



COURT OF APPEAL FOR ONTARIO

CITATION:
    Marmolejo (Re), 2021 ONCA 130

DATE: 20210302

DOCKET:
    C67649

Tulloch,
    Paciocco and Harvison Young JJ.A.

IN
    THE MATTER OF:
Alfredo G. Marmolejo

AN
    APPEAL UNDER PART XX.1 OF THE
CODE

Alfredo G. Marmolejo, acting in person

Anita Szigeti and Maya Kotob, for the
    appellant

Lisa Fineberg
, for the respondent, Attorney
    General of Ontario

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

Heard: August 21, 2020 by
    video conference

On appeal from the disposition of the
    Ontario Review Board dated September 25, 2019, with reasons reported at
Marmolejo
    (Re)
, [2019] O.R.B.D. No. 2378.

Tulloch J.A.:

A.

OVERVIEW

[1]

The appellant appeals from the September 25, 2019 disposition of the
    Ontario Review Board (the Board), which continued the appellants conditional
    discharge. That conditional discharge was one of several annual conditional
    discharges that followed an August 2010 determination that the appellant was
    not criminally responsible on account of mental disorder (NCR) in relation to
    two index offences.

[2]

The Board released its reasons for disposition on October 16, 2019. It
    determined that the appellant remained a significant threat to the safety of
    the public. It further concluded that the only way to manage that threat was a
    continuation of a conditional discharge with a new term requiring the appellant
    to submit urine samples for alcohol and drug screening.

[3]

The appellant argues that the Board erred in law and arrived at an unreasonable
    disposition. First, the appellant contends that the Board erred in its
    application of the significant risk test by simply accepting the evidence and
    not offering any analysis. Second, and along a similar vein, the appellant
    submits that the Boards reasons for disposition are insufficient. The
    appellant submits that the proper application of the significant risk test does
    not support the Boards determination on this issue. The appellant seeks an
    order for an absolute discharge. Alternatively, he asks this court to remit the
    matter to the Board for a re-hearing before a differently constituted panel.

[4]

For reasons that follow, I agree with the appellants position. The
    Board did not conduct a proper assessment of whether the appellant met the
    significant risk threshold, as evident by the complete lack of analysis on this
    point. The evidence before the Board could not support a finding that the
    appellant constituted a significant risk to the public. He was therefore
    constitutionally entitled to an absolute discharge.

[5]

In ordinary circumstances, an absolute discharge would be the
    appropriate disposition. However, a month after this appeal was heard, the
    Board convened for the appellants 2020 annual disposition review hearing. On
    November 2, 2020, it held that the appellant no longer represented a
    significant risk to the public and granted an absolute discharge:
Marmolejo
    (Re),
[2020] O.R.B.D. No. 2277. In other words, the appellants request
    for relief is now moot. I would nonetheless address the merits of this appeal
    in order to provide guidance to the Board.

B.

FACTUAL BACKGROUND

(1)

The Appellants Psychiatric History

[6]

The appellants psychiatric history dates back to 1987 when he was a
    teenager. He was first hospitalized at age 15 when police found him wandering
    in the streets and crossing in traffic. His mother reported that he experienced
    symptoms of paranoia and suspiciousness in the years following his
    hospitalization.

[7]

In September 2005, the appellant was found NCR for a charge of arson. A
    doctor diagnosed him with schizophrenia and depression. He was transferred to a
    minimum secure unit in November 2005. By September 2006, he was spending
    weekends with his parents. After a hearing in November 2006, the Board issued a
    minimum-security detention order with community living privileges. In December 2006,
    he was discharged to live in an apartment in the community. Just under a year
    later, in November 2007, the Board issued a conditional discharge. The
    appellants mental status remained stable and he was compliant with his
    medications.

[8]

At his 2008 annual disposition review hearing, the Board granted the appellant
    an absolute discharge. The appellant reported that he stopped taking his
    medication approximately one year after his discharge. Between 2009 and 2010,
    he was hospitalized pursuant to the
Mental Health Act
, R.S.O. 1990, c.
    M. 7 on three occasions.

(2)

The Index Offences

[9]

In April 2010, the appellant was convicted of one count of criminal
    harassment and one count of failing to comply with a probation order. On August 24,
    2010, the appellant was found NCR for these offences. At the time, the
    appellant was delusional, paranoid, and verbally aggressive. He was treated
    with medication and sentenced to a period of incarceration, followed by a
    period of probation for two years. These two index offences form the subject
    matter for the disposition of the Board that is now at issue.

