



COURT OF APPEAL FOR ONTARIO

CITATION: Medcof (Re), 2018 ONCA 299

DATE: 20180327

DOCKET: C64097

Strathy C.J.O., Simmons and Hourigan JJ.A.

IN THE MATTER OF:  William Medcof

AN APPEAL UNDER PART XX.1 OF
    THE
CODE

Erin Dann, for the appellant

Nancy Dennison, for the Attorney General of Ontario

Gavin S. MacKenzie, for the Centre for Addiction and
    Mental Health

Heard: March 2, 2018

On appeal against the disposition of the Ontario Review
    Board dated May 8, 2017.

Simmons J.A.:

[1]

The appellant appeals from a disposition of the Ontario Review Board
    dated May 8, 2017. The majority of the Board found that the appellant continues
    to pose a significant threat to the safety of the public and ordered that he be
    conditionally discharged.  A minority of the Board concluded that the
    evidence adduced at the hearing did not cross the threshold of establishing
    that the appellant poses a significant threat to public safety and would have
    granted an absolute discharge.

[2]

The appellant was found not criminally responsible in 2002 in relation
    to multiple serious criminal offences. He suffers from schizophrenia and has
    been treated with anti-psychotic medications while under the Boards
    jurisdiction. Although subject to a detention order until the disposition under
    appeal, he has lived in the community without incidents of violence, but with
    intermittent re-hospitalizations, since late 2012. He disputes his diagnosis
    and asserts that he will discontinue all medication if discharged absolutely.

[3]

On appeal, the appellant submits that the Board's finding that he poses
    a significant threat to the safety of the public is unreasonable.

[4]

The appellant says the Board made two errors in reaching its conclusion.
    First, it equated the appellants lack of insight into his mental illness and the
    potential for decompensation in his mental state with significant threat. In so
    doing, the Board failed to assess whether those factors lead to the conclusion that
    if absolutely discharged there is a real risk the appellant will commit a
    serious criminal offence resulting in serious physical or psychological harm.

[5]

Second, in assessing the threshold of significant threat, the Board
    failed to factor in the civil mechanisms for controlling risk under the
Mental
    Health Act
, R.S.O. 1990, c. M.7.

[6]

The appellant asserts that the Board could not have concluded that he meets
    the significant threat threshold because the evidence at the hearing was
    insufficient to support that finding.

[7]

In my view, although the evidence before the Board was neither extensive
    nor well-articulated, it was sufficient to support a finding of significant
    threat to public safety. I would therefore dismiss the appeal.

Background

(i)

The index offences

[8]

The appellant was found not criminally responsible (NCR) on November 29,
    2002 in relation to several serious offences: one count of aggravated assault;
    two counts of break and enter with intent to commit an indictable offence; one
    count of kidnapping; three counts of assault with a weapon; three counts of
    uttering threats, one count of assault; three counts of criminal harassment; one
    count of breach of probation; two counts of breach of recognizance; and one count
    of weapons dangerous.

[9]

The offences took place on May 24 and 25, 2001. They arose out of an
    attack on the appellant's roommate, the subsequent kidnapping of the
    appellants mother from his parents home and an attack on the appellant's
    father at his parents cottage. The appellant asserted a belief that his
    parents and sister were evil and uttered threats to kill them. As a result of
    these incidents, the appellants roommate suffered a head injury and was taken
    to hospital where he received stitches. The appellant threatened both his
    parents with a golf club, struck his mother with it, hit his father and tied
    his mothers hands and feet together during the kidnapping. Despite being tied,
    the appellants mother managed to call 911 on her cell phone after she and the
    appellant arrived at the cottage.

(ii)

The appellants background

[10]

The
    appellant was born in Toronto in 1967 and is currently 50 years of age. He was
    adopted at the age of three months.

[11]

According
    to his father, problems began when the appellant was in grade 7. He began
    exposing himself to neighbours and was seen by a psychiatrist for
    exhibitionism. He began skipping school in grade 8 and left school in grade 10.
    He later took courses in mechanics, private investigation and paralegal work,
    but has not held a job consistently in any of these fields. He currently
    receives Ontario Disability Support.

[12]

The
    appellant was seen again for exhibitionism at age 23 and over the years
    attended various programs to treat exhibitionism, depression and post-traumatic
    stress.

