



COURT OF APPEAL FOR ONTARIO

CITATION: McAnuff (Re), 2020 ONCA 676

DATE: 20201027

DOCKET: C67309

Watt, Tulloch and Roberts JJ.A.

IN THE MATTER OF: Novar W. McAnuff

AN APPEAL UNDER PART XX.1 OF THE
CODE

Novar W. McAnuff, acting in person

Paul Calarco,
amicus curiae

Dena Bonnet, for the Attorney General of Ontario

Leisha Senko, for the Person in Charge of The
    Centre for Addiction and Mental Health

Heard: September 18, 2020 by videoconference

On appeal against the disposition of the Ontario Review
    Board, dated July 4, 2019, with reasons dated July 25, 2019 reported at [2019]
    O.R.B.D. No. 1798.

REASONS FOR DECISION

[1]

On January 17, 2011, as a result of a finding of not criminally
    responsible on three counts of assault, the appellant came under the
    jurisdiction of the Ontario Review Board. Since that time, apart from a brief
    period of community residency in 2013, he has been detained on various units at
    The Centre for Addiction and Mental Health (CAMH).

[2]

The appellant is currently subject to a disposition of the Board
    which detains him on the General Forensic Unit of CAMH subject to certain
    conditions, including residence in 24-hour supervised accommodation in the
    community, if approved by the person in charge at CAMH.

[3]

With the assistance of
amicus
, the appellant asked us to set aside the
    detention order to which he is now subject and order that he be discharged
    absolutely, or alternatively, conditionally. At the commencement of oral
    argument,
amicus

indicated that the appellant would not be pursuing submissions on a conditional
    discharge.

[4]

For the reasons that follow, the appeal is dismissed.

The Background Facts

[5]

The index offence took place one evening in early September 2010,
    in a neighbourhood where the appellant was known as a person who displayed apparent
    signs of mental illness.

[6]

The appellant approached two women on the street as they walked
    their dog. He lunged at the dog. One of the women swung her keys at the
    appellant. He grabbed her in response. As he was pushed away, the appellant
    began grabbing at the other woman's shirt. Both women fled.

[7]

About five minutes later, the appellant abruptly changed his
    direction of travel and approached another woman who was walking with her
    daughter. He grabbed the daughter around her waist. The mother dropped her
    belongings and started to hit the appellant with her umbrella. The appellant
    let go of the daughter. He then grabbed what the mother had dropped on the
    street and fled. Shortly thereafter, he was arrested by police.

The Mental Disorders

[8]

The appellant has been diagnosed as suffering from schizophrenia,
    substance disorders involving marijuana and crack cocaine, and a personality
    disorder with antisocial traits. He was first diagnosed with schizophrenia at
    age 17. He is now 47. His clinical risk factors include residual symptoms of
    schizophrenia involving religious, somatic, and grandiose delusions, as well as
    hallucinations. These symptoms are significantly exacerbated when he consumes
    marijuana and becomes irritable and aggressive.

[9]

Prior to the index offence, the appellant had a significant
    history of psychiatric care and hospitalization, as well as aggressive conduct
    towards and in the presence of others. He has a lengthy history of cannabis use
    and used cocaine for a few years in his 30s.

[10]

Throughout lengthy periods of supervision by the Review Board,
    the appellant has been a frequent and extensive user of marijuana. A constant
    feature of this use is post-use decompensation. In July 2018, he used a new
    designer drug known on the streets as spice. It is a highly toxic synthetic
    cannabinoid with a potency 85 times that of THC. The drug has been linked to
    multiple hospitalizations and deaths in New York and New Zealand. The appellants
    use was the first documented incident of spice" intoxication in Ontario.

[11]

About 10 days later, the appellant was involved in a further
    incident with spice. His condition required emergency medical assistance.
    Hospital staff were subjected to serious medical risks associated with
    secondhand exposure to the drug. After attending to the incident, several staff
    members felt unwell and one nurse required transfer to the Emergency
    Department. Decontamination of the affected area was also required.

The Decision of the Board

[12]

At the conclusion of the hearing under review, the Board was
    satisfied that the appellant continued to represent a significant threat to the
    safety of the public. The essence of the Boards reasoning is contained in
    three paragraphs of its decision:

29. The initial question for the board is whether Mr. McAnuff
    continues to represent a significant risk to the community. Counsel for the
    hospital and the Attorney General point to his record of physical and
    psychological violence prior to entering the forensic hospital system. They
    also contend that Mr. McAnuffs ongoing insistence that he has a right to
    consume cannabis renders him a significant threat to public safety. Consuming
    cannabis consistently causes him to become agitated, impatient and angry. They
    maintain that this mental state is a precursor to probable threats and/or acts
    of physical violence to members of the public.

30. The Board readily agrees that based on these grounds, Mr. McAnuff
    poses a significant risk to public safety. His criminal record and the index
    offence, while they lie almost a decade behind him, were substantial. The
    negative combination of his illness, his personality traits and the effect of
    cannabis on his conduct are undeniable. The likelihood of psychological
    violence to members of the public is particularly strong in light of past
    experience and the observable agitation that Mr. McAnuff continues to
    demonstrate when he is intoxicated. Mr. McAnuff also has virtually no supports
    in the community.

