Court of Appeal for Ontario

Date: 2022-02-14 Docket: C69374

Before: Fairburn A.C.J.O., Doherty and Paciocco JJ.A.

In the Matter of: Kyle Williams

An Appeal Under Part XX.1 of the Criminal Code

Counsel: Paul Socka, for the appellant Samuel G. Walker, for the respondent, Her Majesty the Queen Julie Zamprogna, for the Southwest Centre for Forensic Mental Health Care

Heard and released orally: February 11, 2022 by video conference

On appeal against the disposition of the Ontario Review Board, dated March 15, 2021.

Reasons for Decision

[1] This is an appeal from a detention order imposed by the Ontario Review Board (“ORB”) on March 15, 2021.

[2] On September 19, 2018, the appellant was found not criminally responsible on account of mental disorder. He has been under the jurisdiction of the ORB since that time.

[3] The index offences involved an attempt to pull a young child from her grandmother’s vehicle. When the grandmother intervened, the appellant bit her. As a result of his psychiatric condition, the appellant thought that the young child was frightened and in need of help.

[4] The appellant is diagnosed with bipolar disorder with psychotic features, attention deficit hyperactivity disorder and substance abuse disorder, the most problematic substance being crystal methamphetamine.

[5] In the year leading up to the most recent hearing, the appellant experienced relapses into substance use. A little over a month before the hearing, there was a restriction of liberty hearing at which all parties jointly submitted that the restriction of liberty, involving hospital detention, was necessary and appropriate in the circumstances.

[6] The appellant’s psychiatrist testified before the Board. She provided information about the appellant’s grandiose delusions, a condition that led to the index offences and a condition that is aggravated by drug use. With increased substance use, the appellant could misinterpret his environment and respond in a way that puts people at risk. The impact of drug use, creating the serious risk to safety, could take root quickly.

[7] The appellant contends that the Board erred in failing to meaningfully consider a conditional discharge. The appellant says that there was an air of reality to a conditional discharge and, therefore, the Board was obliged to consider whether his risk could be managed by that form of disposition. In our view, the Board’s reasons clearly explain why the necessary and appropriate disposition is a detention order and, by implication, not a conditional discharge.

[8] Although the issue of significant threat was conceded at the hearing, the Board still addressed the issue. The Board relied upon the treating psychiatrist’s evidence to find that, among other things, the appellant has little insight into his mental illness with ongoing symptoms and is only compliant with antipsychotic medication because of the structure and support available under a detention order. Further, based upon his history and current views regarding his recommended medication regime, rejecting that it is necessary, there is a serious risk that he would be non-medication compliant absent proper supervision by the hospital. Without his medication he would decompensate and his behaviour could become violent.

[9] As the appellant conceded the issue of significant risk, the only issue for the Board’s determination was the necessary and appropriate disposition. The Board’s reasons clearly reveal why a conditional discharge was not available. The record before the Board, as accepted in its reasons, establish its conclusion that the appellant’s lack of insight into his illness and lack of acceptance of the need for treatment, means that his risk to the public cannot be managed outside of a detention order. Accordingly, the Board cannot be criticized for not inquiring into matters that would only be relevant if a conditional discharge had an air of reality.

[10] The appeal is dismissed.

“Fairburn A.C.J.O.”

“Doherty J.A.”

“David M. Paciocco J.A.”