(3)

The Boards Dispositions Between 2010 and 2019

[10]

On
    November 8, 2011, the appellant was discharged to live in an apartment at a
    temporary transitional housing facility. Eleven months later, he moved in with
    his family. By 2012, his medication was reduced.

[11]

In
    2013 the appellant was briefly hospitalized when his parents reported he was
    experiencing auditory hallucinations. His medications were increased. He
    returned to live with his parents, and then moved into an apartment shortly
    thereafter.

[12]

The
    Board issued a conditional discharge on May 20, 2014. His medications were
    decreased. His mental status remained stable and he continued to adhere to his
    medication regime. He continued to live independently and began working for his
    brother on a part-time basis.

[13]

At
    annual disposition reviews conducted from 2015 to 2018, the appellant
    unsuccessfully sought to receive an absolute discharge: each time the Board found
    that he continued to pose a significant threat, and either added or removed conditions
    of his discharge.

[14]

From
    2018 to 2019 the appellant continued to reside independently in his subsidized
    apartment in Toronto without incident. He received financial support through the
    Ontario Disability Support Program (ODSP) and from his parents. He maintained
    his relationship with his girlfriend. There were no changes to his medication.

(4)

The 2019 Hearing Before the Board

[15]

In
    2019, the Board released its sixth consecutive disposition continuing the conditional
    discharge, this time reinserting a term requiring the appellant to submit urine
    samples for alcohol and drug testing. That disposition is the subject of this
    appeal.

[16]

At
    the 2019 hearing, the Board received written and oral evidence by way of the
    Hospitals report to the Board and the testimony of Dr. Choptiany, who is the
    appellants outpatient psychiatrist.

[17]

Dr.
    Choptiany testified that the appellant had been compliant with his reporting
    requirements and accepts that he has schizophrenia. Dr. Choptiany also
    testified that the appellant has stated that he would continue to take his
    medication in the event that he was granted an absolute discharge.

[18]

Dr.
    Choptiany expressed concern regarding the appellants attitude toward his index
    offences. In particular, Dr. Choptiany opined that the appellant had downplayed
    the significance or severity of the behaviours that occurred at the time of the
    index offences. The Hospitals report also noted that the appellant was unable
    to link his illness to his behaviours at the time of the index offence.

[19]

Both
    the Hospitals report and Dr. Choptiany also noted that the appellants
    therapeutic relationship with his psychiatric team deteriorated significantly
    over the course of the reporting year. It appeared that at least part of the
    reason was that the appellant was frustrated with his continued supervision by
    the Board, and the fact that he still had not received an absolute discharge.
    In his testimony, Dr. Choptiany suggested that it might be helpful if the
    Boards disposition required the appellant to submit to urine sampling. He was
    of the view that such testing could assist the psychiatric team in determining
    why the appellants demeanor changed.

[20]

Dr.
    Choptiany opined that the appellant still posed a significant threat based on
    the diagnosis of schizophrenia, along with the appellants history of
    non-compliance with medication, substance abuse, aggressive behavior, and
    limited insight into his situation.

[21]

Dr.
    Choptiany further observed that if the appellant were no longer under the
    jurisdiction of the Board, he would discontinue his medications, likely use
    alcohol or illegal substances, and again become psychotic, which would put the
    public at risk of harm.

C.

THE DECISION OF THE
    BOARD

[22]

In
    the reasons for disposition of the Board dated October 16, 2019, the Board set
    out a brief summary of the two index offences, the appellants personal
    history, and the legal and psychiatric history. The Board then summarized the
    appellants progress over the past year in four paragraphs, which consisted
    mainly of a lengthy quote from the Hospitals report.

