



COURT OF APPEAL FOR ONTARIO

CITATION:
Motuz
    (Re), 2021 ONCA 765

DATE: 20211028

DOCKET: C69562

Rouleau, Benotto and Zarnett JJ.A.

IN THE MATTER OF: Gary Robert Motuz

AN APPEAL UNDER PART XX.1 OF THE
CODE

Erin Dann, for the appellant

Gerald Brienza, for the respondent, Attorney General of
    Ontario

Julia Lefebvre, for the respondent, Person in Charge of
    Waypoint Centre for Mental Health Care

Heard: October 8, 2021 by video conference

On appeal against the disposition of the Ontario Review
    Board dated March 2, 2021, with reasons dated March 18, 2021.

REASONS FOR DECISION

[1]

Mr. Motuz has been in detention since June 2, 2015. He appeals the March 2,
    2021, disposition of the Ontario Review Board which refused to grant an
    absolute discharge. He seeks an absolute discharge or seeks to have the matter
    remitted to the Board for a new hearing.

BACKGROUND

[2]

The appellant has a lengthy criminal record, dating back to 1993. Five
    of these convictions were for violent offences. The most recent violent offence
    was the assault of a peace officer, of which he was convicted in 2004. His
    offences since then have been non-violent  most are for failure to comply with
    probation orders and trespass at night.

[3]

The appellant had a history panhandling. He was convicted of causing a
    disturbance and was required to stay away from a certain area on Dunlop Street
    in Barrie. In December 2014, police found him walking on Dunlop Street West and
    he was arrested.

[4]

Following his arrest, the appellant was required to attend for
    fingerprinting on January 12, 2015. He did not do so. Later in January 2015, he
    moved and failed to notify his probation officer of his change of address. He
    was convicted of breach of two probation orders. On June 2, 2015, he was found
    not criminally responsible on account of mental disorder on charges of failure
    to comply with probation order and failure to appear or comply with appearance
    notice.

[5]

Every year, on his review hearing, the Board continued his detention.
    His most recent hearing was February 24, 2021.

EVIDENCE AT THE HEARING

[6]

The appellants current psychiatric diagnoses are substance abuse,
    schizophrenia, and antisocial personality disorder. He was deemed incapable of
    making his own treatment decisions in August 2020.

[7]

The appellant has an inconsistent history of compliance with medication.
    In 2011, he was admitted to the hospital because of concerns that he was going
    to harm someone. He was brought to the Emergency Department where he had to be
    restrained and, once restrained, continued to spit at staff. In 2013, he
    appeared to throw a punch in the direction of a doctor while at the Central
    North Correctional Centre.

[8]

From the time that the appellant was detained following his NCR finding,
    his misconduct has been relatively minor in nature, such as slamming doors and
    badgering other residents and strangers for money and cigarettes. In February
    2019, the appellant was seen repeatedly picking up a chair and dropping it, he yelled
    at staff to fuck off, and slammed a door. He requested the seclusion room
    where he sat on a mattress and stared blankly at staff. He then began kicking
    the door, punching the window, and tied a pillowcase around his neck. He
    returned the pillowcase to staff when asked. This incident was later found to
    be the result of hyponatremia (water intoxication), after the appellant had
    consumed dangerous quantities of coffee, water, and pop.

[9]

The unanimous opinion of the treatment team was that the appellant poses
    a significant threat to the safety of the public

DECISION OF THE BOARD

[10]

The
    Board concluded that the appellant poses a significant threat to public safety.

[11]

He
    suffers from a major mental illness which is only partially controlled by
    medication. He also lacks insight into both the fact that he has a mental
    illness and the benefits of medication for that illness. He suffers from an
    antisocial personality disorder and has scored within the psychopathic range of
    the PCL-R.

[12]

While
    the appellant has not been convicted of violent offences in many years, he has
    exhibited aggressive behaviour, criminal in nature more recently. There is no
    doubt that if granted an absolute discharge, the appellant would cease
    medication and return to criminal behaviour. Even in the appellants more
    recent non-violent criminal history, he has been convicted of trespass at night
    which raises significant concerns about the nature of his activity and the
    potential consequences should he come across the residents of the property on
    which he is trespassing.

[13]

The
    appellant refuses to accept housing recommended by the hospital and has stated
    that if discharged, he would cease taking medication and consume marijuana.

ISSUE ON APPEAL

[14]

Was
    the boards refusal to grant an absolute discharge unreasonable?

The appellants position

[15]

The
    appellant submits that the Boards refusal to grant an absolute discharge was
    unreasonable for three reasons.

