Court of Appeal for Ontario

Date: 2019-12-20 Docket: C66922

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

In the Matter of: Ante Mihaljevich

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• Suzan E. Fraser, for the appellant
• Adam Wheeler, for the respondent Attorney General of Ontario
• Janice Blackburn, for the respondent Person in Charge of the Waypoint Centre for Mental Health Care

Heard: December 11, 2019

On appeal against the disposition of the Ontario Review Board, dated April 4, 2019, with reasons for disposition dated May 1, 2019, reported at [2019] O.R.B.D. No. 878.

Reasons for Decision

Introduction

[1] The appellant, Ante Mihaljevich, appeals from the disposition of the Ontario Review Board dated April 4, 2019, ordering that he continue to be detained at the Waypoint Centre for Mental Health Care – Provincial Forensic Programs Divisions ("Waypoint" or the "Hospital"), with hospital grounds privileges beyond the secure perimeter escorted by staff. He asks the court to set aside the Board's disposition and order a new hearing.

The Background

[2] The appellant is a 44-year old male. He has been subject to the Board's jurisdiction since 2003, when he was found not criminally responsible on account of mental disorder of criminal harassment in relation to his mother and of failing to comply with a probation order. He previously progressed to community living, where he resided for five years before his use of illicit drugs and psychotic symptoms reportedly led him to assault a security guard in 2015, holding a knife to her throat.

[3] He was then detained at the Centre for Addiction and Mental Health ("CAMH"). After several incidents, including assaulting three staff members and separately assaulting a physician in 2015, he was transferred from CAMH to the Toronto South Detention Centre ("TSDC"). He was transferred to Waypoint after allegedly assaulting a correctional officer in 2016 at TSDC. At least some of these assaults were in connection with psychotic symptoms and drug-seeking behaviours. At Waypoint, he assaulted a nurse in February 2017. In the year preceding the hearing before the Board, he again assaulted a nurse, later explaining that he believed this occurred because he was the victim of mind control. He also engaged in other aggressive incidents over the reporting year which were effectively de-escalated through the intervention of staff.

[4] The appellant has diagnoses of Schizophrenia, Opioid Use Disorder, in remission in a controlled environment and on replacement therapy, and Antisocial Personality Disorder. He has historical diagnoses of Polysubstance Abuse (currently in remission in a controlled environment) and ADHD.

[5] The Hospital's report indicates that the appellant's score on the Violence Risk Appraisal Guide (VRAG) was associated with the seventh of nine ascending categories for risk of violent recidivism. 64% of individuals with the same risk category as the appellant re-offended violently within ten years of opportunity. It further indicates that on the Psychopathy Checklist – Revised (PCL-R), the appellant scored 35.8 out of a possible 40 points, which is considered to fall within the Very High range of psychopathy.

[6] In the Hospital's report, the appellant's clinical team noted that he "had a difficult year". There were some signs of improvement since being started on a new medication, but he "continues to present with active and behaviour-influencing symptoms of schizophrenia. These symptoms and behaviours have led to violence in the past, and have only been marginally less salient over the past few months. He requires further stabilization and rehabilitation".

[7] The Hospital reported that he continued to seek medications of potential abuse, even in the Hospital, and it would be easier for him to access illicit substances in a less secure facility. His attending physician, Dr. Corriveau, testified at the hearing that there was a direct connection between his use of illegal substances and risk of violence.

[8] Dr. Corriveau also testified that the appellant had a significant history of non-compliance with his medication "even under the watchful eye of his Outreach Team". She was concerned that he would immediately discontinue his medication if discharged.

[9] In the clinical team's opinion, the appellant continued to require the structure provided in the Hospital and, without it, could represent a threat to the safety of the public. The team noted that he had functioned in the community for five years and the team hopes he will "progress in the next review period in order to move in the direction of rehabilitation and eventual transition back into the community".

[10] Dr. Corriveau elaborated that the appellant is quite reticent to engage therapeutically with this clinical team, but that the team is hoping to engage him further in therapeutic treatment. It is seeking to manage his symptoms so that they can move him forward in his disposition. In response to a question by a Board member probing the question of rehabilitation, Dr. Corriveau discussed the "Beckwith Program", which focuses on structure and addressing treatment-resistant symptoms. In her opinion, given the appellant's symptoms, such as his claustrophobia, the amount of lockups in the Beckwith Program could make the appellant worse. The Board also explored a medication change. Dr. Corriveau also explained that the appellant's aversion to needles was a barrier to a further medication change. The clinical team "want his suffering to be as minimal as possible".

