



COURT OF APPEAL FOR ONTARIO

CITATION: Edwards (Re), 2016 ONCA 901

DATE: 20161129

DOCKET: C61825

LaForme, Rouleau and Brown JJ.A.

IN THE MATTER OF: STEVEN EDWARDS

AN APPEAL UNDER PART XX.1 OF THE
CODE

Sia Pashang, for the appellant

Dena Bonnet, for the respondent, Her Majesty the Queen

Michele Warner, for the respondent, Centre for Addiction
    and Mental Health

Heard: November 23, 2016

On appeal against the disposition of the Ontario Review
    Board dated, January 26, 2016.

ENDORSEMENT

Introduction

[1]

In 2009, the appellant punched a victim in the face after she refused to
    give him a cigarette. After being confronted by several witnesses, he then
    entered a nearby TTC bus, walked to the back, poured an accelerant on the rear
    seats and set the bus on fire. The bus was quickly engulfed in flames and
    destroyed. All on board escaped without injury.

[2]

The appellant was identified by security footage and was later found not
    criminally responsible on account of mental disorder. On April 30, 2015, he was
    discharged from detention subject to conditions. On November 30, 2015, he was
    admitted to CAMH and remained as a voluntary patient.

[3]

After his most recent review on January 20, 2016, the Ontario
    Review Board concluded that a detention order with placement on CAMHs General
    Forensic Unit was the necessary and appropriate disposition in all the
    circumstances. He appeals that order and
argues
    that a conditional discharge is appropriate.

[4]

At the Board hearing the appellant conceded that the test for
    dangerousness is met under s. 672.54 of the
Criminal Code
as well as
Winko
    v. British Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625,
    at paras. 47, 50, 62. In this court, although he no longer concedes
    dangerousness, the focus of his submission is that a conditional discharge is
    the least onerous and least restrictive disposition, taking account of all the
    factors enumerated in the
Criminal Code
and in
Winko
. He says
    that the Boards decision not to order this disposition is unreasonable and is
    not supported by the evidence. Further, he says the Board placed undue weight
    on the areas where improvement was needed.

The Issue

[5]

The central issue is whether it was reasonable for the Board to find
    that the appellants risk needed to be managed with a detention order, as
    compared to his previous disposition, which was a conditional discharge.

[6]

The following reasons explain why the Boards decision is entitled to
    deference and why the appeal should be dismissed.

Discussion

[7]

The Board appreciated that this was a somewhat unique case where the
    hospital was seeking to add an additional restriction to the appellants
    liberty from that ordered on April 30, 2015. The hospital had made a similar
    request for a detention order at the previous hearing, but the Board declined
    to order it. However, at that time, the Board did observe that the appellants
    risk factors had been worsening.

(1)

The Appellants Risk

[8]

Before the Board, the appellant conceded that he continues to represent
    a significant threat to the safety of the public. In spite of this concession,
    the appellant in this court relies on authorities such as
Carrick (Re)
,
    2015 ONCA 866, 128 O.R. (3d) 209, to argue that the Boards conclusion, both
    that he represents a significant threat to the safety of the public and that it
    was appropriate to impose a detention order, are unreasonable. He submits that the
    Board could not simply focus on the potential for breach, as he says it did,
    but must also consider the possible consequences of any breach. It is those
    consequences, he says, which must constitute a significant threat to the safety
    of the public. The risk of the appellants consumption of drugs and other
    breaches are, he contends, speculative and cannot be said to amount to the
    requisite level of risk.

[9]

The Board, at para. 27 of its reasons, specifically addressed the issue
    of risk. It referenced
Carrick
and carefully considered the
    direction mandated by this court. The Board then noted that even if the
    appellant could be taken as conceding that he
continues
    to represent a significant threat to the safety of the public, it was still
    required to consider the evidence to support such a conclusion and make its own
    finding. We accept the approach taken by the Board for the purposes of this
    appeal.

[10]

At para. 28, the Board accepted without hesitation that the appellant
    continued to represent a significant threat to the safety of the public. The
    Board relied on evidence from the hospital and from Dr. Walton of a significant
    change in the appellants mental health since the appellants most recent prior
    hearing.

[11]

Dr. Walton testified that the appellants cocaine use is related
    directly to his major mental illness. The decompensation in his mental state
    brought with it an increased risk of violence. She said that he demonstrated an
    acute increase in his risk commencing in September 2015. Her opinion is as
    follows:

I think the threat for [the appellant] is quite closely related
    to his mental health problems and substance addictions. He suffers from
    schizophrenia and substance use disorder; particularly crack cocaine has been
    the most recent. In the context of both of those issues [the appellant] is at
    increased risk of violence in the community. There is a significant history
    outlined in his hospital report of violent behaviour while actively psychotic;
    making threats, lighting things on fire, even separate from his index offence.
And I think that the recent deterioration in the fall of 2015
    of his mental state was a significant indicator that his level of risk of
    violence was acutely increased
. [Emphasis added.]

[12]

In sum, Dr. Waltons evidence was that the appellants mental illness  schizophrenia
     when combined with his substance use disorder, especially when he used crack
    cocaine, meant that he would begin to show signs of psychosis. When this had
    happened in the past, the appellant had been violent. Past examples of his
    violent behaviour included the index offence and his criminal record.

[13]

The hospitals Report, dated November 20, 2015, was an important piece
    of evidence for the Boards decision. The Report noted that the appellants
    history over the past reporting period included two prolonged periods of
    substance use relapse, involving cannabis and cocaine, which resulted in a
    change in his mental state. He also withdrew from structured activities,
    increased his interaction with antisocial peers and was involved in new
    criminal charges. The Report stated that the appellants risk to the public
    escalates as his use of drugs continues, because psychotic symptoms will become
    more likely to emerge.

[14]

This evidence was hardly speculative and was more than sufficient for
    the Board to find that the appellant continued to represent a significant
    threat to the safety of the public. The decision is entirely reasonable.

(2)

The Boards Disposition

[15]

Finally, we also reject
the
    appellants submission that his risk could be addressed equally on a
    conditional discharge or a detention order. The hospitals reasonable
    assessment that the appellant should reside in approved, supervised community
    housing and that the hospital should be able to return the appellant to the
    hospital in the event of any decompensation in his mental status similar to
    that which occurred in November and December 2015, meant that a conditional
    discharge was not the appropriate disposition.

[16]

Because of his drug use, decompensation and other recent
    activities, the hospital concluded that the appellant required placement in
    approved accommodation with support and supervision to effectively manage his
    risk in the community. The hospitals recommendation to the Board was a
    Detention Order with community living in accommodation approved by the
    hospital. The Board reasonably accepted this medical recommendation.

[17]

We agree with the respondents that it was open to the Board to find
    that, in these unusual circumstances, the necessary and appropriate disposition
    was a detention order with community living. This was a fair result in a
    situation where there were ongoing concerns about the appellants risk level
    and the management of that risk.

Conclusion

[18]

The Board carefully considered the evidence before it and reached a
    reasonable decision. This court recently restated the reasonableness standard
    of review in
Carrick
, at para. 24, where Huscroft J.A. described it as
    follows:

[R]easonableness review begins from the premise that questions
    before specialized tribunals may not give rise to a single, correct answer. A
    range of reasonable decisions may be made in a particular context and that
    range may be more or less broad, depending on a number of considerations in all
    the circumstances.

The Boards decision in this case conforms to this
    standard. Therefore, this court owes deference to it. Accordingly, the appeal
    is dismissed.

H.S. LaForme J.A.

"Paul Rouleau
    J.A."

"David Brown
    J.A."


