



COURT OF APPEAL FOR ONTARIO

CITATION: Kossta (Re), 2019 ONCA 1021

DATE: 20191223

DOCKET: C66758

Doherty, van Rensburg and Hourigan JJ.A.

IN THE MATTER OF: Stefanos Kossta

AN APPEAL UNDER PART XX.1 OF THE
CODE

Daniel R. Medd, for the appellant

Natalya Odorico, for the respondent, the Attorney
    General of Ontario

Michele Warner, for the respondent, the Person in Charge
    of the Centre for Addiction and Mental Health

Heard: December 18, 2019

On appeal from the disposition of the Ontario Review
    Board, dated March 6, 2019.

REASONS FOR DECISION

[1]

Stefanos Kossta was declared not criminally
    responsible on account of mental disorder (NCR) on November 13, 2015 in
    relation to a charge of dangerous operation of a motor vehicle. While
    experiencing a manic episode, he was speeding and swerving through traffic on
    Highway 401, close to the Qu
é
bec
    border. Mr. Kossta was initially detained at the Centre for Addiction and
    Mental Health (the Hospital), with the ability to reside in approved
    accommodations in the community.

[2]

Mr. Kossta appealed his most recent disposition:
    a conditional discharge that requires him, among other things, to abstain from
    alcohol and to refrain from driving a motor vehicle. He argued that the Boards
    conclusion that he continues to pose a significant threat to the safety of the
    public is unreasonable and is not supported by the evidence. At the conclusion
    of the hearing of the appeal, the court advised that the appeal would be
    dismissed with reasons to follow. These are our reasons.

[3]

Initially, Mr. Kossta was seeking an absolute
    discharge. However, based on certain information in the record concerning Mr.
    Kosstas drivers licence suspension identified by his counsel (which is
    addressed below), Mr. Kossta sought instead an order remitting the matter to
    the Board for a rehearing.

[4]

Mr. Kossta has a lengthy psychiatric history.
    His current diagnosis is schizoaffective disorder. He also has autism spectrum disorder,
    which contributes to his limited insight into his condition and symptoms. Mr.
    Kossta, who is supported by ODSP, has been living for many years in his
    brothers home. He has significant family support. As a result of Mr. Kosstas
    disorders, he has a history of wandering from home for days at a time,
    consuming too much alcohol, and engaging in reckless and self-harming
    behaviours. At times, including the occasion of the index offence, he would
    rent vehicles and drive away from the city. It is agreed that the only
    circumstances in which Mr. Kossta would pose a significant threat to public
    safety is if he were to operate a motor vehicle.

[5]

Mr. Kosstas counsel argued that, in concluding
    that he continued to pose a significant threat, the Board failed to link the
    risk factors of his challenging dual diagnosis, his limited insight, and his
    history of alcohol abuse to the risk that he would drive. The Board ignored the
    important fact that Mr. Kosstas drivers licence has been suspended and that the
    suspension is unlikely to be lifted in the foreseeable future. Although Mr.
    Kossta has expressed a desire to drive, there is no indication that he has done
    so since the index offence. Mr. Kossta responds positively to what the Board
    referred to as external controls, and the Board should have considered
    whether there was in fact a risk to public safety in the face of a licence
    suspension.

[6]

In our view, it was reasonable for the Board to
    conclude that Mr. Kossta, because of his psychiatric condition, remained a
    significant threat to public safety if he were to drive. This threat was best
    managed by the conditions the Board imposed, including the condition
    prohibiting Mr. Kossta from driving. The Boards conclusion was supported by
    Mr. Kosstas history, including the index offence. It was also supported by the
    opinion of Dr. Choptiany, Mr. Kosstas attending psychiatrist, that without the
    external controls of a Board disposition, Mr. Kossta was likely to consume
    alcohol, miss taking his medication, become manic, and put members of the
    public at risk of harm. Dr. Choptiany pointed to the experience in August 2017,
    when Mr. Kossta consumed alcohol and relapsed after the alcohol prohibition was
    lifted for one year. Mr. Kossta complied with the prohibition after it was
    reinstated. Dr. Choptiany also referred to the fact that Mr. Kossta is
    receiving one-on-one psychotherapy to learn to recognize his emotional states and
    manage them.

[7]

Although the Boards reasons do not address the licence
    suspension directly in its analysis, the fact of the suspension was addressed
    in evidence. Unfortunately, however, there was little information before the
    Board concerning Mr. Kosstas licence suspension. For example, the evidence did
    not address whether the licence suspension itself would remain in place, and
    whether it could act as an effective control to prevent the risk of harm by
    stopping Mr. Kossta from driving. Although the Board was informed that Mr.
    Kosstas licence had been suspended for medical reasons, it was unknown when
    and how the suspension had come about. Dr. Choptiany expressed confusion about
    the issue, and said he would need to get advice from the Hospitals legal
    department to know how to proceed.

[8]

Counsel for Mr. Kossta on appeal (not his
    counsel before the Board) fairly pointed out that, in the Boards reasons for
    its March 28, 2018 disposition, the Board referred to a CPIC report which stated
    that Mr. Kosstas drivers licence was suspended on 2005-08-06, for medical
    reasons, and that this was prior to the NCR finding. Appeal counsel questioned
    the reliability of that information in light of the fact that the index offence
    occurred in a rented car, and there was no indication that Mr. Kossta was
    charged with driving while his licence was suspended.

[9]

We have concluded that the Boards disposition
    was reasonable and supported by the evidence that was before it at the hearing.
    We are, however, concerned about the lack of information that was available to
    the Board concerning Mr. Kosstas licence suspension, including information
    that appears to have been available at the previous years hearing. Details of
    the timing and the circumstances leading to the suspension of Mr. Kosstas
    drivers licence, as well as his record of driving (or not) while his licence
    has been suspended should be obtained and made available to the Board for its
    next review (which is scheduled for February 24, 2020). This information will
    assist the Board in determining whether there is any reasonable prospect of Mr.
    Kossta ever having his licence reinstated, and whether the suspension itself
    could act as an effective external control. Ultimately, this is information
    that should be evaluated by the Hospital, and considered by the Board in
    assessing whether Mr. Kossta continues to pose a significant risk of harm to
    the public.

[10]

For these reasons, Mr. Kosstas appeal was
    dismissed.

Doherty J.A

K. van Rensburg
    J.A.

C.W. Hourigan
    J.A.