[13]

The
    appellants father reports that the appellant became verbally aggressive towards
    his mother at age 25, screaming at her with foul language, breaking furniture
    and throwing things. His mother reports becoming increasingly afraid of her
    son. He became physically aggressive and pushed her on a couple of occasions in
    the late 1990s. On September 15, 2000, police escorted him to CAMH on a Form 2
    arranged by his parents. On September 27, 2000, the appellant was assessed at
    College Park after being charged with two counts of indecent assault. As I have
    said, the index offences occurred in May 2001.

[14]

The
    appellant was married for about two years, ending in 1999. He has a son from
    that union. His ex-wife has sole custody of the child. The Hospital Report
    notes that she reports that the appellant slapped her in approximately 1998,
    that he was emotionally abusive and that with time she became afraid of him.

(iii)

The appellants prior criminal history

[15]

Prior
    to being found not criminally responsible in 2002, the appellant had two
    convictions on his record: attempted fraud under $5,000 in 1991 and failing to
    comply with a recognizance in 2000. He also reports having been charged with
    criminal harassment (x6) and indecent act (x2).

(iv)

The appellants current diagnoses

[16]

The
    appellants current diagnoses are: schizophrenia, residual type; substance
    abuse disorder; personality disorder NOS (with narcissistic and antisocial
    traits); and exhibitionist disorder. Differential diagnoses are delusional
    disorder, mixed type; unspecified schizophrenia spectrum disorder; and
    post-traumatic stress disorder.

[17]

The
    appellant is not treatment competent. His substitute decision maker is the
    Public Guardian and Trustee. Since coming under the jurisdiction of the Board,
    the appellant has continued to take antipsychotic medications. He is currently treated
    with a long-acting antipsychotic medication and an oral sedative as needed. The
    appellant also reports that he uses marijuana for chronic pain but will not
    disclose the name of the prescribing doctor.

(v)

The appellants progress under the ORB

[18]

Since
    the finding and until the disposition under review, the appellant remained on a
    detention order. He was initially detained at Whitby Mental Health Centre
    (WMHC). He was discharged into a community group home for several months in
    2005 but was returned to WMHC after testing positive for cannabis. He eloped
    from that facility in January 2008 but returned on his own the next day. He
    pleaded guilty to a charge of escape lawful custody as a result of that
    incident and received a suspended sentence and probation.

[19]

While
    at WMHC, the appellant denied having any mental illness and demonstrated a
    number of persecutory and delusional beliefs. These included a belief that the
    hospital, the police and the courts were conspiring to keep him in hospital
    unjustly; being a prolific inventor; the creator of movies and TV shows; the
    founder of GM, Ford and Chrysler; the author of many Stephen King novels; and
    believing that he received messages from the television. The appellant was
    described as hostile and as demonstrating little respect for hospital rules.
    However, there was no evidence of violent or aggressive behaviour.

[20]

The
    appellant was transferred to the medium secure unit of the Centre for Addiction
    and Mental Health (CAMH) at his request in 2008. He believed the WMHC
    treatment team manufactured evidence against him to keep him detained. It was
    hoped that a transfer and increase in medication would improve his mental
    status and therapeutic relationship.

[21]

While
    at CAMH, the appellant continued to deny that he suffered from any mental
    illness and was not initially agreeable to working with the treatment team.
    During a period of treatment with Clozapine he became more amenable to
    interacting with his treatment team and his psychotic symptoms decreased in
    intensity but remained evident (for example, he described how he had come up
    with the idea for certain movies). The appellant complied with medication as
    prescribed but displayed little insight into the need for the same. He
    exercised various privileges without incident and did not display any sexually
    inappropriate behaviours.

[22]

The
    appellant was granted community living privileges in late 2012. As already
    noted, there have been no incidents of violence or sexually inappropriate
    behaviours while the appellant has lived in the community. That said, the
    appellant has been readmitted to hospital on many occasions after positive
    tests for cannabis and early signs of decompensation and he continues to
    exhibit grandiose delusions and paranoia. The appellants initial readmission
    was in early 2013. He showed early signs of decompensation after successive
    positive tests for cannabinoids and a dramatic drop in blood Clozapine levels.
    The appellant ultimately acknowledged medication non-compliance because of side
    effects and his medication was changed from Clozapine to depot drugs.

