Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240305 DOCKET: COA-23-CR-0731

Gillese, Thorburn and Gomery JJ.A.

IN THE MATTER OF: Beesham Dhanpaul

AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel: Anita Szigeti, for the appellant Beesham Dhanpaul Raoof Zamanifar, for the respondent His Majesty the King Leisha Senko, for the respondent Person in Charge of the Centre for Addiction and Mental Health

Heard: February 28, 2024

On appeal from the disposition of the Ontario Review Board dated, May 10, 2023.

Reasons for Decision

Background

[1] In 2015, the appellant, Mr. Beesham Dhanpaul was found not criminally responsible (“NCR”) on charges of (i) loitering in the secure vestibule of a University of Toronto student residence, and (ii) smashing a glass door of an apartment and breaking into the home. At the time, he was living in a homeless shelter and had discontinued his medication for some time.

[2] The appellant has a history of aggression and threatening conduct when he is not on his medication. He once threatened to “beat and kill” his mother, and on two other occasions, he broke into his family home, grabbed his mother, and said “don’t go, they’re out there”. In 2011 and 2012, he was admitted to the hospital four times due to psychosis. Before one of those admissions, he threatened to get a gun and shoot people. He has a criminal record that includes convictions for assault in 2001, 2006 and 2008, robbery in 2002, and sexual assault in 2006.

[3] Following his NCR designation in 2015, Mr. Dhanpaul was placed in the Centre for Addiction and Mental Health (“CAMH”).

[4] In September 2020, the Ontario Review Board (the “Board”) found that Mr. Dhanpaul demonstrated sufficient stability that he was conditionally discharged to a high support, all male living facility operated by LOFT, where he has continued to reside.

[5] At his hearing before the Board in May 2023, the appellant sought an absolute discharge. The Board determined that Mr. Dhanpaul continued to pose a significant threat and extended his conditional discharge.

[6] Mr. Dhanpaul raises a single issue on this appeal. He argues that the Board erred in continuing his conditional discharge rather than granting an absolute discharge. He argues that he is no longer a significant threat to public safety and that the Board’s finding was therefore unreasonable. Mr. Dhanpaul claims he has a flawless record of medication compliance since he was found to be NCR, he has no history of violence since 2015, he is generally stable and has had an incident-free reintegration into the community. He therefore claims he should be granted an absolute discharge.

Analysis and Conclusion

[7] The issue is whether the Board erred in holding that if Mr. Dhanpaul received an absolute discharge, he would pose a significant threat to the public.

[8] Section 672.54 of the Criminal Code, R.S.C. 1985, c. C-46 provides, in part, that:

When a court or Review Board makes a disposition …, it shall, taking into account the safety of the public, which is the paramount consideration, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is necessary and appropriate in the circumstances:

(a) where a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused and, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely.

[9] A “significant threat” is a risk of serious physical or psychological harm to members of the public resulting from conduct that is criminal in nature (though not necessarily violent), which must be more than speculative and must be supported by the evidence: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at paras. 46, 48-51 and 57.

[10] The Board’s findings are reviewed on a reasonableness standard. If the Board’s decision falls within a range of reasonable outcomes, it is entitled to deference, absent an error in law or a miscarriage of justice: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 31.

[11] The test for reasonableness is whether the Board’s risk assessment and disposition order are supported by reasons that can bear a “somewhat probing” examination: Owen, at para. 33. In considering whether the decision was reasonable, the court must consider the reasons given and the context in which the decision was made to determine whether an acceptable and defensible outcome has been reached: Wall (Re), 2017 ONCA 713, 417 D.L.R. (4th) 124, at para. 22.

[12] In this case, the Board relied on a lengthy hospital report and the oral testimony of Mr. Dhanpaul’s attending psychiatrist, Dr. Darby.

[13] The Board recognized that Mr. Dhanpaul had made some significant progress. He was taking his medication and had not engaged in violent or aggressive behaviour since his NCR finding in 2015. The Board also noted that his family have been highly involved, visiting him regularly and providing social support and practical assistance such as bringing him meals, helping him to clean his room and taking him on outings.

[14] However, the Board also noted that, throughout this period, Mr. Dhanpaul was receiving a high level of supervision and support and that even in this environment, there were two recent incidents of concern. The first was in the spring of 2022 when during a room inspection, he was discovered watching pornography. He was directed to turn it off but refused and made an obscene sexual gesture. After discussing the incident with his outpatient team, Mr. Dhanpaul apologized for his behaviour. The second incident was in the summer of 2022 when Mr. Dhanpaul admitted to drinking alcohol with some of his housemates.

