Court of Appeal for Ontario

Date: 2025-06-26
Docket: COA-24-CR-1274
Before: Huscroft, Favreau and Monahan JJ.A.

In the Matter of: Victoria Frazer

An Appeal under Part XX.1 of the Criminal Code

Appearances:
Anita Szigeti, for the appellant
Adrianna Mills, for the respondent Attorney General of Ontario
Jessica Szabo and Anne Marshall, for the respondent Person in Charge of Ontario Shores Centre for Mental Health Sciences

Heard: June 16, 2025

On appeal from the disposition of the Ontario Review Board, dated October 28, 2024, with reasons dated November 25, 2024.

Huscroft J.A.:

Overview

[1] The appellant, Victoria Frazer, appeals from the October 28, 2024 disposition of the Ontario Review Board. The Board concluded that the appellant represents a significant threat to the safety of the public. The Board ordered her continued conditional discharge but removed the requirement that she reside at CMHA housing in the Durham region.

[2] The appellant argues that she is not a significant threat to the safety of the public and seeks an absolute discharge. In the alternative, she seeks to amend the terms of her conditional discharge to permit her to use cannabis and alcohol, or to have the matter returned to the Board for a new hearing.

[3] For the reasons that follow, I conclude that the Board’s determination that the appellant is a significant threat to the safety of the public is not reasonable. The appellant is entitled to an absolute discharge.

Background

The Index Offences

[4] On February 2, 2017, the appellant was found not criminally responsible (“NCR”) on charges of assault with a weapon, assault of a peace officer, and failure to comply with probation. She had been throwing rocks at passing vehicles and pedestrians. After a man intervened and called 911, the appellant hit him in the face with a rock. Soon after, the appellant came upon a police car and tried to get in through the driver’s door. A police officer pushed the appellant back and the appellant struck her with her fists and a pencil she was carrying and threatened to kill her. The appellant also bit the officer on her arms.

Prior Criminal Record

[5] The appellant had five prior assault convictions before the index offences, committed between 2012 and 2016, including one for assaulting a police officer. No details beyond the hospital report summary are before the court, but the appellant received suspended sentences, one day in custody, credit for pre-trial custody, a two-year firearms prohibition, probation and $5 fines.

[6] The appellant has no convictions since the index offences.

The Appellant Has Been Under Board Jurisdiction Since 2017

[7] The appellant was detained at Ontario Shores Centre for Mental Health Sciences in 2017. She was discharged to live in the community in October 2020. She returned to the hospital in May 2021 when her mental state deteriorated. She was discharged in December 2022 to a supportive congregate living environment, and in October 2023 moved into a basement apartment.

[8] The appellant was granted a conditional discharge at her annual review in 2023 and was permitted to move into an independent apartment on August 1, 2024. She is required to report to the person in charge once every two weeks. There has been at least one noise complaint against the appellant and a verbal altercation on a bus between the appellant and two other passengers, but her time living independently has otherwise been uneventful.

Decision of the Board

[9] The Board was required to determine whether the appellant poses a significant threat to public safety. She is not presumed to be dangerous and bears no burden of proof in proceedings before the Board.

[10] The Board found as follows:

1. The appellant has been diagnosed with schizoaffective disorder, bipolar type, and cannabis use disorder, moderate in sustained remission.
2. The appellant’s lack of insight into her psychotic illness increased the risk that she would not adhere to treatment. This finding was supported by the evidence of her treating psychiatrist, Dr. Bhullar, as well as the appellant’s evidence at the hearing, where she disagreed that schizoaffective disorder was the right diagnosis.
3. The appellant has historically been medication compliant and has not said that she would stop medications if left on her own. However, her adherence to treatment was “externally motivated”, in particular by her desire to live independently.
4. The appellant would consume cannabis and alcohol if granted an absolute discharge. This would lead to mental instability and increased risk, as alcohol and cannabis have a destabilizing effect on those with schizoaffective disorder.
5. The appellant decompensated when she used cannabis in 2018 and in 2020.
6. The appellant seemed to be “adapting well” when she moved to an independent apartment in 2024 but there was at least one complaint from neighbours about noise from her apartment. In addition, the appellant reported that she had engaged in a verbal altercation with two men on a bus, during which she said “let’s take this off the bus”.

[11] The Board concluded that the appellant continues to represent a significant threat to the safety of the public. The Board’s reasoning is contained in the following passages:

The panel concluded that the evidence established that Ms. Frazer continues to represent a significant threat to the safety of the public. We acknowledge that Ms. Frazer has not been physically violent in quite some time but we attribute this to the oversight and interventions of the treatment team. If Ms. Frazer were granted an absolute discharge, we were satisfied that she would, over a matter of months, fall away from treatment, stop her medications, use cannabis and decompensate. She would become paranoid and disorganized. She would experience hallucinations. She would become more volatile, more irritable, and more aggressive. Her mental state would resemble her mental state at the time of the index offences and she would pose the same risk. She would be a real risk of causing someone serious bodily harm through physical violence.