[23]

Between
    February 2015 and October 2016, the appellant was readmitted to hospital on
    four occasions following positive tests for cannabis and reported increases in
    paranoia. While under the care of Dr. Swayze, the appellant was readmitted to
    hospital during the following periods: February 27, 2015 to April 14, 2015;
    July 23, 2015 to August 27, 2015; March 24, 2016 to May 5, 2016; and July 14,
    2016 to October 20, 2016. The appellant frequently denied using cannabis and
    lodged a formal complaint against Dr. Swayze, alleging that he was tampering
    with laboratory tests. As of October 2016, the appellant remained distrustful
    of Dr. Swayze and his outpatient care was transferred to Dr. Liu as of October
    25, 2016.

[24]

From
    October 2016 until the Board hearing in April 2017, the appellants drug
    screening tests continued to show cannabis use but there were no further
    readmissions to hospital. According to Dr. Liu, the appellants clinical
    presentation remained unchanged during that period. Further, there was no
    suggestion of violent or sexually inappropriate behaviour. In testimony before
    the Board, Dr. Liu noted that the reason for the previous hospitalizations when
    cannabis was detected was that the appellant manifested with increased
    paranoia. He said the treatment team had been closely monitoring the
    appellants clinical manifestation since October 2016. They were unsure how
    much cannabis the appellant had been using and he remained adamant that he was
    not using cannabis. Dr. Liu opined that an excessive use of cannabis might
    induce a change in the appellants mental condition and require
    hospitalization.

The significant risk threshold

[25]

Under
    s. 672.54 of the
Criminal Code
, the Board is required to grant an
    absolute discharge if, in its opinion, an NCR accused is not a significant
    threat to the safety of the public. That term is defined in s. 672.5401 as a
    risk of serious physical or psychological harm to members of the public 
    resulting from conduct that is criminal in nature but not necessarily violent.

[26]

In
R. v. Ferguson
, 2010 ONCA 810, 264 C.C.C. (3d) 451, this court noted
    that the meaning of the phrase significant threat to the safety of the public
    was authoritatively set down in
Winko v. British Columbia (Forensic
    Psychiatric Institute)
, [1999] 2 S.C.R. 625, at paras 49-62, 69. As stated
    by this court at para. 8 of
Ferguson
, the phrase refers to a foreseeable
    and substantial risk of physical or psychological harm to members of the public
    that is serious and beyond trivial or annoying. A very small risk of even great
    harm will not suffice. Nor will a high risk of relatively trivial harm. While
    the conduct must be criminal in nature, not all criminal conduct will suffice
    to establish a significant risk. There must be a risk that the NCR accused will
    commit a serious criminal offence.

The evidence at the Board hearing concerning significant risk

[27]

The
    evidence before the Board concerning significant risk consisted of the Hospital
    Report, marked as an exhibit and the testimony of Dr. Liu.

(i)      The Hospital Report

[28]

In
    addition to the appellants history, the Hospital Report disclosed that the
    appellant had not been participating in any regular programming since his last discharge
    from hospital in October 2016. He was unemployed, did not attend educational,
    vocational, volunteer or social activities and had distanced himself from his
    family because he believed they were involved in his persecution.

[29]

At
    his most recent mental status examination prior to the Board hearing, the
    appellant was described as being mildly irritable and raising his voice from
    time to time. Although he did not utter direct threats, his emotional reaction
    was described as sometimes intense and capable of making people feel
    intimidated. However, the report notes that despite the negative emotions, he
    did not lose his behavioural control or become physically aggressive and that
    he repeatedly asserted that he did not want to resort to violence and that he
    did not intend to hurt or harm others. When canvassed as to his understanding
    of his illness, the appellant denied having paranoid schizophrenia and denied
    being agitated or irritable when he did not take his medications.

[30]

The
    appellant scored a 29 out of a possible 40 points on the HCR-20 Structured
    Guide for the Assessment of Violence Risk. This was an increase from 25/40 from
    the previous year. When scored under an absolute discharge, the appellant
    scored 32/40. The Hospital Report indicated this was likely an underestimation
    as clinical items were not reflected in the score and stated that the appellants
    HCR-20 profile is best described as high.