[15] Mr. Dhanpaul is diagnosed with schizophrenia and cannabis use disorder that is in remission in a controlled setting. Although clozapine has helped to stabilize his mental status, he continues to experience psychotic symptoms and significant negative symptoms related to his illness, including avolition and apathy. According to Dr. Darby, these negative symptoms make him passive and give rise to concerns that he would not actively connect to a treatment team on his own without external encouragement.

[16] Mr. Dhanpaul could continue to benefit from his strong community and family support in the facility he is in now even if he were granted an absolute discharge. Mr. Dhanpaul told the Board however, that he intends to move out of the premises where staff are on call to provide support and encouragement to comply with his treatment.

[17] Moreover, Mr. Dhanpaul has little understanding of his mental illness. He does not believe he has ever suffered any symptoms of mental illness and attributes his schizophrenia to being shot and having bullets in his head although there is no evidence of same. He is unable to recognize the adverse effect of his untreated mental illness on his past behaviour, and does not believe anything negative would happen if he discontinued his medication. He continues to deny the events surrounding the index offences.

[18] Dr. Darby opined that, without the Board’s supervision, Mr. Dhanpaul would “very likely” drift away from community supports and stop taking medication, use cannabis and alcohol, exhibit more psychotic symptoms, and engage in aggressive and threatening behaviour. In his words,

The associated emergence of aggression, affective instability, and disorganization would likely result in estrangement from his few positive social supports, similar to the circumstances at the time of his index offence. He would be highly vulnerable to negative influences and at high risk for recidivism. In contrast, with ongoing supervision by the ORB, his environment can be appropriately monitored and modified as necessary.

[19] The Board therefore concluded that Mr. Dhanpaul continued to pose a significant risk as:

With less structure and support, and left to his own devices in the community, there is a real likelihood that within a relatively short time, Mr. Dhanpaul would drift away from treatment and community supports. He is unable to recognize the adverse impact of his untreated mental illness on his past behaviour. Given his ongoing negative symptoms and his limited insight (into his illness, the need for treatment and the risks of him discontinuing treatment), he has little motivation to adhere to treatment interventions. Non-adherence would, as in the past, lead to Mr. Dhanpaul becoming more psychotic. By history, it is evident that he has a propensity to engage in inappropriate (including sexually inappropriate) and aggressive behaviour when unwell due to his level of disorganization, impaired judgment and compromised impulse control. There is a real risk that in a similar mental state he would re-offend.

We are also satisfied that the current conditional discharge is sufficient to continue to manage Mr. Dhanpaul’s risk to public safety. Accordingly, considering the safety of the public (which is paramount), as well as Mr. Dhanpaul’s mental condition, his reintegration into society and his other needs, we agree that the current conditional discharge disposition remains necessary and appropriate for the coming year.

[20] Mr. Dhanpaul points out that, “Lack of insight has its place in the overall clinical picture; however, it must not dominate the significant threat analysis” and that some NCR accused may never gain any real insight into their situation. However, a lack of insight alone cannot overshadow the rest of the evidence: Woods (Re), 2019 ONCA 87, at para. 17 and Sim (Re), 2019 ONCA 719, at para. 24-25.

[21] We do not agree that the Board’s decision was unreasonable given his treating psychiatrist’s opinion that (i) Mr. Dhanpaul continues to experience psychotic symptoms, (ii) he has limited insight into his illness and need for treatment, (iii) he has said he intends to leave the facility which has enabled his progress, and (iv) without the supports at the LOFT facility, the expert evidence is that he is at high risk of discontinuing his medication, estrangement from his positive supports and further aggression. In the past, his failure to take his medication has led to aggression, compromised impulse control, and a likelihood that he will commit offences such as the index offences. For these reasons, the risks accepted by the Board are not speculative. Moreover, while lack of insight was noted, it did not dominate the significant threat analysis.

[22] Mr. Dhanpaul is to be commended for the progress that he has made and his efforts to reintegrate into society. However, we see no basis to interfere with the Board’s conclusion to continue the conditional discharge disposition for the coming year, as he remains a significant threat to public safety.

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

“E.E. Gillese J.A.”

“Thorburn J.A.”

“S. Gomery J.A.”