Court of Appeal for Ontario

Date: 2018-03-27 Docket: C64097

Judges: Strathy C.J.O., Simmons and Hourigan JJ.A.

In the Matter of: William Medcof

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• Erin Dann, for the appellant
• Nancy Dennison, for the Attorney General of Ontario
• Gavin S. MacKenzie, for the Centre for Addiction and Mental Health

Heard: March 2, 2018

On appeal against the disposition of the Ontario Review Board dated May 8, 2017.

Reasons for Decision

Simmons J.A.:

Introduction

[1] The appellant appeals from a disposition of the Ontario Review Board dated May 8, 2017. The majority of the Board found that the appellant continues to pose a significant threat to the safety of the public and ordered that he be conditionally discharged. A minority of the Board concluded that the evidence adduced at the hearing did not cross the threshold of establishing that the appellant poses a significant threat to public safety and would have granted an absolute discharge.

[2] The appellant was found not criminally responsible in 2002 in relation to multiple serious criminal offences. He suffers from schizophrenia and has been treated with anti-psychotic medications while under the Board's jurisdiction. Although subject to a detention order until the disposition under appeal, he has lived in the community without incidents of violence, but with intermittent re-hospitalizations, since late 2012. He disputes his diagnosis and asserts that he will discontinue all medication if discharged absolutely.

[3] On appeal, the appellant submits that the Board's finding that he poses a significant threat to the safety of the public is unreasonable.

[4] The appellant says the Board made two errors in reaching its conclusion. First, it equated the appellant's lack of insight into his mental illness and the potential for decompensation in his mental state with significant threat. In so doing, the Board failed to assess whether those factors lead to the conclusion that if absolutely discharged there is a real risk the appellant will commit a serious criminal offence resulting in serious physical or psychological harm.

[5] Second, in assessing the threshold of significant threat, the Board failed to factor in the civil mechanisms for controlling risk under the Mental Health Act, R.S.O. 1990, c. M.7.

[6] The appellant asserts that the Board could not have concluded that he meets the significant threat threshold because the evidence at the hearing was insufficient to support that finding.

[7] In my view, although the evidence before the Board was neither extensive nor well-articulated, it was sufficient to support a finding of significant threat to public safety. I would therefore dismiss the appeal.

Background

(i) The Index Offences

[8] The appellant was found not criminally responsible (NCR) on November 29, 2002 in relation to several serious offences: one count of aggravated assault; two counts of break and enter with intent to commit an indictable offence; one count of kidnapping; three counts of assault with a weapon; three counts of uttering threats, one count of assault; three counts of criminal harassment; one count of breach of probation; two counts of breach of recognizance; and one count of weapons dangerous.

[9] The offences took place on May 24 and 25, 2001. They arose out of an attack on the appellant's roommate, the subsequent kidnapping of the appellant's mother from his parent's home and an attack on the appellant's father at his parent's cottage. The appellant asserted a belief that his parents and sister were evil and uttered threats to kill them. As a result of these incidents, the appellant's roommate suffered a head injury and was taken to hospital where he received stitches. The appellant threatened both his parents with a golf club, struck his mother with it, hit his father and tied his mother's hands and feet together during the kidnapping. Despite being tied, the appellant's mother managed to call 911 on her cell phone after she and the appellant arrived at the cottage.

(ii) The Appellant's Background

[10] The appellant was born in Toronto in 1967 and is currently 50 years of age. He was adopted at the age of three months.

[11] According to his father, problems began when the appellant was in grade 7. He began exposing himself to neighbours and was seen by a psychiatrist for exhibitionism. He began skipping school in grade 8 and left school in grade 10. He later took courses in mechanics, private investigation and paralegal work, but has not held a job consistently in any of these fields. He currently receives Ontario Disability Support.

[12] The appellant was seen again for exhibitionism at age 23 and over the years attended various programs to treat exhibitionism, depression and post-traumatic stress.

[13] The appellant's father reports that the appellant became verbally aggressive towards his mother at age 25, screaming at her with foul language, breaking furniture and throwing things. His mother reports becoming increasingly afraid of her son. He became physically aggressive and pushed her on a couple of occasions in the late 1990s. On September 15, 2000, police escorted him to CAMH on a Form 2 arranged by his parents. On September 27, 2000, the appellant was assessed at College Park after being charged with two counts of indecent assault. As I have said, the index offences occurred in May 2001.

