



COURT OF APPEAL FOR ONTARIO

CITATION: Smith (Re), 2022 ONCA 286

DATE: 20220411

DOCKET: C69775

Gillese, Brown and
    Coroza JJ.A.

IN THE MATTER OF: Jeffery Smith

AN APPEAL UNDER PART XX.1 OF
    THE
CODE

BETWEEN

Jeffery Smith

Appellant

and

Her Majesty the Queen

Respondent

and

Person in Charge of 
    St. Josephs Healthcare Hamilton

Respondent

Anita Szigeti and Maya Kotob, for the appellant

Heather Fregeau, for the respondent, Her Majesty the
    Queen

Julia Lefebvre, for the respondent, Person in Charge of St.
    Josephs Healthcare Hamilton

Heard: April 1, 2022 by video conference

On appeal from the disposition of the Ontario Review
    Board, dated July 26, 2021, with reasons dated August 6, 2021.

REASONS FOR DECISION

OVERVIEW

[1]

On August 14, 2012, the appellant was found not criminally responsible (NCR)
    on account of mental disorder on two counts of assault and one count of
    uttering a threat to cause death or bodily harm. As a result, he came under the
    jurisdiction of the Ontario Review Board (the Board). After gradual release
    into the community, he was conditionally discharged in April 2018.

[2]

This appeal arises from the appellants annual review board hearing on
    July 21, 2021 (the Hearing).

[3]

At the Hearing, the appellant sought an absolute discharge. Dr. Prat,
    the appellants treating psychiatrist, opined that the appellant no longer
    posed a significant threat to the safety of the public and, therefore, was
    entitled to an absolute discharge. Dr. Chaimowitz, the head of the forensic
    psychiatry program at St. Josephs Healthcare Hamilton, took a different view.
    In his clinical opinion, the appellant continued to meet the test for significant
    threat.

[4]

The Board found that the appellant continued to pose a significant
    threat to public safety. By disposition dated July 26, 2021, it ordered a continuation
    of the appellants conditional discharge (the Disposition).

[5]

In this appeal, the appellant asks that the Disposition be quashed and
    an order substituted with an order that the appellant be absolutely discharged.

[6]

For the reasons that follow, the appeal is dismissed.

BACKGROUND

[7]

The appellant was found NCR in 2012 after assaulting his mother and then
    a neighbour who came to check on the family. He also threatened to kill the neighbour.
    At the time of this incident, the appellant was on a peace bond, stemming from
    a charge of assault and criminal harassment against his intimate partner.
    Several other violent but uncharged incidents also occurred before the index
    offences.

[8]

The hospital report dated July 15, 2021 sets out the appellants current
    diagnoses: other specified schizophrenia spectrum and psychotic disorder;
    alcohol use disorder, currently in remission; and, unspecified personality
    disorder with strong features of paranoid personality disorder and narcissistic
    personality disorder (by history). The appellant has been taking an
    antipsychotic medication since 2016 and has been treatment compliant.

[9]

The appellant has been found to be incapable of making his own treatment
    decisions. He did not challenge this finding at the Hearing (or otherwise).

[10]

While conditionally discharged, the appellant has maintained employment,
    complied with his medication, and attended his medical appointments.

[11]

On May 1, 2021, the appellant travelled to Huntsville, very near to where
    he had committed the index offences. While there, he was charged with stunt
    driving (the Incident).

[12]

On May 19, 2021, his treatment team learned that the appellant had been
    in Huntsville and charged with stunt driving. When they asked the appellant about
    the Incident the following day, he said he had gone to Huntsville for a day on
    his own and spent the day driving around the town. He denied using substances
    and said he had not been within 1 km of his family cottage or the cottage of
    the other victims of his index offences, which would have been in breach of his
    disposition. He said the police claimed he had been driving 164 km/h on a highway,
    but he thought he was likely travelling at 140 km/h. According to the occurrence
    report, the appellant was driving at 165 km/h in a

posted
    100 km/h zone.

[13]

After the Incident, the appellant's brother called the Crown Attorney
    assigned to his brothers case. He told the Crown Attorney that, following the
    Incident, he picked up the appellant from the hotel in which he was staying in
    Huntsville and drove him back to Hamilton. He said that there was an empty
    bottle of vodka in his brothers hotel room, his brother appeared mentally
    unstable, and he was worried about his brothers driving habits.