[23]

In
    dealing with the issue of whether the appellant posed a significant threat, the
    Board stated only the following:

18. The Hospitals report contains information
    concerning the issue of significant threat to the safety of the public
    including:

''If Mr. Marmolejo were to reoffend, it
    would flow from noncompliance with antipsychotic medication potentially
    exacerbated by the use of substances. Mr. Marmolejo has demonstrated limited
    insight into the specific benefit of a reduced risk for violent or harassing
behaviour
as emanating from ongoing compliance with
    antipsychotic medication. While he has reported that he would continue taking
    his medications if no longer under the ORB, it is considered likely that he
    would stop or reduce the dose of his medication if no longer under the ORB.
    Risk of violent behaviour would gradually arise as a result of noncompliance.
    The risk would be exacerbated in the event of his reverting to use of cannabis,
    which has historically contributed to a paranoid state of mind and the
    emergence of other psychotic symptoms in Mr. Marmolejo."

19. In his oral testimony Dr. Choptiany
    confirmed that Mr. Marmolejo remains a significant threat to the safety of
    the public because he has limited insight into the nature of his illness. He
    has a past history of substance use. When he is unwell, he is aggressive and is
    capable of physical and psychological harm. If he did go off his medication, he
    would fall away from care and decompensate particularly since his therapeutic
    relationship with his clinical team has deteriorated so badly in the last year.

[24]

The
    Board then concluded as follows:

21.
The evidence in this
    case establishes that Mr. Marmolejo continues to represent a significant
    threat to the safety of the public. This panel accepts that evidence
.
    This panel is also satisfied that the only way to manage the threat is by the
    maintenance of the conditional discharge with the addition of a urine screen
    for alcohol and the nonmedical use of drugs. In our view, this is the necessary
    and appropriate order. It is also the least onerous and least restrictive order
    in the circumstances of this case. [Emphasis added.]

D.

POSITION OF THE PARTIES

[25]

The
    appellant submits that the Boards disposition was unreasonable and rested on
    an error of law. He argues that the Board failed to conduct a proper assessment
    as to whether the appellant was a significant threat to the safety of the
    public. The appellant submits that he does not meet the threshold of
    significant risk. He takes issue with the imposition of a conditional discharge,
    as well as the addition of a new condition requiring him to submit urine
    samples.

[26]

The
    appellant also argues that the Board provided insufficient reasons. In
    particular, he notes that there is no analysis section: the Board simply
    states its conclusion that the appellant posed a significant risk. The Board
    failed to explain how it applied the statutory test, how it dealt with the
    material evidence before them, or how it reached its conclusion that the
    appellant remains a significant threat to the safety of the public.

[27]

The
    respondents submit that the Board made no error in its application of the
    significant threat test; there was sufficient evidence before the Board to
    reach its conclusion; and the reasons provided by the Board were legally
    sufficient.

E.

ANALYSIS

(1)

Standard of Review

[28]

This
    court may set aside an order of the Board only where it is of the opinion that:
    (a) the decision is unreasonable or cannot be supported by the evidence; (b) the
    decision is based on a wrong decision on a question of law (unless no
    substantial wrong or miscarriage of justice has occurred); or (c) there was a
    miscarriage of justice:
Criminal Code
, R.S.C., 1985, c. C-46, s.
    672.78(1);
R. v. Owen
, 2003 SCC 33, 174 C.C.C. (3d) 1, at
    para. 31.

[29]

The
    standard of review under s. 672.78(1)(a) is one of reasonableness. The court
    should ask itself whether the Boards risk assessment and disposition order was
    unreasonable in the sense of not being supported by reasons that can bear even
    a somewhat probing examination:
Owen
, at para. 33, citing
Canada
    (Director of Investigation and Research) v. Southam Inc
., [1997] 1 S.C.R.
    748, at para. 56.

[30]

If
    the Boards decision could reasonably be the subject of disagreement among
    Board members properly informed of the facts and instructed on the applicable
    law, the court should in general decline to intervene:
Owen
, at para.
    33. As this court explained in
Sokal (Re),
2018 ONCA 113, at paras.
    12-13:

An appellate court must always recall the
    difficulty of assessing whether a given individual poses a significant threat
    to public safety:
Winko v. British Columbia
    (Forensic Psychiatric Institute)
, [1999] 2 S.C.R.
    625, at para. 61.
The appeal court does not make its own
    judgment on the question of significant threat and use that judgment as the
    benchmark for assessing the reasonableness of the Board's decision. Nor does
    the court re-weigh the considerations that were before the Board
:
Wall (Re)
, 2017 ONCA 713, at para. 21.

