COURT OF APPEAL FOR ONTARIO DATE: 20210617 DOCKET: C68894

Rouleau, Hoy and van Rensburg JJ.A.

IN THE MATTER OF: Alexander Wightman

AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel: Erin Dann, for the appellant Natalya Odorico, for the respondent, Attorney General of Ontario Julie A. Zamprogna Ballès, for the respondent, Person in Charge of Southwest Centre for Forensic Mental Health Care, St. Joseph’s Health Care London

Heard: June 3, 2021 by video conference

On appeal from the disposition of the Ontario Review Board, dated November 10, 2020, with reasons dated December 3, 2020.

van Rensburg J.A.:

A. Overview

[1] The appellant appeals the most recent disposition of the Ontario Review Board (the “Board”) dated November 10, 2020, continuing his conditional discharge. He contends that the Board’s conclusion that he continued to represent a significant threat to the safety of the public, was unreasonable. The appellant also relies on fresh evidence – a letter providing certain information about his current status, and confirming that an early hearing has been scheduled at the request of St. Joseph’s Health Care, London (the “Hospital”), at which the Hospital intends to recommend an absolute discharge. The appellant asks this court to order an absolute discharge.

[2] For the reasons that follow I would dismiss the appeal.

[3] First, I am not persuaded that the November 2020 Board disposition was unreasonable at the time it was made. The conclusion that the appellant continued to pose a significant threat is well-supported by the evidence before the Board, and the Board applied the correct test.

[4] Second, although this court can grant an absolute discharge based on fresh evidence, I would decline to do so in this case. An early review of the November 2020 disposition is scheduled for July 12, 2021. It is preferable that the Board make the determination of whether, in light of this evidence and the record before it, the appellant no longer poses a significant threat such that an absolute discharge is warranted.

B. Background Facts

[5] The appellant was found not criminally responsible on account of mental disorder (“NCRMD”) on a charge of attempted murder in November 2009. The index offence occurred in April 2009, when the appellant, without warning, repeatedly stabbed a neighbour with a six-inch knife. At the time of the offence, he was experiencing paranoid persecutory delusions, he was non‑compliant with prescribed antipsychotic medication and he was not under psychiatric care.

[6] The appellant’s diagnoses then, and now, are schizophrenia, substance use disorder and antisocial personality disorder traits. For his first five years under the Board’s jurisdiction the appellant was detained in the maximum secure facility at Oak Ridge (now Waypoint). After showing “slight progress”, at his 2014 annual hearing the Board ordered the appellant’s transfer to St. Joseph’s Health Care, Hamilton, where he began to make real progress. Following an early review in November 2015 the appellant was moved to a general forensic unit and, following his 2016 annual review, he was transferred to the rehab-readiness unit at the Southwest Centre of the Hospital. The appellant remained under a detention order, but began his transition to community living in November 2017.

[7] In February 2019 the appellant was referred to the Chatham-Kent Health Alliance for a community psychiatrist, and to the local Canadian Mental Health Association (CMHA) Long-Acting Injection clinic for bi-weekly injections, a service that commenced in April 2019. Since April 2019 the appellant has been living in his own one-bedroom apartment in Chatham.

[8] On November 25, 2019, the appellant was ordered conditionally discharged. The disposition required the appellant to reside at his current address, to take psychiatric treatment (on his consent), and to report to the Hospital four times per month.

[9] At the 2020 review hearing in November 2020 the appellant sought an absolute discharge, which was opposed by the Hospital and the Crown.

C. The Board’s Reasons

[10] A majority of the Board concluded that the threshold test for significant threat continued to be met. The risk flowed mainly from the appellant’s major mental illness (schizophrenia), as well as his diagnosis of antisocial personality traits, and his low threshold for stress, as well as his historical use of alcohol and illicit drugs. The Board noted that the index offence, which was extremely serious, and could have been lethal, occurred when the appellant was experiencing symptoms of his major mental illness, likely exacerbated by the use of alcohol. The Board accepted that the appellant had made good progress over the past number of years: he had willingly engaged with forensic staff, complied with medication, and had shown increased insight into his mental illness and receptiveness to suggestions on coping and alleviating stress. The Board concluded:

However, given Mr. Wightman’s history of significant violence when he is less well, the challenge is to ensure that Mr. Wightman remains engaged with professional supports and treatment compliant when he is no longer subject to a Review Board disposition. Put simply, despite the progress that he has made, ongoing therapeutic oversight and support of Mr. Wightman is necessary to minimize his risk going forward.

