



COURT OF APPEAL FOR ONTARIO

CITATION: Marfo (Re), 2021 ONCA 480

DATE: 20210707

DOCKET: C68732

Hourigan, Paciocco and Zarnett
    JJ.A.

IN THE MATTER OF: Alfred Marfo

AN APPEAL
    UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Vallery Bayly, for the respondent,
    Attorney General of Ontario

Leisha Senko, for the respondent,
    Person in Charge of the Centre for Addiction and Mental Health

Heard: June 24, 2021 by video conference

On appeal from the disposition of the
    Ontario Review Board dated July 24, 2020, with reasons dated October 14, 2020.

REASONS FOR DECISION

Introduction

[1]

The appellant appeals the disposition of the
    Ontario Review Board (the Board) that ordered him to be detained on the
    General Forensic Unit at the Centre for Addiction and Mental Health (CAMH) on
    conditions.

[2]

The appellant contends that the Board erred in
    law in finding that he was a significant threat to the safety of the public,
    and thus in failing to grant an absolute discharge. Alternatively, he submits
    that the Board erred in law in failing to give meaningful consideration to a
    conditional discharge, and to the extent the Board did consider a conditional
    discharge, it unreasonably failed to grant one. The appellant concedes that he
    has a history of violence committed against intimate partners, but places central
    reliance on what he says was the Boards failure to take note of a four year
    period of stability between 2015 and 2019, during which the appellant lived in
    the community while on bail in relation to the index offences.

[3]

A decision of the Board is subject to deference
    on appeal. This court may intervene only if the Board made an error of law,
    there was a miscarriage of justice, or the decision is unreasonable or cannot
    be supported by the evidence:
Criminal

Code
, R.S.C.,
    1985, c. C-46, s. 672.78. We do not accept the appellants arguments that a
    basis for appellate intervention exists in this case. We therefore dismiss the
    appeal.

Background

[4]

In April
2001, the appellant assaulted his
    common law wife and, for several hours, forcibly confined her in their
    apartment. In October 2001, he was found not criminally responsible due to a mental
    disorder (NCR) on charges of forcible confinement, assault with a weapon, and
    aggravated assault, and came under the jurisdiction of the Board.

[5]

The appellant continued under the Boards
    jurisdiction until 2014. Between 2001 and 2014, he had a number of lengthy
    admissions to CAMH, Millhaven Institution, and the Mental Health Centre
    Penetanguishene (now Waypoint Centre for Mental Health Care).There were also
    periods during which he was permitted to live in the community.

[6]

In November 2003, while living in the community,
    the appellant assaulted, sexually assaulted, and forcibly confined a second
    intimate partner. On this occasion, the forcible confinement lasted nine hours.
    He was ultimately found NCR on charges arising from that conduct.

[7]

In August 2014, the appellant received an
    absolute discharge from the Board.

[8]

Within a year of his discharge, on March 8,
    2015, the appellant committed the index offences against a third intimate
    partner. He confined her in an apartment for five hours, prevented her from
    calling the police, hit her, and threatened to kill her.

[9]

After an initial period of detention following
    his arrest for the index offences, the appellant was granted bail and lived in
    the community for more than four years. He was supported by payments under the
    Ontario Disability Support Program, and episodic work. He was treated by family
    physicians and prescribed anti-psychotic medication; he had a number of
    psychiatric assessments.

[10]

On December 18, 2019, the appellant was found
    NCR in relation to the index offences, on charges of assault causing bodily
    harm, assault with a weapon, and sexual assault.

[11]

On July 9, 2020, the Board held a hearing to
    determine whether the appellant was a significant threat to the community and,
    if so, what disposition was necessary and appropriate.

The Boards Decision

[12]

At the hearing before the Board, CAMH and the
    Crown took the position that the appellant was a significant threat to the
    safety of the public and that a detention order was necessary. They opposed
    either an absolute or conditional discharge. The appellant requested an
    absolute discharge, or alternatively a conditional discharge. He relied heavily
    on his conduct while on bail during the four years following the index
    offences, taking the position that he had educated himself on his illness,
    taken rehabilitative steps, seen a physician regularly, taken prescribed
    medications, and received support from his mother.

[13]

The
Board concluded that
    the appellant posed a significant threat to the community and made a detention
    order, with privileges up to living in the community in accommodations approved
    by the Person in Charge.

[14]

The Board noted the appellants significant
    psychiatric history and service utilization. He has been diagnosed with
    schizophrenia with symptoms of delusional ideation, auditory and visual
    misperceptions, affective instability disinhibition, and agitation. His
    delusional system was pervasive.

[15]

The Board accepted the evidence of Dr. Paul Benassi,
    who performed a psychiatric and mental status examination of the appellant in
    May 2020, and the reports of Dr. Philip Klassen, who conducted a psychiatric
    assessment for the court during the proceedings leading to the 2019 NCR
    finding. The Board noted that both psychiatrists concluded that the appellant posed
    a significant risk due to his significant and repeating violence, his psychotic
    illness and ongoing symptoms, problems with medication compliance, impaired
    insight into his illness, and his risk assessment scores.

