



COURT OF APPEAL
    FOR ONTARIO

CITATION: Vethanantham (Re), 2017 ONCA 951

DATE: 20171206

DOCKET: C63231

Simmons, van Rensburg and Nordheimer JJ.A.

IN THE MATTER OF: Anton Vethanantham

AN APPEAL UNDER PART XX.1 OF THE
CODE

Jonathan Fernandes, for Anton Vethanantham

Michael Fawcett, for the Attorney General of Ontario

Barbara Walker-Renshaw, for the Person in Charge of the Ontario
    Shores Centre for Mental Health Sciences

Heard: October 30, 2017

On appeal against the disposition of the Ontario Review
    Board, dated November 30, 2016, with reasons dated January 4, 2017.

REASONS FOR DECISION

[1]

Anton Vethanantham appeals from
    the November 30, 2016 disposition of the Ontario Review Board (the Board), with
    accompanying reasons dated January 4, 2017, ordering his detention at the
    General Forensic Unit of the Ontario Shores Centre for Mental Health. The
    hearing before the Board was held on November 25, 2016.

[2]

The appellant is a 54 year-old man,
    who was born in Jaffna, Sri Lanka.
He immigrated to Canada as a young
    man and became a Canadian citizen in 1992.
He was
    married. He had three children, but one of those children has passed away. Because
    of the events leading up to the appellants current situation, neither his ex-wife
    nor his children wish to have contact with him.

[3]

The appellant is diagnosed with schizophrenia,
    paranoid type, and alcohol abuse.

[4]

On March 5, 2008, the appellant was found not criminally
    responsible (NCR) in respect of one count of criminal harassment and three
    counts of breach of probation. The criminal harassment charge arose from
    harassing telephone calls that the appellant made to his ex-wife in
    contravention of an existing probation order. The probation order was imposed
    as a result of a conviction for assault with a weapon against his ex-wife.
The appellant has been subject to the supervision of
    the Board since 2008. The appellants psychiatric problems, however, date back
    to 1998. His criminal record includes several prior convictions for assault and
    failing to comply with court orders.

[5]

Between 2009 and
    December 2015, the appellant lived in the community subject to a conditional
    discharge. He was detained in December 2015 after he decompensated following
    termination of his antipsychotic medication in September 2014. By the fall of
    2015, the appellant had left the stable home he had with family,
begun living in motels and shelters, resumed drinking
    alcohol, terminated contact with his treatment team, and made efforts to contact
    his ex-wife.

[6]

On November 25, 2016, a hearing
    was held to determine whether the appellant remained a significant threat to
    the safety of the public. The evidence before the Board consisted of a hospital
    report, the evidence of Dr. Pytyck, the appellants treating psychiatrist, and
    the evidence of the appellant.

[7]

The Board accepted the evidence of
    Dr. Pytyck that the appellant remained a significant risk to public safety. Although
    the appellant had returned to his baseline mental health status three months
    before the Board hearing, post-detention assessment indicated he was psychotic
    upon readmission to the hospital
in 2015.
Dr. Pytyck also gave evidence that the appellant has a complete lack of insight
    into his mental illness. If he were discharged, he would immediately cease
    taking his medication; and he would not follow up with his psychiatric care. Those
    realities, in turn, give rise to the very real concern that the appellant would
    once again return to consuming alcohol; that he would experience psychosis; and
    that those factors would lead to potentially violent conduct and/or behaviour
    that would cause psychological harm to others.

[8]

We reject the
    appellant's submission that the Board's finding that he poses a significant
    threat to public safety is unreasonable.

[9]

The Board's findings
    that the appellant suffers from schizophrenia, paranoid type; that he lacks
    insight into his mental illness; and that, if not subject to Board supervision,
    he would discontinue medication and seek inappropriate housing  leading to additional
    stressors, deterioration of his mental condition, alcohol abuse, and harmful
    behavior  are amply supported by the record.

[10]

As noted by the Board,
    in addition to the index offences, the appellant has a history of assaultive
    behavior and breaches of court orders. Moreover, criminal harassment is a
    serious criminal offence requiring proof that the victim(s) reasonably feared
    for their safety:
Criminal Code
, R.S.C. 1985, c. C-46, at s. 264(1). Further,
    there was evidence before the Board that after being permitted to resume
    consumption of alcohol the appellant drove with a blood alcohol level over
twice the legal limit
[1]
.
    Based on the appellant's history and Dr. Pytycks evidence, it was open to the
    Board to conclude that, if not subject to the Board's supervision, the
    appellant would likely experience psychosis and act out in a violent manner or
    cause psychological harm to others.


[11]

The Board's decision
    not to grant a conditional discharge and that a detention order is the least
    onerous and least restrictive alternative is also reasonable. Among other
    things, the Board noted that the appellant is incapable of consenting to
    treatment and that the hospital must be in a position to approve housing. These
    considerations were entirely reasonable. Under the law as it currently stands,
    no condition relating to treatment can be included in a conditional discharge
    for a NCR party who is incapable of consenting to treatment:
Criminal
    Code
,
at s. 672.55(1);
R. v. Kalra
, 2016 ONCA 390, at para. 19. Further,
    unlike the situation in the past, the appellant has no suitable place to live.
    Where, as here, approved housing is an important risk management tool, a
    conditional discharge is not appropriate because it cannot include an approved
    residence clause:
R. v. Simpson
, 2010 ONCA 302, at para. 4.

[12]

The appeal is dismissed.

Janet Simmons J.A.

K. van Rensburg J.A.

I.V.B. Nordheimer J.A.





[1]

All parties acknowledged that, following the Board hearing,
    the charges in relation to this conduct were withdrawn. However, the Board was
    not precluded from relying on evidence of the conduct underlying the charges in
    the form of reference to information contained in a police report. See
Winko
    v. British Columbia (Forensic Psychiatric Institute)
,
    [1999] 2 S.C.R. 625, at paras. 61-62;
R. v. Owen
, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 29; and
R.
    v. Wodajio
, 2005 ABCA 45, 194 C.C.C. (3d) 133, at paras.
    18-38.



