Court of Appeal for Ontario

Date: October 16, 2019 Docket: C66362 Judges: Feldman, Trotter and Zarnett JJ.A.

In the Matter of: Romeo McGregor

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• Anita Szigeti, for the appellant Romeo McGregor
• Erica Whitford, for the respondent Crown
• Janice Blackburn, for the Person in Charge of St. Joseph's Healthcare Hamilton

Heard and released orally: October 16, 2019

On appeal from the disposition of the Ontario Review Board dated November 29, 2018, with reasons dated December 17, 2018.

Reasons for Decision

[1] The appellant's position, put succinctly by Ms. Szigeti, is that the reasons of the Board fell into the error identified by this court in its most recent Board appeal decision in Abdulle (Re), 2019 ONCA 812, at para. 8, where the court stated:

It is incorrect to conflate the risk of relapse in mental illness with the risk to public safety: Hammoud (Re), 2018 ONCA 317, at para. 9. The requirement to read the reasons and record as a whole does not overcome this improper conflation. If the appellant is to be detained, there must be specific findings that he would be at risk of committing serious crimes that would pose a danger to the public upon his release. The Board did not make those findings in its reasons.

[2] The appellant submits that the reasons of the Board on the issue of significant risk conflate significant risk of relapse with significant risk of reoffending and therefore significant risk to the public. Counsel refers us to para. 28 of the reasons of the Board which state:

Having heard and considered all the evidence and the submissions from all the parties, the Board found Mr. McGregor remains a significant threat to the safety of the public. We make this finding on the basis of the evidence of Dr. Adams and the Hospital Report that indicates he suffers from a major mental illness and diagnoses of Substance-induced Psychosis (currently in remission), Antisocial Personality Disorder, Alcohol Use Disorder and Cannabis Use Disorder. Mr. McGregor's history indicates he has a long history of criminal and antisocial behaviour as set out in the Hospital Report (page 11). This record indicates a high degree of antisocial behaviour which has given rise to assessment of risk profiles indicating the level of risk Mr. McGregor poses to public safety. This is especially true as noted by Dr. Adams if he continues to abuse substances, notably, alcohol and cannabis.

[3] We do not accept the appellant's submission. We are satisfied that Dr. Adams was clear in her evidence that the serious index offence of sexual assault was caused by the appellant's psychosis which was fueled by substance abuse; and because, when given the opportunity in the community in the year leading up to the Board hearing he did abuse substances, he has a high risk of relapse into psychosis and a high risk that he could then reoffend. His history of acting out violently, although not demonstrated in the last three years, substantiates that risk analysis, as do his actuarial test scores, which indicate a high risk to offend. The Board accepted Dr. Adams' evidence, as it was entitled to do.

[4] The appellant also appeals on the basis that the Board failed to give sufficient reasons for failing to grant a conditional discharge. In our view the Board accepted Dr. Adams' opinion that the Mental Health Act, R.S.O. 1990, c. M.7 provisions would not be adequate to protect the public in the event the appellant abused substances in the community, and therefore release on conditions was not an appropriate disposition. See para. 12 of the reasons.

[5] We see no error in the Board's conclusion or its reasons. The appeal is therefore dismissed.

K. Feldman J.A.

G.T. Trotter J.A.

B. Zarnett J.A.