



COURT OF APPEAL FOR ONTARIO

CITATION: Afemui (Re), 2016 ONCA 689

DATE: 20160920

DOCKET: C61656

Gillese, Rouleau and Brown JJ.A.

IN THE MATTER OF:  MAUNALOA AFEMUI

AN APPEAL UNDER PART XX.1 OF THE
CODE

Mercedes Perez, for the appellant

Andrew Hotke, for the respondent Crown

Michele Warner, for the respondent Person in Charge of
    the Centre for Addiction and Mental Health

Heard: September 14, 2016

On appeal from the disposition of the Ontario Review
    Board dated December 8, 2015.

ENDORSEMENT

[1]

Mr. Afemui has been detained under the jurisdiction of the
    Ontario Review Board (the Board) since October 6, 2006, when he was found
not criminally responsible on account of mental disorder on charges
    of sexual assault and attempt to choke or strangle (the index offences).  He
    has been diagnosed with schizophrenia and has been found to be incapable of consenting
    to treatment.  Mr. Afemuis son is his current substitute decision maker.

[2]

Mr. Afemuis most recent review hearing (the
    Hearing) took place on November 25, 2015.  The Board had before it the
    hospital report on Mr. Afemui, dated October 22, 2015.  The hospital report provided
    extensive information on Mr. Afemui, including his personal and mental health
    history, details of the index offence, and information on Mr. Afemuis course
    in hospital and in the community following his NCR finding.  The hospital
    report also contained information on Mr. Afemuis convictions for three counts
    of criminal harassment for events that occurred while Mr. Afemui was on bail in
    the community pending the determination of the index offences.

[3]

In addition to the documentary evidence, the
    Board heard the oral evidence of Dr. T. Wilkie.  Dr. Wilkie has been Mr.
    Afemuis attending psychiatrist since his discharge into the community in
    December 2010.

[4]

At the conclusion of the Hearing, the Board
    ordered that Mr. Afemui again be conditionally discharged into the community.

[5]

On December 8, 2015, the Board issued its disposition
    (the Disposition), conditionally discharging Mr. Afemui into the community. 
    The Disposition was amended by order made on January 4, 2016, to remove a term
    requiring Mr. Afemui to participate in a program for rehabilitation created by
    CAMH.

[6]

On January 15, 2016, the Board released fresh reasons
    for the Disposition.  A majority of the Board ordered the continuation of Mr.
    Afemuis conditional discharge but, for the second year in a row, the
    dissenting Board member would have granted him an absolute discharge.

[7]

Mr. Afemui appeals, asking for an absolute
    discharge.  He argues that:

1.

the Disposition is unreasonable because the
    evidentiary basis underlying the majoritys conclusion that he remains a
    significant risk to public safety is not explained in the reasons nor supported
    by the record. In particular, he says that the majority did not reconcile its
    decision with evidence that he has consistently exhibited pro-social behaviours
    since 2006, even while continuing to suffer residual delusions.

2.

the majority focused on the potential for future
    medication non-compliance, rather than determining whether he remained a
    significant risk to the safety of the public; and

3.

the majority failed to explain why legal
    mechanisms available under the civil mental health system in the event of an
    absolute discharge were insufficient to safely manage any episodes of future
    medication non-compliance and/or decompensation.

[8]

For the reasons that follow, we do not accept
    these submissions.

ISSUE #1:   Is the Disposition unreasonable?

[9]

The majority finding that Mr. Afemui remains a
    significant risk to public safety is entitled to significant deference.  As it
    is reasonable and supported by the evidence, we see no basis for interfering
    with it.

[10]

In making this finding, the majority accepted Dr.
    Wilkies expert opinion that Mr. Afemui is compliant with treatment (injectable
    medicine) because of the external controls associated with being under the
    Boards jurisdiction.  Dr. Wilkie also opined that if Mr. Afemui received an
    absolute discharge, he would fall away from treatment, resulting in a greater
    intensity of his psychotic symptoms, increased psychosis, and an increased risk
    of violent behaviour.  This expert opinion is shared by the Forensic Outpatient
    Team, psychiatrist Dr. Leblanc and the Archway team and amply supports the
    majoritys finding.

[11]

This court has repeatedly accepted that reliance
    on expert medical evidence to the same effect as that given by Dr. Wilkie is a
    valid basis for finding that an NCR accused remains a significant threat to the
    safety of the public.  See, for example,
Schutzman (Re)
, 2013 ONCA 48,
    at para. 5.

[12]

The reasons of the majority also refer to a
    number of pieces of evidence of Mr. Afemuis ongoing lack of insight into his
    mental illness and the need to be treated with medication, and his persistent
    delusional themes.

[13]

As the reasons of the majority explain the basis
    for their decision and allow for meaningful appellate review, we do not accept
    that they are inadequate.

[14]

Counsel for Mr. Afemui also says that the
    majority did not reconcile its decision with evidence that Mr. Afemui has consistently
    exhibited pro-social behaviours since 2006, even while continuing to suffer
    residual delusions.

[15]

Dr. Wilkies acknowledged that there have been
    no behavioural concerns for the five years that Mr. Afemui has lived in the
    community, despite continuing to suffer from delusions.  The majority expressly
    accepts this.  Thus, the majority did not disregard the evidence in question.  However,
    as we have noted, the Board was entitled to rely on Dr. Wilkies expert opinion
    that despite this pro-social behavior, if Mr. Afemui were granted an absolute
    discharge, he would discontinue treatment which would result in an increased
    risk of violent behaviour.

ISSUE #2:   Did the majority improperly focus
    on potential non-compliance?

[16]

It can be seen from our discussion of the first
    issue that the majority did not focus on the potential of non-compliance
    instead of determining whether Mr. Afemui remained a significant risk to public
    safety.  Rather, the majoritys discussion of non-compliance was tied to the
    evidence of the active symptoms of mental illness from which Mr. Afemui continues
    to suffer, his lack of insight into his mental illness, the significant
    likelihood that he would discontinue treatment if absolutely discharged, and
    Dr. Wilkies evidence that if he falls away from treatment, he would experience
    greater psychotic symptoms giving rise to an increased risk that he would act
    out in an aggressive or violent manner.

ISSUE #3:   Were other legal mechanisms
    insufficient to manage the risks?

[17]

Counsel for Mr. Afemui concedes that a
    conditional discharge was the necessary and appropriate disposition if the
    majoritys finding that Mr. Afemui was a significant threat stands.  However,
    she argued that the majority erred in making that finding without first
    adequately exploring whether his risk could be managed by the civil mental
    health system in the event of an absolute discharge.

[18]

The record shows that the Board was aware of the
    tools of the civil mental health system available under the
Mental Health
    Act
, R.S.O. 1990, c. M.7 and of Mr. Afemuis position on their suitability
    as an alternative for managing his risk.  However, it can be inferred from their
    reasons that it concluded that those tools would not adequately contain the
    risk.  It can also be inferred that this conclusion was reached, at least in
    part, because of an absence of evidence of a plan establishing that the Box B
    tools would be effective.

DISPOSITION

[19]

Accordingly, the appeal is dismissed.

E.E. Gillese J.A.

Paul
    Rouleau J.A.

David
    Brown J.A.