[16]

Dr. Benassi gave evidence that the appellants
    treatment while in the community was suboptimal: he was taking medication in a
    dosage far below what was recommended, was continuing to experience psychotic
    delusions, and lacked interest in increasing his medication. These bore on the
    assessment of risk as, in Dr. Benassis view, the appellant had limited or
    impaired insight into his condition and need for treatment. Dr. Benassi
    testified that:

As we can see, Mr. Marfo has a significant
    history of violence, specifically in intimate relationships. From reviewing all
    incidents, but mainly the most recent index offence is that this has occurred
    under symptoms of psychosis, specifically paranoid delusions that have been
    directed towards his partner. It appears that even at that time, and currently,
    he still is not [optimally] treated for his psychosis and still experiences
    active psychosis. It appears that when he is in intimate relationships, this
    can be a destabilizer for him where it will elicit more of these paranoid
    delusions, which then lead him to act out in an impulsive and violent manner
    towards his partner.

[17]

Dr. Benassi stressed the need to be able to intervene
    quickly to manage risk and described the challenges of attempting to do so by
    resort to the
Mental Health Act
, R.S.O. 1990, c. M.7 (
MHA
).

[18]

The Board considered the appellants evidence and
    came to the same conclusion. It found that the appellant was over-confident in
    his ability to self-diagnose and would not recognize his symptoms if he
    decompensated. He was suboptimally treated under the care of his family
    physician and would not consent to an appropriate dosage of medication.
    Additionally, the appellant has a history of withholding information. He gave
    inconsistent answers about his working hours, the frequency at which he sees
    his doctor, withheld that he has two pharmacies dispensing his drugs, and that
    he had a new intimate partner. The Board expressed concerns about the appellants
    ability to mask his symptoms and convince doctors that he is not unwell.
    Finally, it found that the appellant takes no responsibility for his actions,
    blaming alcohol or his partner for his offences. The Board concluded that the
MHA
is not sufficient to manage the appellants risk because by the time the
    unwellness is obvious, the appellant would be well on his way to
    decompensation and violence.

Analysis

[19]

The appellant argues that the Board erred in
    finding that he was a significant threat to the safety of the public by placing
    undue focus on the existence of a major mental illness and giving insufficient
    attention to the fact that he had been able to live peacefully for four years
    on bail, despite the existence of a mental disorder.

[20]

We disagree. The Board described the issue before
    it as whether the appellant is a significant risk to the community in the first
    paragraph of its decision. After discussing the evidence, it concluded 
that Mr. Marfo poses a significant threat
    to the safety of the public as enunciated in [
Winko
    v. British Columbia (Forensic Psychiatric Institute),

[1999] 2 S.C.R. 625]
.
The psychiatric evidence that the Board accepted went beyond the
    existence of psychiatric disorders; it related those disorders to the
    appellants history of intimate partner violence and identified the significant
    risk of further intimate partner violence, should the appellant find himself in
    a committed or cohabiting relationship. The Board cited the correct test and
    applied it. It did not ignore the appellants four years on bail.

[21]

We do not accept the appellants argument that
    the Board should not have considered the reports of Dr. Klassen, as his reports
    were prepared for the court proceedings in relation to the index offences. In
    any event, in light of the Boards acceptance of the evidence of Dr. Benassi,
    the alleged error had no impact on the result.

[22]

The appellant also argues that the Board failed
    to give meaningful consideration to a conditional discharge, and that its
    decision not to grant one was unreasonable. We disagree. It is convenient to
    discuss both arguments together.

[23]

The Board noted that if it found the appellant
    to be a significant risk, the issue was the necessary and appropriate
    disposition. The Boards express discussion of a conditional discharge was
    limited to noting that the Crown and Hospital took the position that one would
    not be appropriate, and that the appellant requested, in the alternative, that
    a conditional discharge be granted. As the appellant correctly points out, the
    Boards analysis section does not use the words conditional discharge.

[24]

The Board is an expert tribunal. It noted that
    the parties took positions on a conditional discharge, and we are not prepared
    to conclude that the Board lost sight of the issue. Rather, read as a whole, it
    is clear from the Boards reasons that it decided not to grant a conditional
    discharge because it would not be appropriate to do so. The factors it referred
    to in fashioning a disposition that was necessary and appropriate include those
    relevant to why a conditional discharge was rejected. For example, the Board
    found that, in this case, the
MHA
was insufficient to protect public
    safety. This court has held that the need to be able to intervene in a timely
    fashion and the adequacy of the
MHA
regime in a specific case are
    relevant considerations when deciding whether a conditional discharge is
    appropriate:
Davies (Re)
, 2019 ONCA 738, 380 C.C.C. (3d) 552, at paras.
    28-32.

[25]

In light of the appellants history of three
    sets of violent offences  one committed while the appellant was under the
    Boards jurisdiction but had been permitted to live in the community, and another
    within a year of his absolute discharge  and the psychiatric evidence that it
    accepted, the Boards finding that there was a need to be able to intervene
    quickly and thus not to grant a conditional discharge was reasonable, even taking
    into account the appellants apparent stability while on bail. This court should
    be slow to second guess the Boards expert opinion about the appellants risk
    level and how it is best managed:
Fotiou (Re)
, 2020 ONCA 153, at para.
    14.

Conclusion

[26]

For these reasons, the appeal is dismissed.

C.W.
    Hourigan J.A.

David
    M. Paciocco J.A.

B.
    Zarnett J.A.


