



COURT OF APPEAL FOR ONTARIO

CITATION: Schoeler (Re), 2016 ONCA 328

DATE: 20160504

DOCKET: C61062

Weiler, Simmons and Epstein JJ.A.

IN THE MATTER OF: John Schoeler

AN APPEAL UNDER PART XX.1 OF THE
CODE

Suzan E. Fraser, for the appellant

Janice E. Blackburn, for St. Josephs Healthcare

Chris Chorney, for the respondent Attorney General of
    Ontario

Heard: April 26, 2016

On appeal against the disposition of the Ontario Review Board dated June 29, 2015.

ENDORSEMENT

[1]

In 1967, the appellant, a 78
    year old man, was diagnosed with paranoid schizophrenia. Sadly, for several
    decades, the appellants mental disorder has caused him to be involved with the
    criminal justice and mental health systems.

[2]

In 2008, the appellant was
    found Not Criminally Responsible (NCR) on a charge of criminal harassment. The
    charges arose out of contact the appellant made with a woman with whom he had
    become infatuated. This woman had also been the victim in criminal harassment
    charges for which the appellant had been convicted in 1991.

[3]

Since the NCR verdict, the
    appellant has had annual hearings before the Ontario Review Board that have
    resulted in detention orders. In the most recent hearing in June 2015, the
    appellant sought an absolute discharge. The Board ordered a continuation of the
    detention order, then in place.

[4]

In this appeal, the
    appellant submits that the Board erred in maintaining its jurisdiction over
    him. Specifically, the appellant argues that the Board erred in law in equating
    the harm contemplated in the offence of criminal harassment with the harm
    contemplated in s. 672.5401 of the
Criminal Code
, the section that
    defines significant threat to the safety of the public, for the purposes of
    s. 672.54.

[5]

We disagree that the Board
    committed this error.

[6]

The appellants submission
    is based on the following sentence in the Boards reasons:

We are unanimous in finding there is a foreseeable and
    substantial likelihood that Mr. Schoeler would cause serious psychological harm
    to members of the public resulting from conduct that is criminal in nature,
similar
    to the index offence
, if not under the jurisdiction of the Board. [Emphasis
    added.]

[7]

The appellant submits that although
    causing the complainant to fear for his or her safety is an element of the
    offence of criminal harassment, absent evidence of harm experienced by the
    complainant in the index offence, it was not open to the Board to conclude that
    the index offence resulted in serious psychological harm  which is required to
    meet the threshold of significant threat to the safety of the public  or that
    the risk of the appellants engaging in conduct similar to the index offence
    would meet that threshold.

[8]

Reading the reasons as a
    whole, the Board did not focus only on the index offence in coming to its
    conclusion that the appellant continued to pose a significant threat to the
    safety of the public. Immediately following the sentence set out above, the
    Board stated:

Upon consideration of all the evidence, our findings and the
    submissions of the parties
, we are unanimous in finding that Mr. Schoeler
    continues to pose a significant threat to the safety of the public as codified
    in s. 672.5401. [Emphasis added.]

[9]

The evidence before the Board
    supported a finding that, if granted an absolute discharge, the appellant would
    discontinue his medication leading to a rapid deterioration in his mental
    health to active psychosis. This would create a serious risk that he would likely
    engage not only in behaviours similar to the index offence but also in physical
    and aggressive behaviour. He had done so in the past.

[10]

The Boards conclusion that the appellant continues to pose a
    significant threat to the safety of the public was reasonable on the record before
    it. The appeal is therefore dismissed.

K.M. Weiler J.A.

J. Simmons J.A.

Gloria Epstein
    J.A.


