



COURT OF APPEAL FOR ONTARIO

CITATION: Wakeling (Re), 2017 ONCA 536

DATE: 20170628

DOCKET: C63037

Strathy C.J.O, Benotto and Miller JJ.A.

IN THE MATTER OF: ANDREW WAKELING

AN APPEAL UNDER PART XX.1 OF THE
CODE

Daniel F. Moore and Taufiq Hashmani, for the appellant

Gavin S. MacKenzie, for the respondent, The Person in
    Charge of the Centre for Addiction and Mental Health

Peter Fraser, for the respondent, The Attorney General
    of Ontario

Heard: June 20, 2017

On appeal against the disposition of the Ontario Review
    Board, dated October 31, 2016.

REASONS FOR DECISION

[1]

Mr. Wakeling was found not criminally responsible on a charge of
    criminal harassment. He has been detained at the General Forensic Unit of the
    Centre for Addiction and Mental Health with privileges to enter the community
    while accompanied.

[2]

On October 31, 2016, the Ontario Review Board declined to expand his
    privileges or to grant him the absolute discharge he requested. The Board found
    Mr. Wakeling continued to present a significant threat to the safety of the
    public. The Board based its finding on the assessment of risk set out in the
    Hospital Report, which stated Mr. Wakelings level of insight into his illness
    is incomplete: he denies psychotic symptoms and does not believe he has a
    serious mental illness requiring treatment. The Report indicated if Mr.
    Wakeling discontinues his medication, his risk to re-offend is high. The Board
    concluded the current disposition was the least onerous and the least
    restrictive.

[3]

Relying on the case of
Winko v. British Columbia (Forensic
    Psychiatric Institute)
, [1999] 2 S.C.R. 625, Mr. Wakeling submits both the
    criminal offence and the risk to the public must be serious. He submits the
    Board did not engage in a separate and specific analysis of whether his conduct
    would give rise to a serious criminal offence with a real risk of physical
    or psychological harm occurring to individuals in the community: see
Winko
,
    at para 57.

[4]

An appellate court may only allow an appeal against a disposition of the
    Board where the disposition is unreasonable, based on an error of law, or
    results in a miscarriage of justice:
Criminal Code
, R.S.C. 1985, c.
    C-46, s. 672.78.  We find no such grounds in this case.

[5]

The Boards reasons indicate it considered that criminal harassment is a
    serious offence and that his conduct presents a real risk of psychological harm
    to members of the community. Before the events giving rise to the index
    offence, the appellant was convicted of criminal harassment three times. The
    stalking behaviours he exhibited were directed at adult females and disclosed a
    level of forethought and planning. The evidence before the Board indicated the
    victim suffered psychological harm. In particular, at para. 30, the Board found
    as follows:

The Board also accepts the evidence of the hospital report and
    the testimony of Dr. Kolla that the offence of criminal harassment is a serious
    one in light of its severe effect upon the victim. The evidence is that the
    victim was terrified of [Mr. Wakeling] and suffered real psychological harm
    from the offence of the criminal harassment and the Board accepts that as a
    fact.

[6]

For these reasons, the appeal is dismissed.

G.R. Strathy C.J.O.

M.L. Benotto J.A.

B.W. Miller J.A.