[14]

When the appellant later met with his treatment team, he admitted he had
    not been entirely truthful with them. He told them he had gone to Huntsville
    with his roommate and the pair stayed in a hotel there for two nights, in
    breach of a term of his disposition. He again denied using substances and claimed
    it was his roommate who had been consuming alcohol.

[15]

At the Hearing, Dr. Prat stated his opinion that the appellant no longer
    constituted a significant threat to public safety. He questioned whether the diagnosis
    of a personality disorder continued to be valid and indicated that he did not
    believe the events of the Incident were attributable to symptoms of mental
    illness. Dr. Prat acknowledged that the appellant continued to display a lack
    of insight into his need for medication but noted that the appellant now says he
    will follow medical advice. Dr. Prat also acknowledged there was no therapeutic
    relationship between the appellant and the Schizophrenia Outpatient Clinic and that
    the appellant said his involvement in cognitive behavioural therapy would
    depend on his workload. Further, Dr. Prat noted that the appellant had not
    challenged his incapacity finding, and he still considers the appellant incapable
    of making his own treatment decisions.

[16]

Dr. Chaimowitz also testified at the Hearing. Although he had not been directly
    involved in the appellants clinical care, based on the appellants health
    records and the hospital files, in his professional opinion, the appellant met
    the test for significant threat to a medical certainty and would meet that
    test even without considering the stunt driving Incident.

[17]

In Dr. Chaimowitzs opinion, absent Board supervision, the appellant
    would stop taking medication and revert to behaviour similar to that of the
    index offences. He explained that the appellant suffers from a serious mental
    disorder as well as a substance abuse disorder, and had frequently indicated
    that he is not mentally ill and does not need any antipsychotic medication. As
    well, the appellant has been found incapable of consenting to treatment, a
    determination which includes a finding that the appellant has an inability to
    appreciate the reasonably foreseeable consequences of a decision or lack of
    decision with respect to treatment. Dr. Chaimowitz stated that the
    appellants risk is high and well over the threshold finding required for a
    finding of significant risk. In Dr. Chaimowitzs opinion, the Incident tends to
    support the appellants original diagnosis of a personality disorder.

[18]

Dr. Chaimowitz also stated that he agreed with Dr. Sheridans clinical
    opinion of the appellant. Dr. Sheridan and Ms. Katrina Bouchard prepared a
    psychological risk assessment report of the appellant prior to his annual Board
    hearing in 2019 (the 2019 Report). In the 2019 Report, the authors state that
    the appellant represents a high risk of reoffence, well over the threshold finding
    required for a finding of significant risk. Because the appellant had refused
    to participate in the assessment that underlay the 2019 Report, the authors opinion
    was formed based on the appellant's health records. In a further report dated
    February 25, 2021, Dr. Sheridan updated the 2019 Report. He noted that in the prior
    year, the appellant had enjoyed a period of stability, in large part because of
    the monitoring and support of the Forensic Outpatient Program (FOP). He
    affirmed that the appellants long-term risk for future violence is high,
    absent the oversight of the ORB and support of the FOB or other intensive case
    management program. Dr. Sheridan said that, given his limited insight, the
    appellant would likely discontinue psychiatric follow-up, become nonadherent to
    medication, and/or resume regular substance use if granted an absolute
    discharge. In such a scenario, the appellant would experience a significant
    deterioration in his mental status and the recurrence of his psychotic
    symptoms. Ultimately, the coalescence of risk factors might prompt the
    appellant to act out violently, as he did at the time of the index offences, with
    the potential victims likely to be those closest to him, including family
    members.

ANALYSIS

[19]

The sole issue on this appeal is whether the Board erred in finding that
    the appellant is a significant threat to public safety (the Board finding).

[20]

We remind ourselves of the standard of review applicable to the Board
    finding. Section 672.78(1) of the
Criminal Code
, R.S.C. 1985, c. C-46 provides
    that an appeal against disposition may be allowed only where the court is of
    the opinion that:

a)

it is unreasonable or cannot be supported by the evidence;

b)

it is based on a wrong decision on a question of law; or

c)

there was a miscarriage of justice.

