



COURT OF APPEAL FOR ONTARIO

CITATION: Persaud (Re), 2018 ONCA 1080

DATE: 20181227

DOCKET: C65420

Juriansz, Benotto and Trotter JJ.A.

IN THE MATTER OF:  Baseo V. Persaud

AN APPEAL UNDER PART XX.1 OF THE
CODE

Erin Dann, for the appellant

Emma Haydon, for the respondent

Heard: December 21, 2018

On appeal against the disposition of the Ontario Review
    Board dated, April 16, 2018.

REASONS FOR DECISION

[1]

The appellant came under the jurisdiction of the Board in January, 2008
    when he was found not criminally responsible by reason of a mental disorder on
    charges of attempted murder, aggravated assault, assault, and to charges of
    assault with a weapon. He had attacked and injured his mother with a knife and
    assaulted his father. He was diagnosed with a delusional disorder (persecutory
    type) and alcohol use disorder. He was declared incapable of consenting to
    treatment and his brother became and has remained his Substitute Decision-Maker.

[2]

Though he has never acknowledged he has a mental illness and continues
    to question his need for psychotropic medication, he has been compliant with
    its administration and progressed to the point where he was successfully living
    in the community on a conditional detention order with the condition that he
    abstain from alcohol.

[3]

On his last annual review in April, 2018 he was placed on a detention
    order, the alcohol prohibition condition was removed, then the person in charge
    was authorized to permit him to enter the community, or to live in the
    community.

[4]

The Boards rationale for making him subject to a detention order was to
    allow the hospital to formulate a Community Treatment Plan for him to provide
    the appropriate structure to allow him to show he can drink responsibly with a
    view to allowing him to move into the civil mental health system on an absolute
    discharge in the future.

[5]

In seeking the detention order, the hospital did not bring the appellant
    into detention, but continued to allow him to reside in the community without
    the alcohol prohibition condition.

[6]

The appellant sees the current disposition as more restrictive than his
    previous conditional discharge disposition. He says the Board is not entitled
    to take a step backwards to facilitate the possibility that he would move two
    steps forward in the future. He submits the Boards objectives could have been
    achieved by maintaining him on a conditional discharge but removing the alcohol
    prohibition clause. He further submits that, even on a conditional discharge,
    he would be eligible for a Community Treatment Order as he met the definition
    of patient under the
Mental Health Act
.

[7]

There is no issue that the appellant remains a significant risk to the
    safety of the public. His index offences was serious and violent, his mental
    disorder persists, he cannot consent to treatment, he continues to believe his
    antipsychotic medication does not offer him any benefit, and the effect of
    alcohol on the risk of noncompliance with his medications is a serious concern.

[8]

We accept that the nature of a detention order is more restrictive than
    that of a conditional discharge. The impact of such a designation has the
    potential to negatively affect future dispositions. Here, while the Board
    recognized the appellant might regard the disposition including the detention
    order as more restrictive, it explained that the detention order was actually
    less restrictive when considered with the privileges and prohibitions included.
    The Board explained:

As submitted by Dr. Morgan, the current recommendation of the
    treatment team has the potential to put Mr. Persaud in a position where an
    absolute discharge may be feasible for the following year. Put simply, Mr.
    Persaud has made it clear that he wants to drink alcohol and that his abstinence
    is the result of the current prohibition. There is also evidence that Mr.
    Persaud is not likely to remain adherent with treatment absent a high degree of
    oversight and some authority requiring him to do so. If Mr. Persaud is able to
    drink in a controlled and measured way that will not significantly heighten his
    risk to the public, and if a CTO can be implemented to ensure his ongoing
    psychiatric follow-up and adherence to medication, it may be that the factors
    that contribute to making him a significant risk can be adequately and
    appropriately managed outside of a Review Board disposition.

[9]

The Board was entitled to conclude that the appellants current
    abstinence is a result of the alcohol prohibition condition. The Board could
    accept the treating doctors concern that without the alcohol prohibition
    condition the appellant was not likely to remain adherent with his treatment
    without a high degree of oversight and some authority requiring him to do so.
    The appellants ability to drink alcohol and the effect of his drinking alcohol
    had to be assessed in a controlled and measured way to ensure it did not
    significantly heighten his risk to the public. Making the appellant subject to
    a detention order achieved the dual purpose of allowing the implementation of a
    Community Treatment Order and ensuring  the appellant could be swiftly and
    certainly returned to the hospital should that prove necessary.

[10]

The
    Board must exercise extreme caution in considering a detention order as the
    least restrictive disposition. Cases where that is so will be extremely rare.
    However, on the particular facts of this case the Board was entitled to do so.
    Viewing the Boards disposition as a whole and in the context of its reasons,
    we are not persuaded the disposition is unreasonable or not supported by the
    evidence.

[11]

The
    appeal is dismissed.

R.G. Juriansz J.A.

M.L. Benotto J.A.

G.T. Trotter J.A.


