



COURT OF APPEAL FOR ONTARIO

CITATION: Jergovic (Re), 2022 ONCA 291

DATE: 20220412

DOCKET: C69836

Roberts, Miller and Zarnett JJ.A.

IN THE MATTER OF: Nikolas
    Jergovic

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Michael Davies, for the appellant

Alysa Holmes, for the respondent, Attorney General of
    Ontario

Hilary Chung, for the respondent, Person in Charge of Brockville
    Mental Health Centre

Heard: March 31, 2021 by video conference

On appeal from the disposition of
    the Ontario Review Board, dated June 4, 2021, with reasons dated June 24, 2021,
    reported at [2021] O.R.B.D. No. 1378.

REASONS FOR DECISION

[1]

Nikolas Jergovic has
    been under the supervision of the Ontario Review Board since December 21, 2010,
    when he was found not criminally responsible on account of mental disorder
    (NCR) for arson. He set fire to a newspaper distribution box and the police
    reported seeing him fanning and blowing on the flames. When the police
    attempted to arrest him, he actively resisted, attempted to punch one officer,
    kicked at them, and tried to run away. When placed handcuffed in the back of
    the police cruiser, he kicked at the cruisers rear right window, separating it
    from the frame.

[2]

Since June 2018, Mr.
    Jergovic has been alternatively living in an eight-hour supervised group home
    and a twenty-four-hour supervised residence, while followed by his treatment
    team at the Brockville Mental Health Centre. He has been under a conditional
    discharge order since June 2019.

[3]

Mr. Jergovic appeals
    the Boards most recent disposition, which continues the conditional discharge.
    He seeks an absolute discharge. Alternatively, he seeks a new hearing before a
    differently constituted panel. He submits that the Board erred in its analysis
    of the issue of whether he represented a significant risk to the public and that
    its decision was unreasonable because the evidence did not support the
    conclusion that he posed a significant risk to public safety.

[4]

The standard of
    appellate review is well established. An appellate court may only allow an
    appeal from a Boards disposition under s. 672.78(1) of the
Criminal
    Code of Canada
, R.S.C. 1985, c.
    C-46 where the Boards disposition is unreasonable or cannot be supported by
    the evidence, it is based on a wrong decision on a question of law, or there
    was a miscarriage of justice.

[5]

While we agree that the
    Board could have organized and written its reasons in a clearer fashion, when
    they are read as a whole and in light of the record, we are not persuaded that
    the Board erred in its analysis and conclusion that Mr. Jergovic continued
    to pose a significant risk to public safety. Moreover, the Boards disposition
    is amply supported by the record that it reviewed and referenced.

[6]

We are satisfied that the
    Boards reasons are able to withstand a somewhat probing examination, and
    that the decision is internally coherent, demonstrates a rational chain of
    analysis and is justified in relation to the facts and the law and falls
    within the range of possible outcomes:
Sim (Re)
, 2020 ONCA 563, at para. 68;
Nguyen
    (Re)
, 2020 ONCA 247, 387 C.C.C.
    (3d) 13, at para. 28;
Canada (Minister of Citizenship and Immigration)
    v.

Vavilov
, 2019 SCC 65, 441 D.L.R. (4th) 1, at paras. 84-86.

[7]

There is no issue that
    the Board referenced the correct test. In assessing whether Mr. Jergovic posed
    a significant risk to public safety, the Board was required to analyze whether
    the evidence disclosed a significant or real risk to the community should Mr.
    Jergovic be released. Mr. Jergovic need not prove lack of dangerousness and,
    absent a finding of significant risk, is entitled to an absolute discharge. As
    a result, the Board had to assess the likelihood of that risk and the
    seriousness of the harm that would result if the risk materialized. As the
    Board also recognized, there must be a real, foreseeable risk that is more than
    speculative and that the consequent physical or psychological harm must be
    serious and criminal in nature: see
Winko v. British Columbia
    (Forensic Psychiatric Services)

[1999] 2 S.C.R. 625, at paras. 51, 54 and 57;
Carrick
    (Re),
2015 ONCA 866, 128 O.R.
    (3d) 209, at paras. 16-20;
R. v. Ferguson
, 2010 ONCA 810, 264 C.C.C. (3d) 451, at para. 8.

[8]

Mr. Jergovic maintains
    that while the Board referenced the correct test, it did not apply it because
    it erred in its consideration of both the likelihood of the risk materializing
    and the seriousness of the harm that might occur, conflating significant risk
    with enhanced risk, which is not the test. According to Mr. Jergovic,
    the Boards overemphasis on his likelihood of relapse into drug abuse resulted
    in its failure to grapple with the relevant question of whether there was a
    real, foreseeable risk that he would cause physical or psychological harm, even
    if he relapsed.