[14] The appellant was married for about two years, ending in 1999. He has a son from that union. His ex-wife has sole custody of the child. The Hospital Report notes that she reports that the appellant slapped her in approximately 1998, that he was emotionally abusive and that with time she became afraid of him.

(iii) The Appellant's Prior Criminal History

[15] Prior to being found not criminally responsible in 2002, the appellant had two convictions on his record: attempted fraud under $5,000 in 1991 and failing to comply with a recognizance in 2000. He also reports having been charged with criminal harassment (x6) and indecent act (x2).

(iv) The Appellant's Current Diagnoses

[16] The appellant's current diagnoses are: schizophrenia, residual type; substance abuse disorder; personality disorder NOS (with narcissistic and antisocial traits); and exhibitionist disorder. Differential diagnoses are delusional disorder, mixed type; unspecified schizophrenia spectrum disorder; and post-traumatic stress disorder.

[17] The appellant is not treatment competent. His substitute decision maker is the Public Guardian and Trustee. Since coming under the jurisdiction of the Board, the appellant has continued to take antipsychotic medications. He is currently treated with a long-acting antipsychotic medication and an oral sedative as needed. The appellant also reports that he uses marijuana for chronic pain but will not disclose the name of the prescribing doctor.

(v) The Appellant's Progress Under the ORB

[18] Since the finding and until the disposition under review, the appellant remained on a detention order. He was initially detained at Whitby Mental Health Centre ("WMHC"). He was discharged into a community group home for several months in 2005 but was returned to WMHC after testing positive for cannabis. He eloped from that facility in January 2008 but returned on his own the next day. He pleaded guilty to a charge of escape lawful custody as a result of that incident and received a suspended sentence and probation.

[19] While at WMHC, the appellant denied having any mental illness and demonstrated a number of persecutory and delusional beliefs. These included a belief that the hospital, the police and the courts were conspiring to keep him in hospital unjustly; being a prolific inventor; the creator of movies and TV shows; the founder of GM, Ford and Chrysler; the author of many Stephen King novels; and believing that he received messages from the television. The appellant was described as hostile and as demonstrating little respect for hospital rules. However, there was no evidence of violent or aggressive behaviour.

[20] The appellant was transferred to the medium secure unit of the Centre for Addiction and Mental Health ("CAMH") at his request in 2008. He believed the WMHC treatment team manufactured evidence against him to keep him detained. It was hoped that a transfer and increase in medication would improve his mental status and therapeutic relationship.

[21] While at CAMH, the appellant continued to deny that he suffered from any mental illness and was not initially agreeable to working with the treatment team. During a period of treatment with Clozapine he became more amenable to interacting with his treatment team and his psychotic symptoms decreased in intensity but remained evident (for example, he described how he had come up with the idea for certain movies). The appellant complied with medication as prescribed but displayed little insight into the need for the same. He exercised various privileges without incident and did not display any sexually inappropriate behaviours.

[22] The appellant was granted community living privileges in late 2012. As already noted, there have been no incidents of violence or sexually inappropriate behaviours while the appellant has lived in the community. That said, the appellant has been readmitted to hospital on many occasions after positive tests for cannabis and early signs of decompensation and he continues to exhibit grandiose delusions and paranoia. The appellant's initial readmission was in early 2013. He showed early signs of decompensation after successive positive tests for cannabinoids and a dramatic drop in blood Clozapine levels. The appellant ultimately acknowledged medication non-compliance because of side effects and his medication was changed from Clozapine to depot drugs.

[23] Between February 2015 and October 2016, the appellant was readmitted to hospital on four occasions following positive tests for cannabis and reported increases in paranoia. While under the care of Dr. Swayze, the appellant was readmitted to hospital during the following periods: February 27, 2015 to April 14, 2015; July 23, 2015 to August 27, 2015; March 24, 2016 to May 5, 2016; and July 14, 2016 to October 20, 2016. The appellant frequently denied using cannabis and lodged a formal complaint against Dr. Swayze, alleging that he was tampering with laboratory tests. As of October 2016, the appellant remained distrustful of Dr. Swayze and his outpatient care was transferred to Dr. Liu as of October 25, 2016.

[24] From October 2016 until the Board hearing in April 2017, the appellant's drug screening tests continued to show cannabis use but there were no further readmissions to hospital. According to Dr. Liu, the appellant's clinical presentation remained unchanged during that period. Further, there was no suggestion of violent or sexually inappropriate behaviour. In testimony before the Board, Dr. Liu noted that the reason for the previous hospitalizations when cannabis was detected was that the appellant manifested with increased paranoia. He said the treatment team had been closely monitoring the appellant's clinical manifestation since October 2016. They were unsure how much cannabis the appellant had been using and he remained adamant that he was not using cannabis. Dr. Liu opined that an excessive use of cannabis might induce a change in the appellant's mental condition and require hospitalization.