[11] The Board noted that the appellant’s relationship with Dr. Rafiq, the community psychiatrist who had been overseeing his care for the past seven months, had just begun to develop and that the ability to establish a strong therapeutic alliance had been impacted by restrictions imposed due to the pandemic, including the lack of in-person meetings. The Board agreed with the appellant’s forensic psychiatrist, Dr. Ugwunze (who testified at the hearing) and Dr. Rafiq (whose views were communicated by Dr. Ugwunze), that a longer period of transition of care was required. The Board concluded that a period of overlapping care was necessary to ensure a successful transition and no increase in the risk to public safety, and that until the successful transition was achieved, the test for significant threat continued to be met.

[12] One Board member would have granted the appellant an absolute discharge. She noted that there had been several meetings between the appellant and Dr. Rafiq. Given the appellant’s excellent progress, his current stability and connection to at least some CMHA services, she could not say that the appellant posed a significant risk to the safety of the public.

[13] The Board continued the conditional discharge disposition. It reduced the appellant’s reporting frequency from four to two times per month, and, in order to test the appellant’s commitment to long-term compliance with medication, the Board removed the consent to treatment conditions from the disposition.

Issue One: Was the Disposition Reasonable at the Time It Was Made?

[14] A Board’s determination on significant risk will only be disturbed on appeal if the decision is unreasonable or cannot be supported by the evidence, the decision is based on a wrong decision on a question of law, or there has been a miscarriage of justice: Criminal Code, s. 672.78. The Board is provided with expert membership and broad inquisitorial powers. The assessment of whether an accused’s mental condition renders him a significant threat calls for significant expertise: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at paras. 29-30. The reasonableness of a Board disposition is assessed by reference to the Board’s “reasoning process and the outcome” and whether the decision properly reflects “an internally coherent and rational chain of analysis” that is “justified in relation to the facts and law”: Re Fotiou, 2020 ONCA 153, at para. 7, citing Canada (Ministry of Citizenship and Immigration) v. Vavilov, 2019 SCC 15, 441 D.L.R. (4th) 1, at paras. 83, 85.

[15] The appellant asserts that the Board’s conclusion that he continued to pose a significant threat to the safety of the public was unreasonable. [1]

[16] He submits that the Board concluded there was a significant threat after applying an incorrect test. A significant threat requires “a risk of serious physical or psychological harm to members of the public…resulting from conduct that is criminal in nature but not necessarily violent”: Criminal Code, s. 672.5401. Instead, the Board considered whether an ideal non-forensic clinical care scenario had been achieved.

[17] The appellant argues that there was an absence of “positive evidence of a substantial risk”; rather the evidence showed that there was a low risk of reoffence if the appellant remained treatment compliant. The necessary threshold was not met because the Board did not conclude that there was a high risk that he would become non-compliant with his medication. In oral submissions, the appellant, relying on Re Negash, 2021 ONCA 280, says that as in that case, the conclusion that there was a significant risk to public safety because of the possibility rather than the probability of harm, descended into the realm of speculation.

[18] I would not give effect to this argument. In Negash this court observed that a “significant risk of harm to public safety” requires “a real, foreseeable risk that is more than speculative and that the consequent physical or psychological harm must be serious and criminal in nature”: at para. 10 (relying on R. v. Ferguson, 2010 ONCA 810, 264 C.C.C. (3d) 451, at para. 8). In that case, the Board proceeded on the basis that the possibility of a change in the accused’s medications could cause instability, and there was an elevated risk associated with the accused’s transition to a non-forensic team. Moreover, the Board did not weigh the seriousness of the potential harm against the likelihood that it would materialize.

[19] In the present case, by contrast, the evidence demonstrated that the risk that the appellant would stop taking his medication if the necessary psychiatric supports were not provided was more than speculative, and that serious harm would likely result. Dr. Ugwunze testified that if the appellant were absolutely discharged without psychiatric support there was a “real risk” he would stop taking his medication, which “would most likely lead to decompensation of his mental state” including “florid psychotic symptoms, notably delusional beliefs of a paranoid persecutive nature, as well as auditory hallucinations”. The doctor expressed the opinion that, it was likely that, in this decompensated mental state, the appellant would act on his delusional beliefs, leading to behaviour similar to what occurred in the index offence. Dr. Ugwunze said this scenario was “very likely” if the appellant did not take his medication. The appellant’s compliance with medication was fairly recent (since 2017), and he had a long history of refusing or stopping medication both before and after Board supervision.

