Court of Appeal for Ontario

Court File and Parties

Date: 2022-03-14 Docket: C69623

Before: Rouleau, Nordheimer and George JJ.A.

In the Matter of: Kelvin Johnston

An Appeal Under Part XX.1 of the Code

Counsel: Anita Szigeti and Tanner Blomme, for the appellant Andrew Hotke, for the respondent, Attorney General of Ontario Kate Deakon, for the respondent, Person in Charge of Royal Ottawa Mental Health Centre

Heard: March 4, 2022 by video conference

On appeal from the disposition of the Ontario Review Board, dated June 4, 2021, with reasons dated July 2, 2021.

Reasons for Decision

[1] Mr. Johnston 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 finding that the appellant continues to pose a significant risk to the safety of the public. He asks that the detention order be set aside and that an absolute discharge be granted. Alternatively, the appellant asks for conditional discharge or a new hearing. For the following reasons, we dismiss the appeal.

[2] The appellant has been under the auspices of the Board since February 2016 arising out of charges of uttering death threats, mischief and breach of probation. He was also under the auspices of the Board in 2008 arising out of charges of mischief, failure to comply and possession of drugs but he was absolutely discharged in 2010. His current detention arises out of the second NCR finding in 2016.

[3] The Board found that the appellant continues to pose a significant risk to the safety of the public. The Board accepted the evidence of the attending psychiatrist, Dr. Gojer, that if left to his own devices, the appellant would resort to drugs and alcohol which would lead to a decompensation of his condition “with an increasing risk of violence”. The Board was entitled to accept and rely on that opinion: K.S. (Re), 2022 ONCA 170, at para. 7. The Board also noted that this is exactly what happened when the appellant stopped taking one of his medications in 2020.

[4] The appellant submits that the Board misunderstood Dr. Gojer’s evidence in coming to its conclusion that a serious risk to public safety was established. We do not agree. Dr. Gojer’s evidence was clear that the appellant would likely decompensate, if he was discharged, because he would stop taking his medication. Dr. Gojer also said that, if that occurred, the appellant would likely become violent, as he has in the past. We note that only Dr. Gojer testified before the Board on this issue.

[5] The appellant quarrels with the Board’s finding that these consequences amount to a serious risk to public safety. The appellant says that, not only has his condition been stable for the past year, but there was insufficient evidence that he would commit a serious criminal offence if he did decompensate. We do not accept this contention. While the appellant’s condition has been stable for the past year, that results largely from the fact that he is under the control of the hospital and his compliance with his medications can be monitored. With respect to the requirement that there be evidence that a person will commit a serious criminal offence, this has to be understood in the context of what serious means. Serious in this context is described as “going beyond the merely trivial or annoying”: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 62.

[6] Reasonable people might differ over which criminal offences are serious and which are not. Regardless, in our view, the appellant’s threats to kill people satisfies the seriousness requirement. Further, the evidence is that the appellant resorts to violence, if his condition deteriorates. While the appellant may consider that his prior assaultive behaviour did not involve serious physical attacks, others might take a different view. It is certainly clear that the appellant has the physical capability of inflicting serious harm. On that point, we reiterate that it is the potential harm that must be serious, not the actual harm caused. The fact that the appellant has not inflicted physical harm on any individual in the past is no assurance that he would not in the future. The purpose of the risk analysis is to identify and guard against significant risks to public safety, not to wait for the worst to occur.

[7] It was open to the Board, on the evidence, to conclude that the appellant posed a significant risk to public safety. The appellant has failed to demonstrate that the Board’s conclusion is unreasonable. In our view, this case mirrors the situation described in R. v. Starson (2004), 183 C.C.C. (3d) 538 (Ont. C.A.) where Rosenberg J.A. said, at para. 24:

Thus, the fact that, to date, the appellant has never physically harmed anyone does not render the Board's decision unreasonable. There was a body of evidence to support a finding that the appellant continued to represent a real risk of serious psychological harm to members of the public by his threatening behaviour, which in the past has included threats of death.

[8] Finally, we also do not accept that the Board failed to consider the alternative of granting a conditional discharge. The Board accepted the evidence of the attending psychiatrist that the appellant would “deteriorate fairly quickly” if he relapsed. That rapid deterioration made control and management of the appellant on a conditional discharge problematic. Quick reaction was required if a relapse occurred. A detention order provides the ability to immediately respond. Again, that was a reasonable conclusion for the Board to reach.

[9] The appeal is dismissed.

"Paul Rouleau J.A."

"I.V.B. Nordheimer J.A."

"J. George J.A."