Court of Appeal for Ontario

Date: 2019-07-08 Docket: C66094

Judges: Doherty, MacPherson and Benotto JJ.A.

In the Matter of: Frank Shepherd

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• Ken J. Berger, for Frank Shepherd
• Kevin Rawluk, for the Crown
• J. Zamprogna, for the Hospital (Southwest Centre)

Heard: July 4, 2019

On appeal against the disposition of the Ontario Review Board dated September 27, 2018, with reasons released October 15, 2018.

Reasons for Decision

[1] The appellant asks this court to quash the disposition order of the Ontario Review Board requiring that the appellant remain detained at the Southwest Centre for Forensic Mental Health Care with permission to live in accommodation approved by the person in charge. He requests that this court substitute an order for a Conditional Discharge.

[2] The appellant submits that the Board erred by finding that he posed a significant risk to public safety. He submits, for example, that no one was injured as a result of his conduct.

[3] The order under appeal dated September 27, 2018 continued a 2017 order which had been upheld by this court in June 2018, three months prior to the review heard on September 17, 2018.

[4] The Board concluded that the appellant's condition had not changed. Nor had the treating psychiatrist, Dr. Ugwunze's opinion changed that the appellant continued to have limited insight into his mental illness which worsens when he exhibits hypomanic symptoms. He has no realization that his use of cannabis affects the risk he poses to the public. He absconded twice and cannot be managed on a conditional discharge. He is compliant with his medication in a supervised setting.

[5] Dr. Laura Fazaka-DeHoog conducted an assessment on June 12, 2018. She concluded that the appellant continues to pose a moderate risk of violent reoffending in the next 12 months provided he remains on a Detention Disposition. This risk would increase if the restrictions were lessened.

[6] It was the unanimous opinion of the treatment team that the appellant continued to pose a significant threat which is "directly correlated to the risk of relapse of his bipolar affective illness/schizoaffective disorder" (page 69 Hospital Report). This evidence led the Board to conclude that the appellant "continues to pose a significant threat of serious physical or psychological harm to members of the public".

[7] We see no error in the Board's conclusion that the disposition is the least onerous and least restrictive disposition in the circumstances.

[8] The appellant has been living in approved accommodation since July 1, 2018, and is now receiving medication by injection. At the next review in September 2019, the Board will have the advantage of a year of evidence about these changes when it considers his request for a Conditional Discharge.

[9] The appeal is dismissed.

"Doherty J.A."

"J.C. MacPherson J.A."

"M.L. Benotto J.A."