The Significant Risk Threshold

[25] Under s. 672.54 of the Criminal Code, the Board is required to grant an absolute discharge if, in its opinion, an NCR accused is not "a significant threat to the safety of the public". That term is defined in s. 672.5401 as "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."

[26] In R. v. Ferguson, 2010 ONCA 810, 264 C.C.C. (3d) 451, this court noted that the meaning of the phrase "significant threat to the safety of the public" was authoritatively set down in Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at paras 49-62, 69. As stated by this court at para. 8 of Ferguson, the phrase refers to a foreseeable and substantial risk of physical or psychological harm to members of the public that is serious and beyond trivial or annoying. A very small risk of even great harm will not suffice. Nor will a high risk of relatively trivial harm. While the conduct must be criminal in nature, not all criminal conduct will suffice to establish a significant risk. There must be a risk that the NCR accused will commit a serious criminal offence.

The Evidence at the Board Hearing Concerning Significant Risk

[27] The evidence before the Board concerning significant risk consisted of the Hospital Report, marked as an exhibit and the testimony of Dr. Liu.

(i) The Hospital Report

[28] In addition to the appellant's history, the Hospital Report disclosed that the appellant had not been participating in any regular programming since his last discharge from hospital in October 2016. He was unemployed, did not attend educational, vocational, volunteer or social activities and had distanced himself from his family because he believed they were involved in his persecution.

[29] At his most recent mental status examination prior to the Board hearing, the appellant was described as being mildly irritable and raising his voice from time to time. Although he did not utter direct threats, his emotional reaction was described as sometimes intense and capable of making people feel intimidated. However, the report notes that "despite the negative emotions, he did not lose his behavioural control or become physically aggressive" and that he "repeatedly asserted that he did not want to resort to violence" and that he did not intend to "hurt or harm others". When canvassed as to his understanding of his illness, the appellant denied having paranoid schizophrenia and denied being agitated or irritable when he did not take his medications.

[30] The appellant scored a 29 out of a possible 40 points on the HCR-20 Structured Guide for the Assessment of Violence Risk. This was an increase from 25/40 from the previous year. When scored under an absolute discharge, the appellant scored 32/40. The Hospital Report indicated this was likely an underestimation as clinical items were not reflected in the score and stated that the appellant's HCR-20 profile "is best described as high."

[31] Under the heading clinical risk factors/re-offence scenario, the Hospital Report stated the following:

Clinical or dynamic risk factors which may serve as proximal indicators for violent re-offence include active symptoms of his schizophrenia, non-compliance with medications, substance use, interpersonal conflict with others, unstructured and supervised daytime routine and exacerbation of underlying personality traits.

If [the appellant] is to reoffend, this will likely occur in the context of exposure to destabilizers and stressors, and a return to his historical path during noncompliance with medications and substance use leading to psychosis. In such situations his risk will be actualized. While psychotic and/or acutely intoxicated, [the appellant] has engaged in physically violent and sexually disinhibited behaviours. [The appellant] has indicated that he will not take medication if he is not under ORB. He has used cannabis and intends to regularly use cannabis.

[32] The hospital team concluded that the appellant continues to remain a significant threat to the safety of the public. It summarized its conclusion as follows:

[The appellant's] actuarial assessment of static long-term risk for violent recidivism is best described as moderate. His profile on the HCR-20 is best described as high. In addition, he has several salient clinical risk factors. Taken in totality, the clinical team opines that [the appellant] continues to remain a significant threat to the safety of the public as defined in section 672.5401.

