Mihaljevich (Re), 2022 ONCA 401

Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220518 DOCKET: C69827

Before: Pepall, van Rensburg and Paciocco JJ.A.

IN THE MATTER OF: Ante Mihaljevich AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel: Sarah Weinberger, for the appellant Mark Luimes, for the respondent Attorney General of Ontario Gavin S. MacKenzie, for the respondent the Person in Charge of Ontario Shores Centre for Mental Health Sciences

Heard: April 29, 2022

On appeal against the disposition of the Ontario Review Board, dated July 13, 2021.

Reasons for Decision

[1] In 2003, the appellant was found not criminally responsible on account of mental disorder on charges of criminal harassment and failure to comply with a probation order in relation to harassing phone calls he made to his mother. He is 47 years old and has been under the authority of the Ontario Review Board (the “Board”) for 19 years. He appeals the most recent Board disposition, authorizing his continued detention within the forensic program at Ontario Shores Centre for Mental Health Sciences (the “Hospital”), with certain privileges including accompanied passes in the community. He seeks an order remitting the matter to the Board for a new hearing before a differently constituted panel.

[2] After the appellant’s initial detention at what is now Waypoint Centre for Mental Health Care (“Waypoint”), he was transferred in 2004 to a medium secure unit at the Centre for Addiction and Mental Health (“CAMH”). He was discharged into the community in 2008, readmitted four times after testing positive for cocaine and ecstasy, and discharged again in 2010. He lived in the community under a conditional discharge until 2015. He was readmitted to CAMH in April 2015 after incurring charges of assault with a weapon and uttering a threat to cause death during an altercation with staff at Adam House, his residence at the time. After a hearing in November 2015, at which the appellant was placed in handcuffs after he was highly agitated and making threats, he was transferred to Waypoint in January 2016, and to a secure forensic unit at the Hospital in September 2020.

[3] At the time of his Board hearing in July 2021, the appellant was subject to detention at the Hospital, with privileges up to and including accompanied passes into the community. His current diagnoses are treatment-resistant schizophrenia; severe opioid use disorder, in early or sustained remission; and antisocial personality disorder. He is incapable of consenting to treatment and his mother is his substitute decision-maker.

[4] At his Board hearing, the appellant sought an absolute discharge on the basis that he no longer posed a significant threat to the safety of the public, or alternatively, a conditional discharge or conditions expanding his current privileges to include indirectly supervised passes into the community. The Board declined to order an absolute or conditional discharge and, accepting the recommendations of the appellant’s treatment team, continued his detention at the Hospital with no change in conditions.

[5] The appellant raises two grounds of appeal. First, he argues that the Board failed to apply the “significant threat” test under s. 672.5401 of the Criminal Code . Second, he contends that the Board failed to consider all of the factors under s. 672.54 of the Criminal Code in imposing a disposition that was “necessary and appropriate”, and in particular in refusing a conditional discharge or, in the alternative, greater privileges.

[6] A decision of the Board may be set aside where this court is of the view that the disposition is unreasonable or cannot be supported by the evidence, is based on a wrong decision on a question of law, or where there is a miscarriage of justice: Criminal Code, s. 672.78.

[7] On the first issue, whether there was an error in refusing an absolute discharge, the appellant contends that the Board failed to apply the “significant threat” test set out by the Supreme Court in Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625. A significant threat requires “both a likelihood of a risk materializing and the likelihood that serious harm will occur”: Sheikh (Re), 2019 ONCA 692, at para. 34. There must be a real risk of physical or psychological harm occurring as a result of the accused engaging in criminal conduct: Sheikh, at para. 38. The appellant submits that the Board did not provide responsive reasons on the question of “significant threat”, and that its treatment of the issue was brief and cursory: it simply adopted the opinion of the appellant’s treating psychiatrist, Dr. Harrigan.

[8] We disagree. Despite the relative brevity of the Board’s significant threat analysis, a contextual reading of the reasons discloses that the Board turned its mind to the correct legal standard – that the appellant must pose a “serious risk of serious harm from criminal conduct” – and then applied that standard to the evidence. The Board expressly stated that it applied the “threshold of significant threat as defined … in Winko”, and there is nothing in the reasons to suggest that it somehow failed to apply that test. In the circumstances of this case, the Board’s reasons were adequate. They were responsive to the issues at the hearing.

