



COURT OF APPEAL FOR ONTARIO

CITATION: Morgado (Re), 2020 ONCA 789

DATE:  20201214

DOCKET: C68140

Rouleau, Benotto and Miller
    JJ.A.

IN THE MATTER OF: Pedro Morgado

AN APPEAL UNDER PART XX.1 OF THE
CODE

Erin Dann, for the appellant

Tanya M. Kranjc, for the respondent,
    Attorney General of Ontario

Michele Warner, for the respondent,
    Person in Charge of the Centre for Addiction and Mental Health

Heard: October 23, 2020 by
    video conference

On appeal against the disposition of the
    Ontario Review Board, dated February 4, 2020, with reasons dated February 25,
    2020.

REASONS FOR DECISION


[1]

Pedro Morgado appeals from the February 4, 2020
    disposition of the Ontario Review Board, which ordered his continued detention
    on the General Forensic Unit of the Centre for Addiction and Mental Health (CAMH)
    with privileges up to and including community living in accommodation approved
    by the person in charge. Mr. Morgado had sought a conditional discharge.

[2]

On appeal, Mr. Morgado does not dispute the
    finding that he continues to pose a significant risk of serious harm to the
    public. He appeals on the basis that the disposition was not appropriate because
    it was not the least onerous or least restrictive disposition necessary to protect
    the public. He argues the Board erred in two ways: (1) by failing to consider
    all relevant factors under s. 672.54 of the
Criminal Code
; and (2) by finding
    that a detention order was required where that finding was not supported by the
    evidence.

[3]

We do not agree that the Board erred and
    accordingly dismiss the appeal. We are, nevertheless, concerned that not enough
    has been done to move Mr. Morgado into appropriate community living. It is not
    contested that he is ready for such a move and has been for some time. We
    understand that Mr. Morgado is difficult to place because of the nature of the
    index offence, his problems controlling his anger, and his restrictive geographic
    demands. But there needs to be a renewed effort in working with him to generate
    some options for placement.

Background

[4]

Mr. Morgado is 56 years old and trained as an
    electrician. In 2007, he was found NCR with respect to charges related to
    arson. He had set a fire in an elevator of the residential apartment building
    in which he was living. The fire necessitated the evacuation of 700 residents
    and caused $300,000 in damage.

[5]

Although Mr. Morgado had interactions with the
    mental health system prior to the index offence, including a four-day admission
    to the Clarke Institute in 1998 due to depression, suicidal thoughts, and
    fantasies of killing his foreman with a hammer, he has not been diagnosed with a
    major mental disorder. The Board adopted the conclusions of the hospital report
    that Mr. Morgado has a history of aggression when his needs are not met, or in
    the face of minor interpersonal conflict or perceived provocation. He becomes
    aggressive when he has feelings of being disrespected, sabotaged, or targeted.

[6]

Mr. Morgados behaviour in hospital has been
    mixed. By the fall of 2014, his treatment team began to plan for his discharge.
    He was offered shared accommodation, which he refused on the basis that something
    bad would happen if he lived with other people. Following some incidents of
    aggression in 2015, he was transferred back to the secure unit where he
    remained until 2018.  Thereafter, he was returned to the general forensic unit
    and granted community passes, which he exercised without incident. He
    participated in therapeutic and recreational programming from February to
    November 2018. Although there were five reported incidents in 2019 of Mr.
    Morgado displaying intense anger towards members of the treatment team, he
    was otherwise typically calm and polite.

[7]

In December 2019, Mr. Morgado attended job
    interviews while on passes and reported that he obtained a job as an
    electrician at a bakery, working 60 hours per week plus 20 hours of travel
    time. The treatment team did not approve the employment as it had insufficient
    information (owing, at least in part, to not receiving documentation
    inadvertently misdirected by Mr. Morgado) and because of concerns about the
    feasibility of Mr. Morgado transitioning overnight from 12 years of
    unemployment to a very demanding work schedule.

[8]

The Board found that there was no realistic plan
    for release into the community. Although the treatment team continued to support
    community living for Mr. Morgado in approved accommodation, the Board found
    that Mr. Morgado seriously underestimates the stresses of living and working
    in the community and his potential reaction to those stresses. The Board
    accepted the position of the hospital that they need to approve and monitor Mr.
    Morgados accommodation so as to manage the risk that he poses to others in his
    vicinity.

Analysis

[9]

As explained below, we do not agree that the
    Board made any of the errors alleged.

[10]

Mr. Morgado argues that in arriving at its
    disposition, the Board failed to meaningfully consider the negative impact of
    the detention order on Mr. Morgados mental condition and on his reintegration
    into society.

[11]

The problem identified by Mr. Morgado is that although
    the Board accepts that he is ready for community living  and has been for some
    time  the detention order itself prevents this from happening. This is because
    he does not qualify for the typical options for community living available to
    persons under a detention order. First, he does not suffer from a major mental
    disorder, which means that it is likely that mental health supportive housing
    will not accept him. Second, the index offence of arson in a residential
    building similarly disqualifies him from many options.

[12]

We do not agree that the Board failed to consider
    any relevant factors in coming to its disposition, including Mr. Morgados
    mental health and the need to reintegrate him into society through community
    living and employment. The Boards reasons address these issues in numerous
    places. The Board acknowledged the need for securing appropriate community
    housing for Mr. Morgado, but identified practical obstacles, including the fact
    that he seriously underestimates the stresses of living in the community. The
    Board noted that Mr. Morgado refused shared accommodation in 2014, but at his
    hearing proposed he be released into a shelter where the stresses would be much
    greater than those in the shared accommodation previously offered to him. The
    Board now also accepts that given Mr. Morgados anger control issues, it would
    be improvident to place him in a cooperative living situation with other
    people. The Board, in its reasons, exhorted the hospital to be creative in
    finding accommodation that addresses the proper management of risk and but [
sic
]
    also moves Mr. Morgado forward.

[13]

Furthermore, we do not agree with Mr. Morgados
    argument that the Board erred in concluding that a conditional discharge would
    not adequately protect society from the risk of harm he poses. No release plan
    has been identified that would not put Mr. Morgado in a living situation that
    would risk violent confrontations with others. The Board concluded that Mr.
    Morgado has great difficulty in navigating the ordinary stresses of day-to-day living
    and working with other people. In his case, he has a propensity to react
    aggressively and violently to comparatively minor provocation. He presents a
    risk that must be managed for the safety of others. The Board gave adequate
    reasons for rejecting a conditional discharge, identifying, in particular, Mr.
    Morgados failure to appreciate the stresses of living and working in the
    community and his potential reactions to those stresses, his need for support
    in order to transition back into the community after 18 years, and the need to
    identify realistic accommodation.

[14]

We conclude that the Board made no errors in its
    disposition and that its findings are entitled to deference. We are, however,
    concerned by the lack of progress towards securing the conditions necessary for
    Mr. Morgado to return to the community and find employment. His skills are
    seemingly in demand given the ease with which he obtained an offer of
    employment in 2019. The Board found, reasonably, that he cannot be left to judge
    for himself which employment and living opportunities are suitable, and that the
    degree of supervision required can currently only be accomplished under a
    detention order. Like the Board, we urge the hospital to work with Mr. Morgado
    to secure suitable accommodation that can hopefully become a springboard to
    greater reintegration into society.

Disposition

[15]

The appeal is dismissed.

Paul
    Rouleau J.A.

M.L.
    Benotto J.A.

B.W.
    Miller J.A.


