WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 672.501(1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:

672.501 (1) Where a Review Board holds a hearing referred to in section 672.5 in respect of an accused who has been declared not criminally responsible on account of mental disorder or unfit to stand trial for an offence referred to in subsection 486.4(1), the Review Board shall make an order directing that any information that could identify a victim, or a witness who is under the age of eighteen years, shall not be published in any document or broadcast or transmitted in any way.

(2) Where a Review Board holds a hearing referred to in section 672.5 in respect of an accused who has been declared not criminally responsible on account of mental disorder or unfit to stand trial for an offence referred to in section 163.1, a Review Board shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of section 163.1, shall not be published in any document or broadcast or transmitted in any way.

(3) Where a Review Board holds a hearing referred to in section 672.5 in respect of an accused who has been declared not criminally responsible on account of mental disorder or unfit to stand trial for an offence other than the offences referred to in subsection (1) or (2), on application of the prosecutor, a victim or a witness, the Review Board may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the Review Board is satisfied that the order is necessary for the proper administration of justice.

Subsections 672.501(11) and (12) provide:

(11) Every person who fails to comply with an order made under any of subsections (1) to (3) is guilty of an offence punishable on summary conviction.

(12) For greater certainty, an order referred to in subsection (11) also prohibits, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim or witness whose identity is protected by the order.

Court of Appeal for Ontario

Date: 20220301 Docket: C69397

Fairburn A.C.J.O., Miller and George JJ.A.

In the Matter of: K.S.

An Appeal Under Part XX.1 of the Code

Counsel: Erin Dann, for the appellant Mark Luimes, for the respondent Attorney General for Ontario Julia Lefebvre, for the respondent, Person in Charge of North Bay Regional Health Care

Heard: February 18, 2022 by video conference

On appeal against the disposition of the Ontario Review Board, dated March 15, 2021, with reasons dated April 13, 2021.

Reasons for Decision

[1] The appellant was found not criminally responsible by reason of mental disorder. The index offence involved threatening his cousin with a knife. When the police located the appellant, he threatened to cut their throats.

[2] The appellant has been under the jurisdiction of the Ontario Review Board (the “Board”) since November 2011. He is diagnosed with schizophrenia, alcohol use disorder (in sustained remission), cannabis use disorder, and avoidant personality traits. At his most recent hearing in March 2021, the Board rejected the appellant’s position that he is entitled to be absolutely discharged. Rather, based on “all of the evidence” and submissions of the parties, which were detailed in its reasons, the Board concluded that the appellant continues to represent a significant threat to the safety of the public.

[3] Accordingly, the Board continued the conditional discharge imposed in 2020. At the same time, the Board turned its attention to what conditions should attach to the disposition to ensure they meet the statutory criteria of being necessary and appropriate. In doing so, the Board concluded that two conditions that had been imposed in the previous disposition could be removed: (a) a condition that the appellant “abstain absolutely from the non-medical use of alcohol or drugs or any other intoxicant”; and (b) a condition that the appellant, “on his consent, agree to take treatment/medication as prescribed by the person in charge”.

[4] The appellant argues that the Board’s disposition is unreasonable because it lacks evidentiary support. The treating psychiatrist opined that if the appellant were to take substances he would decompensate, and that the decompensation would lead to a lack of insight and medication non-compliance, resulting in a significant threat to the safety of the public.

[5] The appellant argues that this is an unsupported opinion. While the appellant acknowledges that there is evidence to support the opinion that he would use substances if absolutely discharged, there is nothing in the record to support the opinion that he would then decompensate and stop taking medication. Indeed, the appellant argues that the evidentiary record points in the opposite direction, including support for the fact that when the appellant has used drugs in the past, it has not had this profound decompensating effect. The appellant further emphasizes that the Board’s reasons suggest it did not come to grips with this evidence that is said to undermine the threadbare opinion as testified to by the treating psychiatrist.

[6] Despite the very capable argument, we do not agree that the Board was operating in a factual lacuna or that its reasons demonstrate a fundamental failure to appreciate the evidence before it. While the analysis portion of the Board’s reasons could have better explained how it arrived at the conclusion that the appellant remains a significant risk to public safety, perfection in the Board’s reasoning process is not required. Read contextually, the Board’s reasons demonstrate that it appreciated the evidence before it and arrived at a conclusion open to it.

[7] The expert Board was entitled to and did accept the appellant’s expert treatment team’s opinion that he remains a significant threat to the safety of the public. That opinion was based upon years of experience with the appellant, as documented in the hospital report. Based upon all that information, which was before and reviewed by the Board, the treatment team and treating psychiatrist came to the opinion that, among other things:

• If the appellant used substances, it would be “highly likely to result in a decompensation of his mental state”, precipitating an increase in the level of risk;
• That substance use would lead to an “acute deterioration of [the appellant’s] mental health which would increase his risk significantly and put him at risk of offending to the same or similar degree as the index offence given the nature of the symptoms that he presents with when he’s ill”; and
• Cannabis use could lead to a resurgence of acute symptoms of his mental illness, “including auditory hallucinations”.

[8] One of the psychiatrist members of the Board asked the treating psychiatrist about the level of risk associated with the appellant “engaging in serious criminal conduct” should he resume substance abuse. The treating psychiatrist answered as follows:

On balance, I think the steps would be … use of substances, decompensation, and then non-adherence with his medication when he’s very ill and loses more insight. And at that point the likelihood of him re-offending to the same degree would be high when he gets to that point. I don’t think it’s something that would happen immediately, I think there would definitely be a period of decompensation first which would obviously be concerning in itself.

[9] The psychiatrist arrived at that conclusion through the application of his expert knowledge to the specific factors operative in this case, ones he knew about as the appellant’s treating psychiatrist.

[10] In our view, contextually approached, the Board’s reasons explain why it arrived at the conclusion that the appellant remains a significant threat to public safety. This was a conclusion that was available on the evidence.

[11] Despite concluding that the appellant remains a significant risk to public safety, as previously noted, the Board quite correctly turned its mind to the necessary and appropriate disposition, resulting in the removal of two conditions. The removal of the condition involving the abstention from alcohol and non-prescribed drugs rested on the strength of the appellant’s assurances not to consume those intoxicants. As the Board pointed out, the removal of the condition gave the appellant the opportunity to build trust with the hospital and his treatment team. We express our sincere hope that this has been achieved in the past year. It is a factor that will undoubtedly be taken into account at the next Board hearing.

[12] The appeal is dismissed.

“Fairburn A.C.J.O.”

“B.W. Miller J.A.”

“J. George J.A.”