Court of Appeal for Ontario

Date: September 20, 2018 Docket: C64959

Judges: Pepall, Lauwers & Fairburn JJ.A.

In the Matter of: Kimani Davis

An Appeal Under Part XX.1 of the Code

Counsel:

• Paul Calarco, for the appellant
• Joe Hanna, for the respondent
• Michele Warner, for the Centre for Addiction and Mental Health

Heard and released orally: September 18, 2018

On appeal against the disposition of the Ontario Review Board dated December 20, 2017.

Reasons for Decision

[1] This is an appeal from the Review Board's disposition dated December 20, 2017. The Board ordered that the appellant be discharged conditionally. He was ordered to reside at a specific location and report to CAMH on a regular basis.

[2] The appellant argues that the Board erred by failing to impose an absolute discharge. He maintains that the Board failed to properly consider whether he continued to present a significant risk of threat to public safety. This error is said to be reflected in the Board's decision, where it said that "Mr. Davis could fall away from treatment". The Board's reasons are said to fall short of the statutory requirement of significant risk to the public.

[3] We disagree.

[4] The Board took into account the statutory criteria set out in s. 672.54 of the Criminal Code, specifically noting the paramount consideration involving public safety. Among other things, the Board specifically reviewed the appellant's history, his past offending conduct, his progress living within the community, and his historical compliance with taking medication. The Board relied upon the appellant's psychiatrist's opinion in forming the view that the appellant continues to suffer from "profound negative symptoms" arising from his "major mental illness of schizophrenia." Those symptoms are said to have created a situation where the appellant has become socially withdrawn, presenting with a flat affect. It was open to the Board to accept the psychiatrist's opinion in that regard.

[5] The appellant does not take issue with the Board's reliance on the psychiatrist's opinion, but suggests that the opinion does not support the result reached. Read contextually, we disagree. The psychiatrist testified that it was almost "certain" and "inevitable" that without some continued control, the appellant would fall away from treatment, resulting in psychosis that would in turn result in significant risk of violent re-offending.

[6] Despite the appellant showing progress, the Board's conclusion that the appellant remains a significant threat to the safety of the public and that a conditional discharge is both necessary and appropriate, was a determination open to the Board. It fell within a range of reasonable outcomes. We see no error in the disposition imposed.

[7] Like the Review Board, we also commend Mr. Davis on his continued progress in the community.

S.E. Pepall J.A. P. Lauwers J.A. Fairburn J.A.