Court File and Parties

Court of Appeal for Ontario Date: 2024-08-29 Docket: COA-24-CR-0128

Huscroft, George and Copeland JJ.A.

In the Matter of: Whitley Hunter

An Appeal Under Part XX.1 of the Code

Counsel: Jeffrey Marshman, for the appellant Whitley Hunter Akshay Aurora, for the respondent Attorney General of Ontario Jessica Szabo and Anne Marshall, for the respondent Ontario Shores Centre for Mental Health Sciences

Heard: August 26, 2024

On appeal against the disposition of the Ontario Review Board, dated December 4, 2023.

Reasons for Decision

[1] The appellant appeals from the disposition of the Ontario Review Board (the “Board”) finding that he continues to represent a significant threat to the safety of the public and ordering a conditional discharge. He seeks a new hearing. Following the hearing we dismissed the appeal with reasons to follow. These are our reasons.

[2] In 2018, the appellant was found not criminally responsible due to mental disorder on charges of attempted murder, aggravated assault, and assault with a weapon, following an attack in which he bludgeoned the victim several times with a hammer. His current diagnoses are schizophrenia and cannabis and alcohol use disorder (the latter two in sustained remission).

[3] The appellant was granted a conditional discharge in 2022 and transitioned to supportive housing and then an independent apartment affiliated with the Canadian Mental Health Association in 2023. He had been in this living situation for only a few months prior to the Board’s review.

[4] The Board found that the index offences were extremely serious; that the appellant would be “highly likely to rapidly decompensate” if he stopped taking his medication; that stress was a risk factor that has led him to stop taking his medication in the past; and that the recent transition to independent living could cause a similar risk. The Board considered and rejected the opinion of the appellant’s treating physician, Dr. Bhullar, that the appellant was of a low risk to re-offend. The Board concluded that Dr. Bhullar’s opinion was not sufficiently grounded in the facts and could not be relied upon.

[5] The appellant and the Hospital argue that the Board abdicated its responsibility to “seek out the evidence it requires to make its decision”, as required in Winko v. British Columbia (Forensic Psychiatric Institute) , [1999] 2 S.C.R. 6125, at para. 62. We do not agree.

[6] The Board found that there was a lack of information beyond the appellant’s self-reports. The appellant spends a great deal of unstructured time alone, “fly[ing] under the radar” of health support staff, so most of the information available about his current status comes from the appellant himself. His self-reports, which also cover his background, education, employment, relationships, criminal history, and psychiatric treatments, have sometimes been limited by his refusal to elaborate. The results of the appellant’s PCL-SV test were based on limited information and rendered reliance on the hospital’s risk assessment problematic. Dr. Bhullar acknowledged that the conclusions in the assessment were “a bit tenuous and of concern”. The Board found that there was a real, non-speculative likelihood that when the appellant is acutely unwell, he will commit criminal acts causing significant physical and psychological harm to the public.

[7] The Board did not abdicate its inquisitorial role. It carefully evaluated Dr. Bhullar’s evidence and provided extensive reasons for rejecting it. The Board’s explanations for rejecting her evidence did not give rise to a duty to seek out additional evidence in respect of those matters. It is for the Board to determine whether additional information is necessary and the Board’s decision on that issue is entitled to deference. See e.g., Ahmadzai (Re) 2020 ONCA 819 at para. 10.

[8] Ultimately, the Board determined that additional oversight would allow the appellant’s insight and motivation to be assessed in the context of looser restrictions and fashioned a conditional discharge to this end. The Board’s decision is amply supported in the record and is reasonable.

[9] The appeal is dismissed.

“Grant Huscroft J.A.”

“J. George J.A.”

“J. Copeland J.A.”