Court of Appeal for Ontario

Date: 2018-02-07 Docket: C63652

Judges: Rouleau, Watt and Brown JJ.A.

In the Matter of: Roman Sokal

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• Anita Szigeti, for the Appellant, Roman Sokal
• Rebecca De Filippis, for the Respondent, Her Majesty the Queen

Heard: January 11, 2018

On appeal against the disposition of the Ontario Review Board dated April 18, 2017.

Reasons for Decision

I. Overview

[1] The appellant, Roman Sokal, appeals from the April 18, 2017 disposition of the Ontario Review Board (the "Board") ordering his discharge on conditions. Mr. Sokal lives independently in the community. The conditions include requirements that he report to St. Joseph's Health Care Hamilton (the "Hospital") every two months, abstain absolutely from the non-medical use of alcohol or drugs, and submit urine samples as requested to test for alcohol or drugs.

[2] Mr. Sokal submits the Board erred in failing to grant him an absolute discharge. The Crown opposes, arguing the Board did not err in concluding Mr. Sokal poses a significant risk to the safety of the public. The Hospital did not participate in the appeal.

II. Background

[3] Mr. Sokal's current diagnosis is schizoaffective disorder and polysubstance use disorder (in remission).

[4] Prior to his commission of the index offences in late 2012 and early 2013, Mr. Sokal had a history of substance abuse, involving a variety of drugs. Between 2008 and 2012 Mr. Sokal was hospitalized 23 times for mental health issues. Most of those admissions took place in 2011 and 2012, with many resulting from Mr. Sokal's attendance at a hospital's emergency room asking for treatment or a place to stay.

[5] During the period from 2008 until 2012, Mr. Sokal frequently was homeless, confused, and delusional. His parents tried to support him in many ways, but their efforts proved ineffective due to Mr. Sokal's lack of responsiveness.

[6] On one occasion in late 2009, prior to the NCR verdict, Mr. Sokal bit a security guard upon his attendance at a hospital emergency room; he was convicted of mischief and assault.

[7] Mr. Sokal was admitted to the Hospital in March 2013. In April of that year, he was found not criminally responsible on account of mental disorder on two charges of criminal harassment. Mr. Sokal had become delusional about two of his former community college professors during a period of time when he was not taking his medications and was abusing substances. The harassing conduct included making abusive, and occasionally threatening, phone calls to the professors and, on one occasion, shouting vulgarities at one professor when he encountered him in a hospital lobby.

[8] The Board's initial June 2013 disposition ordered Mr. Sokal to be detained at a minimum secure forensic unit at the Hospital. However, the initial disposition also contained a condition permitting community living, which was implemented in March 2014. In early 2015, the Board ordered Mr. Sokal discharged, subject to conditions. Since March 2014, Mr. Sokal has lived in the community – for the most part living independently in an apartment – with the exception of a one-month re-admission in June 2016 when he tested positive for crystal methamphetamine. Although Mr. Sokal has only worked occasionally since 2013, at the time of the Board hearing he was employed on a part-time basis with a photography business.

[9] The evidence reveals that since the NCR verdict, Mr. Sokal has made significant progress, has been compliant with his medications, displays none of the symptoms that led to the index offences, and has not been physically violent.

III. The Board's Disposition

[10] In declining to grant an absolute discharge and, instead, continuing the conditional discharge, the Board wrote that "substance abuse remains the critical factor in assessing Mr. Sokal's risk." In late November 2015, Mr. Sokal tested positive for cocaine. Then, in June 2016, prior to being tested, he self-reported using crystal methamphetamine to his treatment team. He then agreed to his re-admission into the Hospital for about one month. In light of those events, the Board accepted the evidence of the treating psychiatrist, Dr. Kolawole, that "Mr. Sokal needs to demonstrate an ability to remain drug free for a 12-month period." The Board unanimously concluded that "given Mr. Sokal's pre-NCR offence psychiatric history and long and significant history of substance abuse," the test of significant threat to the safety of the public had been met.

IV. The Governing Principles

The Standard of Review

[11] The reasonableness standard of review applies to an appeal from a disposition of the Board: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779 at para. 37; Criminal Code, s. 672.78(1)(a).

[12] An appellate court must always recall the difficulty of assessing whether a given individual poses a significant threat to public safety: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 61. The appeal court does not make its own judgment on the question of significant threat 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: Wall (Re), 2017 ONCA 713, at para. 21.

[13] The reasonableness of the Board's decision must be evaluated by considering the reasons it proffers in the context in which the decision is made. At issue is whether the Board reached an acceptable and defensible outcome, keeping in mind the need to protect the liberty of the NCR accused as much as possible, while also protecting society: Wall, at para. 22.

The Significant Risk Requirement in s. 672.54

[14] Part XX.1 of the Criminal Code can only maintain its authority over an NCR accused where the court or Review Board concludes that the individual is a significant threat to the safety of the public. A significant threat to the safety of the public means a risk of serious physical or psychological harm to members of the public resulting from conduct that is criminal in nature but not necessarily violent: Criminal Code, s. 672.5401. Or, as put in Winko, at para. 57, the court or Review Board must conclude the individual poses a significant risk of committing a serious criminal offence.

