Court of Appeal for Ontario

Date: 20230118 Docket: C70942

Before: MacPherson, Pardu and Coroza JJ.A.

In the Matter of: Nathaniel White An Appeal Under Part XX.1 of the Code

Counsel: Nathaniel White, acting in person Mercedes Perez, appearing as amicus curiae Brent Kettles, for the respondent Attorney General of Ontario Julie Zamprogna Ballès, for the respondent Southwest Centre for Forensic Mental Health Care

Heard: January 10, 2023

On appeal from the disposition of the Ontario Review Board, dated June 13, 2022, with reasons dated July 20, 2022.

Reasons for Decision

[1] The appellant, Nathaniel White, was found not criminally responsible on account of mental disorder on July 31, 2018, on charges of criminal harassment, forcible entry, and possession of a weapon. He has since been under the jurisdiction of the Ontario Review Board (“ORB”).

[2] At the appellant’s most recent annual hearing, held six months early at his request, the ORB accepted the appellant’s unopposed request for a lateral transfer from the Southwest Centre for Forensic Mental Health Care in London to St. Joseph’s Healthcare Hamilton.

[3] However, the ORB removed the appellant’s community living and 30-day pass privileges from the previous disposition, dated January 25, 2022. The appellant appeals this component of the current disposition.

[4] In support of the appellant’s position, amicus curiae submits that the least onerous and least restrictive disposition would have been to replicate the 2019 disposition order, which allowed for the possibility of community living in both London and Hamilton.

[5] The core of the ORB’s reasoning on the community living issue is as follows:

In terms of the removal of the community living privilege, we accepted Dr. Prakash’s opinion that community living was not realistic this year. As Dr. Prakash explained, after a number of thwarted efforts to progress Mr. White towards community living (a move to transitional housing resulted in the incident of November 2020 described above in paragraph 12, a residential treatment program was not completed, his move to a rehabilitation unit ended with his decompensation and problems with female co-patient), the team wants to take a slower approach with greater chance of providing Mr. White the support he needs to be successful in his next transition. Progress has already begun. After many years, Mr. White is being titrated up to a therapeutic dosage of antipsychotic medications for the first time since he came under the jurisdiction of the Board. The team wants to work closely with him through this process, which may take many months. Mr. White has also reengaged with relapse prevention treatment - another important component for Mr. White’s success. We agree that, given Mr. White’s history before the index offence and more recently, this approach is necessary and appropriate.

[6] As per s. 672.78(1) of the Criminal Code, R.S.C. 1985, c. C-46, this court may allow an appeal against a disposition of the ORB where: (1) it is unreasonable or cannot be supported by the evidence; (2) it is based on a wrong decision on a question of law; or (3) there was a miscarriage of justice.

[7] The appellant submits that the ORB committed an error of law by rejecting a community living privilege solely on the ground that he would not be ready for community discharge in the next 12 months. In making this submission, the appellant relies on the decision of this court in Kelly (Re), 2014 ONCA 269.

[8] In our view, reliance on Kelly is misplaced. Kelly is a case where there was a clear misapprehension of important information by the ORB. That is not the situation in this appeal. As the quoted passage from the ORB’s decision respecting the appellant, set out above, establishes, the ORB engaged in a careful assessment of the appellant’s recent decompensation, problems with a female co-patient, change in medications, and relationship with his current support team. Its conclusion that he would not be ready for community living by June 2023 is far removed from being unreasonable.

[9] Obviously, the potential for reinstatement of the community living provision can be raised again at the next annual review hearing, which must take place by mid-June this year.

[10] The appeal is dismissed.

“J.C. MacPherson J.A.”

“G. Pardu J.A.”

“S. Coroza J.A.”