


COURT OF APPEAL FOR ONTARIO

CITATION: Krivicic (Re), 2017 ONCA 379

DATE: 20170510

DOCKET: C62629

Weiler, Feldman and Huscroft JJ.A.

IN THE MATTER OF:  Elvis Krivicic

AN APPEAL UNDER PART XX.1 OF THE
CODE

Jill R. Presser,
Amicus Curiae

Elvis Krivicic, in person

Craig Harper, for the Respondent Crown

Janice Blackburn, for the Respondent persons in charge
    of Providence Health Care Kingston and North Bay Regional Health Centre

Heard: April 26, 2017

On appeal from the disposition of the Ontario Review
    Board dated August 11, 2016.

Huscroft J.A.:

[1]

The appellant, Elvis Krivicic, appeals the August 11, 2016 Disposition
    of the Ontario Review Board, which concluded that he constitutes a significant
    threat to the safety of the public and transferred him from the Secure Forensic
    Unit of the North Bay Regional Health Centre (North Bay) to the Secure Forensic
    Unit at Providence Health Care Kingston (Providence) with escorted hospital and
    grounds privileges.

[2]

Amicus
submits that the Board erred in failing to grant the
    appellants request for an absolute discharge. The Crown seeks to uphold the
    Boards disposition. The persons in charge of Providence and North Bay submit
    that the Boards disposition was reasonable at the time it was made, but it is
    appropriate for the court to grant the appellant an absolute discharge on the
    basis of fresh evidence.
Amicus
and the appellant also bring fresh
    evidence applications in support of their positions.

[3]

For the reasons that follow, I would admit the fresh evidence of the
    persons in charge of Providence and North Bay, allow the appeal, and remit the
    matter to the Board for a fresh determination.

A.

Background

[4]

The appellant is a 38 year-old man. On February 27, 2007, he was found
    not criminally responsible (NCR) on account of mental disorder in connection
    with one count of criminal harassment and two counts of failure to comply with
    recognizance.

[5]

The index offences involved repeated telephone calls and attempts to
    contact a woman the appellant did not know. The appellant has been detained in
    the mental health system pursuant to Board dispositions for over ten years
    since the index offence.

[6]

The appellant has been diagnosed with delusional disorder, erotomoaniac
    type, and adjustment disorder with depressed mood. He has a history of cannabis
    abuse as well as anti-social and schizoid personality traits. He has Crohns
    Disease and problems with his skin and is concerned that he has not been able
    to receive the medical treatment he requires.

B.

The decision of the Board

[7]

The Boards August 11, 2016 Disposition was based on the Boards prior Disposition,
    dated March 3, 2016. In that disposition, the Board noted that the appellant
    continued to deny that he has a mental illness and that he remains untreated
    and continues to be in a paranoid and delusional state. However, the Board also
    noted that the appellant had not been involved in any violent acts and had not
    made any attempt to contact the victim of the index offences. Nevertheless, the
    Board concluded that the appellant poses a significant threat to the safety of
    the public and that he should be transferred from the Waypoint Centre for
    Mental Health Care to North Bay.

[8]

In the normal course, the appellant would not have had another Board review
    for 12 months. However, as a result of a shortage of psychiatrists, North Bay
    requested an early Board review for the purpose of moving the appellant to an
    institution where he could receive psychiatric care. The result was the Boards
    August 11, 2016 Disposition that is the subject of this appeal.

[9]

The Board concluded that nothing had changed since its March 2016
    disposition and that the appellant continued to pose a significant threat to
    the safety of the public. The Board ordered that he be transferred from the
    Secure Forensic Unit of the North Bay to the Secure Forensic Unit at
    Providence, with escorted hospital and grounds privileges. A minority of the
    Board would have granted the appellant additional privileges.

C.

