Court of Appeal for Ontario

DATE: 20211028 DOCKET: C69562

Rouleau, Benotto and Zarnett JJ.A.

IN THE MATTER OF: Gary Robert Motuz

AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel: Erin Dann, for the appellant Gerald Brienza, for the respondent, Attorney General of Ontario Julia Lefebvre, for the respondent, Person in Charge of Waypoint Centre for Mental Health Care

Heard: October 8, 2021 by video conference

On appeal against the disposition of the Ontario Review Board dated March 2, 2021, with reasons dated March 18, 2021.

Reasons for Decision

[1] Mr. Motuz has been in detention since June 2, 2015. He appeals the March 2, 2021, disposition of the Ontario Review Board which refused to grant an absolute discharge. He seeks an absolute discharge or seeks to have the matter remitted to the Board for a new hearing.

Background

[2] The appellant has a lengthy criminal record, dating back to 1993. Five of these convictions were for violent offences. The most recent violent offence was the assault of a peace officer, of which he was convicted in 2004. His offences since then have been non-violent – most are for failure to comply with probation orders and trespass at night.

[3] The appellant had a history panhandling. He was convicted of causing a disturbance and was required to stay away from a certain area on Dunlop Street in Barrie. In December 2014, police found him walking on Dunlop Street West and he was arrested.

[4] Following his arrest, the appellant was required to attend for fingerprinting on January 12, 2015. He did not do so. Later in January 2015, he moved and failed to notify his probation officer of his change of address. He was convicted of breach of two probation orders. On June 2, 2015, he was found not criminally responsible on account of mental disorder on charges of failure to comply with probation order and failure to appear or comply with appearance notice.

[5] Every year, on his review hearing, the Board continued his detention. His most recent hearing was February 24, 2021.

Evidence at the Hearing

[6] The appellant’s current psychiatric diagnoses are substance abuse, schizophrenia, and antisocial personality disorder. He was deemed incapable of making his own treatment decisions in August 2020.

[7] The appellant has an inconsistent history of compliance with medication. In 2011, he was admitted to the hospital because of concerns that he was going to harm someone. He was brought to the Emergency Department where he had to be restrained and, once restrained, continued to spit at staff. In 2013, he appeared to throw a punch in the direction of a doctor while at the Central North Correctional Centre.

[8] From the time that the appellant was detained following his NCR finding, his misconduct has been relatively minor in nature, such as slamming doors and badgering other residents and strangers for money and cigarettes. In February 2019, the appellant was seen repeatedly picking up a chair and dropping it, he yelled at staff to “fuck off”, and slammed a door. He requested the seclusion room where he sat on a mattress and stared blankly at staff. He then began kicking the door, punching the window, and tied a pillowcase around his neck. He returned the pillowcase to staff when asked. This incident was later found to be the result of hyponatremia (water intoxication), after the appellant had consumed dangerous quantities of coffee, water, and pop.

[9] The unanimous opinion of the treatment team was that the appellant poses a significant threat to the safety of the public.

Decision of the Board

[10] The Board concluded that the appellant poses a significant threat to public safety.

[11] He suffers from a major mental illness which is only partially controlled by medication. He also lacks insight into both the fact that he has a mental illness and the benefits of medication for that illness. He suffers from an antisocial personality disorder and has scored within the psychopathic range of the PCL-R.

[12] While the appellant has not been convicted of violent offences in many years, he has exhibited “aggressive behaviour, criminal in nature” more recently. There is no doubt that if granted an absolute discharge, the appellant would cease medication and return to criminal behaviour. Even in the appellant’s more recent non-violent criminal history, he has been convicted of trespass at night which “raises significant concerns about the nature of his activity and the potential consequences should he come across the residents of the property on which he is trespassing.”

[13] The appellant refuses to accept housing recommended by the hospital and has stated that if discharged, he would cease taking medication and consume marijuana.

Issue on Appeal

[14] Was the board’s refusal to grant an absolute discharge unreasonable?

The appellant’s position

[15] The appellant submits that the Board’s refusal to grant an absolute discharge was unreasonable for three reasons.

