Court of Appeal for Ontario

Date: December 23, 2019

Docket: C66758

Justices: Doherty, van Rensburg and Hourigan JJ.A.

In the Matter of: Stefanos Kossta

An Appeal Under Part XX.1 of the Code

Counsel:

• Daniel R. Medd, for the appellant
• Natalya Odorico, for the respondent, the Attorney General of Ontario
• Michele Warner, for the respondent, the Person in Charge of the Centre for Addiction and Mental Health

Heard: December 18, 2019

On appeal from: The disposition of the Ontario Review Board, dated March 6, 2019.

Reasons for Decision

Background and Facts

[1] Stefanos Kossta was declared not criminally responsible on account of mental disorder (NCR) on November 13, 2015 in relation to a charge of dangerous operation of a motor vehicle. While experiencing a manic episode, he was speeding and swerving through traffic on Highway 401, close to the Québec border. Mr. Kossta was initially detained at the Centre for Addiction and Mental Health (the Hospital), with the ability to reside in approved accommodations in the community.

[2] Mr. Kossta appealed his most recent disposition: a conditional discharge that requires him, among other things, to abstain from alcohol and to refrain from driving a motor vehicle. He argued that the Board's conclusion that he continues to pose a significant threat to the safety of the public is unreasonable and is not supported by the evidence. At the conclusion of the hearing of the appeal, the court advised that the appeal would be dismissed with reasons to follow. These are our reasons.

[3] Initially, Mr. Kossta was seeking an absolute discharge. However, based on certain information in the record concerning Mr. Kossta's driver's licence suspension identified by his counsel (which is addressed below), Mr. Kossta sought instead an order remitting the matter to the Board for a rehearing.

Medical and Personal History

[4] Mr. Kossta has a lengthy psychiatric history. His current diagnosis is schizoaffective disorder. He also has autism spectrum disorder, which contributes to his limited insight into his condition and symptoms. Mr. Kossta, who is supported by ODSP, has been living for many years in his brother's home. He has significant family support. As a result of Mr. Kossta's disorders, he has a history of wandering from home for days at a time, consuming too much alcohol, and engaging in reckless and self-harming behaviours. At times, including the occasion of the index offence, he would rent vehicles and drive away from the city. It is agreed that the only circumstances in which Mr. Kossta would pose a significant threat to public safety is if he were to operate a motor vehicle.

Appellant's Arguments

[5] Mr. Kossta's counsel argued that, in concluding that he continued to pose a significant threat, the Board failed to link the risk factors of his challenging dual diagnosis, his limited insight, and his history of alcohol abuse to the risk that he would drive. The Board ignored the important fact that Mr. Kossta's driver's licence has been suspended and that the suspension is unlikely to be lifted in the foreseeable future. Although Mr. Kossta has expressed a desire to drive, there is no indication that he has done so since the index offence. Mr. Kossta responds positively to what the Board referred to as "external controls", and the Board should have considered whether there was in fact a risk to public safety in the face of a licence suspension.

Court's Analysis

[6] In our view, it was reasonable for the Board to conclude that Mr. Kossta, because of his psychiatric condition, remained a significant threat to public safety if he were to drive. This threat was best managed by the conditions the Board imposed, including the condition prohibiting Mr. Kossta from driving. The Board's conclusion was supported by Mr. Kossta's history, including the index offence. It was also supported by the opinion of Dr. Choptiany, Mr. Kossta's attending psychiatrist, that without the external controls of a Board disposition, Mr. Kossta was likely to consume alcohol, miss taking his medication, become manic, and put members of the public at risk of harm. Dr. Choptiany pointed to the experience in August 2017, when Mr. Kossta consumed alcohol and relapsed after the alcohol prohibition was lifted for one year. Mr. Kossta complied with the prohibition after it was reinstated. Dr. Choptiany also referred to the fact that Mr. Kossta is receiving one-on-one psychotherapy to learn to recognize his emotional states and manage them.

Concerns Regarding Licence Suspension Information

[7] Although the Board's reasons do not address the licence suspension directly in its analysis, the fact of the suspension was addressed in evidence. Unfortunately, however, there was little information before the Board concerning Mr. Kossta's licence suspension. For example, the evidence did not address whether the licence suspension itself would remain in place, and whether it could act as an effective control to prevent the risk of harm by stopping Mr. Kossta from driving. Although the Board was informed that Mr. Kossta's licence had been suspended for medical reasons, it was unknown when and how the suspension had come about. Dr. Choptiany expressed confusion about the issue, and said he would need to get advice from the Hospital's legal department to know how to proceed.

[8] Counsel for Mr. Kossta on appeal (not his counsel before the Board) fairly pointed out that, in the Board's reasons for its March 28, 2018 disposition, the Board referred to a CPIC report which stated that Mr. Kossta's driver's licence was suspended on 2005-08-06, for medical reasons, and that this was prior to the NCR finding. Appeal counsel questioned the reliability of that information in light of the fact that the index offence occurred in a rented car, and there was no indication that Mr. Kossta was charged with driving while his licence was suspended.

Directions for Future Review

[9] We have concluded that the Board's disposition was reasonable and supported by the evidence that was before it at the hearing. We are, however, concerned about the lack of information that was available to the Board concerning Mr. Kossta's licence suspension, including information that appears to have been available at the previous year's hearing. Details of the timing and the circumstances leading to the suspension of Mr. Kossta's driver's licence, as well as his record of driving (or not) while his licence has been suspended should be obtained and made available to the Board for its next review (which is scheduled for February 24, 2020). This information will assist the Board in determining whether there is any reasonable prospect of Mr. Kossta ever having his licence reinstated, and whether the suspension itself could act as an effective external control. Ultimately, this is information that should be evaluated by the Hospital, and considered by the Board in assessing whether Mr. Kossta continues to pose a significant risk of harm to the public.

Disposition

[10] For these reasons, Mr. Kossta's appeal was dismissed.

"Doherty J.A."

"K. van Rensburg J.A."

"C.W. Hourigan J.A."