



COURT OF APPEAL FOR ONTARIO

CITATION:
Vancurenko
    (Re), 2012 ONCA 505

DATE: 20120720

DOCKET: C54732

Laskin, Cronk and Hoy JJ.A.

IN THE MATTER OF:  George Vancurenko

George Vancurenko, acting in person

Anita Szigeti and Lucy Saunders, as
amicus curiae

Michael Medeiros, for the Attorney General

Heard: July 4, 2012

On appeal against the disposition of the Ontario Review
    Board, dated July 29, 2011.

By the Court:

[1]

The appellant, George Vancurenko, appeals from the July 29, 2011
    disposition of the Ontario Review Board, ordering that he remain subject to a
    conditional discharge.  He seeks an absolute discharge.

[2]

On October 16, 1985, the appellant was found not guilty by reason of
    insanity of one count of second degree murder.  At the time of the offence he
    was in a transient psychotic state secondary to alcohol.  More than 26 years
    have since elapsed.  The appellant spent some 15 years in various psychiatric
    facilities. The balance of the time has been spent in the community on
    conditional release.

[3]

He is now 58 years of age and has not used drugs or alcohol since 2001. 
    In 2010, Dr. Hill, the appellants designated outpatient forensic psychiatrist,
    supported the appellants request for an absolute discharge, as did the
    treating hospital. The Board, however, declined to grant the request.

[4]

The appellants current diagnoses are alcohol and substance abuse, in
    full and sustained remission, and personality disorder with narcissistic and
    antisocial traits.

The Boards Reasons

[5]

The Board concluded, at para. 47 of its reasons for disposition, that
    absent the supervision of the Board there is a real likelihood that Mr.
    Vancurenkos behaviour in the community will escalate to the level where he
    poses a significant risk of physical and/or psychological harm to others. 
    This conclusion was founded in the Boards concerns with the appellants
    criminal behaviour, his lifestyle and his past problems with drugs and alcohol.

[6]

The Board was particularly concerned with an assault that took place in
    2008. It explained, at para. 43:

It is concerning to the Board that as recently as 2008 Mr.
    Vancurenko engaged in a criminal act, namely assault, which caused physical
    and/or psychological harm to another.  The Board does not accept the submission
    of Counsel on behalf of Mr. Vancurenko that because there were no physical
    injuries noted that the assault charge does not rise to the level contemplated
    by the Supreme Court of Canada in
Winko
.  On this occasion Mr.
    Vancurenko physically assaulted an elderly and vulnerable man who had one leg. 
    It is concerning to the Board that this assault occurred during a time when Mr.
    Vancurenko has been abstinent from alcohol or drugs for almost six years and
    speaks directly to the risk posed by Mr. Vancurenko even when his addictions
    are well controlled.

[7]

It rejected Dr. Hills opinion that the appellant would never relapse
    with drugs or alcohol, writing at para. 44: The Board does not share the
    confidence level expressed by Dr. Hill that Mr. Vancurenkos addiction issues
    are behind him and of a historical nature.

[8]

The Board also expressed concern, at para. 45, that the appellant
    continues to live a lifestyle that exposes him to greater risk of conflict
    with the law. The lifestyle concern was founded in the appellants choices:
    to continue a relationship with his spouse, who has drug addiction issues; to
    live in a trailer park  a less than desirable setting; and to continue to
    engage in gambling.

[9]

Finally, the Board inferred, at para. 46, that the appellant had only avoided
    further criminal charges over the past year because he had been subject to the
    terms of a recognizance. The recognizance imposed a curfew and required the
    appellant to live with his father (who did not live at the trailer park).

Analysis and Conclusion

[10]

In
    our view, the Boards disposition is unreasonable and cannot be supported by
    the evidence. Accordingly, we allow the appeal and discharge the appellant
    absolutely.

[11]

The
    evidence does not support the Boards conclusion that the appellant poses a
    risk that rises to the level contemplated in
Winko v. British Columbia
    (Forensic Psychiatric Institute)
, [1992] 2 S.C.R. 625.  The Boards
    decision placed undue emphasis on relatively trivial conduct, ignored the
    opinion of the treating psychiatrist and entered into the realm of speculation.

