Court of Appeal for Ontario

Date: 2019-03-20 Docket: C65493

Judges: Strathy C.J.O., Rouleau and Miller JJ.A.

In the Matter of: Jean-Paul Scalabrini

An Appeal Under Part XX.1 of the Code

Counsel

For the appellant, Jean-Paul Scalabrini: Anita Szigeti

For the respondent, Attorney General of Ontario: Vallery Bayly

For the respondent, Centre for Addiction and Mental Health: Gavin S. MacKenzie

Heard: March 8, 2019

On appeal against the disposition of the Ontario Review Board dated June 26, 2018.

Reasons for Decision

[1] Jean-Paul Scalabrini appeals from the June 26, 2018 disposition of the Ontario Review Board, ordering him detained at the General Forensic Unit of the Centre for Addiction and Mental Health, Toronto. He appeals on the basis that the Board's decision was unreasonable in finding that he poses a significant risk of serious harm to the public. The appellant seeks an absolute discharge, and in the alternative, a conditional discharge.

[2] We do not agree that the Board's disposition was unreasonable. For the reasons that follow, we dismiss the appeal.

Background

[3] The index offences occurred on March 28, 2013, near Sudbury. The appellant had been living transiently for six years and had a history of brief contacts with the mental health system. At the time of the offences, he had been living in a makeshift shelter in the woods. He assaulted and robbed two young men he encountered in the woods, threatening them with his knife and an air pistol he took from one of them. He was found not criminally responsible due to mental disorder of various offences related to these acts.

[4] He has been detained since the index offences. He is currently diagnosed with schizophrenia, paranoid type and substance abuse disorder, in remission in a controlled environment. He has had impressive educational achievements while detained, and has not been violent since the index offences.

The Board's Concerns

[5] The Board noted in its reasons that the appellant has had persistent difficulty with abstaining from using marijuana, and has gone to elaborate means to defeat the hospital's drug monitoring regime. Although he has also engaged in other, comparatively minor, rule-breaking, which has resulted in him losing privileges, his main obstacle to increased privileges has been his drug use. The appellant's treating psychiatrist testified that his use of marijuana and his more recent use of SPICE, a synthetic cannabinoid that is hard to detect with current screening methods, are of significant concern. This is because notwithstanding the appellant's full compliance with his anti-psychotic medication, the appellant is very sensitive to developing symptoms of psychosis when abusing these drugs.

The Appellant's Position

[6] The appellant argues, however, he has not been violent since the index offences, despite his drug use, and although his behaviour may be odd, he does not present a significant risk of serious harm to anyone.

Standard of Review

[7] We have concluded that the appeal must be dismissed. On review, this court must determine whether the Board, in the exercise of its specialized knowledge and expertise, made a decision that falls within a range of reasonable outcomes. As Huscroft J.A. said in Carrick (Re), 2015 ONCA 866, 128 O.R. (3d) 209 at para 26:

This court does not make its own judgment on the significant threat question and use that judgment as the benchmark for assessing the reasonableness of the board's decision. Nor does this court re-weigh the considerations before the board. The reasons for the board's decision and the substantive decision reached by the board must be considered together to determine whether an acceptable and defensible outcome has been reached.

Analysis

[8] Here, the decision of the Board was reasonable, given its concerns about immediate decompensation triggered by the appellant's drug use, together with the appellant having no experience with living in the community under the current disposition.

[9] We acknowledge that the reason the appellant has no track record of living in the community is because he has not been afforded any opportunity to establish one. His continual drug use, and the amount of time it takes to eliminate traces of drugs from his system for continual monitoring to be effective, has become an insurmountable barrier to obtaining any additional living privileges. He now appears to be regressing in treatment. The Board's reasons do not explain why there is no current plan to see the appellant increasing in privileges, towards living in the community under the current disposition, particularly when the appellant is willing to consent to receiving medication through long-lasting injection. The drug use might constitute a categorical reason to deny community privileges if it were established that it contributed to violent behaviour. But notwithstanding its immediate impact on the appellant's psychosis, the appellant has not acted violently in the hospital setting when exhibiting psychotic symptoms. We would hope, in the upcoming annual review, that notwithstanding the appellant's failure to abstain from marijuana use, the Board will consider crafting a disposition that would facilitate the appellant's ability to gain some experience of living in the community, with the hope that this could lead to a conditional or absolute discharge in the future.