31. At the same time, it must be conceded that Mr. McAnuff has
    gone a long period without having committed any acts of violence. It is known
    for certain that he consumed cannabis only twice last year, yet neither
    incident was accompanied by violence. The hospital contends that this is largely
    due to the fact that he has been closely monitored and contained by his
    structured existence. This argument makes a good deal of sense. Without the
    hospital and ORB structures that [govern] him, the evidence supports a clear
    inference that Mr. McAnuff would revert to cannabis and cocaine use, cease
    using medication and decompensate. In these circumstances he would likely
    become as dangerous to public safety as he was at the time of the index offence.

The Arguments on Appeal

[13]

In this court, Mr. Calarco accepts that the significant threat
    threshold is met when the evidence demonstrates a risk of serious physical or
    psychological harm to members of the public resulting from conduct that is
    criminal in nature, but not necessarily violent. There must be not only a
    likelihood of the risk materializing, but also a likelihood of serious harm
    occurring.

[14]

Mr. Calarco says that the evidence adduced at the hearing does
    not support a finding that the appellant is a significant threat as that
    standard is defined in s. 672.5401 of the
Criminal Code
and by the governing authorities.
    Taken at its highest, he submits, the evidence shows a higher level of risk for
    some unknown form of aggressive behaviour at some future, unspecified time. But
    that falls short of what is required.

Discussion

[15]

In our view, the Boards conclusion on the issue of significant
    threat is neither unreasonable nor flawed by legal error.

[16]

A significant threat to the safety of the public is defined in
    s. 672.5401 as a risk of serious physical or psychological harm to members of
    the public  including any victim of or witness to the offence, or any person
    under the age of 18 years  resulting from conduct that is criminal in nature
    but not necessarily violent.. The threat must be significant both in the sense
    that there must be a real risk of physical or psychological harm, and in the
    sense that the harm must be serious:
Winko v. British Columbia (Forensic Psychiatric Institute)
,
[1999] 2 S.C.R. 624, at para. 57.

[17]

Whether someone meets this threshold requires consideration of a
    constellation of factors, no one of which is dispositive: The presence or
    absence of a significant or recent history of violence; the likelihood of
    physical or psychological violence; lack of insight into the index offence and mental
    illness; the likelihood of discontinuing essential medication; and substance
    abuse and its sequelae of decompensation, psychosis, and unlawful conduct:
Mott (Re)
,
2019
    ONCA 560, 156 W.C.B. (2d) 44, at para. 10.

[18]

In this case, the experts describe the appellant as suffering
    from several disorders: Schizophrenia, Cannabis Use Disorder, Cocaine Use
    Disorder in remission, and Personality Disorder (unspecified) with antisocial
    traits. He lacks insight into his mental illnesses, which are longstanding and
    treatment resistant.

[19]

The appellant does not accept that he has ever been violent. He
    denies the index offence and previous threats to kill his mother in the face of
    irrefutable evidence to the contrary.

[20]

Risk assessments of the appellant reveal that he is nearly twice
    as likely to violently reoffend than the average offender with similar scores.
    In times of drug use, the risk of aggressive or violent behaviour is even more
    likely.

[21]

The appellants substance abuse is an integral part of his
    delusional beliefs. His treating psychiatrist testified that in absence of
    Board supervision, it is entirely predictable that the appellant would resume
    regular use of marijuana and possibly crack cocaine. Thereafter, in all
    likelihood, the appellant would discontinue treatment with antipsychotic
    medication. The appellant does not believe either that he needs his medication,
    or that anything negative would follow should he discontinue it. Decompensation
    into much more active symptoms of psychosis and a markedly increased risk of
    aggressive behaviour would follow.

[22]

From time to time, the appellant also uses spice, which poses
    serious medical risks not only to himself but to others, such as medical personnel,
    through secondhand exposure.

[23]

Unlike the appellant in
Wall (Re),
2017 ONCA 713, 417
    D.L.R. (4th) 124, the appellant lacks insight into his illnesses and has
    difficulty monitoring and recognizing his symptoms. There is clear evidence of
    continual substance abuse that leads inevitably to problematic conduct and
    instances of physical harm to others:
Abdikarim
(Re)
, 2017 ONCA 793, 142 W.C.B. (2d) 248, at para. 16.
Recently,
    this harm has been to medical personnel.

[24]

In our view, the cumulative force of the evidence adduced at the
    hearing satisfied the onerous standard of significant threat in s. 672.5401 of
    the
Criminal Code
.
    We are not persuaded either that the evidence falls short of what is required,
    or that the reasons of the Board betray any misunderstanding of the statutory
    test. The Boards disposition was the least onerous in the circumstances of
    this case.

disposition

[25]

For these reasons, the appeal is dismissed.

David Watt J.A.

M. Tulloch J.A.

L.B. Roberts J.A.


