Court of Appeal for Ontario

Date: 2018-04-24 Docket: C63669

Judges: Hoy A.C.J.O., Sharpe and Nordheimer JJ.A.

In the Matter of: Richard Carangay

An Appeal Under Part XX.1 of the Code

Counsel:

• Russell Browne, for the appellant
• Carmen Elmasry, for the Crown

Heard: April 13, 2018

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

Reasons for Decision

[1] Richard Carangay appeals from the April 18, 2017 disposition of the Ontario Review Board. In their reasons dated May 10, 2017, the Board concluded that the appellant constitutes a "significant threat to the safety of the public" and ordered his continued detention at the General Forensic Unit of the St. Joseph's Healthcare Hamilton, West 5th Campus (the "Hospital").

[2] The appellant argues that he is not a significant threat to the safety of the public and seeks an absolute discharge. The Crown opposes the appellant's release and seeks to uphold the Board's disposition.

[3] At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide our reasons.

Background

[4] On March 23, 2016, the appellant was found not criminally responsible ("NCR") on account of mental disorder on charges of possession of a weapon for a purpose dangerous to the public peace, assault with a weapon and uttering death threats. As a result of these verdicts, the appellant came under the jurisdiction of the Ontario Review Board ("ORB").

[5] The background to the index offences can be stated briefly. The appellant became angry with his next door neighbour, for reasons that are unclear. The appellant went to his neighbour's house armed with a baseball bat. Upon being confronted by his female neighbour, the appellant made a threat of bodily harm directed towards her. He was swinging the baseball bat around. The appellant's male neighbour appeared and the appellant made two attempts to hit the male neighbour in the head with the baseball bat, both of which were, fortunately, unsuccessful. The appellant then returned to his own home. The police arrived. The appellant appeared on the porch of his home armed with a large butcher knife. He was swinging the knife in the direction of the police. The appellant then returned inside his home. Sometime later, the appellant again came out of his home. This time he was unarmed. The appellant charged at the police. He was taken down and arrested.

[6] The Board heard from Dr. Kolawole, the treating psychiatrist. It was Dr. Kolawole's opinion that the appellant continues to pose a significant risk to the safety of the public. We note that counsel for the appellant did not cross-examine the doctor at the hearing.

[7] The appellant suffers from Bipolar Affective Disorder and Cannabis Use Disorder. He suffers from psychotic symptoms when in a manic episode and he has auditory and persecutory delusions. The appellant has a long history of noncompliance with medication combined with a history of drug use, namely, cocaine and marijuana.

[8] Further, the appellant has a criminal record that consists of prior convictions for violent offences involving the use of weapons.

[9] Perhaps most troubling is the fact that, on two occasions, a search of the appellant's room uncovered "to do" lists. These lists contained weapons and other items that the appellant apparently intended to gather. Given that this happened twice, the appellant's explanation that these lists were mere fantasies that he had no intention of acting on, is one that is difficult to accept.

[10] In addition to these events, the appellant has also breached other rules of the Hospital, including using drugs and making inappropriate comments to members of the Hospital's staff.

[11] Given the nature of the appellant's illness, his history and his actions while detained at the Hospital, it was reasonable for the Board to conclude that the appellant posed a significant risk to the safety of the public, especially given his conduct that underlies the index offences. In particular, the Board concluded (at para. 15):

There can be no doubt that when in the manic phase of his Bipolar illness, his behaviour is violent and aggressive.

[12] The appellant also submits that the Board erred in not considering a conditional discharge. We note that the appellant did not ask the Board to consider that alternative disposition at the hearing. That said, we accept that the Board had an obligation to consider this option under its duty to impose the least onerous and least restrictive disposition.

[13] Given the evidence that was before the Board, we do not see that a conditional discharge was appropriate in this case, at least in part because the appellant has only begun a substance abuse program. Drug use is linked to the appellant's mental health issues and to the conduct that results. Further, we note that, in its disposition, the Board provided a number of conditions that will permit the appellant to be in the community on occasions approved by the Hospital. The recent addition of the appellant's brother as an approved person will undoubtedly assist in those efforts.

[14] In the end result, the Board's determination that a period of further detention was necessary was a reasonable one. There is no proper basis for this court to interfere with that conclusion. In reaching our decision, we would add that we have not considered the so-called "fresh evidence" that consisted of the Crown reading out an email that she had received from counsel for the Hospital about a subsequent occurrence involving the appellant.

Conclusion

[15] It is for these reasons that the appeal was dismissed.

"Alexandra Hoy A.C.J.O."

"Robert J. Sharpe J.A."

"I.V.B. Nordheimer J.A."