Court of Appeal for Ontario

Citation: Osawe (Re), 2020 ONCA 715 Date: 2020-11-10 Docket: C68106

Judges: Gillese, Lauwers and Benotto JJ.A.

In the Matter of: Edward Osawe An Appeal Under Part XX.1 of the Code

Counsel: Kelley J. Bryan, for the appellant Michele Warner, for the respondent, the Person in Charge of Centre for Addiction and Mental Health Jeffrey Wyngaarden, for the respondent, the Attorney General of Ontario

Heard by videoconference: November 5, 2020

On appeal from the disposition order of the Ontario Review Board dated January 16, 2020, with reasons for disposition dated February 11, 2020.

Reasons for Decision

Background in Brief

[1] Mr. Osawe is diagnosed with schizophrenia; polysubstance use disorder, in remission; borderline-mild intellectual disability; antisocial personality traits; and rule out paraphilia.

[2] On the afternoon of March 31, 2009, Mr. Osawe randomly struck an older female from behind, with a knife, while she stood on a subway platform in Toronto. The victim was a stranger to Mr. Osawe. She sustained a six-centimeter cut to the right side of her head; seven staples were required to close the wound.

[3] On October 8, 2010, Mr. Osawe was found not criminally responsible (“NCR”) on charges of assault causing bodily harm and failing to comply with an undertaking. At the time of the index offence, he was undiagnosed and untreated. He had prior charges for sexual interference, theft, acts contrary to public order, and possession of marijuana, among others, none of which resulted in convictions.

[4] Following the index offence, Mr. Osawe was detained at CAMH and began a daily oral medication. In 2013, he tested positive for the suspected use of synthetic cannabis. That same year, he was charged with sexual assault of another patient. Those charges were stayed in June 2014, when the victim refused to testify, and Mr. Osawe entered into a peace bond.

[5] In 2015, Mr. Osawe was discharged to a group home funded by Developmental Services Ontario (DSO) and run by VITA Community Living Services. The VITA residence houses 10 men, of whom Mr. Osawe is one. It is a locked, all-male residence with an extremely high level of support, 24-hour supervision, and little opportunity for access to substances or other destabilizing influences.

[6] In 2019, the Board granted Mr. Osawe a conditional discharge.

[7] Mr. Osawe has now been approved for transfer to more independent DSO housing. There are two potential housing models open to him. In the first, staff is on site. The second is semi-independent living where there may be staff on site but not necessarily. However, both models will provide Mr. Osawe with much less structure and support than he currently has.

[8] At his 2020 annual review, Mr. Osawe unsuccessfully sought an absolute discharge.

[9] The Board acknowledged that Mr. Osawe had had a good year and flourished in the VITA home. However, it found that this was because the VITA home is highly structured and offers Mr. Osawe a high level of support.

[10] The Board accepted the testimony of Dr. Wilkie, Mr. Osawe’s treating psychiatrist, as supported by the hospital report, that Mr. Osawe’s risk to the public will increase with the impending change to his housing and that he needs continuing structure and support to manage that risk.

[11] Consequently, the Board maintained Mr. Osawe’s conditional discharge with some changes to the conditions that the parties had proposed.

[12] Mr. Osawe appeals on the basis that the Board’s conclusion he continued to pose a significant risk to the public was unreasonable. He asks this court to grant him an absolute discharge.

[13] He submits that the Board’s analysis of significant risk was inadequate. Relying on this court’s recent decision in Re Sim, 2020 ONCA 563, he contends that the Board erred in its significant threat analysis by failing to consider the likely occurrence of each step in the cascading sequence posited by the hospital: that Mr. Osawe would face stress in transitioning to a new housing environment; become vulnerable to destabilizers or potential negative influences; stop taking his medication; experience mental decompensation; and then exhibit aggressive and antisocial behavior. He also contends that the Board failed to make an express finding respecting the seriousness of the potential harm with which it was concerned and that the evidence did not support such a finding.

Issue

[14] The sole issue on appeal is whether the Board’s finding that Mr. Osawe remains a significant threat to the public was unreasonable.

Analysis

[15] The Board is an expert tribunal and, on appeal, its decisions are entitled to considerable deference. Absent an error of law or a miscarriage of justice, this court can intervene only if the Board’s risk analysis or disposition order was unreasonable in that it is not supported by reasons that can bear a somewhat probing examination: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 33.

[16] In our view, the Board’s decision meets the requisite standard. Its reasons focus on the critical issue of Mr. Osawe’s likely response to his move to a new living environment. Relying on Dr. Wilkie’s testimony and the hospital report, it accepted that Mr. Osawe would face stress and destabilizing factors when transitioning to a new living environment in which he will enjoy a much-reduced level of structure and support than he enjoys at VIDA. It concluded that the combination of increased stress and decreased supervision raised concern about Mr. Osawe’s particular vulnerability to destabilizing influences and the risk that he would relapse into substance use, cease taking his medication, and decompensate, thereby creating the potential for violent re-offending similar to the index offence. In reaching its conclusion, the Board’s reasons show that it was alive to the relevant evidence and the factors that weighed both in favour of, and against, a finding of significant risk.

[17] This case is readily distinguishable from Re Sim. Before being granted an absolute discharge, over a period of six years, Mr. Sim had progressed from supervised living to living independently. In July 2014, he moved into a 24-hour a day supervised group home. In October of that same year, he moved to an 8-hour a day supervised home. In September 2016, he moved into shared accommodation and in March 2019, he began living independently in a one-bedroom apartment.

[18] Mr. Osawe is very differently situated. Unlike Mr. Sim who had a lengthy period of semi-independent and then independent living, Mr. Osawe has yet to live even semi-independently. His housing at VITA is highly structured and closely supervised 24 hours a day. His approved move is into a less structured environment that will provide him with less support. The Board’s conclusion on significant risk is grounded in the expert testimony of Mr. Osawe’s treating psychiatrist that a less structured living situation in which Mr. Osawe will enjoy a decreased level of support will increase his risk to the public safety.

[19] We do not view the Board’s risk analysis or disposition order to be unreasonable.

Disposition

[20] Accordingly, the appeal is dismissed.

“E.E. Gillese J.A.”

“P. Lauwers J.A.”

“M.L. Benotto J.A.”