[31]

Under
    the heading clinical risk factors/re-offence scenario, the Hospital Report
    stated the following:

Clinical or dynamic
risk factors which may serve as proximal
    indicators for violent re-offence include active symptoms of his schizophrenia,
    non-compliance with medications, substance use, interpersonal conflict with
    others, unstructured and supervised daytime routine and exacerbation of
    underlying personality traits
.

If [the appellant] is to reoffend, this will likely occur in
    the context of exposure to destabilizers and stressors, and a return to his
    historical path during noncompliance with medications and substance use leading
    to psychosis. In such situations his risk will be actualized. While psychotic
    and/or acutely intoxicated, [the appellant] has engaged in physically violent
    and sexually disinhibited behaviours.
[The appellant] has indicated that he
    will not take medication if he is not under ORB. He has used cannabis and
    intends to regularly use cannabis.

[Emphasis added.]

[32]

The
    hospital team concluded that the appellant continues to remain a significant
    threat to the safety of the public. It summarized its conclusion as follows:

[The appellants] actuarial assessment of static long-term risk
    for violent recidivism is best described as moderate.
His profile on the
    HCR-20 is best described as high. In addition, he has several salient clinical
    risk factors. Taken in totality, the clinical team opines that [the appellant]
    continues to remain a significant threat to the safety of the public as defined
    in section 672.5401
. [Emphasis added.]

(ii)     Dr. Lius evidence

[33]

In
    his testimony before the Board, Dr. Liu confirmed his opinion that the
    appellant represents a significant threat to the safety of the public. When
    asked by counsel for the hospital to briefly summarize his reasons for that opinion,
    Dr. Liu said the following:

Basically, since the discharge [from hospital at the end of
    October 2016], [the appellants]
mental condition has remained relatively
    stable but he still present with overt delusional beliefs
regarding
    grandiosity
and paranoia, and he believes there is a conspiracy going on
    against him, and he related many paranoia ideation and delusions
. And
    although he did not have any valid source, but
we need to take into
    consideration he is now under treatment, under regular treatment
. Recently,
    the medication has been changed from Paliperidone to Abilify, which  so I was
    aware of the fact, in the past [the appellant] has been very stable for two to
    three years when he was receiving Clozapine. And at that time, he was described
    to manifest minimal delusional ideations, and his emotional motivation was very
    stable.
But however, as soon as he was discharged into the community, and
    the Clozapine was discontinued because of the compliance concerns, when he was
    back on depot [medication], even with the newer generation antipsychotics, you
    can see the overall baseline of his psychotic symptoms increase. And also, we
    can see, from time-to-time, when [the appellant] was under the influence of
    substances, when he was under some stress, his emotional motivation was not as
    ideal as when he was on Clozapine. So that speak to the fact, [the appellant]
    needs ongoing antipsychotic treatment to maintain the current level of mental
    stability
, and [the appellant] has been very consistent in saying he
    doesnt need any antipsychotic medication. If he is not ordered to take
    medication or not under ORB, he would not take any kinds of antipsychotic
    medications. And he didnt believe that would increase his risk of violence.
So,
    I was also of the opinion, given the level of insight and the clinical
    symptoms, and also the problematic substance use behaviour, all things together
    can all contribute to [the appellants] mental decompensation and it resulting
    in dangerous behaviour to the public.
[Emphasis added.]

[34]

When
    questioned by a legal member of the Board concerning whether the appellants
    delusions are harmful and when they had been acted on in a harmful way, Doctor Liu
    responded that the index offence was obviously under delusions. He noted that
    the appellant has been under continuous treatment with antipsychotics but that
    there were still occasional aggravations or paranoid ideation. He also said
    its a reasonable prediction[n] that the appellants medical condition will
    deteriorate further if he is not taking medications.

[35]

Further
    questioning proceeded as follows:

Q. Okay, so just to understand the,
whats concerning about
    the delusions,
am I right that its not so much the grandiose delusions,
    about Chrysler and Stephen King, and so on, but
more some sort of underlying
    paranoia


A.
Yes

Q.
That is delusional in nature
?

A.
Yes
.

Q. And has he acted on that paranoid delusional system since
    the index offences?

A.
He has been continuously accusing the hospital of being part
    of the conspiracy.

Q. Okay, so hes acted on it to make claims but not in to
    commit acts of violence or harm?

A.
No, he can be very abusive verbally
.

Q. So verbal abuse?

A.
And appear quite agitated. On several occasions, I was, I
    need to be usually aware of the possibility about further behaviour escalations
.

