Jergovic (Re), 2022 ONCA 291

COURT OF APPEAL FOR ONTARIO DATE: 20220412 DOCKET: C69836

Roberts, Miller and Zarnett JJ.A.

IN THE MATTER OF: Nikolas Jergovic

AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel: Michael Davies, for the appellant Alysa Holmes, for the respondent, Attorney General of Ontario Hilary Chung, for the respondent, Person in Charge of Brockville Mental Health Centre

Heard: March 31, 2021 by video conference

On appeal from the disposition of the Ontario Review Board, dated June 4, 2021, with reasons dated June 24, 2021, reported at [2021] O.R.B.D. No. 1378.

REASONS FOR DECISION

[1] Nikolas Jergovic has been under the supervision of the Ontario Review Board since December 21, 2010, when he was found not criminally responsible on account of mental disorder (“NCR”) for arson. He set fire to a newspaper distribution box and the police reported seeing him fanning and blowing on the flames. When the police attempted to arrest him, he actively resisted, attempted to punch one officer, kicked at them, and tried to run away. When placed handcuffed in the back of the police cruiser, he kicked at the cruiser’s rear right window, separating it from the frame.

[2] Since June 2018, Mr. Jergovic has been alternatively living in an eight-hour supervised group home and a twenty-four-hour supervised residence, while followed by his treatment team at the Brockville Mental Health Centre. He has been under a conditional discharge order since June 2019.

[3] Mr. Jergovic appeals the Board’s most recent disposition, which continues the conditional discharge. He seeks an absolute discharge. Alternatively, he seeks a new hearing before a differently constituted panel. He submits that the Board erred in its analysis of the issue of whether he represented a significant risk to the public and that its decision was unreasonable because the evidence did not support the conclusion that he posed a significant risk to public safety.

[4] The standard of appellate review is well established. An appellate court may only allow an appeal from a Board’s disposition under s. 672.78(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 where the Board’s disposition is unreasonable or cannot be supported by the evidence, it is based on a wrong decision on a question of law, or there was a miscarriage of justice.

[5] While we agree that the Board could have organized and written its reasons in a clearer fashion, when they are read as a whole and in light of the record, we are not persuaded that the Board erred in its analysis and conclusion that Mr. Jergovic continued to pose a significant risk to public safety. Moreover, the Board’s disposition is amply supported by the record that it reviewed and referenced.

[6] We are satisfied that the Board’s reasons are able to “withstand ‘a somewhat probing examination’”, and that the decision is “internally coherent, demonstrates a rational chain of analysis and is justified in relation to the facts and the law” and “falls within the range of possible outcomes”: Sim (Re), 2020 ONCA 563, at para. 68; Nguyen (Re), 2020 ONCA 247, 387 C.C.C. (3d) 13, at para. 28; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, at paras. 84-86.

[7] There is no issue that the Board referenced the correct test. In assessing whether Mr. Jergovic posed a significant risk to public safety, the Board was required to analyze whether the evidence disclosed “a significant” or real risk to the community should Mr. Jergovic be released. Mr. Jergovic need not prove lack of dangerousness and, absent a finding of significant risk, is entitled to an absolute discharge. As a result, the Board had to assess the likelihood of that risk and the seriousness of the harm that would result if the risk materialized. As the Board also recognized, there must be a real, foreseeable risk that is more than speculative and that the consequent physical or psychological harm must be serious and criminal in nature: see Winko v. British Columbia (Forensic Psychiatric Services), [1999] 2 S.C.R. 625, at paras. 51, 54 and 57; Carrick (Re), 2015 ONCA 866, 128 O.R. (3d) 209, at paras. 16-20; R. v. Ferguson, 2010 ONCA 810, 264 C.C.C. (3d) 451, at para. 8.

[8] Mr. Jergovic maintains that while the Board referenced the correct test, it did not apply it because it erred in its consideration of both the likelihood of the risk materializing and the seriousness of the harm that might occur, conflating “significant risk” with “enhanced risk”, which is not the test. According to Mr. Jergovic, the Board’s overemphasis on his likelihood of relapse into drug abuse resulted in its failure to grapple with the relevant question of whether there was a real, foreseeable risk that he would cause physical or psychological harm, even if he relapsed.

[9] We disagree.

