COURT OF APPEAL FOR ONTARIO

CITATION: Viola (Re), 2025 ONCA 33

DATE: 20250121

DOCKET: COA-24-CR-0656

Nordheimer, Sossin and Copeland JJ.A.

IN THE MATTER OF: Kenneth Viola

AN APPEAL UNDER PART XX.1 OF THE CODE

Anita Szigeti, for the appellant

Eunwoo Lee, for the respondent, Attorney General of Ontario

Leisha Senko, for the respondent, Centre for Addiction and Mental Health

Heard: January 14, 2025

On appeal from the disposition of the Ontario Review Board, dated June 10, 2024, with reasons dated June 20, 2024.

REASONS FOR DECISION

[1] Mr. Viola appeals from the disposition of the Ontario Review Board that issued a detention order against him. The appellant submits that the Board erred in finding that he poses a significant risk to the safety of the public. He asks that the detention order be set aside and that an absolute discharge be granted. For the following reasons, we allow the appeal and grant an absolute discharge.

[2] On November 3, 2023, the appellant was found not criminally responsible on account of mental disorder ("NCR") on charges of robbery, assault, sexual assault, break and enter, and mischief. At approximately 8:30 a.m. on October 26, 2022, the appellant experienced an extremely unusual and acute medical event. At age 29, he developed delirium and committed several bizarre acts in a short but intense period of disorientation and confusion. His behaviour included damaging the property of one of his neighbours and assaulting his mother. His behaviour was completely uncharacteristic.

[3] Within 20 minutes of the first signs that something was wrong, the appellant had been apprehended by the police. An hour later, he was being treated in hospital, and by 4 p.m. he was alert and oriented. He was discharged from the hospital two days later and detained at the Toronto South Detention Centre. It was ultimately determined that the delirium was the unfortunate result of several factors coinciding. Subsequent to the index offences, the appellant was diagnosed with a mild intellectual disability, which his doctors think likely increased his susceptibility to delirium.

[4] On May 11, 2023, the appellant was released on bail with his father as surety. There were no incidents while the appellant was on bail. In addition, before the appellant's release, his family experienced a fire in their rented apartment. They lost electricity, a situation that lasted for many months due to the failure of the landlord to address the damage.

[5] The appellant has no criminal record and had never been arrested or charged before the index offences. He has no history of mental illness or diagnosis of a substance use disorder. He does not take any psychotropic medication. In 2015, 2019 and 2021, the police were called to the family home because of allegations that Mr. Viola hit his sister.

[6] There is some confusion as to the material that was before the Board at the hearing. The Board did have a report from the Centre for Addiction and Mental Health (the "Hospital Report") and it had the evidence of Dr. Jaiswal, who had conducted the appellant's risk assessment in January 2024. It also had letters of support from the appellant's parents and sister.

[7] Dr. Jaiswal gave evidence that the appellant was not prescribed any medication to treat delirium because the issue was resolved and no further medical intervention was required. Dr. Jaiswal opined that the appellant had difficulties coping with everyday stressors and with issues surrounding his housing, notably the lack of electricity. He also referred to the appellant becoming overwhelmed discussing the index offences.

[8] Dr. Jaiswal's opinion was that the appellant's intellectual disability made him susceptible to delirium in the future. While he was unable to predict the likelihood of delirium occurring again, the risk of this occurring remained. Dr. Jaiswal also expressed the view that the appellant was at risk of using violence to resolve perceived duress. In this regard, he referenced the previous police involvement with the appellant.

[9] Dr. Jaiswal was also of the view that the appellant's access to services and support was insufficient to manage his risk. That view, though, appears to be based on a misunderstanding of the appellant's access to such services. Dr. Jaiswal referred to the appellant withdrawing from services provided by COTA and Sound Times, two social service agencies. The appellant had not, in fact, withdrawn from services provided by COTA. Rather, COTA had accomplished its role which was to ensure that the appellant had access to the needed services. Further, the appellant had been active with Sound Times but had reduced his involvement with them because of the issues with his housing. The appellant has recently recommenced his involvement with Sound Times. Finally, Dr. Jaiswal believed that a detention order was required because the provisions under the Mental Health Act, R.S.O. 1990, c. M.7 would be insufficient to deal with the appellant's case.

[10] In conclusion, Dr. Jaiswal offered his opinion that the appellant posed a risk to the safety of the general public and his family.