The Fresh Evidence

[10]

Amicus
 fresh evidence application consists of the full
    evidentiary record of the hearing that resulted in the Boards March 2016
    Disposition. The appellants fresh evidence application concerns his medical
    condition, in particular Crohns Disease, and treatment regime. The fresh
    evidence proffered by the persons in charge of Providence and North Bay is a
    report prepared by the appellants current psychiatrist, Dr. Chan, who expresses
    the view that the appellant does not meet the significant threat threshold and
    is entitled to an absolute discharge.

D.

Analysis

[11]

The Boards decision is subject to review on the reasonableness
    standard. The question for the court is whether, in all of the circumstances,
    the Boards has reached an
acceptable and defensible outcome.

[12]

In my view, the Boards decision is unreasonable in light of the fresh
    evidence proffered by the persons in charge of Providence and North Bay, which I
    would admit.

[13]

The appellant had not been seen by a regular psychiatrist between his
    transfer to North Bay and the August Board hearing. As noted above, the purpose
    of that hearing had been to transfer the appellant to an institution that could
    provide the psychiatric care not available at North Bay. The Board had no new
    information to go on in determining whether the appellant posed a significant
    threat to the safety of the public, and so relied on the information provided
    at the prior hearing in March in denying his request for an absolute discharge.

[14]

The fresh evidence provides an up-to-date medical report from the
    appellants current psychiatrist, Dr. Chan, based on a thorough psychological
    assessment conducted by a clinical forensic psychologist, Dr. Looman. He administered
    a different test than had been previously used to assess the appellants risk
    to the public if released. Dr. Chan expresses the opinion that the appellant
    does not meet the significant threat threshold.

[15]

This is significant evidence, as it is clearly at odds with the evidence
    relied on by the Board in its August 11 Disposition. However, Dr. Chans
    evidence has not been tested by the Crown, nor has it been evaluated by the
    Board. If Dr. Chans evidence had been before the Board in August, the Board
    would have had to evaluate it alongside the evidence it relied on in making its
    prior dispositions.

[16]

This is an unusual situation, in which the appellants new treating
    psychiatrist and the person in charge of his current treatment centre agree
    that he should be absolutely discharged.

[17]

In these circumstances, I would conclude that the Boards decision is now
    unreasonable. Through no fault of the Board, its decision is based on an
    incomplete picture. If Dr. Chans evidence is accepted by the Board, the
    appellant is entitled to an absolute discharge.

[18]

It is not for the court to reconcile the competing psychiatric evidence
    in this case. That is the responsibility of the Board, an expert body charged
    with responsibility for evaluating the medical evidence, and the Board must be permitted
    to do its job.

[19]

Accordingly, I would allow the appeal and remit the matter to the Board
    for a fresh determination in light of Dr. Chans evidence, and any other
    evidence it considers relevant.

[20]

The Board should hold its hearing as soon as possible, and in any event no
    later than June 14.

Grant Huscroft
    J.A.

I agree. K.M.
    Weiler J.A.

Feldman J.A. (dissenting as to remedy)

[21]

I agree with my colleagues that the fresh evidence tendered by the
    person in charge of the hospital should be admitted and considered by this
    court. That evidence is that in the opinion of the psychologist who tested the
    appellant, and the psychiatrist charged with his care, he does not pose a
    significant threat to the safety of the public and should be absolutely
    discharged.

[22]

In my view, based on the fresh evidence, and with no contradictory
    evidence either tendered or proposed, in accordance with s. 672.54 of the
Criminal
    Code
, the appellant should be granted an absolute discharge.

[23]

The fresh evidence tendered by the person in charge of Providence Care
    is the affidavit of Dr. Chan, the appellants treating psychiatrist, as well as
    the report of Dr. Looman, the psychologist who conducted the testing of the
    appellant.

[24]

Following the Boards disposition of August 11, 2016, the appellant was
    transferred to Providence Care, where he told Dr. Chan that he no longer posed
    a significant threat to the safety of the public. Dr. Chan decided that that
    issue should be reviewed. In particular, he noted that given the index offence
    of criminal harassment of a woman with whom the appellant had no prior
    relationship or romantic contact, it might be appropriate for the appellant to
    be assessed using psychological risk assessments that have been developed to
    address that type of issue.

