Court and Parties

Court of Appeal for Ontario Date: 2021-09-15 Docket: C69107

Before: Paciocco, Nordheimer and Coroza JJ.A.

In the Matter of: Daren Santia

An Appeal Under Part XX.1 of the Code

Counsel: Sarah Weinberger, for the appellant Sunil Mathai, for the respondent, Attorney General of Ontario Julia Lefebvre, for the respondent, North Bay Regional Health Centre

Heard: August 31, 2021 by videoconference

On appeal from the disposition of the Ontario Review Board, dated October 7, 2020, with reasons dated November 6, 2020.

Reasons for Decision

[1] Mr. Santia appeals from the disposition of the Ontario Review Board that continued the detention order against him. The appellant submits that the Board erred in continuing the detention order. In particular, he submits that the Board erred in the test that it applied for its finding that the appellant continues to pose a significant risk to the safety of the public and arrived at an unreasonable decision. He asks that the detention order be set aside and that an absolute discharge be granted. Alternatively, the appellant asks for a new hearing. For the following reasons, we would allow the appeal and grant an absolute discharge.

[2] The appellant has been under the auspices of the Board since January 2012. He is currently 28 years old. In 2011, the appellant became enraged while he was at home. He uttered threats against the police, including threatening to decapitate and kill police officers. He was taken to a local hospital. While at the hospital, he was heard to repeat those threats by the police officers who were present. When the police were advised by the hospital that it would not commit the appellant under the Mental Health Act, R.S.O. 1990, c. M.7, he was arrested for uttering threats. At this point, the appellant yelled that he would not be arrested, leapt from the hospital bed, and attacked a police officer. The appellant was restrained. However, as he was being taken from the hospital, he yelled that he was “gonna fucking kill you” directed at the officer he had attacked. Once placed in the police cruiser, he smashed his head against and/or kicked the plexiglass partition. In January 2012, he was found not criminally responsible (“NCR”) with respect to the offences.

[3] After the NCR finding, the appellant was admitted to the North Bay Regional Health Centre where he has remained since.

[4] The appellant has progressed over the years. The year prior to the hearing before the Board (i.e. 2019) was described as positive. The appellant has willingly taken treatment and has attended various group meetings in that regard. His primary counsellor describes the appellant as engaged, positive and attentive in affect and mood. His behaviour in the ward has improved over time.

[5] The appellant had visited his parents without incident, prior to the advent of the COVID-19 pandemic, which prevented such visits. He speaks with his parents regularly by telephone. He has been deemed suitable for admission into the Maplewood Transition House, a transitional rehabilitative housing program that has North Bay Regional Health Centre support staff. Unfortunately, the COVID-19 pandemic has also interrupted those plans.

[6] On this most recent review, the Board concluded that the appellant still presents as a significant risk to the public. The appellant takes issue with that finding. He submits that the Board applied the wrong test and arrived at an unreasonable finding. We agree.

[7] In its reasons, the Board said that the appellant suffers from “a serious illness which is treatment resistant”. It is not clear where the conclusion that the illness is treatment resistant comes from. Counsel could not point to anything in the record before us that would support such a conclusion.

[8] The Board also found that the appellant “continues to pose a significant risk to the community including illegal consumption of drugs and distribution of same, potentially relapse including breaking away from his anti-psychotic medication and treatment, and finally acting out in a way that puts the public at risk.” The Board does not provide any factual foundation for this conclusion. Indeed, the evidence before the Board is that the appellant has never acted in a violent manner over the past number of years, save for a single exception when he punched a wall in 2016.

[9] The respondent, Attorney General, accepts that the Board could have done a better job of articulating the basis for the finding of significant risk. He submits, however, that there is evidence that the appellant has sold drugs to other patients and that conduct constitutes a serious risk. We do not agree.

[10] The Supreme Court of Canada articulated the test for a significant risk in its decision in Winko v British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625. It said, at para. 57, that for the risk to be significant “there must be a real risk of physical or psychological harm occurring to individuals in the community and in the sense that this potential harm must be serious”. The instances of drug dealing by the appellant, to which the Attorney General points, do not satisfy this test. On that point, we note that the appellant has no criminal record and the psychiatrist testified that the police were not interested in pursuing these allegations.

[11] We also note that, unlike the situation in Medcof (Re), 2020 ONCA 105 upon which the Attorney General relies, the appellant has insight into his mental illness, he is not treatment resistant, and there is no evidence of instances of decompensation leading to violent acts.

[12] Given the flaws in the analysis conducted by the Board, and the lack of evidence capable of establishing that the appellant poses a significant threat to the safety of the public, the Board’s disposition cannot stand. The appeal must be allowed. Given the lack of a factual foundation for the finding of significant risk, the appellant is entitled to an absolute discharge. The wording of s. 672.54(a) of the Criminal Code is clear on this point. It reads:

… where a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused and, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely;

[13] The appeal is allowed, the detention order is set aside, and the appellant is granted an absolute discharge.

“David M. Paciocco J.A.” “I.V.B. Nordheimer J.A.” “S. Coroza J.A.”