



COURT OF APPEAL FOR ONTARIO

CITATION: Carrick (Re), 2018 ONCA 752

DATE: 20180917

DOCKET: C64982

MacPherson, Huscroft and Nordheimer JJ.A.

IN THE MATTER OF:  Quentin Carrick

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Rebecca Schwartz, for the respondent Attorney General of
    Ontario

Julie A. Zamprogna Ballès, for
    the respondent
Southwest Centre for Forensic Mental Health
    Care, St.

Josephs Health Care London

Heard: September 7, 2018

On appeal from the disposition of the Ontario Review
    Board, dated January 31, 2018.

Huscroft J.A.:

OVERVIEW

[1]

This
    is an appeal from the disposition of the Ontario Review Board (the Board),
    dated January 31, 2018. The Board found that Mr. Carrick (the appellant)
    continues to pose a significant threat to public safety and imposed a detention
    order that included a term permitting him to live in the community. Since the
    Boards order was made, the appellant has been living in the community for
    several months and is employed on a full-time basis.

[2]

The
    appellant argues that he does not pose a significant threat to the safety of
    the public and seeks an absolute discharge. In the alternative, the appellant
    seeks a conditional discharge.

[3]

I
    have concluded that the Boards decision that the appellant constitutes a
    significant threat is unreasonable. Accordingly, I would allow the appeal and
    order an absolute discharge.

BACKGROUND

[4]

The
    appellant is a 41-year-old man whose criminal record includes break and enter,
    theft, possession of property obtained by crime, dangerous driving, and
    assault. His last violent offence was robbery with violence in 2003  that is,
    several years before the index offence, which occurred in 2007. The index
    offence involved break and enter into a dwelling house, possession of property
    obtained by crime under $5,000, attempted theft over $5,000, and break and
    enter with intent.

[5]

The
    appellant has been detained by the Board since 2007. Dr. Ajay Prakash has been
    his most recent attending physician. Dr. Prakashs diagnosis of the appellant
    includes Substance Use Disorder, Psychosis NOS in remission, and Personality Disorder
    (Cluster B). The appellant is not presently receiving medication other than
    Seroquel, a sleeping aid.

THE EVIDENCE

(1)

The hospital report

[6]

The
    hospital report noted very slow but generally positive progress. Although the
    appellant suffered a relapse in September 2017 and was readmitted to hospital,
    the hospital noted his continued growth in terms of accepting responsibility
    for relapsing. The appellant attended Alcoholics Anonymous and earned 4 and
    6-month abstinence chips. He was subject to regular drug screening and tested
    positive on several occasions for benzodiazepines. However, Dr. Prakash, whose
    evidence is discussed below, testified that these screening results were due to
    medications received at the hospital, rather than illegal use. The appellant
    obtained full-time employment and has enjoyed mental stability with no signs or
    symptoms of psychosis.

[7]

The
    hospital report noted, further, that the appellant has insight into his
    addictions and a better understanding of the negative impact of substance use
    on his mental health. He has insight into his need for and the benefit of
    medication and is medication adherent. However, the appellants external supports
    are largely limited to those available as incidents of the hospitals
    relationship with him pursuant to the Boards order. If the appellants
    relationship with the hospital were terminated, he would no longer have a
    psychiatrist, a family doctor, or stable housing.

[8]

The
    treatment team concluded that the appellant continues to pose a significant
    threat of serious physical or psychological harm to the public based on the
    following evidence, which I quote from the hospital report:

1.

Mr. Carricks violence risk largely flows from his substance use
    disorder. Although he has made tremendous gains with his addiction recovery, he
    continues to relapse.

2.

Mr. Carricks relapses have led to criminal charges, violent behaviour
    and behavioural and emotional instability.

3.

Mr. Carricks ability to cope effectively with triggers of his addiction
    e.g. boredom, stress, loneliness, finances etc. remains limited, albeit
    improved from previous years.

4.

Mr. Carricks HCR assessment indicates a high risk to violently re-offend
    in anything less than a Detention disposition. Previous HCR assessments have
    indicated that [
sic
] same. Mr. Carrick is not being considered for an
    alternative disposition at this time. Without the structure of a disposition he
    remains at risk for disengagement and relapse of his substance use.  The
    clinical team continues to require the ability to approve Mr. Carricks
    accommodation and have the ability to return him to hospital quickly and
    safely; the strength of the Warrant is required.