[25]

Dr. Chan referred the appellant for a [thorough] psychological
    assessment with respect to risk to Dr. Looman, an experienced clinical forensic
    psychologist who practises at Providence Care.

[26]

Dr. Looman met with the appellant for six hours over the course of three
    days and reviewed the previous hospital reports prepared for Board hearings,
    including the appellants risk assessments. He noted that the last assessment
    was prepared at Waypoint Center in December 2015. It was done using the tool
    HCR-20. The appellant scored 28/36 with 2 items omitted. There were also
    clinical concerns of: lack of insight, negative attitude, active symptoms of
    major mental illness and unresponsiveness to treatment. His risk management
    concerns were lack of appropriate personal support and non-compliance with
    remediation attempts.

[27]

Dr. Looman reported that the appellant told him that the index offence
    occurred because a friend told him that the victim liked him. He said that once
    he understood that she did not want contact with him he stopped, and that his
    attempted contacts from jail were to extricate himself.

[28]

Dr. Looman noted that the HCR-20 assessment tool was specifically
    designed to predict risk for violent recidivism and doubted its applicability,
    given that the appellant has no history of violence, nor has he been violent in
    hospital despite his anger over his legal situation and his medical treatment.
    He noted that as the appellant was 38 years of age and the risk of violence
    decreases after age 40, it was reasonable to assume that the appellant was now
    unlikely to engage in violence into the future.

[29]

Dr. Looman decided that given the nature of the index offence, a stalking-specific
    risk assessment was the most appropriate. The results of the three parts of the
    Stalking Risk Profile were as follows: 1) risk of stalking violence, 2/15
    factors = low risk; 2) risk of persistence, 2 or 3/12 factors (lack of empathy
    is questionable) = low risk; risk of reoccurrence, 2/8 factors = low risk.

[30]

I quote his summary and conclusion in full:

Mr. Krivicic is thus considered to present a low risk for
    violence overall. While he continues to refuse treatment and remains
    delusional, his delusions focus on persecutory themes and he no longer thinks
    about the victim of his index offence. While he experiences anger regarding
    what he perceives as injustices he is subject to; he channels this anger into
    writing letters and complaints.

It should be noted that the current risk assessment reaches a
    quite different conclusion than previous assessments. The most recent
    assessment was conducted at Waypoint Centre in 2015 and assessed Mr. Krivicic
    using the HCR-20. As discussed above, I see this as an inappropriate tool for
    this purpose. Other assessments appear to have been clinical in nature and
    appear to have focused on his refusal of treatment and his on-going delusions
    as indicating an elevated risk. This again does not appear to be an appropriate
    conclusion for a variety of reasons; not least because clinical judgement
    regarding risk for re-offence is well-known to be inaccurate. Part of this
    inaccuracy is due to the fact that when making clinical assessments of risk for
    re-offence the person conducting the assessment tends to focus on factors which
    [are] NOT related to risk.

The risk assessment in the current report is the first to use a
    measure specific to Mr. Krivicics index offence, the Stalking Risk Profile,
    which is a validated measure of risk for stalking violence; and this assessment
    places him at low risk.

Mr. Krivicic is asking for an absolute discharge from his
    disposition. His current risk level would suggest that this is an appropriate
    result. In addition to his presenting a low risk for violence Mr. Krivicic is
    current[ly] experiencing a great deal of distress due to what he perceives as
    the forensic systems denying him access to what he sees as adequate medical
    care. Granting him a discharge will allow him to access the care he seeks, and
    may be considered to be in his best interest.