The reasonableness of
    the Board's decision must be evaluated by considering the reasons it proffers
    in the context in which the decision is made
. At
    issue is whether the Board reached an acceptable and defensible outcome,
    keeping in mind the need to protect the liberty of the NCR accused as much as
    possible, while also protecting society:
Wall
, at para. 22. [Emphasis added.]

[31]

However,
    the standard is not as high as the unreasonable verdict in criminal cases. As
    stated by this court, the standard of reasonableness enacted by s.
    672.78(1)(a) involves respectful attention, though not submission to the
    Board's reasons:
Mental Health Centre Penetanguishene v. Ontario
,
    2010 ONCA 197, 260 O.A.C. 125, at para. 65.

[32]

The
    standard of review under s. 672.78(1)(b), with respect to errors of law, is one
    of correctness:
Mazzei v. British Columbia (Director of Adult Forensic
    Psychiatric Services
), [2006] SCC 7, [2006] 1 S.C.R. 326, at para. 16. An
    erroneous application of the significant threat test is an error of law:
Hammoud (Re),
2018 ONCA 317, at para. 9.

(2)

The Significant Risk Requirement Under Section 672.54

[33]

Review
    Boards derive their jurisdiction from Part XX.1 of the
Criminal Code
. Pursuant
    to s. 672.54, the Board must make a disposition that takes into account the
    safety of the public, the mental condition of the accused, the reintegration of
    the accused into society and the other needs of the accused. That section
    empowers the Board to order the following dispositions:

When a court or Review Board makes a
    disposition under subsection 672.45(2), section 672.47, subsection 672.64(3) or
    section 672.83 or 672.84, it shall, taking into account the safety of the
    public, which is the paramount consideration, the mental condition of the
    accused, the reintegration of the accused into society and the other needs of
    the accused, make one of the following dispositions that is necessary and
    appropriate in the circumstances:

(a) where a verdict of not criminally
    responsible on account of mental disorder has been rendered in respect of the
    accused and, in the opinion of the court or Review Board, the accused is not a
    significant threat to the safety of the public, by order, direct that the
    accused be discharged absolutely;

(b) by order, direct that the accused be
    discharged subject to such conditions as the court or Review Board considers
    appropriate; or

(c) by order, direct that the accused be
    detained in custody in a hospital, subject to such conditions as the court or
    Review Board considers appropriate.

[34]

Accordingly,
    the role of the Board is first to determine whether an NCR accused represents a
    significant threat to public safety. If the answer to that question is no or
    uncertain then the NCR accused must be discharged absolutely:
Winko v.
    British Columbia (Forensic Psychiatric Institute),
[1999] 2 S.C.R. 625, at
    pp. 659-661, 669. If the NCR accused does present a significant threat, the
    Board must either conditionally discharge or detain the individual:
Winko,
pp.
    662, 669.

[35]

It
    is important to bear in mind that the Boards responsibility to grant an
    absolute discharge is non-discretionary in the event that it harbours any doubt
    about whether the NCR accused represents a significant threat:
Carrick (Re),
2018 ONCA 752, at para. 16. As the majority of the Supreme Court
    emphasized in
Winko,
at pp. 652-653: Once an NCR accused is no longer
    a significant threat to public safety, the criminal justice system has no
    further application.

[36]

Individuals
    with mental disorders are not inherently dangerous:
Winko,
at p. 653.
    There is no presumption of dangerousness and no burden on the NCR accused to
    prove a lack of dangerousness:
Winko,
at pp. 660-661, 662. Rather, the
    legal and evidentiary burden of establishing significant threat rests on the
    Board or the court:
Winko,
at p. 663.

[37]

The
    threshold for significant risk is onerous:
Carrick (Re)
, 2015 ONCA
    866, 128 O.R. (3d) 209, at para. 17. A significant threat to the safety of the
    public means a foreseeable and substantial risk of physical or psychological
    harm to members of the public:
R. v. Ferguson,
2010 ONCA 810, at para.
    8. The conduct must be of a serious criminal nature:
Ferguson,
at para.
    8. A very small risk of grave harm will not suffice, nor will a high risk of
    trivial harm:
Ferguson,
at para. 8. The threat must be more than
    speculative in nature; it must be supported by evidence:
Winko
, at p.
    665;
Pellett (Re),
2017 ONCA 753, 139 O.R. (3d) 651, at para. 21.