(2)

The attending physicians evidence

[9]

Dr.
    Prakash testified before the Board and adopted the contents of the hospital report.
    He identified substance abuse as the appellants primary diagnosis. Dr. Prakash
    said the appellant has good insight into the index offence, his addiction and his
    need for treatment, as well as the impact of substance use on his health and
    risk level. Dr. Prakash agreed that the appellant is genuine in his attempt to
    avoid drugs and his desire to be free from addiction.

[10]

Dr. Prakash described
    the appellant as doing very well from the time of the index offence until now
    and showing general improvement overall. The rate of relapses has diminished,
    along with the severity of those relapses. Dr. Prakash added, however, that it
    was likely that the appellant would continue to use substances and that this
    use would lead to violent recidivism. He said that the appellant had engaged in
    criminal behaviour while under a detention order and that this behaviour had led
    to serious physical or psychological harm to members of the public. He cited as
    examples the appellant having supplied illicit substances to a vulnerable peer;
    his theft of a co-residents credit card; and his attempt to sell drugs to
    vulnerable peers at a group home.

[11]

Dr. Prakash reiterated
    that the appellant is doing quite well and has made large strides; he is
    progressing in the community and has a full-time job that he values. However, Dr.
    Prakash determined that the appellant is a moderate to high risk based on his
    most recent HCR-20 v3 test. In Dr. Prakashs view, the hospital requires a
    warrant of committal to mitigate the risk of violence because the
Mental
    Health Act
would not permit the appellant to be returned to the hospital
    as expeditiously as necessary in the event of a sudden relapse. Dr. Prakash
    testified that a longer history of improvement would be required before it
    would be sufficient for the appellant to agree to return to hospital as a
    condition of discharge.

[12]

Dr. Prakash said that
    his opinion as to the risk of the appellant acting out violently was informed
    by the examples he provided, along with the results of the HCR-20 v3 test and
    the opinion of the treatment team. He noted that the risk existed despite the
    absence of a violent episode since 2003. Dr. Prakash testified that the absence
    of violence was largely a result of intensive interventions by the forensic
    team, extensive supervision and external controls. If not for those controls
    and that level of supervision, Mr. Carrick would likely return to a state
    similar to the index offence and previous to that. Dr. Prakash rejected the
    suggestion that this was speculative, describing it as a clinical opinion
    based on expertise and with the test being on the balance.

THE BOARDS DECISION

[13]

The Boards analysis
    and conclusion are brief. I set them out in full:

The Board has considered the evidence of Dr. Prakash and the
    submission of the parties. The Board acknowledges Mr. Carrick has made
    significant gains during this reporting period, all of which have been
    articulated above. He has had a recent relapse which caused his return to
    hospital on a warrant. Mr. Carrick has made a significant effort to deal with
    his addiction and to remain sober. He has employment, lives independently and
    participates in programs. He nevertheless poses a significant risk of physical
    and psychological harm to safety of the public.

[14]

The Board went on to
    consider and reject the option of a conditional discharge:

The Board does acknowledge he has insight into his addiction
    and the medication necessary to assist him with his issues. He nevertheless
    still relapses and thus remains a risk. The Board unanimously agrees that he
    poses a risk that cannot be managed on a conditional discharge. It is necessary
    that the hospital have the ability to return him quickly to hospital if this is
    necessary, which can only be accomplished through a detention order
    disposition. The Board finds Mr. Carrick has not been cooperative to return to
    hospital voluntarily in the past. The board particularly notes that since 2014
    warrants have been used on four separate occasions. Further, the board
    acknowledges that while Mr. Carrick has made gains, he does relapse. The Board
    specifically finds Mr. Carrick has insight to his issues, but the addiction
    issue is chronic, resulting in relapses.

Thus, the Board is of the view that the Disposition as
    requested by the hospital is the most necessary and appropriate disposition
    having considered the need to protect the public and considering the needs of
    Mr. Carrick.

DISCUSSION

(1)

The Law

[15]

The Boards
    responsibility is governed by s. 672.54 of the
Criminal Code
, which
    provides:

When a court or Review Board makes a disposition...it shall,
    taking into account the safety of the public, which is the paramount
    consideration, the mental condition of the accused, the reintegration of the
    accused into society and the other needs of the accused, make one of the
    following dispositions that is necessary and appropriate in the circumstances:

(a)     where a verdict of not
    criminally responsible on account of mental disorder has been rendered in
    respect of the accused and, in the opinion of the court or Review Board, the
    accused is not a significant threat to the safety of the public, by order,
    direct that the accused be discharged absolutely...

[16]

I pause to emphasize
    the non-discretionary nature of the Boards responsibility. If the Board
    concludes that an NCR accused is not a significant threat to the safety of the
    public, it is required to discharge him or her absolutely. Put another way, an
    accused who does not pose a significant threat to the safety of the public is
    entitled to an absolute discharge.

