Court File and Parties

Court of Appeal for Ontario Date: 2020-02-26 Docket: C67102

Before: Benotto, Huscroft and Jamal JJ.A.

In the Matter of: Theophilos Fotiou An Appeal Under Part XX.1 of the Code

Counsel: Anita Szigeti, for the appellant Megan Petrie, for the respondent, Attorney General of Ontario Janice E. Blackburn, for the respondent, Person in Charge of St. Joseph’s Healthcare Hamilton

Heard: February 21, 2020

On appeal against the disposition of the Ontario Review Board dated May 23, 2019, with reasons dated June 10, 2019.

Reasons for Decision

Introduction

[1] On March 6, 2019, the appellant was found not criminally responsible on account of mental disorder (“NCR”) on charges of assault causing bodily harm and assaulting a peace officer. The appellant had attacked police officers who responded to a 911 call when the appellant threatened to kill one of his housemates. The police had attended at the same house a few nights earlier when the appellant had allegedly thrown a kitchen knife at another housemate. While being arrested the appellant punched two officers in the face, breaking one officer’s nose. He then made more death threats while receiving medical attention at the St. Joseph’s Healthcare Hamilton (“St. Joseph’s”). His bail pending trial was revoked for threatening another police officer. His threatening and aggressive behavior continued while he was in hospital.

[2] The appellant’s current diagnoses are schizoaffective disorder and substance abuse disorder. He has a long history of mental illness and hospitalizations, often on an involuntary basis, related to being undermedicated and engaging in bizarre and aggressive behaviour.

[3] The appellant now appeals his initial disposition by the Ontario Review Board (the “Board”) dated May 23, 2019. The Board concluded that the appellant posed a significant threat to the safety of the public and ordered him detained at St. Joseph’s, with privileges up to and including living in the community in approved accommodation.

Issues

[4] The appellant raises two issues. First, he asserts that the Board’s finding that he posed a “significant threat to the safety of the public” under s. 672.54 (a) of the Criminal Code, R.S.C. 1985, c. C-46, is unreasonable under s. 672.78(1) (a) of the Criminal Code. Second, in the alternative, he asserts that the Board should have granted him a conditional discharge.

Discussion

(i) Did the Board err in concluding that the appellant posed a “significant threat to the safety of the public”?

[5] The appellant asserts that he lived in the community without incident for more than three years while on bail between the index offence and the NCR verdict and that it was purely speculative for the Board to conclude that he posed a greater risk at the time of the disposition than he did when he lived in the community. He also claims that the Board relied on circular logic in finding that the fact that he lived in the community without incident while on bail “speaks to his level of wellness at the time,” when the Board had no information about his mental condition at that time. Finally, he asserts that his risk has been escalating progressively while he has been in hospital and that the Board should have found that his enforced detention is worsening his mental state.

[6] We reject this submission.

[7] Absent a wrong decision on a question of law or a miscarriage of justice, this court may allow an appeal against a disposition of the Board only where it is of the opinion that the Board’s disposition is “unreasonable or cannot be supported by the evidence”: Criminal Code, s. 672.78(1); R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at paras. 31-32; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 34. In our view, the Board’s decision was entirely reasonable having regard to its “reasoning process and the outcome” and properly reflected “an internally coherent and rational chain of analysis” that was “justified in relation to the facts and law”: Vavilov, at paras. 83, 85.

[8] The Board’s finding that the appellant posed a “significant threat to the safety of the public” was amply supported by the evidence cited at paras. 50-51 of the Board’s decision, including the expert evidence that the appellant “would now be deemed a high risk for repeated violent behaviour”, his history of violent criminal conduct and record of police involvement associated with the numerous lapses in his mental disorder, his lack of insight into his mental condition, his refusal to consent to a medication increase recommended by his treatment team, and his history of “falling away from treatment” leading to assaultive behaviour.

[9] The Board was also aware that the appellant had lived in the community while on bail and was entitled to find on the evidence that his condition had worsened to the point that he posed a significant threat. As the Board found: “The assessment of risk is a dynamic process and, at the present time, the expert evidence before this Board assessed [the appellant’s] risk as falling within the ‘high’ range” (emphasis in original). Further, contrary to the appellant’s allegation, the Board did have information about his mental condition while he was on bail, which showed that he was taking a higher dose of his antipsychotic medication at that time and that there was a likelihood he would deteriorate further and become aggressive again if he were to stop taking his medication. Both doctors who testified at the hearing also expressly rejected the suggestion that the appellant’s risk level and aggression were caused by being hospitalized, and instead concluded that they stemmed from his acute psychosis.

[10] In sum, there was nothing unreasonable about the Board’s reasoning process or its conclusion in finding that the appellant posed a significant threat to the safety of the public.

(ii) Did the Board err in imposing a detention order rather than granting a conditional discharge?

[11] The appellant’s second ground of appeal asserts that the Board should have granted him a conditional discharge. He claims that the reasons given by the Board for a detention order were “pro forma” and unconnected to his unique situation, including that he had been living in the community on bail without incident for more than three years.

[12] We also reject this submission. The Board explained its rationale for imposing a detention order with community living privileges as being necessary to safeguard public protection for the following reasons, at para. 56:

In our opinion, the evidence presented indicates that the hospital requires the authority of a Detention Order for two critical risk management purposes. The first is to provide the hospital with the authority to approve Mr. Fotiou’s community residence should he become a candidate for discharge to ensure that he is provided with the requisite level of support, monitoring and supervision. The second is to ensure that the hospital has the authority to promptly readmit Mr. Fotiou in the event that he relapses to substance use or otherwise suffers a significant deterioration in his mental status. A Conditional Discharge Disposition (even one containing a treatment condition) would not offer adequate safeguards for public protection.

[13] It is well established that the Board’s need to supervise housing justifies a detention order rather than a discharge: see Munezero (Re), 2017 ONCA 585, at para. 9; R. v. Simpson, 2010 ONCA 302, at para. 4; and Brockville Psychiatric Hospital v. McGillis (1996), 93 O.A.C. 226 (C.A.), at para. 4. In our view, given that the appellant had threatened his housemates at the time of the index offence, the Board reasonably found its need to supervise his housing to be a “critical risk management purpose” that warranted a detention order.

[14] We therefore see no basis to impugn the Board’s reasoning process or its conclusion. The crafting of the specific terms of a disposition is properly left to the Board’s specialized knowledge and expertise in assessing the NCR accused’s level of risk and how best to manage that risk: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at paras. 59-61; Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528, at para. 22; see also Vavilov, at para. 93. In the circumstances, the Board’s decision to impose a detention order with community living privileges is entitled to deference.

Disposition

[15] The appeal is dismissed.

“M.L. Benotto J.A.”

“Grant Huscroft J.A.”

“M. Jamal J.A.”