[10] The Board’s summary of its conclusion on significant risk is set out in paragraph 46 of its reasons:

The panel is satisfied should [Mr. Jergovic] be granted an absolute discharge, it is a virtual certainty he will return to crack cocaine use. The use of crack cocaine will negatively impact his mental state and will enhance his threat to public safety. The panel is satisfied this threat is not speculative, but real.

[11] This paragraph must be read in the context of the Board’s thorough review of the constellation of relevant risk factors and the broad range of relevant evidence that the Board was required to examine, including the recommendations provided by Dr. Gray: Winko, at para. 61; Mott (Re), 2019 ONCA 560, at para. 10; McAnuff (Re), 2020 ONCA 676, at para. 17. The Board examined Mr. Jergovic’s long psychiatric history and diagnoses that included schizophrenia, cocaine and alcohol use disorders, Unspecified Disruptive, Impulse Control, and Conduct Disorder, and the fact that his mental illness has never been under complete control despite adherence to medications. The Board also considered his significant struggles with substance abuse and its destabilizing effect (including the index offence and his elopement from the hospital’s grounds during the reporting year), his difficulties in transitioning to and numerous evictions from supervised housing, his lengthy criminal record that includes previous convictions for arson, pointing a firearm, and break and enter, [^1] and which culminated in the index offence in 2010, his long history of anger management problems from his teens, his assault of a co-patient, his verbal aggressions (though the Board noted that they occurred some time ago), and finally his threat to smother a nurse with a rag because “voices” were telling him to do so.

[12] We do not agree that the Board’s reliance on Dr. Gray’s evidence concerning the “cascade” of factors that supported his opinion of significant risk of harm was misplaced or that Dr. Gray’s opinion was speculative. Dr. Gray testified that if he were granted an absolute discharge, Mr. Jergovic would “inevitably” relapse into drug abuse and that the sequelae of disengagement with his treatment team and his medications would probably be followed by decompensation, psychosis, and unlawful conduct. While Dr. Gray could not say that it was even likely that the unlawful conduct would be “very seriously violent”, he did opine that the next step of Mr. Jergovic committing an offence of any sort was “quite high” and might include “some kind of criminal harassment … a minor assault, a mischief, something like that”. Dr. Gray also referenced Mr. Jergovic’s recent threat to smother a nurse which was de-escalated because he was within a controlled setting. The risk of this kind of unlawful conduct meets the threshold for risk of significant harm that is neither “a minuscule risk of a grave harm” nor “a high risk of trivial harm”: Winko, at para. 57.

[13] Dr. Gray’s opinion was firmly grounded in the evidence. Notably, this evidence included the sequence of events that led to Mr. Jergovic’s commission of the index offence. The historical record demonstrates that Mr. Jergovic’s very serious substance abuse issues exacerbate the symptoms of his illness that are not completely controlled by medications and have caused him previously to engage in criminal activity and aggressive behaviour. Recently, they have led to numerous evictions from supervised housing and his elopement from the hospital grounds.

[14] It is also important to note that the Board reviewed and weighed the very positive and encouraging evidence of Mr. Jergovic’s progress over the last few years: he has a very supportive relationship with members of his family, he has good insight into his illness and the need for medication, and he is engaged with his treatment team. He is compliant with medications and directions and, absent relapse into substance abuse, would continue to take his medications. He is also not physically violent and initially his residence in supervised housing went extremely well. All of these factors bode well for the future and underlie the treatment team’s plan for Mr. Jergovic to live in the community, initially with support and supervision, until he has developed the skills to live more independently.

[15] However, the Board concluded that at the time of the hearing, Mr. Jergovic posed a significant risk to public safety and that a conditional discharge was the least onerous and most appropriate disposition. This was a decision that was within the range of reasonable outcomes. We see no basis for appellate intervention.

Disposition

[16] As a result, we dismiss the appeal.

“L.B. Roberts J.A.”

“B.W. Miller J.A.”

“B. Zarnett J.A.”

[^1]: The Board also referenced a number of “withdrawn” charges on Mr. Jergovic’s criminal record. We agree that without the factual underpinnings of those charges, those charges were irrelevant. However, we are not persuaded, and it was not forcefully argued, that the Board’s reference to those charges was material to or tainted its decision.