[15] The 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, foreseeable risk of physical or psychological harm occurring to individuals in the community and in the sense that this potential harm must itself be serious: R. v. Ferguson, 2010 ONCA 810, at para. 8. The likelihood of a risk materializing and the seriousness of the harm that might occur must be considered together: Re Carrick, 2015 ONCA 866, at para. 16.

V. Analysis

[16] The April 2017 clinical risk assessment in the Hospital Record prepared by Dr. Kolawole recognized that Mr. Sokal continued to make progress with his rehabilitation and recovery in the community. Indeed, at the Board hearing Dr. Kolawole testified that he thought an absolute discharge was achievable for Mr. Sokal "in the next year, given the progress that [he] has made so far over the past four years" and "[a]lso given the fact that he's now engaged with the Hamilton Program for Schizophrenia." However, in his clinical risk assessment Dr. Kolawole stated:

It is quite likely that absent the supervision, monitoring and prohibitions under his current disposition, Mr. Sokal would revert to using the variety of substances that he has used before. In the event that he resorts to using illicit substances and becomes non-adherent with his medication, he would likely suffer a decompensation of his mental health with an increased risk of future offending.

[17] Dr. Kolawole had included similar statements in his clinical risk assessments dating back to April 2014.

[18] The Board relied heavily on that evidence from Dr. Kolawole to conclude Mr. Sokal posed a significant threat to the safety of the public. The Board stated the appellant's substance abuse remained the critical factor in assessing his risk. Certainly, there was evidence before the Board that the appellant had taken drugs twice in the previous two years: cocaine in November 2015, and methamphetamine in June 2016. (The Hospital Report also noted four presumptive positive test results for methamphetamines, although the appellant explained them as resulting from taking over-the-counter medications for sinus infections.) However, the Board then used the evidence of the drug incidents to find that the appellant needed "to demonstrate an ability to remain drug free for a 12-month period." It went on to conclude that given the appellant's pre-NCR offence psychiatric history and "long and significant history of substance abuse," the statutory test had been met.

[19] With respect, by imposing on the appellant the need to demonstrate a specified drug-free period the Board miscast the nature of the inquiry required by s. 672.54 of the Criminal Code – that is, did the evidence demonstrate the NCR accused posed a significant threat to public safety? If it did not, the statute required granting an absolute discharge. The legal and evidentiary burden of establishing a significant threat to public safety remained with the Board; it did not shift to the NCR accused: Winko, at para. 54.

[20] The Board's misdirection led it to put to one side evidence relevant to the issue of whether the appellant posed a significant risk of committing a serious criminal offence. Recall that for a threat to be "significant," there must be a real, foreseeable risk of physical or psychological harm occurring to individuals in the community and this potential harm must itself be serious. A minuscule risk of a grave harm will not suffice. Similarly, a high risk of trivial harm will not meet the threshold. The conduct or activity creating the harm must be criminal in nature: Winko, at para. 57.

[21] The evidence before the Board was that there were no concerns about violence or aggression. Although the appellant had an extensive history of major mental illness and substance abuse prior to the index offences, there was evidence of only one instance of physical violence – when the appellant bit a hospital security guard in 2009. Since his initial disposition, the appellant had spent most of his time living independently in the community without incident. As the Board noted, "[t]here have been no incidents of violence or aggression."

[22] Although in the past there were issues concerning the appellant's compliance with taking his anti-psychotic medication, Dr. Kolawole acknowledged the appellant had done very well since 2013 and was receiving the correct dosage by way of depot injection. While the appellant had expressed a desire to reduce the dosage, there was no evidence he wanted to discontinue the medication.

[23] As well, the appellant had just been accepted by a specialized community group that deals with persons suffering from schizophrenia, the Hamilton Program for Schizophrenia. According to the Hospital Record, referral to that program is designed to transition Mr. Sokal to a non-forensic service so that he would be well supported when he received an absolute discharge.

[24] Notwithstanding this evidence, the Board focused its risk analysis on the issue of the appellant's substance abuse. As mentioned, there were two incidents of substance abuse in the 18 months prior to the disposition. However, as the Board noted, the appellant had not displayed any psychotic symptoms since 2013, even upon his re-admission in June 2016 following his consumption of methamphetamine.

[25] With respect, the Board used Dr. Kolawole's desire to see a 12-month drug-free period and his chain of reasoning to extrapolate from evidence of the appellant's pre-NCR verdict substance abuse to conclude the significant threat standard had been met. Given the entirety of the evidence before it concerning Mr. Sokal's status at the time of the hearing - his medication compliance, lack of violence and aggression, a 10-month drug-free period, his admission to the Hamilton Program for Schizophrenia, and lack of psychotic symptoms associated with recent drug use - the Board's conclusion that the appellant posed a significant threat to public safety was speculative. It was not reasonable for the Board to deny the appellant an absolute discharge in light of the evidence before it.

VI. Disposition

[26] The appellant is entitled to be discharged unless he constitutes a significant threat to the safety of the public. The evidence failed to meet the "onerous" standard under s. 672.54: Carrick, at para. 17. The appeal is allowed. The decision of the Board is set aside. Pursuant to s. 672.78(3)(a), in its place we order an absolute discharge.

"Paul Rouleau J.A." "David Watt J.A." "David Brown J.A."