Court of Appeal for Ontario

Date: 2023-09-20 Docket: COA-23-CR-0043

Judges: Pepall, Copeland and Monahan JJ.A.

In the Matter of: Brandon Mott

An Appeal Under Part XX.1 of the Code

Counsel: Shannon Darby, for the appellant Eunwoo Lee, for the respondent Attorney General of Ontario Julie Zamprogna, for the respondent Person in Charge of Southwest Centre for Forensic Mental Health Care

Heard: September 15, 2023

On appeal from the disposition of the Ontario Review Board dated November 3, 2022.

Reasons for Decision

[1] The appellant appeals from the disposition of the Ontario Review Board (the “Board”) dated November 3, 2022, continuing his detention order with privileges that included living in the community in an approved and supervised accommodation. He had sought an absolute discharge from the Board.

[2] On October 28, 2014, the appellant was found not criminally responsible (“NCR”) for the offence of theft under $5000, which occurred on August 5, 2013. In the early hours of the morning, he entered a private residence while the occupants were sleeping, moved around papers and took a cigarette and a lighter. When confronted by one of the occupants, he fled.

[3] The appellant is currently at the Southwest Centre for Forensic Mental Health Care, St. Joseph’s Health Care London (the “Hospital”). The diagnosis of his mental illness includes schizophrenia, substance use disorder, antisocial personality disorder and attention deficit hyperactivity disorder. Over the years he has had paranoid delusions about aliens, ghosts, witchcraft and sexual abuse. He also has an extensive history of substance abuse involving a long list of substances, including alcohol, cannabis, crystal meth, MDMA, cocaine and fentanyl. Moreover, substance use has historically contributed to his level of risk and is linked to the appellant’s mental decompensation, causing him to become unstable, and exacerbating and intensifying his symptoms of mental disorder.

[4] The appellant also uses ephedrine to be healthy and to lose weight but also as a stimulant to lessen the effectiveness of his antipsychotics. At the time of his hearing, he was using four to five times the recommended daily dosage of ephedrine. He has been told repeatedly in the past that he was misusing the medication, thereby reducing the effectiveness of his antipsychotic medication. His level of insight was described by the Board as non-existent vis-à-vis his psychiatric illness and need for medications.

[5] In March 2022, the appellant was approved by the Hospital to reside at the Clarke Centre, a 24-hour supervised rehabilitative group home in London. As an outpatient under 24/7 supervision, by the time of the Board hearing in October 2022 he had experienced a lessening of his symptoms. If he received an absolute discharge, he would be unable to remain at the Clarke Centre.

[6] The Board recognized that an appropriate disposition for the appellant was one that would provide him with as much freedom as possible. Nevertheless, the Board found that if the appellant were to receive an absolute discharge, he would likely become noncompliant with prescribed medications, which would lead to decompensation, and pose a significant threat to the safety of the public. In the Board’s view, the only way to manage the threat the appellant poses to the safety of the public while still meeting his needs was a continuation of his existing detention order, which requires Hospital approval for his community accommodation.

[7] The respondent Hospital tendered fresh evidence relevant to the appeal, which was admitted without opposition. The evidence consisted primarily of an affidavit from Dr. Ajay Prakash, the appellant’s attending psychiatrist. Dr. Prakash gave evidence regarding the appellant’s recent decompensation and readmissions to hospital following substance use. Dr. Prakash notes that the appellant’s recent expressions of psychosis mimic his mental state at the time of the index offence.

[8] The appellant appeals the Board’s disposition on two grounds: (i) the Board failed to fully consider his mental health and specifically his significant improvements since moving into the community; and (ii) the Board misapprehended the evidence by mistakenly finding that cannabis use precipitated the appellant’s readmission to hospital on two occasions in 2022, when in fact cannabis use had precipitated only one such readmission.

[9] We note that absent an error on a question of law or a miscarriage of justice, appellate review of the Board’s decisions is limited to determining whether the decision of the Board is reasonable. The court does not make its own judgement on whether the appellant poses a significant threat or re-weigh the considerations before the Board: Woods (Re), 2019 ONCA 87, at para. 14; Carrick (Re), 2015 ONCA 866, 128 O.R. (3d) 209, at para. 24. A decision is reasonable if, having regard to the Board’s reasoning process and the outcome, it reflects “an internally coherent and rational chain of analysis… that is justified in relation to the facts and the law”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 83-85, 94, 125.

[10] For the reasons that follow, we are not persuaded that the Board’s decision was unreasonable. Accordingly, we dismiss the appeal.

A. The Board Properly Considered the Appellant’s Mental Health and Improvement

[11] With respect to the first ground of appeal, we note that there is no suggestion that the Board misapplied or misunderstood the statutory requirements in s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46. Rather, the appellant’s argument is that the Board failed to give sufficient weight to the recent improvements in his mental condition since his move to the Clarke Centre.

[12] We do not agree. In our view, the Board properly considered the appellant’s mental state, including the recent improvement in his symptoms while residing at the Clarke Centre. The Board accepted the uncontroverted evidence of the appellant’s attending psychiatrist, Dr. Prakash, that if the appellant were discharged, he would fail to take prescribed medications, resume consuming illicit substances and decompensate within days. The Board further accepted Dr. Prakash’s assessment that in such circumstances, the appellant’s risk for violence would be high. Moreover, his community and personal supports are currently none to limited. The Board noted that the appellant is under 24/7 supervision at the Clarke Centre. The Board found that it was essential in the current circumstances that this supervision remain in place.

[13] In essence, this first ground of appeal asks this court to reweigh the factors that were considered by the Board in order to come to a different conclusion. But that is not this court’s role. In our view, the Board properly considered all of the evidence regarding the appellant’s mental state, including his recent improvements while at the Clarke Centre, and reasonably concluded that it was necessary and appropriate to continue the appellant’s existing detention order.

[14] This finding is supported by the fresh evidence, Dr. Prakash’s affidavit, in which he indicates that the appellant’s recent readmission to hospital reinforces the conclusion that he remains a significant threat to the safety of the public. In Dr. Prakash’s view, the appellant’s persistent symptoms, substance use, lack of insight into his illness and his need for medication all indicate that he poses a continuing safety risk and that an absolute discharge would not be appropriate.

[15] For these reasons, we dismiss this first ground of appeal.

B. The Board’s Misapprehension Regarding Which Substance Led to the Appellant’s 2022 Hospital Readmissions Did Not Affect The Result

[16] With respect to the second ground of appeal, the appellant correctly points out that the Board was mistaken when it stated that cannabis use precipitated the appellant’s June and July 2022 readmissions to the Hospital. In fact, cannabis only precipitated the appellant’s June readmission, while his abuse of ephedrine precipitated his July readmission.

[17] Nevertheless, in our view the Board’s misapprehension in this regard was not material and did not affect the result. The nub of the Board’s reasons on this point was that the appellant continued to abuse substances with no appreciation for how this exacerbates his condition. Nothing turned on whether the substance was cannabis rather than another substance. The misapprehension could not reasonably have affected the outcome.

[18] As a result, we find the Board’s disposition to be reasonable and amply supported by the record. We see no error that would justify appellate intervention.

[19] Accordingly, we dismiss the appeal.

“S.E. Pepall J.A.”

“J. Copeland J.A.”

“P.J. Monahan J.A.”