[11] The Board moved from its review of Dr. Jaiswal's evidence to conclude that the appellant represented a significant threat to the safety of the public. They based this conclusion on "the evidence of Dr. Jaiswal, the Hospital Report and the collateral materials contained in the record."

[12] There are a number of problems with the Board's reasons and conclusion. For one, the Board does not specify what parts of the evidence of Dr. Jaiswal, or of the Hospital Report, would support a finding of a significant threat to the safety of the public. It is important, on this point, to remember that it is not just any risk of possible harm that will justify a detention order. It must be a significant threat. It is worth repeating what the Supreme Court of Canada has said on this issue. In Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, McLachlin J., at para. 62, referred to a significant threat as: "[A] real risk of physical or psychological harm to members of the public that is serious in the sense of going beyond the merely trivial or annoying. The conduct giving rise to the harm must be criminal in nature."

[13] Justice McLachlin made it clear in Winko that the threshold of a significant threat is a "relatively high" one. She said, at para. 69, "the phrase conjures a threat to public safety of sufficient importance to justify depriving a person of his or her liberty."

[14] The Board does not identify anywhere in its reasons what evidence there was that could satisfy this high threshold. As this court clarified in Marchese (Re), 2018 ONCA 307, 359 C.C.C. (3d) 408, at para. 9: "the Board's reasons should clearly explain what evidence in the record leads it to conclude that the condition and conduct of the NCRMD accused creates a significant threat to the safety of the public".

[15] Dr. Jaiswal could not quantify the degree of risk, nor does the Hospital Report do so. On this point, it is worthy of note that, while there is a specific test that could be used to determine the degree of risk posed by someone in the appellant's situation, Dr. Jaiswal was unaware of that test and, consequently, had not applied it. The Board does not make any mention of this fact.

[16] The Board also relied on the three incidents involving the appellant where the police had been called. Reliance on this information is problematic for a few reasons. One is that it is not clear that the Board had the actual police occurrence reports as opposed to simply having a summary of them. The Board could not therefore properly understand the degree of harm or risk that these incidents might have revealed. Another is that police occurrence reports are not evidence. They are hearsay. They are prepared for a particular reason and often reflect only one perspective of the events that occurred. The Board does not appear to have understood this serious limitation on the usefulness of the police reports or to have taken it into account in deciding what weight it should give to them. In that regard, it is of some import that, in these three incidents, no charges were laid. In its analysis, the Board does not consider the impact of that salient fact on the seriousness of the incidents.

[17] In the end result, the Board was required "to explain and justify its decision": Carrick (Re), 2015 ONCA 866, 128 O.R. (3d) 209, at para. 38. It failed to do that. People with intellectual disabilities are not inherently dangerous. Dr. Jaiswal could not say whether the appellant was at a higher risk of violence than any other person with an intellectual disability.

[18] In addition, it bears repeating what the function of the Board is. It is not simply to weigh the evidence put before it and reach a conclusion. The role of the Board is an inquisitorial one. As McLachlin J. said in Winko, at para. 54: "The court or Review Board has a duty not only to search out and consider evidence favouring restricting NCR accused, but also to search out and consider evidence favouring his or her absolute discharge or release subject to the minimal necessary restraints, regardless of whether the NCR accused is even present."

[19] Given the equivocal nature of the evidence that was before it, the Board had a positive obligation to test the evidence. It was required to probe the evidence and determine what level of risk could be established. Rather than doing that, the Board appears to have simply adopted the views expressed by the hospital and Dr. Jaiswal. That is not good enough.

[20] The Board also seems to have forgotten the high threshold that the significant threat requirement poses, as we have set out above. Indeed, that threshold has been referred to by this court as "an onerous one": Carrick (Re), at para. 17.

[21] We recognize that decisions of the Board are entitled to deference. However, to attract that deference, the decision of the Board must be a reasonable one. For a decision to be reasonable, it "must be justified in relation to the constellation of law and facts that are relevant to the decision": Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 105. The Board's decision, in this case, does not meet that standard.

[22] The Board has a non-discretionary responsibility to grant an absolute discharge if "it harbours any doubt about whether the NCR accused represents a significant threat": Marmolejo (Re), 2021 ONCA 130, 155 O.R. (3d) 185, at para. 35. On the record before the Board, it ought to have had that doubt.

[23] The appeal is allowed, the detention order is set aside, and an absolute discharge is granted.

"I.V.B. Nordheimer J.A."

"L. Sossin J.A."

"J. Copeland J.A."