(2)

Determining risk

[17]

How is the existence
    and nature of a threat to be determined? The law has been settled since the
    1999 decision of the Supreme Court of Canada in
Winko v. British Columbia
    (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625. Writing for the
    court, McLachlin J. stated at para. 57:

To engage these provisions of the
    Criminal Code, the threat posed must be more than speculative in nature; it
    must be supported by evidence. The threat must also be "significant",
    both in the sense that there must be a real risk of physical or psychological
    harm occurring to individuals in the community and in the sense that this
    potential harm must be serious. A minuscule risk of a grave harm will not
    suffice. Similarly, a high risk of trivial harm will not meet the threshold.
    Finally, the conduct or activity creating the harm must be criminal in nature.
    In short, Part XX.1 can only maintain its authority over an NCR accused where
    the court or Review Board concludes that the individual poses a significant
    risk of committing a serious criminal offence. If that finding of significant
    risk cannot be made, there is no power in Part XX.1 to maintain restraints on
    the NCR accused's liberty. [Citations omitted.]

[18]

McLachlin J.
    emphasized at para. 54 that an NCR accused bears no burden in Board or court
    proceedings:

The legal and evidentiary burden of establishing that the NCR
    accused poses a significant threat to public safety and thereby justifying a
    restrictive disposition always remains with the court or Review Board. If
    the court or Review Board is uncertain, Part XX.1 provides for resolution by
    way of default in favour of the liberty of the individual.

[19]

In a series of cases,
    this court has provided significant guidance on the question of risk. The
    following propositions are well established:

The burden on the Board is onerous;
the Board
    must be satisfied as to both the existence and gravity of the risk of physical
    or psychological harm posed by the appellant
:
Re
Carrick
,
    2015 ONCA 866, 128 O.R. (3d) 209, at para. 17;

Ongoing mental health issues are relevant considerations for
    the Board, but they are not determinative of risk:
R. v.
Ferguson
, 2010 ONCA 810, 271 O.A.C. 104, at paras. 1-3
;
Re Wall
, 2017 ONCA 713, 417 D.L.R. (4th) 124, at paras. 25, 29;

Although future risk is necessarily uncertain, mere speculation
    is an inadequate basis for establishing risk;
Carrick

(2015),
    at para. 17;

Diagnostic tests such as the
    HCR-20 v3 are relevant to but not determinative of risk. The results of these
    tests are relevant to the risk of reoffending, but not the seriousness or
    magnitude of that offending:
Re
Krivicic
, 2018 ONCA 535,
362 C.C.C. (3d) 490, at
    para. 60;

Absolute
    discharge may not and need not be in the best interests of an NCR accused:
Ferguson
,

at para. 45;
Wall
,
    at para. 30.

[20]

Finally, it is important to bear in mind that an NCR accused who
    does not constitute a significant threat to public safety is
entitled
to be
    discharged absolutely. Cursory consideration of the question of risk will not
    do where an individuals entitlement to liberty is at stake. The Boards
    reasons must clearly establish both the risk of harm  physical or
    psychological  and the serious criminal nature of that harm if its conclusion
    that an NCR accused constitutes a significant threat to public safety is to be
    upheld on the basis that it is reasonable.

(3)

The unreasonableness of the Boards decision

[21]

In my view, the
    Boards decision is unreasonable both because of what it says and what it fails
    to say. The Boards analysis on the question of significant risk is set out in
    this brief passage:

The Board has considered the evidence of Dr. Prakash and the
    submission of the parties. The Board acknowledges Mr. Carrick has made
    significant gains during this reporting period, all of which have been
    articulated above. He has had a recent relapse which caused his return to
    hospital on a warrant. Mr. Carrick has made a significant effort to deal with
    his addiction and to remain sober. He has employment, lives independently and
    participates in programs.

[22]

For the most part,
    these remarks are positive in nature. The only negative point is reference to a
    recent relapse that caused his return to hospital. Nothing in this passage is
    relevant to the question of risk. Yet the passage concludes with an assertion
    of risk of both physical and psychological harm:

He nevertheless poses a
    significant risk of physical and psychological harm to safety of the public.

[23]

No evidence of
    physical violence is cited, nor could there be. The appellant has not been
    violent since 2003  prior to the index offence in 2007, which did not involve
    violence. What, then, is the basis for concluding there is any risk, let alone a
significant
risk of physical
and
psychological harm?