[W]e were convinced that between the real risk that she would stop her medications and the real risk that cannabis use would also interfere with her mental stability, Ms. Frazer would be likely to decompensate and become paranoid, disorganized, agitated and aggressive. Ms. Frazer remained a significant threat to the safety of the public.

Discussion

[12] Section 672.5401 of the Criminal Code, RSC 1985, c C-46 defines “significant threat to the safety of the public” as “a risk of serious physical or psychological harm to members of the public … resulting from conduct that is criminal in nature but not necessarily violent.”

[13] As this court explained in R. v. Ferguson, 2010 ONCA 810, para 8, the phrase “significant threat to the safety of the public” refers to a “foreseeable and substantial risk” that is beyond trivial or annoying: “A very small risk of even grave harm will not suffice. A high risk of relatively trivial harm will also not meet the substantial harm standard.” The significant threat standard is an onerous one: Re Carrick, 2015 ONCA 866, para 17. It requires proof rather than speculation: “The Board must be satisfied as to both the existence and gravity of the risk of physical or psychological harm posed by the appellant in order to deny him an absolute discharge.” The relevant law is summarized in Re Carrick, 2018 ONCA 752, paras 15-20.

The Standard of Review

[14] The standard of review is set out in s. 672.78(1) of the Criminal Code:

The court of appeal may allow an appeal against a disposition or placement decision and set aside an order made by the court or Review Board, where the court of appeal is of the opinion that
(a) it is unreasonable or cannot be supported by the evidence;
(b) it is based on a wrong decision on a question of law; or
(c) there was a miscarriage of justice.

[15] The question on this appeal is whether the Board’s decision that the appellant poses a significant threat to public safety is unreasonable. That is, whether the Board’s reasoning process and outcome reflect an “internally coherent and rational chain of analysis … that is justified in relation to the facts and law”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, paras 84-86.

The Board’s Decision is Unreasonable

[16] It is uncontroversial that the appellant has not been violent since the index offences in 2017. She has been living independently since August 2024.

[17] The respondents defend the Board’s decision on the basis that the appellant lacks insight into her psychotic symptoms and in light of Dr. Bhullar’s concern that she would discontinue medication if granted an absolute discharge. However, they acknowledge that the appellant has been historically medication compliant and has not said that she would stop taking her medication.

[18] Dr. Bhullar suggested that the appellant may be having paranoia symptoms, but it was an issue that her treatment team needed to explore. Although neither the noise complaint at her apartment nor the verbal dispute on the bus involved violence, Dr. Bhullar drew parallels between these incidents and the index offences and expressed concerns about the appellant’s ability to manage stress and frustration. However, in answer to questions from the panel, the respondents acknowledged that no actions were taken as a result of the incident on the bus or the noise complaint, despite the concerns identified by the Board. They also confirmed that there have been no incidents involving the appellant in the months since the hearing.

[19] The concerns identified by the Board are real; it is possible that they may be realized. But the Board does not explain how they establish a “significant threat to the safety of the public”.

[20] The Board acknowledged that the appellant had not been violent in “quite some time” but reasoned that, if granted an absolute discharge, she would “fall away from treatment, stop her medications, use cannabis and decompensate ... become paranoid and disorganized ... experience hallucinations ... become more volatile, more irritable, and more aggressive”. From this, the Board concluded that “[h]er mental state would resemble her mental state at the time of the index offences and she would pose the same risk.” This does not reasonably establish a serious risk of physical or psychological harm to the public resulting from serious criminal conduct.

[21] The Board attached significant importance to the appellant’s lack of insight into her mental illness. The appellant’s insight into her condition is certainly a relevant consideration, Kalra (Re), 2018 ONCA 833, but it appears to have played an outsized role in the Board’s conclusion that the appellant posed a significant threat.

[22] The appellant is not the first NCR accused to be at risk of non-compliance with medications or substance use. Release always involves risk. Given the appellant’s lack of insight into her mental illness, an absolute discharge may not be in her best interests. But the test the Board must meet is an onerous one: the appellant is entitled to an absolute discharge unless the Board reasonably finds that she poses a serious risk of physical or psychological harm to the public resulting from serious criminal conduct. Respectfully, the Board’s conclusion that this threshold is met in the circumstances of this case is unreasonable.

Disposition

[23] I would allow the appeal and grant the appellant an absolute discharge.

Released: June 26, 2025

“G.H.”
“Grant Huscroft J.A.”
“I agree. L. Favreau J.A.”
“I agree. P.J. Monahan J.A.”