Q. Okay. Thank you and so, I guess my second to last question
    is what decompensation looks like for [the appellant], and how fast it might
    be? How it might take place?

A. [The appellant] come, the manifestation is quite
    complicated, intertwined, with his personality characteristics.
So, usually,
    [the appellant] will present with certain paranoia ideations, however, the
    emotion or intensity, the reaction to a set contents of paranoia contents might,
    might be different.
Yeah, for example, when he was under Clozapine, he
    dealt with the same delusional content. [The appellant] was much more
    emotionally modulated, and was not decided. But however, when he was out in the
    community, and
when the Clozapine was breach, he had two other
    antipsychotics, you can see the degree. The baseline of his emotional
    reactivity increased
.

Q. So, again, just the concrete question about decompensation,
    what it looks like and how quick it would be?

A. To be honest, I cannot predict how quick it can be. Because
    he has been consistently under supervision and medications.

Q. But you are content it would happen?

A. What would happen?

Q. Decompensation?

A. According to what happened in the past, historically.

[Emphasis added.]

The Reasons of the Majority of the Board

[36]

In
    the Analysis and Conclusion section of its reasons, the majority accepted the
    submission that the appellant continues to represent a significant threat to
    the safety of the public. The majority stated that they relied on the evidence
    of Dr. Liu and in the Hospital Report which meets the standard set out in
Winko
.

[37]

In
    setting out their analysis, the majority acknowledged that the appellant has been
    under the Boards jurisdiction for a lengthy period of time and that he has not
    exhibited violent behaviour even with his ongoing substance abuse. However, to support
    their conclusion, the majority relied on the following factors:

·

the appellants diagnoses;

·

the appellants psychiatric history and history of aggression
    towards his mother;

·

the extremely serious nature of the index offences;

·

the appellants many readmissions to hospital following positive
    tests for cannabis and associated deteriorations in his mental state;

·

the fact that the appellant has remained on antipsychotic
    medications throughout;

·

Dr. Lius evidence that the baseline of the appellants psychotic
    symptoms has increased with the switch to depot medication and that, when under
    stress, his emotional stability is not as good;

·

Dr. Lius evidence that the appellant continues to display
    underlying paranoia that is delusional;

·

the appellants position that if granted an absolute discharge he
    would cease all antipsychotic medication;

·

Dr. Lius evidence that, although he could not predict the speed
    of decompensation because the appellant has been on medication, based on past
    behaviour the appellant would decompensate without medication.

[38]

The
    majority concluded its reasons relating to the significant threat threshold as
    follows:

The Hospital Report notes that there has been no improvement in
    [the appellants] insight into his psychiatric illnesses, the Index Offences or
    his episodes of aggression when unwell. He maintains his belief that he suffers
    from PTSD and anxiety and that his mental state can be managed with medical
    marijuana with no risk of deterioration. He denies being agitated or irritable
    when he does not take medication and has no insight into the causal
    relationship between the Index Offences and his mental illness.

Given this conclusion, there is no basis for an Absolute
    Discharge.

The Reasons of the Minority of the Board

[39]

The
    minority of the Board concluded that the evidence adduced at the hearing did
    not support a finding that the appellant constitutes a significant threat
    within the meaning of the
Winko
standard. The minority emphasized that
    that standard requires that the threat posed must be more than speculative in
    nature; it must be supported by evidence. The evidence must demonstrate a
    foreseeable and substantial risk that the NCR would commit a serious criminal
    offence.

[40]

The
    minority acknowledged that the index offences were serious and violent.
    However, they observed that the offences were committed about 16 years
    previously and that, since then, there had been no instances of violent behaviour
    or violent reoffending. Further, they quoted the Hospital Reports statements
    that despite ongoing cannabis use and readmissions to hospital, the appellant
    had not lost his behavioural control or become physically aggressive and had
    repeatedly asserted that he did not want to resort to violence and denied
    having intention to hurt or harm others.

[41]

The
    minority noted that, in his evidence, Dr. Liu was unable to describe when or
    how the appellant might decompensate. Further, Dr. Liu could not link the
    appellants delusions of grandeur to an identifiable risk of harm to others or
    suggest how they might intensify and pose a risk without medication.