[11] Notwithstanding some signs of improvement, the clinical team's opinion was that "his assaultive history in addition to his acute psychotic symptoms and lack of insight into his diagnosis and drug-seeking behaviours, together with his high PCL-R score, cause the clinical team concern insofar as recommending that he transfer [to a less secure facility] at this time". The team recommended no change to his current disposition. Dr. Corriveau reiterated this opinion at the hearing: the appellant's risk to the public cannot be adequately managed in a facility less secure than Waypoint. She noted that CAMH indicated that they were unable to manage the appellant at his current level of risk.

[12] The Board addressed the issue of reintegration at para. 15 of its reasons:

When questioned by Counsel as to how his client could move on through the system, Dr. Corriveau said it would be necessary for him to demonstrate adherence to his oral medications and demonstrate he could successfully follow the rules at Waypoint and engage in psychoeducational programming. She expressed the view that his non-participation represented a barrier to him making further progress.

[13] The Board concluded, at paras. 22 and 24 of its reasons:

Having heard all the evidence and reviewed the various reports made available to us, the Board found [the appellant] continues to represent a significant threat to the safety of the public. He remains symptomatic and has very poor insight with respect to his mental illness and the disturbing behaviours he exhibits on a frequent basis at Waypoint, which have involved threatening and aggressive behaviour. [The appellant] has a history of non-compliance with medications, substance abuse, and drug-seeking behaviour, all of which contribute to the risk he poses.

[I]t is clear to this Board that [the appellant] requires the structure and support available to him at Waypoint, and that this represents the least onerous and least restrictive Disposition at this time.

The Issues Raised by the Appellant

[14] The appellant challenges the Board's disposition on three, linked grounds. First, he argues that, in determining the question of significant threat and the appropriate disposition, the Board committed a legal error by failing to consider two of the four statutory factors that s. 672.54 of the Criminal Code, R.S.C., 1985, c. C-46 prescribes: his reintegration into society and his other needs. Second, he argues that the Board did not address these two factors in its analysis of risk, leading to an unreasonable disposition. Third, he argues that the Board did not exercise the "constant vigilance and inquiry" this court held in Tolias (Re), 2019 ONCA 123, at para. 22, is required in the case of a long-term detainee where the index offence was not violent.

Analysis

[15] We reject these arguments.

[16] Contrary to the appellant's submissions, it is clear the Board considered the Hospital's evidence related to community reintegration and the appellant's other needs, making its own inquiries when necessary. As noted above, the Board asked questions about the appellant's reintegration and other needs. Its failure to make some aspects of its analysis explicit in its reasons is not an error of law.

[17] Further, Dr. Corriveau considered the appellant's reintegration and other needs in recommending no change to his current disposition. In our view, and having regard to all the relevant factors, the evidence reasonably supported the Board's conclusion that the appellant remained a significant threat to the safety of the public and that his continued detention at Waypoint represented the least onerous and restrictive disposition at the time of its review.

[18] Finally, this case is different from Tolias.

[19] In 2005, Ms. Tolias, who suffers from schizoaffective disorder, with persecutory delusions, was found not criminally responsible on account of mental disorder of four charges of making harassing phone calls to a staff psychiatrist at CAMH with whom she had become infatuated, three charges of failure to comply with a recognizance, and two charges of failure to comply with probation: Tolias, at paras. 5, 8. Since the disposition on the index offences, she was detained and treated at several hospitals: at para. 10. She appealed the Board's disposition of March 2018, ordering that she continue to be detained on the secure forensic unit at the Providence Care Hospital in Kingston: at para. 1. She sought an absolute discharge or, in the alternative, a conditional discharge or transfer to CAMH: at para. 2.

[20] This court dismissed her appeal but, in so doing commented that "cases such as this require constant vigilance and inquiry by the Board into the appropriate disposition, especially the appropriateness of a conditional discharge with community living": at para. 22. The court alerted the Board that, at the next review hearing, it expected "the Board to inquire actively into the appropriateness of alternative dispositions for Ms. Tolias": at para. 23.

[21] Unlike Ms. Tolias, the appellant has a history of violence and aggressive behaviour since his non-violent index offence. Moreover, in the appellant's case, the Board was alive to the concerns of institutionalization of a long-term detainee and specifically probed the question of rehabilitation.

Disposition

[22] Accordingly, the appeal is dismissed.

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

"P. Lauwers J.A."

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