



COURT OF APPEAL FOR ONTARIO

CITATION: Warner (Re), 2013 ONCA 181

DATE: 20130326

DOCKET: C56212

Sharpe, Watt and Hoy JJ.A.

IN THE MATTER OF:  Michael Warner

AN APPEAL UNDER PART XX.1 OF THE
CODE

Michael Warner, acting in person

Anita Szigeti, as
amicus curiae

James P. Thomson, for the Centre for Addiction and
    Mental Health

Randy Schwartz, for the Attorney General

Heard: March 19, 2013

On appeal against the disposition of the Ontario Review
    Board, dated April 23, 2012.

ENDORSEMENT

[1]

Michael Warner appeals the April 23, 2012 Disposition of the Ontario
    Review Board (the Board).

[2]

The Board found that if Mr. Warner were granted an absolute discharge,
    he would stop medication, the symptoms of his medical illness would quickly
    resume and he would present a clear and palpable risk to the safety of the
    public. It concluded that the least onerous and least restrictive disposition
    in the circumstances was a continuation of his conditional discharge.

[3]

Mr. Warner argues: (1) that the Boards finding that he is a significant
    threat to public safety is unreasonable and not supported by the evidence; and
    (2) if he does present such a risk, a Community Treatment Order (CTO) is a
    less onerous and restrictive disposition and would manage the risk he poses to
    the public and the Board, accordingly, erred by failing to order a CTO.

[4]

In our view, the opinion of the attending outpatient psychiatrist at the
    Centre for Addiction and Mental Health (CAMH), Dr. Earys, provided a basis
    upon which the Board could reasonably conclude that Mr. Warner would pose a
    significant threat to the safety of the public if discharged.  Dr. Eayrs indicated
    that Mr. Warner has no intention of continuing on his antipsychotic medications
    indefinitely and will decompensate and become a significant threat to public
    safety if he ceases to take his medication.

[5]

Mr. Warner takes issue with the Boards conclusion that the evidence of
    his mother, Ms. Rhodine Kirlew, and Mr. Fred Williams, who has been part of Mr.
    Warners life since he was a young boy, should be given no weight in assessing
    the potential risk Mr. Warner poses if discharged. The Board concluded that Ms.
    Kirlew and Mr. Williams were attempting to frame their evidence to downplay the
    risk that Mr. Warner poses. There is no basis for this court to interfere with
    the Boards assessment of the credibility of these witnesses.

[6]

As
amicus
notes, the index offences with which Mr. Warner was
    charged  criminal harassment and failure to comply with a recognizance  were
    relatively minor and non-violent. They arose out of his repeated, uninvited
    phone calls to a female police officer in March of 2006 and subsequent
    attendance at a shopping mall in September of 2007, unaccompanied by his surety
    or an adult approved by his surety, with five butcher knives in his backpack.

[7]

In assessing the risk that Mr. Warner would present if discharged, the
    Board had specific regard to the evidence that Mr. Warner thought family
    members were clones and had expressed the belief that if the clone dies, its
    not a problem.   It identified this as an example of the disturbed thinking
    Mr. Warner experiences when he is unwell and which could lead to a real risk to
    the public.

[8]

In
Winko v. British Columbia (Forensic Psychiatric Institute)
(1999),
    135 C.C.C. (3d) 129 (S.C.C.), the Supreme Court held that significant threat
    to the safety of the public means a real risk of physical or psychological
    harm to members of the public  [that goes] beyond the merely trivial or
    annoying. The conduct giving rise to the harm must be criminal in nature. In
    our view, the Board applied this test.

[9]

As to Mr. Warners second argument, it was not open to the Board to
    order a CTO. Only a physician can issue a CTO: s. 33.1(4) of the
Mental
    Health Act,
R.S.O. 1990 Chapter M. 7. Dr. Eayrs had not issued one; her
    opinion was that a conditional discharge represented the least onerous
    disposition.  This may well be a matter that she will wish to reconsider in
    advance of Mr. Warners next disposition hearing.
Amicus
suggests
    that Dr. Eayrs did not fully appreciate that where, as here, the person at
    issue has been found incapable of making his own treatment decisions and a
    substitute decision maker has been appointed, and assuming the support of the
    substitute decision maker, a CTO can be utilized to compel medication
    compliance and certification under the
Mental Health Act
is
    facilitated.

[10]

In
    the result, this appeal is dismissed.  However, we add the following.  Mr.
    Warner has been subject to the jurisdiction of the Board since December 13,
    2007, when he was found not criminally responsible on account of mental
    disorder of the index offences. Given the relatively minor nature of the index
    offences and the fact that any danger he poses to public safety can be avoided
    through medication, he should not remain under Board oversight indefinitely and
    it is important that transitional mechanisms leading to his ultimate discharge
    be fully explored.

Robert
    J. Sharpe J.A.

David
    Watt J.A.

Alexandra
    Hoy J.A.