(3)

The Disposition of the Board  Significant Threat

[38]

As
    explained above, the Boards conclusion on the significant threat issue was
    devoid of any analysis, a point I will return to below. It rested solely on a
    flat acceptance of the evidence before the Board. In examining whether the
    Board erred in finding that the appellant posed a significant threat to the
    safety of the public, I will assume that the Board based that finding on
    conclusions found in the Hospitals report and the evidence of Dr. Choptiany
    that was before the Board.

[39]

The
    evidence pertaining to significant threat, as summarized by the Boards reasons
    at paras. 18-19, included the following general conclusions: (1) the appellant
    has limited insight into the nature of his illness; (2) when he is unwell, he
    is capable of physical and psychological harm; (3) he would decompensate if he
    went off his medication; and (4) the risk of decompensation is heightened due
    to the deterioration of his therapeutic relationship with his clinical team and
    his history of substance use:
Marmolejo (Re),
[2019] O.R.B.D. No.
    2378, at paras. 18-19.

[40]

None
    of these factors, taken alone or together, support the Boards finding that the
    appellant presented a significant threat to the safety of the public. More
    specifically, the general conclusions relied upon by the Board address neither
    the degree of the risk nor the gravity of the apprehended harm. An appropriate significant
    threat finding cannot be made without considering these questions. A finding of
    significant threat based on the aforementioned factors without such evidence would
    have been an error in law because it would amount to a failure to apply the
    proper test to the evidence adduced at the hearing:
Hammoud,
at para. 9.
    It would also have been an unreasonable disposition. I will examine each of the
    factors identified in evidence before the Board, in turn.

[41]

The
    fact that an accused lacks insight into their condition is but one factor for
    consideration, and it must be used with care. In
Kalra (Re)
, 2018 ONCA
    833, at para. 52, this court examined the role of insight in relation to
    significant risk and found that a lack of insight must be evaluated in its
    proper context:

Whether an NCR accused has insight into his or
    her mental illness, and the extent of that insight, is only part of the
    analysis in determining if there is a significant threat to the safety of the
    public.
While insight is a treatment goal, it is one some
    persons living with mental illness may be unable to fully achieve. In some
    instances, particularly where the contemplated harm falls at the lower end of
    the spectrum, it may be unreasonable to require, as the Board did here, that an
    NCR accused's insight into his or her illness be "entrenched on his
    consciousness" in order to obtain an absolute discharge
. [Emphasis
    added.]

[42]

This analysis is equally applicable to the circumstances at hand. A lack
    of insight alone cannot form the basis of a significant threat finding without
    analysis of how that lack of insight factors into the risk the NCR accused will
    pose. Due to the brevity of the Boards reasons, the extent to which this
    factor contributed to the finding of significant risk is unclear. Yet the
    appellants lack of insight has been a running and dominant theme throughout
    the appellants dispositions over the years. It also figured prominently in the
    Hospitals report and Dr. Choptianys testimony. Needless to say, the Board
    must be cautious in inferring that an NCR accused comprises a significant risk without
    consideration of how that lack of insight poses a risk in the circumstances of
    the case at hand.

[43]

Furthermore,
the fact that the appellant may be capable of physical
    and psychological harm when he is unwell is likewise insufficient to ground a
    finding of significant risk. That is not the threshold. There needs to be a
    foreseeable and substantial risk of significant physical or psychological harm;
    that is, the NCR accused must pose a risk of
serious
criminal conduct.
    Anything less is an insufficient basis to deny entitlement to an absolute
    discharge.

[44]

Additionally,
    a finding that a person might discontinue their medication must be supported by
    evidence and be linked in a reasoned way to the finding that the NCR accused
    poses a significant threat to the public. In
Pellett,
at para. 32,
    this court noted that the onerous substantial threat standard was not met by
    the risk that an NCR accused could cease taking her medication, which would
    result in a worsening of her condition. This is so even where there is considerable
    likelihood that the NCR accused would discontinue their medication:
Hammoud,
at para. 9;
Ferguson,
at paras. 1-3. As this court noted in
Hammoud
:

There was no doubt that for three decades the
    appellant has suffered, as she continues to suffer, from a serious mental
    disorder.
Equally, there was no doubt that, presented with
    the opportunity to do so, the appellant would discontinue her medication. But
    these are not the risks at which the "significant threat" threshold
    in s. 672.5401 is directed
. In our view, read as a whole, the reasons of
    the Board reveal legal error  the failure to apply the proper test for
    "significant threat to the safety of the public" to the evidence
    adduced at the hearing. [Emphasis added.]