[42]

The
    minority concluded:

[The appellant] has been oppositional throughout his ORB
    history, has come to an impasse with most of his attending psychiatrists over
    the years, and is an unapologetic rule-breaker; for these reasons, he is not a
    particularly sympathetic candidate for absolute discharge. Nonetheless, the
    evidence that [the appellant] poses a significant threat of serious physical or
    psychological harm, within the meaning of Winko, does not cross the threshold
    required by law. For that reason [the appellant] must be given an absolute
    discharge.

Standard of Review

[43]

The
    standard of review of the Boards decision is prescribed by s. 672.78 of the
Criminal
    Code
:

672.78 (1) The court of appeal may allow an appeal against a disposition
    or placement decision and set aside an order made by the court or Review Board,
    where the Court of Appeal is of the opinion that

(a) 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.

[44]

As
    noted in
Carrick (Re)
, 2015 ONCA 866, 128 O.R. (3d) 209, at para. 22,
    absent an error on a question of law or a decision that results in a
    miscarriage of justice, the court is required to defer to the Boards judgment,
    upholding it if it is reasonable.

[45]

Further,
    as the Supreme Court of Canadas decision in
Dunsmuir v. New Brunswick
2008 SCC 9, 1 S.C.R. 190, makes clear, reasonableness review begins from the
    premise that questions before specialized tribunals may not give rise to a
    single, correct answer. A range of reasonable decisions may be made in a
    particular context and that range may be more or less broad, depending on a
    number of considerations in all the circumstances:
Carrick
, at paras.
    23-24.

[46]

Finally,
    the court does not make its own judgment on the significant threat question and
    use that judgment as the benchmark for assessing the reasonableness of the
    Boards decision. Nor does this court re-weigh the considerations before the
    Board. The reasons for the Boards decision and the substantive decision
    reached by the Board must be considered together to determine whether an
    acceptable and defensible outcome has been reached:
Carrick
, at para.
    26.

Discussion

[47]

As noted above, the appellant maintains that the majority of the Board
    (and in effect Dr. Liu) erred by equating the appellants lack of insight into
    his mental illness and the potential for decompensation with significant threat.
    The appellant does not challenge the reasonableness of the conclusion that he
    lacks insight into his mental illness or that there is a significant risk of
    decompensation in his mental state if he is granted an absolute discharge.
    However, he asserts that the majority erred by failing to make a finding
    concerning whether those factors would lead to a foreseeable and substantial
    risk of serious physical or psychological harm to members of the public. He
    argues that the evidence before the Board was not capable of supporting such a
    finding.

[48]

I
    would not accept these submissions. It is clear that Dr. Liu and the Board were
    aware of the requisite standard. The majority of the Board commenced its
    analysis by referring explicitly, albeit without expressly stating, the test
    for significant threat articulated in
Winko
. In questioning, Dr. Liu
    noted that a significant threat was one which would cause physiological harm
    or physical harm. The Hospital Report specifically referenced the definition
    of significant threat as being set out in s. 672.5401 of the
Criminal Code
.

[49]

Regrettably,
    Dr. Liu was not pressed on how decompensation would manifest itself, or its
    foreseeable consequences, either in his evidence in-chief or when questioned by
    the legal member of the Board.
[1]
Nonetheless, he provided evidence that the appellant continues to suffer from
    delusional paranoia,
[2]
and that his response to such delusions depends largely on his treatment. While
    on Clozapine, the appellant dealt with the same type of delusions in a more
    emotionally modulated manner. When he was in the community and stopped taking
    Clozapine, the baseline of his emotional reactivity increased. This
    necessitated re-admission on several occasions. In Dr. Lius opinion, the
    nature of the appellants illness, coupled with his lack of insight into it and
    his use of marijuana, could contribute to mental decompensationresulting in
    dangerous behaviour to the public.

[50]

Further,
    Dr. Lius oral evidence must be viewed in the context of the Hospital Report to
    which he was a co-signatory. The Report noted the appellants actuarial risk
    assessments and clinical risk factors. His Structured Guide for the Assessment
    of Violence Risk was considered high. The Report itemized a number of
    destabilizers that the treatment team concluded would actualize the appellants
    risk. As a result of these factors, the clinical team was of the unanimous
    opinion that the appellant continued to meet the definition of significant
    threat set out in s. 672.5401.

