Court File and Parties

Court of Appeal for Ontario Date: May 1, 2020 Docket: C67672

MacPherson, Benotto and Nordheimer JJ.A.

In the Matter of: Duane Anderson

An Appeal Under Part XX.1 of the Code

Counsel: Terrance Luscombe, for the appellant Ken Lockhart, for the respondent Her Majesty the Queen Naveen Hassan, for the respondent Ontario Shores Centre for Mental Health Services

Heard: In writing

On appeal from the disposition of the Ontario Review Board dated October 15, 2019 with reasons dated October 28, 2019.

Reasons for Decision

[1] Duane Anderson appeals from the decision of the Ontario Review Board that continued his detention order and, in doing so, imposed a condition that he abstain absolutely from the non-medical use of alcohol or drugs. The appellant particularly objects to this condition insofar as it would prohibit him from the recreational use of cannabis. Medical use of cannabis is permitted under the current disposition.

[2] The appellant submits that the condition regarding the use of drugs is not the least restrictive disposition available to the Board. He also submits that the condition was based on an inadequate evidentiary basis. There was no direct evidence that the use of cannabis would be a problem in the appellant’s case.

[3] What the Board did have was the expert evidence of a psychiatrist that the use of cannabis “generally” exacerbates psychotic symptoms in people. The Board also had information in the hospital report, provided by the appellant’s mother, of a prior incident of the appellant acting aggressively that was tied to his excessive use of cannabis. All of this evidence had to be considered against the backdrop that there was no dispute that the appellant continues to pose a significant risk to the safety of the public.

[4] The appellant points to a number of prior decisions of this court that he says supports his position that the Board must impose the least restrictive conditions in making a disposition. In particular, he relies on the decisions in Re Sheikh, 2019 ONCA 2019; Re Wall, 2017 ONCA 713 and Re Anuff, 2016 ONCA 280. None of those decisions actually addresses the issue that we have here. In each of those cases, the issue was whether the evidence supported a finding by the Board that the individual posed a significant risk to the public. Here, that finding is conceded.

[5] Rather, we are dealing with the legitimacy of a condition of the appellant’s disposition that restricts his access to cannabis. While those conditions must still pass the least restrictive test, in our view, there was sufficient evidence before the Board to warrant the imposition of that condition. It is not necessary for the Board to have direct evidence amounting to an absolute certainty that the imposition of such a condition is necessary in the appellant’s case. The Board was entitled to rely on the expert evidence regarding the effect of cannabis on individuals generally, coupled with evidence as to prior effect on the appellant, as a sufficient foundation to warrant the imposition of that condition. We note that there was no evidence to the contrary, that is, that the appellant was somehow immune from the general effect of cannabis.

[6] It would be contrary to the Board’s duty to protect the safety of the public to require it to withhold the imposition of a condition until an actual adverse event took place. The Board is entitled to rely on expert evidence as to the likelihood of an event happening as being sufficient to warrant the imposition of a specific condition. It certainly cannot be said that, in doing so, the Board acted unreasonably.

[7] For the foregoing reasons, the appeal is dismissed.

“J.C. MacPherson J.A.”

“M.L. Benotto J.A.”

“I.V.B. Nordheimer J.A.”