Court of Appeal for Ontario

Date: April 27, 2018 Docket: C64247

Judges: Strathy C.J.O., Watt and Epstein JJ.A

In the Matter of: Brandon Mott

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• Jonathan Fernandes, for the appellant
• Katie Doherty, for the respondent the Attorney General of Ontario
• Julia A. Zamprogna Ballès, for the respondent the Southwest Centre for Forensic Mental Health Care, St. Joseph's Health Care London

Heard: April 25, 2018

On appeal against the disposition of the Ontario Review Board dated June 29, 2017.

Reasons for Decision

[1] On October 28, 2014, the appellant, Brandon Mott, was found not criminally responsible on account of mental disorder on a charge of theft under the Criminal Code. He has been subject to the jurisdiction of the Ontario Review Board since that time. He is now 28 years old and has been diagnosed as suffering from "a plethora of variegated psychological and neuropsychological illnesses."

[2] In July 2015 the Board first ordered the appellant be detained. In June 2016 the Board concluded that his detention was still necessary, and he was detained at the Southwest Centre for Forensic Mental Health, St. Joseph's Health Care London (the "Hospital") with privileges to enter the community with staff or an approved person and the ability to enter a substance abuse program. In September 2016, the appellant started to display signs of decomposition. He attempted to "elope" from the Hospital and exhibited behaviour consistent with symptoms of schizophrenia. However, the appellant also showed some improvement in certain areas.

[3] In the review hearing that took place on June 21, 2017 the appellant conceded that he remained a significant risk to the community. A joint submission was put forward by the Hospital and agreed to by all parties that the appellant's detention order continue with certain privileges. The Hospital recommended a disposition allowing the appellant to enter the community indirectly supervised and to have passes for up to 48 hours to enter the community accompanied by an approved person. The Hospital also recommended that the appellant attend and participate in a substance abuse treatment program. The Ministry of the Attorney General agreed with the Hospital's position. The only difference in the position taken by the appellant is that he wanted to have at least one 72 hour pass to stay with his mother in the community. Thus, the singular dispute before the Board was whether the appellant should receive 48 hour or 72 hour passes into the community.

[4] It was against this background that the Board considered the evidence of Dr. Desjardins, the appellant's attending physician, and concluded that the appellant continued to be a significant threat to the safety of the public. The Board went on to recognize that the appellant had not been treated since May of 2017, a situation that was about to change. The Board expressed the hope that upon receiving treatment the appellant would be able to participate in the privileges endorsed by the Hospital. Citing the evidence before it, with particular reference to that of the Hospital, the Board found that the most necessary and appropriate disposition was a detention order including the privileges requested by the Hospital, specifically: (i) the opportunity to enter the community of Elgin and Middlesex indirectly supervised; (ii) granting the appellant passes for up to 48 hours to enter the community of Southern Ontario accompanied by an approved person; and (iii) the opportunity for the appellant to participate in substance abuse treatment programs in Southern Ontario.

[5] On appeal, the appellant attempts to resile from the joint position that a detention order should continue. He argues that the Board ignored his claims that his diagnosis is substance-induced psychosis, rather than a freestanding psychiatric issue. He submits that the Board misapprehended the evidence of his view of the connection between his use of drugs and psychotic symptoms, and mistakenly drew a negative inference concerning his insight into his illness.

[6] We disagree. The Board was clearly aware that the appellant had long maintained that his psychotic behaviour was related to his illicit drug use. The Board was entitled to accept Dr. Desjardins' view regarding the appellant's diagnosis and conclude that his self-diagnosis evidenced his lack of insight into the nature of his mental illness. Moreover, the evidence before the Board was that the appellant suffered from a major mental illness, whatever the cause. There was ample evidence regarding the appellant's mental status at the time of the hearing that provided an evidentiary foundation for the Board's findings: we see no indication that the Board ignored any relevant evidence.

[7] The Board's conclusion that the appellant was a significant threat discloses no error. The Board was entitled to rely and act on counsel's acknowledgment that the significant threat standard had been met: see Kelly (Re), 2015 ONCA 95, at para. 6. In Osawe (Re), 2015 ONCA 280, this court recognized the important role joint submissions play in proceedings before the Ontario Review Board. We agree that the Board's procedures should encourage the use of joint submissions.

[8] Against this background, the Board treated the significant risk issue in a sensible manner. Because the issue was not contested the Board did not belabour the question of significant risk in its reasons. However, the Board's finding of significant risk was nonetheless clear. Having considered all of the evidence, including that of the Hospital, the Board was satisfied that the appellant remained a significant threat to the safety of the public.

[9] In these circumstances we are not persuaded that there is any basis to interfere with the Board's disposition.

[10] Accordingly, the appeal is dismissed.

"G.R. Strathy C.J.O."

"David Watt J.A."

"Gloria Epstein J.A."