[51]

The
    fact that Dr. Liu could not articulate how quickly the appellant would
    decompensate after going off antipsychotic medications or precisely how the
    decompensation would manifest itself does not make the majoritys acceptance of
    the opinions of Dr. Liu and the clinical team unreasonable. Doctor Liu
    explained that the nature and speed of the appellants potential decompensation
    was difficult to predict, [b]ecause [the appellant] has been consistently
    under supervision and medications.

[52]

In
    oral argument, the appellant acknowledged that the fact that he committed serious
    criminal offences while ill and un-medicated gives rise to a common sense
    inference of the possibility that he will do so again. However, he argued that
    the strength of that inference is diminished because of the significant length
    of time during which he has not displayed any violent or sexually inappropriate
    behaviour.

[53]

In
    my view, however, that was an issue for the appellants treatment team to
    assess and ultimately the Board to determine.

[54]

Both
    the Hospital Report and Dr. Liu acknowledge that the appellant has not engaged
    in violent or sexually inappropriate behaviour while under the jurisdiction of
    the Board. But they point to the index offences, which were very serious; the
    fact that the appellant has been treated with antipsychotic medications
    throughout the period he has been under the jurisdiction; the fact that the
    appellant still manifests symptoms of his illness, including paranoid delusions;
    the fact that the appellant has been readmitted to hospital when he showed
    signs of decompensation; and his actuarial risk assessment and his clinical
    risk factors, to conclude that the appellant continues to pose a significant
    risk.

[55]

Although
    it might have been preferable for the Board to more fully engage with Dr. Liu
    concerning the ongoing likelihood of the appellant committing a serious crime
    given the passage of time without incident, I am unable to say that that the
    majoritys acceptance of his opinion constituted legal error or was
    unreasonable.

[56]

The
    appellant also relied on this courts decisions in
Ferguson
and
Re
    Pellet
2017 ONCA 753, in support of his position that the majoritys
    decision was unsupported by the evidence. In my view, however, those decisions
    are distinguishable from this case. Neither involved an index offence giving
    rise to a risk of dangerousness similar to the index offences in this case. And
    unlike
Pellet
, the index offence in this case was not an isolated
    one-off. Rather, it involved a series of violent offences (attack on
    roommate, kidnapping and assault of mother, assault on father) that persisted
    over a period of time and had been preceded by assaultive behaviour towards both
    the appellants mother and wife, together with longstanding sexually
    inappropriate behaviour.

[57]

I
    would not give effect to this argument.

[58]

I
    turn to the appellants second argument that the majority erred in failing to
    consider the civil mechanisms for controlling risk under the
Mental Health
    Act
. It is implicit in the majoritys reasoning that they did not consider
    those mechanisms adequate to control the appellants risk in the event of an
    absolute discharge. Unlike with a conditional discharge, the appellant would
    not be reporting regularly to a psychiatrist. The evidence before the Board was
    clear that the appellant leads an isolated life. In these circumstances, there
    would be no one monitoring the appellants mental status who could invoke the
    civil mechanisms in the event of decompensation in the appellants mental state
    following any termination of antipsychotic medication.

[59]

I
    would not give effect to this argument.

Disposition

[60]

Based
    on the foregoing reasons, I would dismiss the appeal. However, I would urge the
    Board at the appellants next annual review to more fully engage with the issues
    of the significance of the appellants continuing non-violent behaviour
    (assuming it continues), the passage of time and the correlation between these
    factors and the risk of serious harm in the event of decompensation.

Released:

GS                                         Janet Simmons
    J.A.

MAR 27 2018                         I agree G.R. Strathy
    C.J.O.

I agree
    C.W. Hourigan J.A.





[1]
The legal member of the Board asked Dr. Liu a two-part question: what
    decompensation looks like and how quickly it would take place. When asked the
    two-part question a second time, Dr. Liu responded specifically to how quickly
    it would take place. He did not respond specifically to what it would like.
    Unfortunately, no one followed up on that omission.



[2]
Contrary to the reasons of the minority of the Board, it is the appellants
    paranoid delusions that Dr. Liu believed were of concern.