[45]

In the present case, the appellant has complied with his medication
    regimen for years and has repeatedly indicated that he would continue taking
    his medication upon his absolute discharge. Although he stopped taking his
    medication after he received his 2008 absolute discharge, there is no evidence
    that this would happen again. His liberty cannot be beholden to a mistake made
    over a decade ago.

[46]

Nor
    can one equate the deterioration in the appellants relationship with his
    psychiatric team with significant threat. The team did not observe any overt
    psychiatric symptoms. Admittedly, the change in temperament remains unexplained.
    However, uncertainty does not ground a finding of significant threat, even when
    considered along with the other conclusions that emerge from the evidence that
    was before the Board.

[47]

Finally,
    it is well recognized that a risk of substance abuse does not justify the
    denial of an absolute discharge unless that substance abuse would pose a
    significant threat to the public:
Carrick (Re),
(2015), at para. 39;
Wall
    (Re),
2017 ONCA 713, 417 D.L.R. (4th) 124,

at paras. 25, 29-30;
Sokal
,

at para. 25. An NCR accused cannot be under the Boards jurisdiction
    indefinitely because of substance use. The evidence before the Board failed to
    offer insight into the degree of the risk that substance abuse posed to the
    appellants behavior and was therefore of marginal utility.

[48]

In
    sum, the Board erred in law by not engaging the appropriate legal standards required
    for a significant risk finding. If the Boards finding was, in fact, based on
    the conclusions put before it in evidence, viewing these factors in light of the
    concerns raised above the finding was also unreasonable. The evidence before
    the board leads me to a different outcome than the Board: I am satisfied that
    the totality of this record does not permit a finding that the appellant posed
    a significant threat to the public. The appellant was entitled to an absolute
    discharge.

(4)

The Need for Robust Reasons on the Significant Threat Issue

[49]

In
    every case, the Board is required to explain why the disposition is necessary
    and appropriate in the circumstances:
Marchese (Re)
, 2018 ONCA 307,
    359 C.C.C. (3d) 408, at para. 16. A cursory consideration of the question of significant
    risk will not suffice where an individuals liberty is on the line:
Carrick
    (Re),
(2018), at para. 20. As noted above, the Boards disposition must be
    able to withstand a somewhat probing examination in order for the conclusion
    on significant threat to be upheld as reasonable. As this court observed in
Marchese
,
    at para. 8: To conduct a somewhat probing examination this court must have
    something to probe.

[50]

In
Marchese
, this court contemplated the difficulty posed when the Board
    fails to provide sufficient reasons. In that case, the Boards analysis on the
    key issue of significant threat was confined to one paragraph at the end of
    five pages of reasons. Brown J.A., writing for the court, commented that: This
    brevity led the Board to treat material evidence without the rigour one would
    expect from a specialized tribunal such as the Board.

[51]

Nevertheless
,
the court ultimately upheld the Boards disposition. After remarking on
    the insufficiency of reasons, the court reviewed the record before the Board.
    It concluded that there was evidence that supported the Boards finding on the
    significant threat issue, notwithstanding the clear deficiency in reasons. For
    example, Ms. Marchese was re-admitted to the hospital for seven months due to a
    deterioration in her mental status during the period under review:
Marchese
,
    at para. 13. While in seclusion at the hospital, she also exhibited escalated
    behaviour that risked harm to herself and others:
Marchese
,

at
    paras. 13-14. At the hearing, there was also some indication that Ms. Marchese
    had further contact with the hospital in the interim. Thus, the court declined
    to interfere with the Boards finding that Ms. Marchese remained a significant
    threat.