(ii) Dr. Liu's Evidence

[33] In his testimony before the Board, Dr. Liu confirmed his opinion that the appellant represents a significant threat to the safety of the public. When asked by counsel for the hospital to briefly summarize his reasons for that opinion, Dr. Liu said the following:

Basically, since the discharge [from hospital at the end of October 2016], [the appellant's] mental condition has remained relatively stable but he still present with overt delusional beliefs regarding grandiosity and paranoia, and he believes there is a conspiracy going on against him, and he related many paranoia ideation and delusions. And although he did not have any valid source, but we need to take into consideration he is now under treatment, under regular treatment. Recently, the medication has been changed from Paliperidone to Abilify, which – so I was aware of the fact, in the past [the appellant] has been very stable for two to three years when he was receiving Clozapine. And at that time, he was described to manifest minimal delusional ideations, and his emotional motivation was very stable. But however, as soon as he was discharged into the community, and the Clozapine was discontinued because of the compliance concerns, when he was back on depot [medication], even with the newer generation antipsychotics, you can see the overall baseline of his psychotic symptoms increase. And also, we can see, from time-to-time, when [the appellant] was under the influence of substances, when he was under some stress, his emotional motivation was not as ideal as when he was on Clozapine. So that speak to the fact, [the appellant] needs ongoing antipsychotic treatment to maintain the current level of mental stability, and [the appellant] has been very consistent in saying he doesn't need any antipsychotic medication. If he is not ordered to take medication or not under ORB, he would not take any kinds of antipsychotic medications. And he didn't believe that would increase his risk of violence. So, I was also of the opinion, given the level of insight and the clinical symptoms, and also the problematic substance use behaviour, all things together can all contribute to [the appellant's] mental decompensation and it resulting in dangerous behaviour to the public.

[34] When questioned by a legal member of the Board concerning whether the appellant's delusions are harmful and when they had been acted on in a harmful way, Doctor Liu responded that the index offence was obviously under delusions. He noted that the appellant has been under continuous treatment with antipsychotics but that there were still "occasional aggravations or paranoid ideation." He also said it's "a reasonable prediction[n]" that the appellant's medical condition will deteriorate further if he is not taking medications.

[35] Further questioning proceeded as follows:

Q. Okay, so just to understand the, what's concerning about the delusions, am I right that it's not so much the grandiose delusions, about Chrysler and Stephen King, and so on, but more some sort of underlying paranoia …

A. Yes

Q. … That is delusional in nature?

A. Yes.

Q. And has he acted on that paranoid delusional system since the index offences?

A. He has been continuously accusing the hospital of being part of the conspiracy.

Q. Okay, so he's acted on it to… make claims but not in to commit acts of violence or harm?

A. No, he can be very abusive verbally.

Q. So verbal abuse?

A. And appear quite agitated. On several occasions, I was, I need to be usually aware of the possibility about further behaviour escalations.

Q. Okay. Thank you and so, I guess my second to last question is what decompensation looks like for [the appellant], and how fast it might be? How it might take place?

A. [The appellant] come, the manifestation is quite complicated, intertwined, with his personality characteristics. So, usually, [the appellant] will present with certain paranoia ideations, however, the emotion or intensity, the reaction to a set contents of paranoia contents might, might be different. Yeah, for example, when he was under Clozapine, he dealt with the same delusional content. [The appellant] was much more emotionally modulated, and was not decided. But however, when he was out in the community, and when the Clozapine was breach, he had two other antipsychotics, you can see the degree. The baseline of his emotional reactivity increased.

Q. So, again, just the concrete question about decompensation, what it looks like and how quick it would be?

A. To be honest, I cannot predict how quick it can be. Because he has been consistently under supervision and medications.

Q. But you are content it would happen?

A. What would happen?

Q. Decompensation?

A. According to what happened in the past, historically.

The Reasons of the Majority of the Board

[36] In the "Analysis and Conclusion" section of its reasons, the majority accepted the submission that the appellant continues to represent a significant threat to the safety of the public. The majority stated that they "relied on the evidence of Dr. Liu and in the Hospital Report which meets the standard set out in Winko".

[37] In setting out their analysis, the majority acknowledged that the appellant has been under the Board's jurisdiction for a lengthy period of time and that he has not exhibited violent behaviour even with his ongoing substance abuse. However, to support their conclusion, the majority relied on the following factors:

• the appellant's diagnoses;
• the appellant's psychiatric history and history of aggression towards his mother;
• the extremely serious nature of the index offences;
• the appellant's many readmissions to hospital following positive tests for cannabis and associated deteriorations in his mental state;
• the fact that the appellant has remained on antipsychotic medications throughout;
• Dr. Liu's evidence that the baseline of the appellant's psychotic symptoms has increased with the switch to depot medication and that, when under stress, his emotional stability is not as good;
• Dr. Liu's evidence that the appellant continues to display underlying paranoia that is delusional;
• the appellant's position that if granted an absolute discharge he would cease all antipsychotic medication;
• Dr. Liu's evidence that, although he could not predict the speed of decompensation because the appellant has been on medication, based on past behaviour the appellant would decompensate without medication.