[9]

We disagree.

[10]

The Boards summary of
    its conclusion on significant risk is set out in paragraph 46 of its reasons:

The panel is satisfied should [Mr. Jergovic]
    be granted an absolute discharge, it is a virtual certainty he will return to
    crack cocaine use. The use of crack cocaine will negatively impact his mental
    state and will enhance his threat to public safety. The panel is satisfied this
    threat is not speculative, but real.

[11]

This paragraph must be
    read in the context of the Boards thorough review of the constellation of
    relevant risk factors and the broad range of relevant evidence that the Board
    was required to examine, including the recommendations provided by Dr. Gray:
Winko
, at para. 61;
Mott (Re)
,
2019 ONCA 560, at para.
    10;
McAnuff (Re)
, 2020 ONCA 676, at para. 17
. The Board examined Mr. Jergovics long psychiatric
    history and diagnoses that included schizophrenia, cocaine and alcohol use
    disorders, Unspecified Disruptive, Impulse Control, and Conduct Disorder, and
    the fact that his mental illness has never been under complete control despite
    adherence to medications. The Board also considered his significant struggles
    with substance abuse and its destabilizing effect (including the index offence
    and his elopement from the hospitals grounds during the reporting year), his
    difficulties in transitioning to and numerous evictions from supervised housing,
    his lengthy criminal record that includes previous convictions for arson, pointing
    a firearm, and break and enter,
[1]
and which culminated in the index offence in 2010, his long history of anger
    management problems from his teens, his assault of a co-patient, his verbal
    aggressions (though the Board noted that they occurred some time ago), and
    finally his threat to smother a nurse with a rag because voices were telling
    him to do so.

[12]

We do not agree that
    the Boards reliance on Dr. Grays evidence concerning the cascade of factors
    that supported his opinion of significant risk of harm was misplaced or that
    Dr. Grays opinion was speculative. Dr. Gray testified that if he were granted
    an absolute discharge, Mr. Jergovic would inevitably relapse into drug abuse
    and that

the
    sequelae of disengagement with his treatment team and his medications would
    probably be followed by decompensation, psychosis, and unlawful conduct. While
    Dr. Gray could not say that it was even likely that the unlawful conduct would
    be very seriously violent, he did opine that the next step of Mr. Jergovic committing
    an offence of any sort was quite high and might include some kind of
    criminal harassment  a minor assault, a mischief, something like that. Dr.
    Gray also referenced Mr. Jergovics recent threat to smother a nurse which was
    de-escalated because he was within a controlled setting. The risk of this kind
    of unlawful conduct meets the threshold for risk of significant harm that is
    neither a minuscule risk of a grave harm nor a high risk of trivial harm:
Winko
, at para. 57.

[13]

Dr. Grays opinion was
    firmly grounded in the evidence. Notably, this evidence included the sequence
    of events that led to Mr. Jergovics commission of the index offence. The
    historical record demonstrates that Mr. Jergovics very serious substance abuse
    issues exacerbate the symptoms of his illness that are not completely
    controlled by medications and have caused him previously to engage in criminal
    activity and aggressive behaviour. Recently, they have led to numerous
    evictions from supervised housing and his elopement from the hospital grounds.

[14]

It is also important to
    note that the Board reviewed and weighed the very positive and encouraging
    evidence of Mr. Jergovics progress over the last few years: he has a very
    supportive relationship with members of his family, he has good insight into
    his illness and the need for medication, and he is engaged with his treatment
    team. He is compliant with medications and directions and, absent relapse into
    substance abuse, would continue to take his medications. He is also not
    physically violent and initially his residence in supervised housing went
    extremely well. All of these factors bode well for the future and underlie the
    treatment teams plan for Mr. Jergovic to live in the community, initially with
    support and supervision, until he has developed the skills to live more
    independently.

[15]

However, the Board concluded that at the
    time of the hearing, Mr. Jergovic posed a significant risk to public safety and
    that a conditional discharge was the least onerous and most appropriate
    disposition. This was a decision that was within the range of reasonable
    outcomes. We see no basis for appellate intervention.

Disposition

[16]

As a result, we dismiss
    the appeal.

L.B.
    Roberts J.A.

B.W.
    Miller J.A.

B. Zarnett J.A.





[1]

The Board also referenced a number of withdrawn charges on
    Mr. Jergovics criminal record. We agree that without the factual underpinnings
    of those charges, those charges were irrelevant. However, we are not persuaded,
    and it was not forcefully argued, that the Boards reference to those charges was
    material to or tainted its decision.


