



COURT OF APPEAL FOR ONTARIO

CITATION: Johnston (Re), 2022 ONCA 207

DATE: 20220314

DOCKET: C69623

Rouleau, Nordheimer and George JJ.A.

IN THE MATTER OF:  Kelvin Johnston

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti and Tanner Blomme, for
    the appellant

Andrew Hotke, for the respondent, Attorney
    General of Ontario

Kate Deakon, for the respondent, Person
    in Charge of Royal Ottawa Mental Health Centre

Heard: March 4, 2022 by video conference

On appeal from the disposition of the
    Ontario Review Board, dated June 4, 2021, with reasons dated July 2, 2021.

REASONS FOR DECISION

[1]

Mr. Johnston appeals from the disposition of the
    Ontario Review Board that continued the detention order against him. The appellant
    submits that the Board erred in continuing the detention order. In particular,
    he submits that the Board erred in finding that the appellant continues to pose
    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. Alternatively,
    the appellant asks for conditional discharge or a new hearing. For the
    following reasons, we dismiss the appeal.

[2]

The appellant has been under the auspices of the
    Board since February 2016 arising out of charges of uttering death threats,
    mischief and breach of probation. He was also under the auspices of the Board
    in 2008 arising out of charges of mischief, failure to comply and possession of
    drugs but he was absolutely discharged in 2010. His current detention arises
    out of the second NCR finding in 2016.

[3]

The Board found that the appellant continues to
    pose a significant risk to the safety of the public. The Board accepted the
    evidence of the attending psychiatrist, Dr. Gojer, that if left to his own
    devices, the appellant would resort to drugs and alcohol which would lead to a
    decompensation of his condition with an increasing risk of violence. The
    Board was entitled to accept and rely on that opinion:
K.S. (Re)
, 2022
    ONCA 170, at para. 7. The Board also noted that this is exactly what happened
    when the appellant stopped taking one of his medications in 2020.

[4]

The appellant submits that the Board
    misunderstood Dr. Gojers evidence in coming to its conclusion that a serious risk
    to public safety was established. We do not agree. Dr. Gojers evidence was
    clear that the appellant would likely decompensate, if he was discharged,
    because he would stop taking his medication. Dr. Gojer also said that, if that
    occurred, the appellant would likely become violent, as he has in the past. We
    note that only Dr. Gojer testified before the Board on this issue.

[5]

The appellant quarrels with the Boards finding
    that these consequences amount to a serious risk to public safety. The
    appellant says that, not only has his condition been stable for the past year, but
    there was insufficient evidence that he would commit a serious criminal offence
    if he did decompensate. We do not accept this contention. While the appellants
    condition has been stable for the past year, that results largely from the fact
    that he is under the control of the hospital and his compliance with his
    medications can be monitored. With respect to the requirement that there be
    evidence that a person will commit a serious criminal offence, this has to be
    understood in the context of what serious means. Serious in this context is
    described as going beyond the merely trivial or annoying:
Winko v.
    British Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625, at
    para. 62.

[6]

Reasonable people might differ over which
    criminal offences are serious and which are not. Regardless, in our view, the
    appellants threats to kill people satisfies the seriousness requirement. Further,
    the evidence is that the appellant resorts to violence, if his condition
    deteriorates. While the appellant may consider that his prior assaultive
    behaviour did not involve serious physical attacks, others might take a
    different view. It is certainly clear that the appellant has the physical
    capability of inflicting serious harm. On that point, we reiterate that it is
    the potential harm that must be serious, not the actual harm caused. The fact
    that the appellant has not inflicted physical harm on any individual in the
    past is no assurance that he would not in the future. The purpose of the risk
    analysis is to identify and guard against significant risks to public safety,
    not to wait for the worst to occur.

[7]

It was open to the Board, on the evidence, to
    conclude that the appellant posed a significant risk to public safety. The
    appellant has failed to demonstrate that the Boards conclusion is
    unreasonable. In our view, this case mirrors the situation described in
R.
    v. Starson
(2004), 183 C.C.C. (3d) 538 (Ont. C.A.) where Rosenberg J.A.
    said, at para. 24:

Thus, the fact that, to date, the appellant
    has never physically harmed anyone does not render the Board's decision
    unreasonable. There was a body of evidence to support a finding that the
    appellant continued to represent a real risk of serious psychological harm to
    members of the public by his threatening behaviour, which in the past has
    included threats of death.

[8]

Finally, we also do not accept that the Board
    failed to consider the alternative of granting a conditional discharge. The
    Board accepted the evidence of the attending psychiatrist that the appellant
    would deteriorate fairly quickly if he relapsed. That rapid deterioration
    made control and management of the appellant on a conditional discharge
    problematic. Quick reaction was required if a relapse occurred. A detention
    order provides the ability to immediately respond. Again, that was a reasonable
    conclusion for the Board to reach.

[9]

The appeal is dismissed.

Paul Rouleau J.A.

I.V.B. Nordheimer J.A.

J. George J.A.