[24]

Dr. Prakash acknowledged
    that the appellant has not been violent since 2003, but described this as
    largely the result of management and supervision. The difficulty with this
    evidence is that it is based on a counterfactual; we cannot know what would
    have happened in the absence of the management and supervision that was
    provided to the appellant.

[25]

In any event, Dr. Prakash's evidence does not address the legal requirement that the risk of violence be significant – not only criminal but serious in nature:
Re Medcof
, 2018 ONCA 299, at para. 26. The HCR-20 v3 test, on which Dr. Prakash appears to have relied for his opinion, addresses the likelihood of risk from a psychiatric perspective. It is not conclusive of threat for the purposes of s. 672.54, because the seriousness or magnitude of the apprehended criminal offence must also be considered, and Dr. Prakash does not do so:
Krivicic
, at para. 60. He simply expresses the opinion that the appellant's use of substances "would lead to violent recidivism.

[26]

The Boards conclusion concerning the risk of psychological harm is
    no less problematic. As
this court noted in the
    appellants 2015 appeal, the argument that the commission of non-violent
    offences would cause psychological harm has the potential to result in detention
    for an indefinite period.  It is an argument that must be rejected.

[27]

In this case, there is no evidence of psychological harm in any
    event. At the hearing of the appeal, Crown counsel fairly conceded that the
    appellants theft of a credit card and computer several years ago are insufficient
    to support a finding of a risk of psychological harm. She added only that it
    was quite possible that the appellants action in kicking in a door to steal
    the computer in 2011 could have caused psychological harm.

[28]

The most serious incident that appears to have been relied upon as
    support for the detention order occurred in 2016, when the appellant brought
    methamphetamine into the hospital. Dr. Prakash was asked whether the appellant
    selling/providing drugs to co-patients gave rise to a risk of harm, and he
    answered that it gave rise to a serious risk of psychological harm because it
    set back their mental health. But
this question was
    premised on a misstatement of what occurred. Although the appellant did bring
    drugs into the hospital in 2016, the Board did not find that he gave or sold
    the drugs to anyone else in the hospital.

[29]

In summary, there is no
    evidentiary basis to support the Boards conclusion that the appellant poses a
    significant risk of physical and psychological harm to public safety. The Boards
    decision to the contrary is essentially speculative.

[30]

Crown counsel candidly
    conceded that this case was not overwhelming. I agree.

[31]

The appellant has
    substance addictions. There is a real risk that he will relapse, and if he does
    so there is a real risk that he will commit criminal offences in order to feed
    his addictions. He has been progressing well under hospital supervision, and the
    continued supervision a detention order affords may well be in his best
    interests. But the question is not what is best for him; the question is what the
    law requires.

[32]

The law is clear that NCR
    accused can be detained only so long as they constitute a significant threat to
    public safety. They are entitled to be released, unconditionally, if they do
    not. There is no proviso to this; NCR accused cannot be detained because it is
    best for them, or because there is a risk that they may commit crimes. The
    Board can detain an NCR accused only if it reasonably concludes that he or she
    poses a significant threat to public safety. The Supreme Court emphasized in
Winko
that this means a real risk of serious physical or psychological harm to
    individuals in the community  a serious criminal offence.

[33]

The appellant has been
    detained for over a decade. He has not been violent since 2003, and is
    presently living and working in the community. He has not been cured of his addictions,
    but he may never be. That reality does not alter my conclusion that the Boards
    decision that he poses a significant threat to public safety is unreasonable
    and cannot stand.
[1]

[34]

I reiterate what I
    said earlier. The jurisdiction of the Board is non-discretionary. Unless the
    Board can reasonably conclude  in accordance with the approach mandated by
Winko
and the decisions of this court  that an NCR accused poses a significant threat
    to public safety, it must grant an absolute discharge. This narrow jurisdiction
    must be at the forefront of the Boards consideration of these reviews.

Conclusion

[35]

I would allow the
    appeal, set aside the decision of the Board, and order an absolute discharge
    pursuant to s. 672.78(3)(a).

Released: September 17, 2018

Grant Huscroft J.A.

I agree.  J.C. MacPherson J.A.

I agree. I.V.B. Nordheimer J.A.





[1]
In light of my conclusion, it is unnecessary to
    consider the appellants alternative argument, that he be granted a conditional
    discharge. However, for the benefit of future appeals, I would note that if a
    conditional discharge is sought, counsel should provide a list of conditions proposed
    for inclusion in the courts order. It would be most helpful to the court if
    that list were vetted with Crown counsel and counsel for the hospital prior to
    the hearing of the appeal, similar to the current practice when bail is sought
    pending appeal.


