



COURT OF APPEAL FOR ONTARIO

CITATION: Anderson (Re), 2020 ONCA 277

DATE: May 1, 2020

DOCKET: C67672

MacPherson, Benotto and
    Nordheimer JJ.A.

IN THE MATTER OF: Duane Anderson

AN APPEAL
    UNDER PART XX.1 OF THE
CODE

Terrance Luscombe, for the appellant

Ken Lockhart, for the respondent Her
    Majesty the Queen

Naveen Hassan, for the respondent Ontario
    Shores Centre for Mental Health Services

Heard: in writing

On appeal from the disposition of the
    Ontario Review Board dated October 15, 2019 with reasons dated October 28, 2019.

REASONS FOR DECISION

[1]

Duane Anderson appeals from the decision of the
    Ontario Review Board that continued his detention order and, in doing so,
    imposed a condition that he abstain absolutely from the non-medical use of
    alcohol or drugs. The appellant particularly objects to this condition insofar
    as it would prohibit him from the recreational use of cannabis. Medical use of
    cannabis is permitted under the current disposition.

[2]

The appellant submits that the condition
    regarding the use of drugs is not the least restrictive disposition available to
    the Board. He also submits that the condition was based on an inadequate
    evidentiary basis. There was no direct evidence that the use of cannabis would
    be a problem in the appellants case.

[3]

What the Board did have was the expert evidence
    of a psychiatrist that the use of cannabis generally exacerbates psychotic
    symptoms in people. The Board also had information in the hospital report, provided
    by the appellants mother, of a prior incident of the appellant acting aggressively
    that was tied to his excessive use of cannabis. All of this evidence had to be
    considered against the backdrop that there was no dispute that the appellant
    continues to pose a significant risk to the safety of the public.

[4]

The appellant points to a number of prior
    decisions of this court that he says supports his position that the Board must
    impose the least restrictive conditions in making a disposition. In particular,
    he relies on the decisions in
Re Sheikh
, 2019 ONCA 2019;
Re Wall
,
    2017 ONCA 713 and
Re Anuff
, 2016 ONCA 280. None of those decisions
    actually addresses the issue that we have here. In each of those cases, the
    issue was whether the evidence supported a finding by the Board that the
    individual posed a significant risk to the public. Here, that finding is
    conceded.

[5]

Rather, we are dealing with the legitimacy of a
    condition of the appellants disposition that restricts his access to cannabis.
    While those conditions must still pass the least restrictive test, in our view,
    there was sufficient evidence before the Board to warrant the imposition of
    that condition. It is not necessary for the Board to have direct evidence
    amounting to an absolute certainty that the imposition of such a condition is necessary
    in the appellants case. The Board was entitled to rely on the expert evidence regarding
    the effect of cannabis on individuals generally, coupled with evidence as to
    prior effect on the appellant, as a sufficient foundation to warrant the
    imposition of that condition. We note that there was no evidence to the
    contrary, that is, that the appellant was somehow immune from the general
    effect of cannabis.

[6]

It would be contrary to the Boards duty to
    protect the safety of the public to require it to withhold the imposition of a
    condition until an actual adverse event took place. The Board is entitled to
    rely on expert evidence as to the likelihood of an event happening as being
    sufficient to warrant the imposition of a specific condition. It certainly
    cannot be said that, in doing so, the Board acted unreasonably.

[7]

For the foregoing reasons, the appeal is dismissed.

J.C. MacPherson J.A.

M.L. Benotto J.A.

I.V.B. Nordheimer J.A.