[20] While the appellant is correct that there was general agreement that he is at low risk to reoffend if he remains treatment compliant, as the Board noted, “the challenge is to ensure that [he] remains engaged with professional supports and treatment compliant when he is no longer subject to a Review Board disposition”. The appellant’s relationship with his community psychiatrist, Dr. Rafiq, which was “in its infancy” at the time of the November 2020 Board hearing, was described by Dr. Ugwunze as the “bedrock” for managing the appellant’s risk. Both the need for a strong therapeutic relationship with Dr. Rafiq and the fact that the relationship had not yet developed, in part because of the lack of opportunity to conduct in‑person assessments, were amply supported by the evidence.

[21] In my view, the Board’s disposition was reasonable, based on the evidence at the hearing. The Board’s conclusion that the appellant met the significant threat test is fully supported by the record. The threat was “more than speculative in nature”. It was “significant”, both in the sense that there was “a real risk of physical or psychological harm occurring to individuals in the community and in the sense that [the] potential harm [was] serious”. And the risk was the commission of a serious criminal offence: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 57.

Issue Two: Does the Fresh Evidence Warrant an Order for Absolute Discharge from This Court?

[22] Section 672.73 of the Criminal Code provides that an appeal against a disposition order shall be “based on a transcript of the proceedings and any other evidence that the court of appeal finds necessary to admit in the interests of justice”. Fresh evidence concerning events that postdate the disposition order may be admitted where the evidence “is trustworthy and touches on the issue of risk to public safety”: Owen, at paras. 48-61, 71.

[23] All parties agree that this court should consider as fresh evidence, a letter dated May 14, 2021 from counsel for the Hospital. They agree that the information contained in the letter is trustworthy and relevant to the issue of risk to public safety. They disagree, however, about the effect the fresh evidence should have on the disposition of the appeal.

[24] The May 14, 2021 letter confirms that, since the November 2020 disposition, the appellant has continued to live independently in the community and has demonstrated ongoing stability, and that the relationship between the appellant and Dr. Rafiq has progressed. Although the appellant has declined to consent to a community treatment order, he has been compliant with his treatment, that is now prescribed and overseen by Dr. Rafiq. He is supported by the CMHA for intra‑muscular medication and follow-up. He was declined for formal case‑management services by the CMHA because of the existing support provided by Dr. Rafiq and the CMHA injection team. Although the letter does not indicate whether in-person meetings have taken place, the treatment team at the Hospital considers that a strong therapeutic relationship has developed between the appellant and Dr. Rafiq, and that the appellant is adequately supported in the community. No concerns have been conveyed to the Hospital by Dr. Rafiq concerning the appellant’s engagement or mental wellness.

[25] The letter advises that an early Board hearing was requested by the Hospital and has been scheduled for July 12, 2021, and that the Hospital confirms that it intends to recommend an absolute discharge for the appellant at that hearing.

[26] The appellant asks that this court grant an absolute discharge based on the fresh evidence. First, he contends that the fresh evidence bolsters his argument that the disposition of the Board in November 2020 was unreasonable. The information contained in the letter shows that the situation has progressed and undermines the Board’s determination that the appellant – as of November 2020 – presented a significant threat. I disagree. Nothing in the fresh evidence, which speaks to what has occurred since the November 2020 disposition, detracts from the conclusion that the disposition was reasonable and fully supported by the record at the time it was made.

[27] The appellant asserts, in the alternative, that, based on the fresh evidence, he no longer continues to present a significant threat. The only concern of the Board in November 2020 – that there had been an insufficient therapeutic relationship between the appellant and Dr. Rafiq – has been resolved. The appellant asserts that, as in R. v. Stanley, 2010 ONCA 324, 100 O.R. (3d) 81, the only reasonable outcome of this appeal, once the fresh evidence is considered, is an absolute discharge. The Hospital supports the request.

[28] The Crown submits that the determination of the effect of the fresh evidence on the November 2020 disposition is best left to the Board. This court does not have the “full evidentiary picture” and it is appropriate for a hearing pursuant to the procedure prescribed by s. 672.5 of the Criminal Code to take place, including the right of the victim to have notice of the hearing and to attend.

[29] I agree with the Crown’s position. While I accept that this court has the ability in an appropriate case, to allow an appeal and to grant an absolute discharge based on fresh evidence respecting the appellant’s progress since the date of the disposition under appeal, there are reasons why the approach in Stanley should not be followed in this case.

[30] In Stanley, the appellant’s treating physician had testified before the Board that, if a CTO were available, it would be difficult to maintain that the appellant continued to pose a significant risk. The fresh evidence was an affidavit from the same physician confirming his opinion that a CTO was appropriate and had been issued, and that he was satisfied that the appellant would adhere to the terms of the CTO. No early hearing had been requested.

[31] In this case, by contrast, the fresh evidence consists of a letter, not an affidavit or report, and without the opinion of the appellant’s forensic or community psychiatrist addressing the central question of significant threat. Moreover, the Hospital initiated the early review process with the Board, and the hearing will occur in short course.