[52]

However,
    in so doing, the court identified a trend besetting Ontario Review Board cases:
    Yet, too often this court sees reasons from the Board that go on at
    considerable length to recite submissions, only to conclude with a cursory
    analysis of the key issue: is the appellant a significant threat to the safety
    of the public? Brown J.A. provided the following helpful commentary for Board
    going forward:

Cursory analysis is difficult to probe. It
    also risks failing to provide justification, transparency, and intelligibility
    for the resulting decision.
To avoid that risk, in every
    case the Board's reasons should clearly explain what evidence in the record
    leads it to conclude that the condition and conduct of the NCRMD accused
    creates a significant threat to the safety of the public, both in the sense
    that there exists a real, foreseeable risk of physical or psychological harm
    occurring to individuals in the community and in the sense that this potential
    harm must itself be serious:

R. v. Ferguson
, 2010 ONCA 810, 264 C.C.C. (3d) 451 (Ont. C.A.), at para. 8. The
    Board's reasons must clearly deal with the likelihood of a risk materializing
    and the seriousness of the harm that might occur:
Carrick
    (Re)
, 2015 ONCA 866, 128 O.R. (3d) 209 (Ont.
    C.A.), at para. 16. [Emphasis added.]

[53]

He
    further noted that the Boards reasons must identify the material evidence
    which it relies on and explain how the evidence is linked to the issue of
    significant threat:
Marchese
, at para. 11. A conclusion is not an
    explanation; and
whether that conclusion falls within a
    range of possible, acceptable outcomes cannot be assessed in light of the
    absence of any analysis
:
Marchese
, at para. 17.

[54]

Another
    case that grapples with a similar issue is
Magee (Re)
,

2020
    ONCA  418. Although the case is factually distinguishable, the Boards
    reasons for dismissing Mr. Magees request suffered from the same defects that
    are present here: namely, an absence of meaningful reasons. On appeal, this
    court ordered a new hearing on the basis that the Boards disposition was unreasonable.
    Harvison Young J.A., writing for the court, held that the reasons failed to
    reflect an adequate engagement with the requirement that it make the least
    onerous disposition:
Magee
,

at paras. 24, 30-32; 40-42. She
    noted that the Board failed to explain its disposition in light of the
    supporting evidence:
Magee
,

at para. 25. In doing so, she reminds
    us of the following helpful comment in
Vavilov
,

at para. 127:
    T
he
principles of justification and transparency
    require that an administrative decision maker's reasons
meaningfully account
for the central issues and
    concerns raised by the parties" (emphasis added).

[55]

More
    broadly, to succeed on an appeal based on inadequate reasons, an appellant must
    show that the reasons are so deficient that they foreclose meaningful appellate
    review, and the deficiency has occasioned prejudice to the exercise of the
    appellants legal right to an appeal:
R. v. Dinardo
, 2008 SCC 24,
    [2008] 1 S.C.R. 788, at para. 25,
R. v. Sheppard,
2002 SCC 26, [2002]
    1 S.C.R. 869, at para. 33, and
R. v. Braich
, 2002 SCC 27, [2002] 1
    S.C.R. 903, at para. 31.

(5)

The Disposition of the Board  Insufficient Reasons

[56]

In
    some ways, the facts of this case align with those in
Marchese
. The
    decision of the Board sets out the history of the matter, and quotes at length
    from the Hospitals report. The Board discussed that report, and the evidence
    of Dr. Choptiany, in a cursory manner. The decision of the Board does not
    clearly set out why the condition and conduct of the appellant creates a
    significant threat to the public.

[57]

In
    fact, the Board does not even mention the appellants position when making its
    determination that the appellant posed a significant risk to the public. There
    is no analysis at all. There is no indication as to why the appellant might
    stop taking medication when he states that he would continue to take it, and he
    had taken in for years. There is no analysis as to why the potential risk posed
    by the appellant was serious as opposed to relatively trivial harm.

[58]

I
    am satisfied that the Boards reasons are so deficient that they foreclose
    meaningful appellate review. Likewise, the deficiency would have occasioned
    prejudice to the exercise of the appellants legal right to appeal.

[59]

Notably,
    this case departs from
Marchese
in a crucial way: here, the evidence
    before the Board does not appear to support a finding of significant threat. Accordingly,
    I do not have the same hesitations about interfering with the Boards disposition.
    As explained above, the appellant was entitled to an absolute discharge.

F.

CONCLUSION AND
    DISPOSITION

[60]

Accordingly,
    the appeal is allowed. As noted above, in light of the Boards 2020
    disposition, there is no need for further relief at this point in time.

Released: March 2, 2021 M.T.

M.
    Tulloch J.A.

I
    agree. David M. Paciocco J.A.

I
    agree. Harvison Young J.A.


