with a delusional disorder (persecutory type) and alcohol use disorder. He was declared incapable of consenting to treatment and his brother became and has remained his Substitute Decision-Maker.

[2] Though he has never acknowledged he has a mental illness and continues to question his need for psychotropic medication, he has been compliant with its administration and progressed to the point where he was successfully living in the community on a conditional detention order with the condition that he abstain from alcohol.

[3] On his last annual review in April 2018 he was placed on a detention order, the alcohol prohibition condition was removed, then the person in charge was authorized to permit him to enter the community, or to live in the community.

[4] The Board's rationale for making him subject to a detention order was to allow the hospital to formulate a Community Treatment Plan for him to provide the appropriate structure to allow him to show he can drink responsibly with a view to allowing him to move into the civil mental health system on an absolute discharge in the future.

[5] In seeking the detention order, the hospital did not bring the appellant into detention, but continued to allow him to reside in the community without the alcohol prohibition condition.

[6] The appellant sees the current disposition as more restrictive than his previous conditional discharge disposition. He says the Board is not entitled to take a step backwards to facilitate the possibility that he would move two steps forward in the future. He submits the Board's objectives could have been achieved by maintaining him on a conditional discharge but removing the alcohol prohibition clause. He further submits that, even on a conditional discharge, he would be eligible for a Community Treatment Order as he met the definition of "patient" under the Mental Health Act.

[7] There is no issue that the appellant remains a significant risk to the safety of the public. His index offences were serious and violent, his mental disorder persists, he cannot consent to treatment, he continues to believe his antipsychotic medication does not offer him any benefit, and the effect of alcohol on the risk of noncompliance with his medications is a serious concern.

[8] We accept that the nature of a detention order is more restrictive than that of a conditional discharge. The impact of such a designation has the potential to negatively affect future dispositions. Here, while the Board recognized the appellant might regard the disposition including the detention order as more restrictive, it explained that the detention order was actually less restrictive when considered with the privileges and prohibitions included. The Board explained:

As submitted by Dr. Morgan, the current recommendation of the treatment team has the potential to put Mr. Persaud in a position where an absolute discharge may be feasible for the following year. Put simply, Mr. Persaud has made it clear that he wants to drink alcohol and that his abstinence is the result of the current prohibition. There is also evidence that Mr. Persaud is not likely to remain adherent with treatment absent a high degree of oversight and some authority requiring him to do so. If Mr. Persaud is able to drink in a controlled and measured way that will not significantly heighten his risk to the public, and if a CTO can be implemented to ensure his ongoing psychiatric follow-up and adherence to medication, it may be that the factors that contribute to making him a significant risk can be adequately and appropriately managed outside of a Review Board disposition.

[9] The Board was entitled to conclude that the appellant's current abstinence is a result of the alcohol prohibition condition. The Board could accept the treating doctor's concern that without the alcohol prohibition condition the appellant was not likely to remain adherent with his treatment without a high degree of oversight and some authority requiring him to do so. The appellant's ability to drink alcohol and the effect of his drinking alcohol had to be assessed in a controlled and measured way to ensure it did not significantly heighten his risk to the public. Making the appellant subject to a detention order achieved the dual purpose of allowing the implementation of a Community Treatment Order and ensuring the appellant could be swiftly and certainly returned to the hospital should that prove necessary.

[10] The Board must exercise extreme caution in considering a detention order as the least restrictive disposition. Cases where that is so will be extremely rare. However, on the particular facts of this case the Board was entitled to do so. Viewing the Board's disposition as a whole and in the context of its reasons, we are not persuaded the disposition is unreasonable or not supported by the evidence.

[11] The appeal is dismissed.

"R.G. Juriansz J.A."

"M.L. Benotto J.A."

"G.T. Trotter J.A."