[31]

In his affidavit, Dr. Chan explained that the appellant told him he did
    not wish to proceed with the new evidence to an early Review Board hearing, as
    that would have the effect of making this appeal moot. That had already
    happened to the appeal of his March, 2016 Review Board disposition when the
    August hearing was held to transfer him to Providence Care from North Bay. Dr.
    Chan understood that the fresh evidence was being presented to this court.

[32]

Dr. Chan states that he endorses the conclusion reached by Dr. Looman,
    and that in his opinion the appellant does not meet the significant threat
    threshold for remaining under the jurisdiction of the Ontario Review Board,
    and that the person in charge of Providence Care supports the absolute
    discharge of Mr. Krivicic. He also wanted this court to be aware that if an
    absolute discharge were to be granted, Providence Care would provide a bed for
    the appellant for a reasonable period of time in order to facilitate discharge
    planning.

[33]

This case presents a very unusual situation where the person in charge
    of the hospital brings forward fresh evidence and supports an order of absolute
    discharge. I note that both respondents, the person in charge of Providence
    Care, and the person in charge of North Bay Regional Health Centre, where the
    appellant was held at the time of the Board disposition under appeal and which
    supported that disposition, support an absolute discharge order from this
    court.

[34]

The opposition comes only from the respondent Ministry of the Attorney
    General. It was the Ministrys position that the fresh evidence should not be
    admitted. That position has been rejected. The Ministry has brought forward no
    evidence to suggest that there is any medical or psychiatric professional who
    has concerns about the conclusion reached by Dr. Looman and Dr. Chan that
    should be brought to the attention of the Board.

[35]

My colleagues state that this court is not to reconcile competing
    psychiatric evidence. However, there is no competing psychiatric evidence.
    There is old evidence that was before previous Boards and the fresh evidence
    based on new, current testing. The fresh evidence is the un-contradicted
    opinion of the appellants treating psychiatrist and of the experienced
    forensic psychologist at the appellants hospital. It is tendered by the person
    in charge of the hospital as reliable.

[36]

Under s. 672.78(3)(a), where the court of appeal allows an appeal from a
    disposition of the Board, it may make any disposition the Board could have
    made. In this case, had the Board had the fresh evidence we have admitted, it
    could have ordered an absolute discharge. Under s. 672.78(3)(c) this court may
    make any order that justice requires.

[37]

I would order an absolute discharge under either paragraph (a) or (c).

[38]

In
R. v. Ferguson
, 2010 ONCA 810, 264 C.C.C. (3d) 451 this
    court ordered an absolute discharge where it concluded that the evidence before
    the Board did not support the finding of significant threat to the safety of
    the public. Doherty J.A., writing for the court, reviewed the legal and
    constitutional basis for the requirement that a person found not criminally
    responsible (NCR) only have his or her liberty restricted where the person
    poses a significant threat to the safety of the public. See
R. v. Owen
,
    2003 SCC 33, [2003] 1 S.C.R. 779, at para 25. Otherwise, the Board must order
    an absolute discharge. See
Winko v. British Columbia (Forensic Psychiatric
    Institute)
, [1999] 2 S.C.R. 625, at paras. 52, 57 and 62.

[39]

The assessment of risk is normally done by the Review Board, an expert
    panel able to assess complex psychiatric evidence. However, in
Ferguson
,
    this court overruled the finding by the Board that the accused posed a
    significant threat to the safety of the public. The court concluded that the
    Board had overstated the treating psychiatrists opinion, which did not go so
    far as saying that the accused in that case was likely to cause harm to the
    public in the future, and therefore, at its highest amounted to uncertainty. As
    a result, the Board should have ordered an absolute discharge. The court
    therefore made that order.

[40]

In this case, although the Board has not had an opportunity to assess
    the fresh evidence, that evidence is unequivocal and one-sided. Based on the
    record before this court, there is no evidence that the appellant continues to
    pose a significant risk to the safety of the public.

[41]

For these reasons, I would direct an absolute discharge.

Released: KF MAY 10 2017

K. Feldman J.A.