[16] First, the appellant challenges the description of his more recent history as exhibiting aggressive behaviour that was criminal in nature. He submits that the Board misapprehended the evidence by failing to consider the lengthy absence of violent or aggressive behaviour by the appellant – including when he was unwell, precariously housed, and using illicit substances – in assessing whether he was a significant threat to public safety. This, the appellant submits, is evident in the Board’s reasons at paras. 21 and 22 which provide the following:

21. The Board unanimously finds that Mr. Motuz continues to constitute a significant threat to the safety of the public. He suffers from a major mental illness which is only partially controlled by medication. He lacks insight into the fact that he has a mental illness, the positive impact of medication on that illness or the impact of marijuana use on his mental health. Although he has no convictions for violent offences for many years, he has exhibited aggressive behaviour, criminal in nature although not resulting in charges, both in and out of Hospital more recently. It is also noteworthy that for significant periods of time over the last many years he was either hospitalized or incarcerated and receiving treatment. Should he be granted an absolute discharge, there is no doubt that he would immediately cease medication and resume the use of intoxicants with decompensation and a return to criminal behaviour as a result.

22. Although Mr. Motuz' criminal record is largely nonviolent, it does include offences of violence and there is also a history of aggressive and threatening behaviour causing both physical and psychological harm which although criminal in nature did not result in criminal charges. It is also noteworthy that he has been convicted on a number of occasions of trespass at night, offences which raises significant concerns about the nature of his activity and the potential consequences should he come across the residents of the property on which he is trespassing.

[17] The appellant submits that this also demonstrates that the Board erroneously conflated his past behaviour with his current condition.

[18] Second, the appellant submits that the Board failed to consider evidence supporting a discharge, specifically, the dated nature of the appellant’s violent criminal history. The Board overemphasized the speculative concerns related to his more recent conduct, such as concerns that “trespass at night” provides an opportunity for violent behaviour that the appellant would seize on.

[19] Third, the appellant submits that the evidence does not support the conclusion that he remains a significant risk to the public. Although the evidence before the Board supported its conclusion that, absent oversight, the appellant would likely stop taking medication, decompensate, and possibly return to criminal behaviour, this does not itself address whether the appellant poses a significant risk to public safety.

The Respondents’ position

[20] The Crown and the Hospital submit that the Board’s conclusion was reasonable. It should be read in combination with the evidence of Dr. Ann Jones and the Hospital Report, which the reasons for disposition adopt. The Board found that there was a significant threat to the public based on an holistic approach including his violent history, his mental illness, and because the appellant has stated that he would not comply with treatment or take medication, and instead would take illicit substances, if he was no longer under the jurisdiction of the Board. The appellant also continues to refuse housing recommended by the hospital. They argue that the appellant downplays the incidents of aggression with which he was involved when he submits that in the past, when he took illicit substances but not medication, he still did not act criminally or pose a danger to the public.

[21] The Crown and the Hospital submit that given that the appellant resists efforts to integrate him into the community, a detention order is the least onerous and restriction disposition available.

Analysis

[22] We are not persuaded that the Board misapprehended the evidence concerning the appellant’s history of aggressive behaviour or conflated the appellant’s recent behaviour with his past. The impugned paragraphs recognized both that “he has no convictions for violent offences for many years” (para.21) and that he has “a history of aggressive and threating behaviour” which included more recent incidents (para.22). Nor was there a failure to consider evidence in support of an absolute discharge. The Board considered the dated nature of the appellant’s criminal record for violent offences; however, based on the evidence as a whole, it decided that a detention order was warranted.

[23] Nor are we persuaded that the record before the Board did not support its conclusion that the appellant remained a significant risk to the public. Although the Board’s articulation of its reasons for finding significant risk is brief, the reasons must be read as a whole, in conjunction with the record: see R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 32. Even reasons which may rise to the level of concern and lack transparency have been considered not unreasonable when read with the evidence accepted by the Board: see Re Marchese, 2018 ONCA 307, 359 C.C.C. (3d) 408, at paras. 11-12.

[24] Here, in addition to its findings about the appellant’s history of violence and aggressive behaviour the Board accepted the evidence of Dr. Jones and the unanimous opinion of the treatment team that the appellant poses a significant threat, and that detention is necessary to manage the risk. In particular, the Board accepted the following:

• He suffers from a mental illness that is only partially controlled by medication.
• He lacks insight into his illness and adamantly states he will discontinue medication.
• Compliance with medication and avoidance of illicit substances is central to the mitigation of risk.
• If granted an absolute discharge, he would immediately stop taking medication, would resume using intoxicants with decompensation, and would return to criminal behaviour.
• His scores on psychiatric tests place him on the psychopathic range and his score on the VRAG (Violence Risk Appraisal Guide) was elevated suggesting he was “in the high range of risk for violent recidivism”.
• He is not currently using his full privileges and is declining to engage in meaningful discussions about community living.

[25] The Board’s reasons, while brief, are not insufficient. When read in conjunction with the record, the disposition is not unreasonable.

Disposition

[26] The appeal is dismissed.

“Paul Rouleau J.A.”

“M.L. Benotto J.A.”

“B. Zarnett J.A.”