[16]

First,
    the appellant challenges the description of his more recent history as
    exhibiting aggressive behaviour that was criminal in nature. He submits that
    the Board misapprehended the evidence by failing to consider the lengthy
    absence of violent or aggressive behaviour by the appellant  including when he
    was unwell, precariously housed, and using illicit substances  in assessing
    whether he was a significant threat to public safety. This, the appellant submits,
    is evident in the Boards reasons at paras. 21 and 22 which provide the
    following:

21. The Board unanimously finds that Mr. Motuz continues to
    constitute a significant threat to the safety of the public. He suffers from a
    major mental illness which is only partially controlled by medication. He lacks
    insight into the fact that he has a mental illness, the positive impact of
    medication on that illness or the impact of marijuana use on his mental health.
    Although he has no convictions for violent offences for many years, he has
    exhibited aggressive behaviour, criminal in nature although not resulting in
    charges, both in and out of Hospital more recently. It is also noteworthy that
    for significant periods of time over the last many years he was either
    hospitalized or incarcerated and receiving treatment. Should he be granted an
    absolute discharge, there is no doubt that he would immediately cease
    medication and resume the use of intoxicants with decompensation and a return
    to criminal behaviour as a result.

22. Although Mr. Motuz' criminal record is largely nonviolent,
    it does include offences of violence and there is also a history of aggressive
    and threatening behaviour causing both physical and psychological harm which
    although criminal in nature did not result in criminal charges. It is also
    noteworthy that he has been convicted on a number of occasions of trespass at
    night, offences which raises significant concerns about the nature of his
    activity and the potential consequences should he come across the residents of
    the property on which he is trespassing.

[17]

The
    appellant submits that this also demonstrates that the Board erroneously
    conflated his past behaviour with his current condition.

[18]

Second,
    the appellant submits that the Board failed to consider evidence supporting a
    discharge, specifically, the dated nature of the appellants violent criminal
    history. The Board overemphasized the speculative concerns related to his more
    recent conduct, such as concerns that trespass at night provides an
    opportunity for violent behaviour that the appellant would seize on.

[19]

Third,
    the appellant submits that the evidence does not support the conclusion that he
    remains a significant risk to the public. Although the evidence before the
    Board supported its conclusion that, absent oversight, the appellant would
    likely stop taking medication, decompensate, and possibly return to criminal
    behaviour, this does not itself address whether the appellant poses a
    significant risk to public safety.

The Respondents position

[20]

The
    Crown and the Hospital submit that the Boards conclusion was reasonable. It
    should be read in combination with the evidence of Dr. Ann Jones and the
    Hospital Report, which the reasons for disposition adopt. The Board found that
    there was a significant threat to the public based on an holistic approach
    including his violent history, his mental illness, and  because the appellant
    has stated that he would not comply with treatment or take medication, and
    instead would take illicit substances, if he was no longer under the
    jurisdiction of the Board. The appellant also continues to refuse housing
    recommended by the hospital. They argue that the  appellant downplays the
    incidents of aggression with which he was involved when he submits that in the
    past, when he took illicit substances but not medication, he still did not act
    criminally or pose a danger to the public.

[21]

The
    Crown and the Hospital submit that given that the appellant resists efforts to
    integrate him into the community, a detention order is the least onerous and
    restriction disposition available.

ANALYSIS

[22]

We
    are not persuaded that the Board misapprehended the evidence concerning the appellants
    history of aggressive behaviour or  conflated the appellants recent behaviour
    with his past. The impugned paragraphs recognized both that he has no
    convictions for violent offences for many years (para.21) and that he has a
    history of aggressive and threating behaviour which included more recent
    incidents (para.22). Nor was there a failure to consider evidence in support of
    an absolute discharge. The Board considered the dated nature of the appellants
    criminal record for violent offences; however, based on the evidence as a
    whole, it decided that a detention order was warranted.

[23]

Nor
    are we persuaded that the record before the Board did not support its
    conclusion that the appellant remained a significant risk to the public.
    Although the Boards articulation of its reasons for finding significant risk
    is brief, the reasons must be read as a whole, in conjunction with the record:
    see
R. v. Dinardo,
2008 SCC 24, [2008] 1 S.C.R. 788, at para. 32. Even
    reasons which may rise to the level of concern and lack transparency have been
    considered not unreasonable when read with the evidence accepted by the Board: see
Re Marchese
,
2018 ONCA
    307, 359 C.C.C. (3d) 408, at paras. 11-12).

[24]

Here,
    in addition to its findings about the appellants history of violence and
    aggressive behaviour  the Board accepted the evidence of Dr. Jones and the
    unanimous opinion of the treatment team that the appellant poses a significant
    threat, and that detention is necessary to manage the risk. In particular, the
    Board accepted the following:

·

He suffers from a mental illness that is only partially
    controlled by medication.

·

He lacks insight into his illness and adamantly states he will
    discontinue medication.

·

Compliance with medication and avoidance of illicit substances is
    central to the mitigation of risk.

·

If granted an absolute discharge, he would immediately stop
    taking medication, would resume using intoxicants with decompensation, and would
    return to criminal behaviour.

·

His scores on psychiatric tests place him on the psychopathic
    range and his score on the VRAG (Violence Risk Appraisal Guide) was elevated
    suggesting he was in the high range of risk for violent recidivism.

·

He is not currently using his full privileges and is declining to
    engage in meaningful discussions about community living.

[25]

The
    Boards reasons, while brief, are not insufficient. When read in conjunction
    with the record, the disposition is not unreasonable.

DISPOSITION

[26]

The
    appeal is dismissed.

Paul Rouleau J.A.

M.L. Benotto J.A.

B. Zarnett J.A.


