



COURT OF APPEAL FOR ONTARIO

CITATION: McLellan (Re) 2015 ONCA 888

DATE: 20151214

DOCKET: C60333

Feldman, Gillese and Watt JJ.A.

IN THE MATTER OF: Daniel McLellan

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant Daniel McLellan

Philippe Cowle, for the Crown

Kathryn Hunt, for the Centre for Addiction and Mental
    Health

Heard: December 3, 2015

On appeal against the disposition of the Ontario Review
    Board, dated March 23, 2015.

ENDORSEMENT

[1]

On March 23, 2012 the appellant was found NCRMD on counts of criminal
    harassment and uttering death threats. The offence of criminal harassment
    included a variety of conduct extending over a period of nearly three years.
    The targets were his ex-wife and children. The object of the death threats was
    his ex-wife.

[2]

In March, 2015 the Review Board ordered that the appellant be discharged
    subject to conditions. One condition required the appellant to report not less
    than once per month to the person in charge of the Centre for Addiction and
    Mental Health (CAMH).

[3]

The appellant seeks an absolute discharge. He says that he is not now
    and was not at the Review Board hearing a significant threat to the safety of
    the public.

[4]

The appellant contends that the Review Board erred in concluding that he
    was a significant threat to the safety of the public. Its conclusion, he says,
    was the product of several errors:


i.

an incorrect interpretation and
    application of the significant threat standard;


ii.

a failure to adhere to its inquisitorial mandate;


iii.

an improper shift in the onus of proof; and


iv.

an uncritical acceptance of the evidence of Dr. Ian Swayze, which
    amounted to an abdication of its obligations.

The appellant argues further that the Boards finding
    of significant threat is unreasonable.

[5]

For the reasons that follow, we are not prepared to interfere on any
    ground advanced by the appellant.

Ground #1: Incorrect
    Interpretation and Application of the Significant Threat Standard

[6]

The appellants current diagnoses are Delusional Disorder, Persecutory Subtype;
    and Polysubstance Dependence in sustained remission. His differential diagnosis
    is Antisocial Personality Traits/Disorder. He is competent to consent to
    psychiatric treatment and has declined psychiatric medication for over two and
    one half years.

[7]

The reasons of the Board belie any misinterpretation or misapplication
    of the significant threat standard in reaching its conclusion that the
    standard had been met. The issue of significant threat was almost the exclusive
    focus of the hearing and the submissions of the parties. The Board recognized
    the inherent difficulty of this task of risk assessment but expressed no
    uncertainty about its conclusion. Nothing said, or left unsaid, during the
    hearing or in the reasons for disposition reflects any departure from the
    rigorous standard to be met to establish significant threat.

[8]

This standard is a concept with which the Board grapples on a daily
    basis. Nothing here persuades us that the Board diluted or lost sight of the standard.
    Nor are we persuaded that its comment about the uncontradicted evidence on
    the issue is indicative of an impermissible shift of the onus of proof to the
    appellant or a failure to be faithful to its inquisitorial mandate. The unanimous
    nature of the expert evidence was a factor the Board could consider in reaching
    its conclusion. That it did so does not reflect the imposition of any burden on
    the appellant or an abdication of its inquisitorial mandate.

[9]

The basis upon which the Board reached its conclusion extended beyond
    the
viva voce
testimony of Dr. Swayze. The Board had before it, in
    accordance with its usual practice, a lengthy Hospital Report and an Addendum
    to that report to ensure currency. The report chronicled the appellants
    lengthy history of harassing behaviour towards his family. It also described
    his refusal to take any medication and his longstanding lack of insight into
    his illness. It acknowledged some recent recognition by the appellant of his
    illness but queried its authenticity.

[10]

When
    read as a whole, the reasons negate the claim advanced by the appellant that
    the Board simply deferred uncritically to the opinion of Dr. Swayze.

Ground #2: The Unreasonableness of the Finding of Significant
    Threat

[11]

The
    appellant also contends that the finding of the Board that he was a
    significant threat to the safety of the public was unreasonable.

[12]

In
    our view, this ground of appeal fails.

[13]

The
    Board heard evidence that the appellant suffers from a Delusional Disorder, Persecutory
    Subtype. His delusions led him to engage in a campaign of criminal harassment
    against his ex-wife and children over a period of nearly three years. He
    threatened to burn down their house and kill his ex-wife.

[14]

As
    a result of his delusions, the appellant became heavily preoccupied with the
    well-being of his children and a connection he was convinced existed between
    his ex-wife, motorcycle gangs and drug cops.

[15]

The
    appellant continued to display symptoms of delusional thinking until at least
    2014. He refuses to take medication recommended by the clinical team. Dr.
    Swayze testified that, in the absence of medication, the symptoms of the
    appellants delusional disorder
will
return. The appellant has a low
    level of ability to recognize the recurrence of symptoms, especially because of
    his denial that he suffers from a major mental illness.

[16]

It
    was against the background just described that the Board was required to
    evaluate the appellants recent expression of insight. Its conclusion is
    entitled to deference and is not unreasonable. It did not, as the appellant
    argues, proceed from the presence of a delusional disorder to a finding of
    significant threat.

Conclusion

[17]

For
    these reasons, the appeal is dismissed.

K. Feldman
    J.A.

E.E.
    Gillese J.A.

David
    Watt J.A.


