



COURT OF APPEAL FOR ONTARIO

CITATION: Williams (Re), 2017 ONCA 161

DATE: 20170224

DOCKET: C62164

Cronk, Rouleau and Miller JJ.A.

IN THE MATTER OF:  Jerome Williams

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti and Tara Mimnagh, for the appellant

Kathleen Farrell, for the respondent

Heard: February 22, 2017

On appeal against the disposition of the Ontario Review
    Board dated May 13, 2016.

ENDORSEMENT

[1]

On December 22, 2011, the appellant was found not criminally responsible
    on account of mental disorder on charges of robbery, uttering threats, assault
    causing bodily harm, and other offences. He was diagnosed as suffering from
    schizophrenia, anti-social personality disorder, cannabis use disorder, and
    borderline intellectual functioning.

[2]

He now appeals the disposition of the Ontario Review Board dated May 13,
    2016, with Reasons for Disposition issued May 31, 2016, ordering that he remain
    on the secure forensic unit of St. Josephs Healthcare, Hamilton, with
    privileges, or be transferred to the general forensic unit at that institution,
    in the discretion of the person in charge. He had sought an order permitting
    him to be placed on the general forensic unit, with seven day passes to visit
    his mother. Before this court, he seeks an absolute discharge or, in the
    alternative, a conditional discharge.

[3]

The Board, in its reasons, noted that the appellant had made progress
    since his transfer to St. Josephs. He had not been violent and had
    participated in some hospital programs. The Board noted, however, that he
    lacked insight into his illness and expressed concern at his decision, which
    was ratified by his substitute decision maker, to markedly reduce his dose of
    anti-psychotic medication. The hospital accordingly reduced his medication six
    weeks prior to the date to the hearing. Although the only behaviours of concern
    that had been noted to the date of the hearing were an occasional increase in
    irritability and (to a limited extent) anti-social behaviour, the Board, based
    on the expert evidence before it found that he was more likely than not en
    route to a psychotic relapse as a consequence of the reduction in medication.
    The Board also accepted the opinion of the appellants clinical team, based on
    psychological testing, that the appellant poses a moderate to high risk of
    violence.

[4]

The appellant appeals the finding that he poses a significant risk of
    threat to the public, and argues that the Board erred in law by concluding that
    a custodial order was the least onerous and least restrictive disposition to
    manage his risk.

[5]

With respect to the finding that the appellant poses a significant risk
    to public safety, the appellant argues that the Boards conclusion is mere
    speculation, based on insufficient evidence.

[6]

We disagree. The Boards decision is grounded in the evidence that: (1)
    the appellant lacks insight into his mental disorder and need for medication;
    (2) the appellant would stop treatment at the first opportunity; and (3)
    psychological testing indicates that the appellants risk of psychotic relapse
    and engaging in violent behaviour would be high if he ceased treatment.

[7]

Additionally, the appellant, through his counsel, conceded before the
    Board that the appellant remains a significant risk to public safety. Given
    this concession, it is not surprising that the Boards decision does not dwell
    at length on the evidence in support of this finding.

[8]

With respect to the remedy sought, the appellant argues that the Boards
    concerns about his non-compliance with medication could be addressed through
    either an absolute or conditional discharge, coupled with a community treatment
    order.

[9]

A difficulty with the appellants argument is that the prospect of a
    community treatment order was not argued before the Board, and so there is no
    supporting evidence in respect of such an order, and no findings as to the
    potential terms of an appropriate community treatment order. A more fundamental
    problem, however, is this courts holding in
Re Waite
, 2017 ONCA 56
    that the Board has no authority to make a community treatment order. Such an
    order is to be made by a physician under s. 33.1 of the
Mental Health Act
,
    R.S.O. 1990, c. M.7, where the conditions precedent in s. 33.1(4) of that
    statute have been met.

[10]

In
    all these circumstances, we conclude that the Boards disposition was
    reasonable based on the evidence before it and there is, therefore, no basis
    for appellate interference with it.

Disposition

[11]

For
    these reasons, the appeal is dismissed.

E.A.
    Cronk J.A.

Paul
    Rouleau J.A."

"B.W.
    Miller J.A."