[21]

Guidance on the application of that provision by a reviewing court is
    found at paras. 29-37 of
R. v. Owen
, 2003 SCC 33, [2003] 1 S.C.R. 779.
    In those paragraphs, the Supreme Court begins by observing that to make the difficult
    assessments of mental disorders and attendant safety risks, the Board is
    provided with expert membership and broad inquisitorial powers: at para. 29. The
    assessment of whether an NCR individuals mental condition renders him or her a
    significant threat to public safety calls for significant expertise: at para. 30.
    The Boards medical expertise, specialized knowledge, and advantage in
    observing witnesses, commands deference: at para. 37. A Board decision on significant
    threat is reviewed on a reasonableness standard; such a decision is
    unreasonable if not supported by reasons that can bear even a somewhat probing
    examination:

at paras. 33, 37.

[22]

Our examination of the Boards reasons leads us to conclude that there
    is no basis on which to interfere with the Board finding of significant threat.
    That finding is reasonable based on:

-

The Boards acceptance of Dr. Chaimowitzs clinical opinion that absent
    Board oversight, the appellant would likely fall away from treatment and experience
    psychotic symptoms like those he experienced at the time of the index offences;

-

The risk assessment report and the assessors opinion that the
    appellants risk for future violence remains high, without Board oversight;

-

The appellants treatment hesitancy and family concerns that the appellant
    might not remain treatment compliant. Although the appellant has recently
    indicated he would follow medical advice, his treatment adherence has been entirely
    externally motivated, and he has historically denied his mental illness and
    need for medication;

-

The appellants incapacity to consent to treatment, which entails a
    finding of an inability to appreciate the reasonably foreseeable consequences
    of treatment decisions;

-

The lack of an established therapeutic relationship between the
    appellant and the Schizophrenia Outpatient Clinic;

-

The appellants significant history of psychosis, including delusions
    and paranoia, which has led him to act out and cause significant harm to
    members of his family and others;

-

The appellants history of being able to appear normal despite his experiencing
    psychotic symptoms;

-

The Boards acceptance of Dr. Chaimowitzs opinion that the stunt
    driving Incident supports the appellants personality disorder diagnosis; and

-

The appellants dishonesty regarding the Incident.

[23]

We conclude on this matter by addressing two points pressed by the
    appellant.

[24]

First, the appellant stressed the significance of Dr. Prats opinion, as
    his treating psychiatrist, that he no longer poses a significant threat to
    public safety. We appreciate the significance of that evidence. However, it was
    for the Board to decide which of the clinical opinions it would accept: that of
    Dr. Prat or of Dr. Chaimowitz. Its reasoned acceptance of Dr. Chaimowitzs
    evidence fell squarely within its expertise and was amply supported by the
    evidence. It is entitled to deference by this court.

[25]

Second, the appellant contended that the Board erred in law in finding that
    the civil mental health system was inadequate to manage any risk that he might
    pose if granted an absolute discharge. This contention rests on the words in
    the second sentence of para. 61 of the Boards reasons that a higher threshold
    is required for continued hospitalization under the
Mental Health Act
,
    R.S.O. 1990, c. M.7. Assuming that those words are incorrect, it does not
    derogate from the Boards overall finding that the civil mental health system could
    not adequately manage the appellants risk on an absolute discharge should he
    discontinue treatment and decompensate. The Board finding on this matter is
    reasonable, given its findings that: at the time of the Hearing, the appellant
    had not yet established a therapeutic relationship with the Schizophrenia
    Outpatient Clinic, participation in which is voluntary in any event; while the
    appellant benefits from strong family support, his family had expressed concern
    about the possibility of an absolute discharge and their reluctance to rely on
    a Form 2 to return him to hospital; the appellants decompensation when unmedicated
    would likely be gradual, making it more difficult to detect; and, his history
    of appearing normal while experiencing the symptoms of psychosis.

DISPOSITION

[26]

Accordingly, the appeal is dismissed.

E.E. Gillese J.A.

David Brown J.A.

S. Coroza J.A.


