



COURT OF APPEAL
    FOR ONTARIO

CITATION: Medcof (Re), 2018 ONCA 1011

DATE: 20181211

DOCKET: C65526

Hoy A.C.J.O., Feldman and Fairburn JJ.A.

IN THE MATTER OF: William Medcof

AN APPEAL UNDER PART XX.1 OF THE
CODE

Ken J. Berger, for the appellant

Holly Loubert, for the respondent Attorney General of
    Ontario

Gavin S. MacKenzie, for the respondent Person in Charge
    of the Centre for Addiction and Mental Health

Heard: December 7, 2018

On appeal against the disposition of the Ontario Review
    Board, dated May 22, 2018, with reasons reported at [2018] O.R.B.D. No 1306.

REASONS FOR DECISION


[1]

This is an appeal from
    the Ontario Review Boards May 22, 2018 disposition, continuing the appellants
    conditional discharge.

[2]

The appellant advances
    a number of arguments, but fundamentally says that the Boards conclusion that
    he remains a significant threat to the safety of the public  and corresponding
    refusal to order an absolute discharge  was unreasonable.

[3]

We disagree. The
    Boards conclusion that the appellant remains a significant threat to public
    safety fell within the range of reasonable outcomes available on the evidence
    before the Board. That evidence includes, but is not limited to, the following:
    (a) the appellant suffers from a major mental illness; (b) the index offences were
    very serious; (c) the appellant lacks insight into his mental illness, his need
    to continue treatment, and the role his illness played in the index offences; (d)
    the appellants historic resistance to treatment, and stated intention to
    discontinue his psychotropic medication if absolutely discharged; (e) the
    appellants history of decompensation when off his medication, or when
    sub-optimally medicated; (f) the appellants high scores on actuarial and
    clinical risk assessments for violence; and (g) the unanimous conclusion of the
    appellants treatment team that he remains a significant risk to public safety.

[4]

The appellant argues
    that the Board failed to give proper weight to the fact that he has not engaged
    in any violent behaviour during the considerable period of time (17 years) that
    he has been subject to the jurisdiction of the Board. He points to this courts
    decision in
Medcof (Re),
2018 ONCA 299, concerning the appellants previous disposition, where the
    panel directed, at para. 60, that at the appellants next annual review the
    Board should:

more fully engage with the issues of the
    significance of the appellants continuing non-violent behaviour (assuming it
    continues), the passage of time and the correlation between these factors and
    the risk of serious harm in the event of decompensation.

The
    appellant contends that the Board did not heed that direction.

[5]

We disagree. The Board
    had specific regard to this courts comments, and addressed the issues
    identified by this court in some detail. In particular, the Board examined all
    of the evidence before it and concluded that the appellant had been able to
    live in the community successfully for as long as he has only as a direct
    result of the protective effect of his medication: at para. 26. The Board appreciated
    the risk of a virtually indefinite period of [Board] oversight for [the
    appellant], which it specifically noted to be a concern: at para. 26. The
    Board also noted that the appellants treatment team continues to explore other
    options for managing the appellant, including the possibility of placing him on
    a Community Treatment Order, which could potentially allow the appellant to
    transition to an absolute discharge. The Board expressly encouraged those
    efforts: at para. 27.

[6]

When the Boards
    Reasons for Disposition are read contextually, it is clear that the Board was
    alive to the fact that the appellant has been subject to the jurisdiction of
    the Board for a considerable period of time, without engaging in any violent
    behaviour. The Board engaged with the issues identified by this court in last
    years appeal, and ultimately came to the conclusion that, in light of all of
    the evidence, the appellant remains a significant risk to the safety of the
    public. We see no error in that approach.

[7]

Relatedly, we do not
    agree that the Board reversed the burden of proof and required the appellant to
    disprove a presumption of dangerousness. While the Board adverted to the
    serious nature of the index offences in its analysis, it did not presume that
    the appellant continued to pose a significant risk to public safety solely
    because of the index offences. Similarly, while the Board observed, at para.
    26, that there was no expert evidence before [it] that connects, as a matter
    of logic, the length of time that [the appellant] has been stable with the
    likelihood that he would maintain that stability without a disposition from the
    Board, this did not have the effect of requiring the appellant to advance
    evidence to rebut a presumption of dangerousness. To the contrary, when coming
    to its conclusion about the appropriate disposition, the Board relied upon
    positive evidence of risk to public safety, including the evidence enumerated
    above.

[8]

Finally, we disagree
    that the Board applied the incorrect legal test, and focused only on the
    likelihood that the appellant would re-offend, while failing to consider the
    potential gravity of harm if he did. There was cogent evidence before the Board
    that when not medicated and suffering from active psychosis, the appellant
    engages in physically violent and other criminal behaviour that poses a
    significant risk of physical or psychological harm to individuals in the
    community. His index offence involved kidnapping his mother, restraining her
    and hitting her with a golf club. The Board explicitly stated that it
    considered there to be a risk of grave harm: at para. 28.

[9]

For the foregoing
    reasons, the appeal is dismissed.

Alexandra Hoy A.C.J.O.
K. Feldman J.A.
Fairburn J.A.