[9] After summarizing Dr. Harrigan’s evidence, the Board stated that it had no difficulty accepting it. Dr. Harrigan testified to a series of risk factors – including the appellant’s mental illness, lack of insight, history of aggressive behaviour, and high likelihood of medication non-compliance – that were generally accepted by the Board. The appellant’s history of aggressive behaviour was not limited to what had occurred years earlier. While at the Hospital, he had continued to assault staff in the context of his belief that he was the victim of mind control and he had threatened to break down the door to a nurse’s station, causing staff to fear for their safety. The Board was entitled to accept Dr. Harrigan’s opinion that, if granted an absolute discharge, the appellant would likely stop taking antipsychotic medication and start using substances, and that his delusions would intensify, leaving him in a condition where he would likely become aggressive toward individuals he believed were conspiring against him. The conclusion that the appellant continued to pose a significant threat to public safety was reasonable and supported by the evidence.

[10] As his second ground of appeal, the appellant contends that the Board failed to impose a disposition that was necessary and appropriate. According to the appellant, the Board made three errors in its assessment of the evidence.

[11] First, the appellant submits that the Board’s treatment of the evidence was uneven. It failed to consider his positive trajectory from January 2016 to September 2020, which were five years marked by stability and progress, with few setbacks, during which he displayed prosocial qualities, regularly participated in recreational programming, and used his privileges appropriately. Despite this, the Board commented that the appellant’s “recent relative success does not appear to be because of any gains in insight or stress management”. The appellant contends that this does not accord with the evidence.

[12] Second, the appellant contends that the Board misstated the evidence by saying that he had not spoken to his mother or father in six or seven years, when, in fact, he had contact with his mother during that time period. The Board did not reach out to the appellant’s mother to obtain information to clarify his relationship with her, and assumed that because she was the victim of the predicate offence, their relationship was tenuous.

[13] Third, the appellant argues that, in declining to provide for indirectly supervised passes at the discretion of the Hospital in its disposition, the Board inappropriately relied on an internal Hospital policy, and on speculation about the risk posed by the appellant’s frustration if he were denied such passes by Hospital staff. The Hospital policy of requiring those with indirectly supervised passes to be in the general forensic unit cannot supersede the statutory requirement to find the least onerous and restrictive disposition. Further, there was no evidence to suggest that the inclusion of discretionary privileges had caused the appellant frustration in the past.

[14] We do not give effect to these arguments. The Board properly considered the factors under s. 672.54 and reasonably found that a detention order was required. First, the Board reasonably concluded that there was no air of reality to a conditional discharge. The appellant continues to lack insight into his actively symptomatic mental illness, his need for medication, and his substance abuse disorder. His delusional beliefs trigger stress, frustration and verbal and physical aggression. At the time of the hearing, he had no plans for housing in the community.

[15] In determining the appropriate disposition, the Board adverted specifically to defence counsel’s submissions about the appellant’s largely successful period before the Board since 2016 and past periods when he remained free of violence while living and working in the community. The Board noted the appellant’s recent progress and success in the community, but found that this was due to his careful management by the treatment team. The Board did not ignore the progress made by the appellant, but rather contextualized that progress within a larger trend of violence and lack of insight into his condition. This was a reasonable assessment of the evidence.

[16] There is no question that the Board misstated the appellant’s evidence regarding contact with his mother. There was no up-to-date information before the Board respecting the appellant’s relationship with his mother. It would have been preferable for the Board to have insisted on such information, in light of the fact that Dr. Harrigan testified that she had not had any contact with the appellant’s mother since his transfer to the Hospital, and was also not aware of any contact between the appellant and his mother during this time. That said, there was no evidence that the appellant’s mother would have permitted him to live with her, and there was evidence that, when she visited him in 2018, the appellant was very angry with her, told her she had no right to make decisions about his medication, and caused her to end the visit early. Even if the appellant had been in contact with his mother during the previous six or seven years, and she was supportive, this would not have had an effect on the appropriate disposition for the appellant.

[17] Finally, we do not agree that the Board refused the appellant’s request for indirectly supervised passes by simply deferring to a Hospital policy. Rather, the appellant was continuing to seek out drugs even while living on the secure unit, and for this reason he was not ready to be moved to the general unit. The Board accepted that he was not ready to be indirectly supervised in the community where he would have greater access to drugs. The Board reasonably accepted the opinion of the appellant’s treatment team that, if such a discretionary condition were included, the appellant would not treat the possibility of obtaining indirectly supervised passes as an incentive, but that the withholding of such passes would be a source of frustration for the appellant and paranoia toward the staff. It was open to the Board to accept and base its decision on this evidence.

[18] For these reasons, the appeal is dismissed.

“S.E. Pepall J.A.” “K. van Rensburg J.A.” “David M. Paciocco J.A.”