



COURT OF APPEAL FOR ONTARIO

CITATION:
    Kaminski (Re), 2021 ONCA 220

DATE: 20210409

DOCKET:
    C68713

Hourigan,
    Zarnett and Coroza JJ.A.

IN
    THE MATTER OF: Michael Kaminski

AN
    APPEAL UNDER PART XX.1 OF THE
CODE

Daniel Medd, for the appellant

Madeline Lisus, for the respondent, Attorney
    General of Ontario

Leisha Senko, for the respondent,
    Person in Charge of the Centre for Addiction and Mental Health

Heard: April 1, 2021 by video conference

On appeal from
    the disposition of the Ontario Review Board dated July 7, 2020, with reasons
    dated September 14, 2020.

REASONS FOR DECISION

OVERVIEW

[1]

The appellant appeals from the disposition of
    the Ontario Review Board (the Board) continuing his conditional discharge. He
    submits that the Board misapplied the significant threat test and that its
    decision was otherwise unreasonable. He contends that the Board should have
    granted him an absolute discharge. For the following reasons, we dismiss the
    appeal.

BACKGROUND

[2]

On January 26, 2016, the appellant was found not
    criminally responsible on account of mental disorder (NCRMD) on charges of
    criminal harassment and failure to comply with a condition of judicial release.
    The index offences arose out of the appellants fixation on his art schoolteacher,
    fueled by auditory hallucinations and delusional thoughts symptomatic of his
    diagnosis of schizophrenia.

[3]

The disposition under appeal continues a
    positive trend of increased liberty for the appellant. Following the appellants
    initial Board hearing, he was ordered detained within a secure unit at the
    Centre for Addiction and Mental Health. At the appellants first annual review hearing,
    the Board agreed with the parties joint position that the appellant posed a
    significant risk and crafted a detention order with privileges including community
    living. After the appellants second annual hearing, the Board continued his
    detention order with community living privileges. At the appellants third
    annual hearing, the Board imposed a conditional discharge with a condition that
    the appellant live with his parents and report every two weeks. This
    disposition was based on a joint request by the parties.

[4]

At the appellants latest hearing, the evidence
    before the Board included: the hospitals report; the testimony of Dr. Darby, a
    forensic consultant; and the appellants testimony. Aspects of this evidence
    were positive, including how the appellant had successfully obtained full-time
    employment.

[5]

However, the evidence also demonstrated that the
    appellant continued to have limited insight into his mental illness, his need
    for medication, and the index offences. Dr. Darby explained that the clinical
    teams unanimous opinion was that the appellant continued to pose a significant
    threat to public safety. These concerns were reflected in the appellants testimony
    that he wanted to find a psychiatrist who might discontinue his medication to
    determine whether he could live without it. He also believed that his mental
    illness was not permanent.

[6]

The Board found that the appellant continued to
    pose a significant threat to the safety of the public. The Board continued his
    conditional discharge, while decreasing the reporting period and removing the residence
    requirement. In reaching their conclusion, the Board emphasized their concerns about
    the appellants lack of insight into his illness and need for medication; the
    appellants plan to find a psychiatrist he could experiment with were he no
    longer under the Boards jurisdiction; and the opinions of Dr. Darby and the
    appellants clinical team.

ANALYSIS

[7]

Considerable deference is owed to the Boards
    determination on whether an NCRMD accused is a significant threat to the safety
    of the public:
Wall (Re)
, 2017 ONCA 713, 417 D.L.R. (4th) 124, at
    para. 21;
Abdulle

(Re)
, 2020 ONCA 698, at para. 15. The
    appellant argues that the Board did not clearly explain what evidence in the
    record led it to conclude that the appellant posed a significant threat. A
    significant threat to the safety of the public means that there exists a foreseeable
    and substantial risk of serious physical or psychological harm to individuals
    in the community:
Marmolejo

(Re)
, 2021 ONCA 130, at para. 37;
Marchese

(Re)
, 2018 ONCA 307, 359 C.C.C. (3d) 408, at para. 9.

[8]

In our view, the Boards decision is based on an
    internally coherent, rational chain of analysis and is justified in relation to
    the facts and the law:
Canada (Minister of Citizenship and Immigration) v.
    Vavilov
, 2019 SCC 65, 441 D.L.R. (4th) 1, at para. 85. The Board explained
    why it believed the appellant posed a significant threat at paras. 44 and 45 of
    its reasons. This determination was based upon, among other things, the
    evidence of Dr. Darby, the opinion of the clinical team, the gravity of harm
    arising from the index offences, and the likelihood of similarly serious harm
    occurring in the future. The Board explained that these concerns stemmed primarily
    from the appellants lack of insight into his own condition and need for
    medication, as well as his desire to engage a community psychiatrist who would
    eventually permit him to discontinue medication. We see no basis to interfere
    with the Boards conclusion that the appellants plans were not realistic and
    would result in significant decompensation, creating a significant risk to
    members of the public. The Boards decision to continue the appellants conditional
    discharge, while removing the residence requirement and decreasing the
    reporting obligation, was reasonable.

DISPOSITION

[9]

The appeal is dismissed.

C.W.
    Hourigan J.A.

B.
    Zarnett J.A.

S.
    Coroza J.A.