[38] The majority concluded its reasons relating to the significant threat threshold as follows:

The Hospital Report notes that there has been no improvement in [the appellant's] insight into his psychiatric illnesses, the Index Offences or his episodes of aggression when unwell. He maintains his belief that he suffers from PTSD and anxiety and that his mental state can be managed with medical marijuana with no risk of deterioration. He denies being agitated or irritable when he does not take medication and has no insight into the causal relationship between the Index Offences and his mental illness.

Given this conclusion, there is no basis for an Absolute Discharge.

The Reasons of the Minority of the Board

[39] The minority of the Board concluded that the evidence adduced at the hearing did not support a finding that the appellant constitutes a significant threat within the meaning of the Winko standard. The minority emphasized that that standard requires that the threat posed "must be more than speculative in nature; it must be supported by evidence". The evidence must demonstrate a "foreseeable and substantial risk that the NCR would commit a serious criminal offence".

[40] The minority acknowledged that the index offences were serious and violent. However, they observed that the offences were committed about 16 years previously and that, since then, there had been no instances of violent behaviour or violent reoffending. Further, they quoted the Hospital Report's statements that despite ongoing cannabis use and readmissions to hospital, the appellant had not lost his "behavioural control or become physically aggressive" and had "repeatedly asserted that he did not want to resort to violence and denied having intention to hurt or harm others".

[41] The minority noted that, in his evidence, Dr. Liu was unable to describe when or how the appellant might decompensate. Further, Dr. Liu could not link the appellant's delusions of grandeur to an identifiable risk of harm to others or suggest how they might intensify and pose a risk without medication.

[42] The minority concluded:

[The appellant] has been oppositional throughout his ORB history, has come to an impasse with most of his attending psychiatrists over the years, and is an unapologetic rule-breaker; for these reasons, he is not a particularly sympathetic candidate for absolute discharge. Nonetheless, the evidence that [the appellant] poses a significant threat of serious physical or psychological harm, within the meaning of Winko, does not cross the threshold required by law. For that reason [the appellant] must be given an absolute discharge.

Standard of Review

[43] The standard of review of the Board's decision is prescribed by s. 672.78 of the Criminal Code:

672.78 (1) 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) 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.

[44] As noted in Carrick (Re), 2015 ONCA 866, 128 O.R. (3d) 209, at para. 22, absent an error on a question of law or a decision that results in a miscarriage of justice, the court is required to defer to the Board's judgment, upholding it if it is reasonable.

[45] Further, as the Supreme Court of Canada's decision in Dunsmuir v. New Brunswick, 2008 SCC 9, 1 S.C.R. 190, makes clear, reasonableness review begins from the premise that questions before specialized tribunals may not give rise to a single, "correct" answer. A range of reasonable decisions may be made in a particular context and that range may be more or less broad, depending on a number of considerations in all the circumstances: Carrick, at paras. 23-24.

[46] Finally, 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 this court re-weigh the considerations before the Board. The reasons for the Board's decision and the substantive decision reached by the Board must be considered together to determine whether an acceptable and defensible outcome has been reached: Carrick, at para. 26.

Discussion

[47] As noted above, the appellant maintains that the majority of the Board (and in effect Dr. Liu) erred by equating the appellant's lack of insight into his mental illness and the potential for decompensation with significant threat. The appellant does not challenge the reasonableness of the conclusion that he lacks insight into his mental illness or that there is a significant risk of decompensation in his mental state if he is granted an absolute discharge. However, he asserts that the majority erred by failing to make a finding concerning whether those factors would lead to a foreseeable and substantial risk of serious physical or psychological harm to members of the public. He argues that the evidence before the Board was not capable of supporting such a finding.

[48] I would not accept these submissions. It is clear that Dr. Liu and the Board were aware of the requisite standard. The majority of the Board commenced its analysis by referring explicitly, albeit without expressly stating, the test for significant threat articulated in Winko. In questioning, Dr. Liu noted that a "significant threat" was one which would "cause physiological harm or physical harm." The Hospital Report specifically referenced the definition of significant threat as being set out in s. 672.5401 of the Criminal Code.

