Court File and Parties

Court of Appeal for Ontario Date: 2024-06-24 Docket: COA-23-CR-1053

Before: Miller, Paciocco and Copeland JJ.A.

In the Matter of: Shawn Alfredson An Appeal Under Part XX.1 of the Code

Counsel: Allen P. Welman, for the appellant Andrew Cappell, for the respondent Attorney General of Ontario Leisha Senko, for the respondent Centre for Addiction and Mental Health

Heard: June 17, 2024

On appeal from the disposition of the Ontario Review Board, dated August 16, 2023.

Reasons for Decision

[1] The appellant was found not criminally responsible (“NCR”) on March 24, 2011 of one count each of aggravated assault and possession of a weapon for a purpose dangerous to the public peace. On September 14, 2023, following the appellant’s annual hearing, the Ontario Review Board (the “Board”) found that the appellant continued to pose a significant threat to the safety of the public. The Board continued the disposition from the previous year, a detention order at the Forensic Service of the Centre for Addiction and Mental Health (the “Hospital”), with privileges up to residing in a residence in the community approved by the person in charge of the Hospital.

[2] The appellant appeals the finding that he poses a significant threat to the safety of the public and the detention order disposition.

[3] For the reasons that follow, we dismiss the appeal.

Background

[4] A brief summary of the background is sufficient as context for the issue raised on appeal. The index offence involved an unprovoked slashing of a co-worker with a knife on his face and throat. The victim required 28 stitches to close the face wound.

[5] The appellant’s diagnoses at the time of the hearing were schizophrenia and cocaine use disorder. He also has antisocial personality traits.

[6] Leading up to early 2019, the appellant had progressed through the review system to the point where the treatment team was considering recommending an absolute discharge at his 2019 annual review. At that time, the appellant was maintaining his housing, going to school, and remaining abstinent from drugs. Unfortunately, just prior to his annual review in 2019, the appellant relapsed into crack cocaine use. In June 2021, he lost his community housing. Since 2019, the appellant has repeatedly tested positive for cocaine. He has no insight into the impact of cocaine use on his mental state and limited insight into his need for antipsychotic medication. In the year prior to the decision under appeal, on the two occasions when the appellant was permitted to exercise community living privileges, he failed each time within one day to comply with conditions on his exercise of those privileges, used crack cocaine, and was readmitted to the Hospital.

Issue and Analysis

[7] The appellant argues that the Board’s decision was unreasonable because of three factual errors in its reasons. He argues that the factual errors are material because they involved factors that bear on whether he continues to pose a significant threat to the safety of the public and, if he does, the appropriate disposition. He argues, as he did before the Board, that he should be granted an absolute discharge.

[8] The Crown concedes that the Board made the three errors identified by the appellant in its characterization of the record. However, the Crown argues that the errors of characterization had no impact because, when the Board’s reasons are read as a whole, it is clear the Board understood the correct factual context. The Crown argues that the Board’s risk assessment and disposition were reasonable on the record before it.

[9] A Board decision is reasonable if its risk assessment and disposition order are supported by reasons that can bear a “somewhat probing” examination: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 33. The court must evaluate reasonableness by considering the reasons given by the Board 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.

[10] We agree with the appellant that the Board erred in its characterization of the evidence in places in its reasons. However, we conclude that the issue was one of mischaracterization, rather than misunderstanding the evidence in the record. When the reasons are read as a whole, the Board correctly recounted in detail the relevant evidence elsewhere in its reasons. The Board’s risk assessment and disposition were reasonable on the record before it.

[11] We address each of the errors the Board made in the characterization of the record in turn. First, the Board stated that the appellant had a “history of medication non-adherence”. This was not the evidence of the treatment team. Dr. Benassi’s evidence was not that the appellant had been non-compliant, but rather, that if the appellant was granted a discharge, he would likely return to substance abuse and become non-compliant with his antipsychotic medication. This would lead to risk of increased hostility and psychosis on the part of the appellant, and to risk of serious physical harm to others, as it had in the past.

