Court of Appeal for Ontario

Date: 2025-08-28

Docket: COA-25-CR-0020

Judges: Zarnett, George and Gomery JJ.A.

In the Matter of: Michael Colatosti

An Appeal Under Part XX.1 of the Code

Counsel:

Anita Szigeti, for the appellant
Brent Kettles, for the respondent, Attorney General of Ontario
Michele Warner, for the respondent, Person in Charge of Centre for Addiction and Mental Health

Heard: August 19, 2025

On appeal from the disposition of the Ontario Review Board, dated December 13, 2024, with reasons dated January 2, 2025.

Reasons for Decision

Introduction

[1] Michael Colatosti appeals the Ontario Review Board's December 13, 2024 disposition order requiring him to continue to be detained at the Centre for Addiction and Mental Health ("CAMH"). The order maintains privileges previously extended to Mr. Colatosti, including living in the community in accommodation approved by the person in charge, and extends the length of travel passes that he can obtain for accompanied travel in Canada.

[2] Mr. Colatosti contends that the Board's disposition is not the least onerous and restrictive disposition commensurate with public safety and is neither necessary nor appropriate. He seeks a conditional discharge. Alternatively, he seeks an additional term that would empower the person in charge to grant authorization for 14-day travel passes in the United States. If this court is unable to make these orders on the current record, he seeks a rehearing by the Board.

[3] We are not persuaded that the Board erred in law or that its disposition is unreasonable or results in a miscarriage of justice.

Mr. Colatosti's History and Current Situation

[4] Mr. Colatosti is 38 years old. In his late 20s, he became a heavy marijuana user. He lost his job and was asked to leave his parents' home. He moved in with his grandparents in 2017. In 2018, he stabbed his grandmother to death with a kitchen knife and attacked her personal support worker. He was found not criminally responsible on account of a mental disorder in April 2020 and detained at CAMH. He is diagnosed with cannabis-induced psychotic disorder and polysubstance use disorder, but a primary psychotic disorder has not been ruled out.

[5] Mr. Colatosti's active psychotic symptoms have been in remission since he committed the index offence in 2020. He has been employed at two jobs in the community since 2022. Since March 2024, he has been living in 24-hour supervised, high support, rehabilitation housing in the community. He has the support of his family and girlfriend. His employers have written letters of recommendation for him. There has been some friction between Mr. Colatosti and staff at the rehabilitation facility where he currently lives, but no violent incidents. He has not consumed any cannabis or other recreational drugs in years.

The Board's Decision

[6] Although the Board acknowledged Mr. Colatosti's commitment to ensuring that his symptoms remain in remission, it concluded that Mr. Colatosti should not be conditionally discharged. The offences he committed in 2018 are extremely serious. All parties, including Mr. Colatosti, agreed that he continues to represent a significant threat to public safety. The Board noted that Mr. Colatosti had become less engaged with his treatment team since his transition to community housing, and that the possibility he has a psychotic disorder unrelated to his drug use has not been ruled out.

[7] The Board determined that a detention order remained necessary and appropriate because the hospital "needs to quickly intervene if [Mr. Colatosti] starts to decompensate and needs to be able to approve housing to ensure that Mr. Colatosti receives the support and monitoring necessary to assist him in navigating stress which remains a salient risk factor for him." In doing so, it relied on evidence from his treating psychiatrist, Dr. McMaster, that Mr. Colatosti is "overly optimistic that he will not become psychotic" and that he "will not appreciate subtle changes in his mental health caused by stress as he moves forward."

[8] The Board considered whether public safety would be adequately protected if Mr. Colatosti were conditionally discharged with a so-called "Young" clause, which would require him to attend at CAMH, at its request, for the purposes of assessment and re-admission under the Mental Health Act, R.S.O. 1990, c. M.7. The Board found that a Young clause would not sufficiently manage the risk posed by Mr. Colatosti because it was unlikely that the hospital could respond quickly enough to re-admit him and, even if a Young clause could get him to the hospital, it would not keep him there.

[9] The Board also considered whether Mr. Colatosti should be eligible for travel passes to the United States. The Crown opposed allowing him to obtain U.S. travel passes. The hospital supported it, although Dr. McMaster acknowledged that he was unfamiliar with the mental health resources in the U.S. that Mr. Colatosti could call upon if necessary. The Board concluded that it was premature to permit U.S. travel "given the unknowns that exist regarding [Mr. Colatosti's] diagnosis and his lack of transparency and the need to be able to act quickly to manage his risk."

[10] The Board did increase the length of trips that Mr. Colatosti could take in Canada from 7 days to 14 days, so long as he is accompanied by an approved person and his itinerary is approved in advance by the person in charge at CAMH.