[12]

At
    best, the evidence before the Board revealed, in the words of
amicus
,
    a high risk of trivial harm or a miniscule risk of future grave harm. In
    either case, the legal threshold of a significant threat to the safety of the
    public was not satisfied and the decision cannot stand.

[13]

First,
    the 2008 assault that so troubled the Board was, relatively speaking, minor in
    nature. The appellant went to question his neighbour after his niece told him
    the neighbour had taken her cat.  An altercation ensued.  The appellant knocked
    the neighbours arm and boxed his ear.  While the neighbour was vulnerable,
    because he was missing a leg, there was no indication of any physical or
    psychological harm.

[14]

With
    the exception of a conviction for assaulting a police officer in 1999, which
    occurred when the appellant was not yet drug and alcohol free, there have been
    no other convictions for assaultive behaviour since the index offence.

[15]

As
    to the Boards other concerns with the appellants lifestyle, we note the
    information before the Board that the appellant would like to leave the trailer
    park, but that it is not economically feasible.  His accommodation reflects a
    lack of financial resources, not a choice to live in a setting that exposes him
    to greater risk of conflict with the law.  Moreover, the evidence of Dr. Hill
    was that the appellant is showing good judgment and good self-control in
    handling his living environment.  As an example, the appellant called the
    police to deal with a drunken individual in the trailer park rather than
    attempting to resolve the problem himself.

[16]

With
    respect to the appellants gambling, as
amicus
argued before us,
    gambling is legal.  The treating hospital reports that the appellants gambling
    is recreational  now once per month or less.  Dr. Hill says the appellant does
    not have a gambling addiction.

[17]

On
    the issue of the effect of the recognizance, we note the opinion of Dr. Hill
    that the appellants good behaviour is a result of conducting himself
    appropriately, and not his fathers supervision.

[18]

Moreover,
    the Board provided no basis for its rejection of Dr. Hills unequivocal opinion
    that the appellant would not revert to drug or alcohol use. Nor does the record
    suggest any basis for doing so at this time. In 2006-2007, the appellants
    addictions counsellor reported that the appellant had made such progress that
    she felt he did not need further counselling.  The appellant nonetheless
    continued counselling.  He attends Alcoholics Anonymous regularly. All drug
    screens have been negative.  Although his spouse still has addiction problems
    and continues to use drugs, the appellant has not been using drugs or alcohol.

[19]

As
    noted above, in 2010, the treating hospital recommended an absolute discharge. 
    The Board declined to follow the hospitals recommendation, noting that there
    had been a number of incidents of concern this past year. None of those
    incidents entailed any physical or psychological harm  serious or otherwise 
    to the public.

[20]

Of
    the two sets of criminal charges outstanding at the time, the appellant has
    since been acquitted of the charges arising when he intervened after a security
    guard at Price Choppers retrieved some chocolate bars taken by his spouse.  The
    other criminal matter involved taking $220 out of a wallet found on the floor
    in a casino and discarded in a washroom.  While the matter remains outstanding,
    the appellant has offered to make restitution.

[21]

Importantly,
    there have been no concerning incidents since the appellants 2010 hearing. 
    The substance of the treating hospitals current report is even more positive
    than in 2010.  In addition to noting that the appellant has not shown any
    impulsive or illegal behaviour, it reports that his presentation is better.  There
    have been no behavioural concerns.  It notes that the appellant is less
    disposed to antisocial behaviour.  Indeed, the hospital reports that the
    appellant exhibits pro-social behaviour, assisting his aging parents, and
    attempting to direct his spouse away from her drug addictions. This evidence
    shows that many of the concerns adverted to by the Board in 2010 are no longer
    present.

[22]

In
    our view, there is no evidence that the appellant poses a real risk of serious
    physical or psychological harm to individuals in the community. The Boards
    conclusion to the contrary was unreasonable. Accordingly, we order that the
    appellant be discharged absolutely.  We are grateful for the assistance of
amicus
in this matter.

Released: Jul 20, 2012

JL                                                                             John
    Laskin J.A.

E.A.
    Cronk J.A.

Alexandra
    Hoy J.A.