[32] Although the circumstances are not identical, I would follow the approach of the majority of this court in Re Krivicic, 2017 ONCA 379. In that case, the fresh evidence consisted of the report of the appellant’s treating psychiatrist that expressed the opinion that he did not meet the significant threat threshold and was entitled to an absolute discharge. The evidence called into question the Board’s determination of significant threat, which was based on the record from an earlier hearing, and did not include an updated psychiatric opinion. This court concluded that the fresh evidence rendered the Board’s determination of significant threat at first instance unreasonable, and allowed the appeal. Although the appellant and the Hospital invited this court to substitute an absolute discharge based on the fresh evidence, the matter was remitted to the Board for a fresh determination in light of that evidence and any other evidence it considered relevant: at paras. 18-19. The court recognized that it was the responsibility of the Board, as an expert body, to evaluate the medical evidence and that it “must be permitted to do its job”: at para. 15.

[33] The appellate court’s vigilance in protecting the liberty of an NCRMD accused “must be tempered with recognition of the inherent difficulty of the subject matter and the expertise of the medical reviewers”: Owen, at para. 40. In the circumstances of this case, it is appropriate for the Board, following its proper procedures, to consider all of the evidence placed before it, including the fresh evidence, to determine whether the appellant no longer meets the threshold of “significant threat”, and whether he is entitled to an absolute discharge.

[34] For these reasons I would dismiss the appeal.

“K. van Rensburg J.A.”

“I agree. Paul Rouleau J.A.”

Hoy J.A. (dissenting):

[35] Like my colleague, I would admit the fresh evidence. The fresh evidence meets the test in R. v. Palmer, [1980] 1 S.C.R. 759.

[36] In my view, having admitted the fresh evidence, the correct approach is to consider the reasonableness of the Board’s decision in light of the fresh evidence, as the court did in Re Krivicic, 2017 ONCA 379. And as the court did in Krivicic, I conclude that the Board’s disposition is unreasonable in light of the fresh evidence. Accordingly, I would allow the appeal.

[37] Moreover, I would not remit the matter to the Board for a fresh determination.

[38] In Krivicic, having concluded that the Board’s decision was unreasonable in light of the fresh evidence, a majority of the court nonetheless concluded that it should return the matter to the Board. (Feldman J.A. would have ordered an absolute discharge.) However, the circumstances in Krivicic were different from this case. In Krivicic, Huscroft J.A., for the majority, wrote that the opinion of the new psychiatrist that the appellant did not meet the significant threat threshold was “clearly at odds” with the psychiatric evidence that the Board had relied on in its disposition: at para. 15. He concluded that it was not for the court “to reconcile the competing psychiatric evidence in this case”: at para. 18.

[39] In this case, the court is not faced with competing psychiatric evidence from different psychiatrists. The Board’s disposition was a close call. Its disposition rested on the concern of the appellant’s treatment team that the appellant had not yet developed a strong therapeutic relationship with his community psychiatrist, Dr. Rafiq. The fresh evidence is that the same treatment team is now satisfied that a strong therapeutic relationship has developed between the appellant and Dr. Rafiq and that at the early hearing before the Board requested by the Hospital, the Hospital intends to recommend an absolute discharge. The Hospital urges the court to grant an absolute discharge. There is no competing psychiatric evidence in this case. All parties agree that the fresh evidence is trustworthy; in these circumstances, the fact that the fresh evidence is in the form of a letter, and not an affidavit or a formal report or opinion, is not a reason to deny the appellant an absolute discharge.

[40] Like the court in R. v. Stanley, 2010 ONCA 324, 100 O.R. (3d) 81, I conclude that the only reasonable outcome in light of the fresh evidence is to grant the appellant an absolute discharge. The fact that, in this case, the Hospital requested an early hearing with a view to securing the absolute discharge of the appellant is not a reason to distinguish this case from Stanley. If anything, it adds weight to the fresh evidence.

[41] I am mindful that the early hearing requested by the Hospital is only a month away. However, the delay affects the appellant’s liberty interest.

[42] I would admit the fresh evidence, allow the appeal, and pursuant to s. 672.78(3) of the Criminal Code, grant the appellant an absolute discharge.

Released: June 17, 2021 “P.R.”

“Alexandra Hoy J.A.”

Footnotes

[1] In her factum the appellant’s counsel also submitted that the Board failed to consider whether a community treatment order (“CTO”), combined with CMHA case management, would provide a suitable civil alternative to continued Board oversight. This argument was not pursued in the oral hearing. The fresh evidence indicates that the appellant has declined to consent to a CTO.