[49] Regrettably, Dr. Liu was not pressed on how decompensation would manifest itself, or its foreseeable consequences, either in his evidence in-chief or when questioned by the legal member of the Board.[1] Nonetheless, he provided evidence that the appellant continues to suffer from delusional paranoia,[2] and that his response to such delusions depends largely on his treatment. While on Clozapine, the appellant dealt with the same type of delusions in a more "emotionally modulated" manner. When he was in the community and stopped taking Clozapine, the "baseline of his emotional reactivity increased". This necessitated re-admission on several occasions. In Dr. Liu's opinion, the nature of the appellant's illness, coupled with his lack of insight into it and his use of marijuana, could contribute to "mental decompensation…resulting in dangerous behaviour to the public."

[50] Further, Dr. Liu's oral evidence must be viewed in the context of the Hospital Report to which he was a co-signatory. The Report noted the appellant's actuarial risk assessments and clinical risk factors. His Structured Guide for the Assessment of Violence Risk was considered "high". The Report itemized a number of destabilizers that the treatment team concluded would actualize the appellant's risk. As a result of these factors, the clinical team was of the unanimous opinion that the appellant continued to meet the definition of significant threat set out in s. 672.5401.

[51] The fact that Dr. Liu could not articulate how quickly the appellant would decompensate after going off antipsychotic medications or precisely how the decompensation would manifest itself does not make the majority's acceptance of the opinions of Dr. Liu and the clinical team unreasonable. Doctor Liu explained that the nature and speed of the appellant's potential decompensation was difficult to predict, "[b]ecause [the appellant] has been consistently under supervision and medications."

[52] In oral argument, the appellant acknowledged that the fact that he committed serious criminal offences while ill and un-medicated gives rise to a common sense inference of the possibility that he will do so again. However, he argued that the strength of that inference is diminished because of the significant length of time during which he has not displayed any violent or sexually inappropriate behaviour.

[53] In my view, however, that was an issue for the appellant's treatment team to assess and ultimately the Board to determine.

[54] Both the Hospital Report and Dr. Liu acknowledge that the appellant has not engaged in violent or sexually inappropriate behaviour while under the jurisdiction of the Board. But they point to the index offences, which were very serious; the fact that the appellant has been treated with antipsychotic medications throughout the period he has been under the jurisdiction; the fact that the appellant still manifests symptoms of his illness, including paranoid delusions; the fact that the appellant has been readmitted to hospital when he showed signs of decompensation; and his actuarial risk assessment and his clinical risk factors, to conclude that the appellant continues to pose a significant risk.

[55] Although it might have been preferable for the Board to more fully engage with Dr. Liu concerning the ongoing likelihood of the appellant committing a serious crime given the passage of time without incident, I am unable to say that that the majority's acceptance of his opinion constituted legal error or was unreasonable.

[56] The appellant also relied on this court's decisions in Ferguson and Re Pellet, 2017 ONCA 753, in support of his position that the majority's decision was unsupported by the evidence. In my view, however, those decisions are distinguishable from this case. Neither involved an index offence giving rise to a risk of dangerousness similar to the index offences in this case. And unlike Pellet, the index offence in this case was not an isolated "one-off". Rather, it involved a series of violent offences (attack on roommate, kidnapping and assault of mother, assault on father) that persisted over a period of time and had been preceded by assaultive behaviour towards both the appellant's mother and wife, together with longstanding sexually inappropriate behaviour.

[57] I would not give effect to this argument.

[58] I turn to the appellant's second argument that the majority erred in failing to consider the civil mechanisms for controlling risk under the Mental Health Act. It is implicit in the majority's reasoning that they did not consider those mechanisms adequate to control the appellant's risk in the event of an absolute discharge. Unlike with a conditional discharge, the appellant would not be reporting regularly to a psychiatrist. The evidence before the Board was clear that the appellant leads an isolated life. In these circumstances, there would be no one monitoring the appellant's mental status who could invoke the civil mechanisms in the event of decompensation in the appellant's mental state following any termination of antipsychotic medication.

[59] I would not give effect to this argument.

Disposition

[60] Based on the foregoing reasons, I would dismiss the appeal. However, I would urge the Board at the appellant's next annual review to 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.

Released: March 27, 2018

"GS" "Janet Simmons J.A."

"MAR 27 2018" "I agree G.R. Strathy C.J.O."

"I agree C.W. Hourigan J.A."

Footnotes

[1] The legal member of the Board asked Dr. Liu a two-part question: what decompensation looks like and how quickly it would take place. When asked the two-part question a second time, Dr. Liu responded specifically to how quickly it would take place. He did not respond specifically to what it would like. Unfortunately, no one followed up on that omission.

[2] Contrary to the reasons of the minority of the Board, it is the appellant's paranoid delusions that Dr. Liu believed were of concern.