



COURT OF APPEAL FOR ONTARIO

CITATION:
Murphy
    (Re), 2012 ONCA 813


DATE:  20121123

DOCKET: C55138

Doherty, LaForme JJ.A. and Glithero J. (
ad
    hoc
)

IN THE MATTER OF SHAUN MURPHY AN APPEAL UNDER PART XX.1 OF THE
CODE

BETWEEN

Her Majesty the Queen and North Bay Regional
    Health Centre

Respondents

and

Shaun Murphy

Appellant

Shaun Murphy, appearing in person

Paul Burstein, appearing as
amicus curiae

Megan Stephens, for the respondent

Heard and released orally:  November 15, 2012

On appeal from the disposition of the Ontario Review
    Board dated February 15, 2012.

ENDORSEMENT

[1]

The appellant was charged with
    threatening his nephew.  The altercation giving rise to the charge occurred
    against the backdrop of a longstanding family related dispute.

[2]

The appellant was found NCR in
    December 2011.  At the first hearing before the ORB in February 2012, the
    hospital took the position that the appellant should receive an absolute
    discharge.  The Crown did not take issue with that position.

[3]

After the hearing, the Board imposed
    a conditional discharge with certain terms primarily concerning the appellants
    residence.  The Board was, of course, obliged to make its own assessment as to
    the appropriate order and was not in any way bound by the opinion put forward
    by the hospital.

[4]

Amicus
, in his very helpful argument, contends that the
    Board applied the wrong legal test in determining that an absolute discharge
    was inappropriate and further contends that on a review of the entirety of the
    record, the Boards order is unreasonable.  Counsel submits that the appellant
    should have received an absolute discharge.

[5]

Crown counsel submits that while
    other panels of the Board may have come to a different conclusion, the
    determination that a conditional discharge was appropriate was not an
    unreasonable one within the meaning of the test articulated in
R. v. Owen
(2003), 174 C.C.C. (3d) at 1 (S.C.C.).

[6]

Counsel for
amicus
focused his submissions on the meaning of the requirement in s. 672.54(a) that
    the appellant pose a significant threat to the safety of the public.  As the
Criminal
    Code
clearly indicates, that requirement is a condition precedent to any
    order the Board may make apart from an absolute discharge.  In other words, if
    the significant threat criterion is not established, the Board must grant an
    absolute discharge.

[7]

The Board, in concluding that
    the significant threat threshold was crossed, said this, at p. 9 of its
    reasons:

The accused suffers from a delusional disorder and the Review
    Board is satisfied that the duration and nature of the delusion
has caused psychological stress and is likely to cause
    psychological stress again
, particularly to the victims of the offence. 
    It might be that the altercation with Michael Murphy was an unusually heated
    episode, but given the lengthy and unresolved delusion that the accused
    believes he is being cheated by the victim and others,
it
    cannot be ruled out that a physical response by the accused would not take
    place if the context provided for this.
[Emphasis added.]

[8]

With respect, the above-quoted
    passage reveals errors by the Board in its appreciation of the significant
    threat threshold.  First, psychological stress is not enough to satisfy that
    test.  The stress must rise to the level of significant harm.  More
    importantly, the significant psychological harm must be the product of
    criminal behaviour on the part of the appellant.  Conduct by an accused that
    may generate significant psychological stress for others cannot justify an
    order restricting liberty under this part of the
Code
unless that
    conduct is criminal.  Further, the Boards determination that a physical
    response by the accused could not be ruled out is far below the level of risk
    of substantial harm needed before the significant threat threshold is crossed.

[9]

With respect to the Board, who
    obviously gave the matter careful consideration, it erred in its determination by
    applying a standard that was well below the standard demanded by the Criminal
    Code.  When the entirety of the evidence before the Board is considered against
    the proper standard, no reasonable Board would determine that the significant
    threat standard had been met.  Consequently, an absolute discharge was the only
    reasonable order.

[10]

We indicate for the purpose of
    completeness that when we talk about all of the evidence, we mean the hospital
    records and the medical opinions based on those records, the appellants long
    history of non-criminal conduct while in the community and apparently suffering
    from the mental disorders that he continues to suffer from at this time, the
    police summary of the precipitating incident and the important testimony from
    the appellants former wife and daughter, both of whom offer strong support for
    the appellant.

[11]

In the result, the appeal is
    allowed, the order of the Board is set aside, and an order should issue
    granting an absolute discharge.

Doherty J.A.

H.S. LaForme J.A.

C. Stephen Glithero
    J.A (
ad hoc
)