The Denial of a Conditional Release Was Reasonable

[11] Mr. Colatosti says that the Board misapprehended the evidence and engaged in a superficial and conclusory analysis in refusing him a conditional discharge. We disagree.

[12] First, the Board did not make its decision based on Mr. Colatosti's refusal to take anti-psychotic medication when it was recommended to him on his admission to CAMH. The Board noted Dr. McMaster's evidence that such medication was no longer indicated. It later observed that pharmacological treatment might mitigate the risk to public safety, but that Mr. Colatosti had declined it. In our view, the Board's reference to Mr. Colatosti having declined anti-psychotic medication was gratuitous. However, after reading the reasons as a whole, it is apparent that the Board was simply acknowledging that pharmacological treatment is not a relevant consideration when assessing the risk that Mr. Colatosti presents.

[13] Second, it was open to the Board, on the evidence before it, to conclude that a Young clause would not adequately mitigate the risk that Mr. Colatosti's condition poses. Mr. Colatosti is effectively inviting us to reweigh the evidence and substitute our findings for those made by the Board. That is not our task. Dr. McMaster testified that Mr. Colatosti was not always able to appreciate subtle changes in his health and the risks they present. The Board was entitled to accept this evidence, notwithstanding Mr. Colatosti's assertion that he was vigilant about the risk that his condition presents and prepared to report to the hospital if necessary. The Board did not question Mr. Colatosti's commitment to remain healthy and well but noted his over confidence in his ability to manage his own decompensation and to handle stress factors. This was a reasonable assessment of the evidence to which this court must defer.

[14] It was likewise open to the Board to accept Dr. McMaster's evidence that CAMH's power to approve Mr. Colatosti's housing would help ensure that he received the necessary supervision and support to keep his stress levels at a manageable level and thereby mitigate the risk of a decompensation in his condition. Mr. Colatosti argues that the evidence shows that he has coped well with stressors in the workplace and in his current living arrangement. The Board was nonetheless entitled to make the finding it did, on the evidence as a whole.

The Denial of Eligibility for U.S. Travel Passes Was Reasonable

[15] The Board arguably should have asked further questions from witnesses at the hearing about Mr. Colatosti's plans for U.S. travel and should have better explained why concerns about the availability of local resources could not be addressed by CAMH when it was called upon to preapprove any trip that Mr. Colatosti proposed to take. We nonetheless conclude that the Board's conclusion on this issue was reasonable.

[16] Mr. Colatosti argues that the Board failed to fulfill its duty to seek out evidence relevant to its determination. In its reasons on this issue, the Board stated that it was reluctant to approve international travel "without hearing more evidence of a plan particularly if Mr. Colatosti were to decompensate and the prospect of an approved person accompanying Mr. Colatosti [sic]". The Board did not, however, seek out more evidence by asking Mr. Colatosti and his family questions about potential U.S. travel plans.

[17] We agree that the burden of reviewing all relevant evidence on both sides of the case rests on the Board, and the 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": Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 54.

[18] The Board did not make its decision in an evidentiary void, however. Dr. McMaster testified that he did not know what facilities would be available in the U.S. if Mr. Colatosti decompensated. Even if Mr. Colatosti or his family members had been questioned on this point, it would be reasonable for the Board to deny the request for permission to travel in the U.S. in the absence of a member of his treatment team confirming the adequacy of local resources that might be required. As Mr. Colatosti's counsel acknowledged at the hearing, the Board's duty to inquire does not extend to independently researching the adequacy of facilities that might be available if he required immediate treatment in the U.S.

[19] Mr. Colatosti points out that, if the Board had found him eligible for U.S. travel, he still would not be able to obtain a travel pass unless the person in charge at CAMH first approved his proposed itinerary and travel companion. He argues that this preapproval process, if properly investigated at the hearing, could have reasonably allayed the Board's expressed concerns.

[20] Ideally the Board would have addressed this point in its reasons. However, the ultimate responsibility for deciding whether Mr. Colatosti should be eligible to travel abroad rests with the Board, not CAMH. It would not be open to the Board to functionally delegate this responsibility to CAMH. It was reasonable, in our view, for the Board to conclude that it would be premature to grant permission for U.S. travel, given its legitimate concerns about Mr. Colatosti's history, the potential need for rapid intervention, and the absence of evidence about local resources.

[21] Finally, even if we were to have concluded that the Board failed to make inquiries, the remedy, as properly conceded by counsel, would be a new hearing. No purpose would be served by making such an order. It appears that Mr. Colatosti's eligibility for U.S. travel is hypothetical, at least for the time being. As his counsel conceded at the appeal hearing, there is no imminent prospect that U.S. authorities would allow him to cross the border, even if he had a travel pass from CAMH. Accordingly, the issue of travel passes to the U.S. is more appropriately considered at the next annual review, where Mr. Colatosti and the hospital may provide the Board with a more extensive record on which to address it.