[12] However, elsewhere in the reasons the Board noted that the appellant “has been adherent with his long-acting antipsychotic medication for a number of years and it assists in stabilizing him.” Reading the reasons as a whole, we conclude that the Board understood the evidence in relation to medication compliance. Further, the Board’s concern that the appellant was likely to become non-compliant with medication if he was granted a discharge was supported by Dr. Benassi’s evidence. As a result, the error in stating that the appellant has been non-adherent to medication had no impact on the Board’s risk assessment or disposition.

[13] Second, the Board referred to the appellant having “a previous conviction” and “a criminal record for assaultive behaviour”. This is incorrect. As Crown counsel advised during the hearing before the Board, the appellant did not have a criminal record. There was evidence of two incidents prior to the index offence, in 2000 and 2003, where the appellant engaged in assaultive behaviour, including one in which he brandished a knife and kicked the victim. The appellant did not dispute that these incidents occurred. However, neither resulted in a criminal conviction.

[14] The Board noted elsewhere in its reasons that Crown counsel advised that the appellant had no criminal convictions. In any event, even absent criminal convictions, the prior assaultive conduct by the appellant was relevant to assessing whether he posed a significant threat to public safety.

[15] Third, the Board stated that the appellant had a “history of … sexual violence”. The record does not support this characterization. Although the appellant had a history of assaultive behaviour, there is no documented history of sexual violence. The evidence before the Board was that in June 2021, a female co-resident alleged that the appellant and another resident sexually assaulted her. However, she later recanted the allegation. The appellant denied the allegation and there was no other evidence available. There were no other allegations of sexual violence at any point. In the circumstances there was no basis for the Board’s statement that the appellant had a history of sexual violence.

[16] However, it is clear that the Board was aware that the sexual assault allegation by the co-resident had been recanted. In two places in the reasons the Board referred to the recantation by the co-resident. The Board also referred to the appellant’s denial of the allegation and noted that there was no other evidence available.

[17] In sum, although in places the Board characterized the record incorrectly on three factual issues, when the reasons are read as a whole, it is clear the Board understood the evidence before it.

[18] Further, the underlying concerns that led the Board to find that the appellant continued to pose a significant threat to public safety were supported by the record. It was also reasonable for the Board to conclude that its disposition was the least onerous and restrictive disposition that could manage this risk.

[19] In particular, it was reasonable for the Board to find that in light of the appellant’s history of assaultive behaviour, he continued to pose a significant threat to public safety in the context of his continuing substance abuse and lack of insight into his mental illness and its relationship to his violent behavior.

[20] It was also reasonable for the Board to find that a detention order was the least onerous and least restrictive disposition based on the evidence of Dr. Benassi. The opinion of the treatment team was that, if the appellant was not on a detention order, he would likely resume cocaine use and become non-compliant with medication. Dr. Benassi testified that because the appellant had shown difficulties with supervision at his community housing, it was critical that the hospital be able to approve his accommodation and that he live in supervised accommodation. In addition, Dr. Benassi’s evidence and the hospital report established that a detention order continued to be necessary so that the hospital could quickly readmit the appellant if he were to decompensate. Dr. Benassi’s evidence was that in the event of a decompensation due to drug use, the appellant would likely pose a real risk of serious physical and/or psychological harm and that the provisions of the Mental Health Act, R.S.O. 1990, c. M.7, for involuntary admission would be insufficient to readmit him in a timely way.

[21] Because we conclude that the errors the Board made in characterizing the evidence in places in its reasons did not impact the reasonableness of its risk assessment and disposition, we must dismiss the appeal. However, we are compelled to comment on the lack of care these errors demonstrate.

[22] The system of annual reviews of NCR accused is designed to strike an appropriate balance between the liberty interest of NCR accused and public safety. The Board is tasked to determine if the NCR accused continues to pose a significant threat to the safety of the public and, if so, to determine the least onerous and least restrictive disposition consistent with the factors in s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46. Decisions of the Board directly affect the liberty of the NCR accused. Given the important interests at stake for an NCR accused and the public, it is incumbent on the Board to take greater care in its characterization of the factual record than is displayed in the reasons under appeal.

[23] Further, as a practical matter, because some NCR accused remain in the system over a period of time and have successive annual reviews, there is a risk that factual errors by the Board in one annual review will carry forward into future reviews.

Disposition

[24] The appeal is dismissed.

“B.W. Miller J.A.” “David M. Paciocco J.A.” “J. Copeland J.A.”