



COURT
    OF APPEAL FOR ONTARIO

CITATION: Krivicic (Re), 2018 ONCA 535

DATE: 20180611

DOCKET: C64041

Feldman, Roberts and Trotter JJ.A.

IN
    THE MATTER OF: Elvis Krivicic

AN APPEAL UNDER PART XX.1 OF THE
CODE

Jill R. Presser and Jeff Marshman,
amici curiae

Elvis Krivicic, acting in person

Megan Petrie, for the respondent, the Attorney General
    of Ontario

Heard:
    April 18, 2018

On appeal from the disposition of the Ontario Review
    Board dated June 22, 2017.

Trotter J.A.:

A.

Introduction

[1]

More
    than a decade ago, the appellant was found not criminally responsible (NCR) of
    one count of criminal harassment and two counts of failing to comply with a
    recognizance. Ever since, he has been under the supervisory jurisdiction of the
    Ontario Review Board (the Board). Each time the Board has reviewed the
    appellants case, it has determined that he poses a significant threat to the
    safety of the public pursuant to s. 672.54 of the
Criminal Code
.

[2]

On
    his prior appeal to this court, a new risk assessment was received as fresh
    evidence. It indicated that the appellant was at a low risk to re-offend. In
    light of this evidence, all three members of the panel agreed that the Boards
    disposition detaining the appellant could not stand. The majority (Weiler and
    Huscroft JJ.A.) remitted the case to the Board to consider the appellants
    situation in light of the new risk assessment. Feldman J.A. would have granted
    an absolute discharge: see
Re Krivicic
, 2017 ONCA 379, 139 W.C.B. (2d) 55, leave to
    appeal refused, [2017] S.C.C.A. No. 317.

[3]

At
    the appellants most recent hearing, the Board considered the fresh evidence
    admitted by this court, along with a more recent risk assessment. Again, the
    Board determined that a detention order was appropriate.

[4]

The
    appellant argues that the Boards decision was unreasonable. I agree. I would
    allow the appeal and substitute an absolute discharge.

B.

background

(1)

The
    appellant and the index offences

[5]

The
    appellant is 40 years old. In late 2006, he was involuntarily admitted to the
    Grand River Mental Hospital under the
Mental Health Act
, R.S.O. 1990, c. M.7. Earlier
    that year, the appellant was charged with producing a controlled substance
    (marijuana). In 2007, he received an eight-month conditional sentence for that
    offence, his only recorded conviction. The appellant was also charged with
    assault, mischief, and uttering threats in 2006, but those charges were
    withdrawn after he was found NCR for the index offences.

[6]

The
    index offences commenced in the fall of 2006. The appellant made repeated calls
    and sent 17 letters to a woman with whom he had attended high school, but did
    not otherwise know. The letters were vulgar and sexually explicit. The woman lived
    with her parents at the time, and the appellant lived close by. The appellant
    was charged with criminal harassment on November 16, 2006. He was subsequently charged
    with two counts of failing to comply with his recognizance. He was found NCR on
    February 27, 2007.

[7]

The
    appellants past diagnoses have included schizophrenia with antisocial and
    schizoid traits, and polysubstance dependence in remission in a controlled
    environment. At the most recent Board hearing, his attending psychiatrist testified
    that delusional disorder, rather than schizophrenia, is a more appropriate
    diagnosis.

[8]

The
    appellant has refused treatment while under the Boards jurisdiction. Aided by
    his substitute decision maker (SDM), his mother, the appellant refuses anti-psychotic
    medication and prefers to seek natural remedies for his physical ailments. As
    discussed below, the appellants failure to accept treatment for his mental
    illness troubled the Board.

[9]

The
    appellants detention in psychiatric institutions has not been problem-free.
    There have been angry outbursts and aggressiveness, sometimes directed at
    hospital staff. However, over the course of the past 11 years, incidents of
    violence have been few and far between. In 2007, the appellant threatened two
    patients and took a swing at another when that patient called the appellant a fucking
    goof. In 2010, he punched and spat on another patient. His most recent verbal
    aggression, in 2013, involved three incidents within the span of a month at the
    Regional Mental Health Centre in St. Thomas. That same year, the appellant was
    transferred to the Centre for Addiction and Mental Health (CAMH) in Toronto.

[10]

In
    2014, the appellant twice eloped from CAMH, for a combined duration of over two
    months. While he was AWOL, there were no further criminal charges. The
    appellant made no effort to contact the victim. Instead, he focused on
    obtaining treatment for his physical ailments, the principal one being Crohns
    disease.

[11]

The
    appellant was transferred from CAMH to Waypoint Centre for Mental Health Care
    (Waypoint) in February 2015. During his stay at Waypoint, a few incidents of
    verbal aggression were recorded. Additionally, on a single occasion, the
    appellant was observed alone in his room speaking in a threatening manner (I
    will get you) to a non-existent person.

[12]

The
    appellant was moved to the North Bay Regional Health Centre (North Bay) in
    April 2016. Due to a shortage of psychiatrists, the hospital requested an early
    Board hearing to transfer the appellant. At this hearing, held in August 2016,
    the Board detained the appellant, ordering that he be placed at the secure
    forensic unit at Providence Care Centre in Kingston (Providence). He appealed
    that disposition to this court.

(2)

The
    prior appeal to this court

[13]

On the
    appeal from the disposition resulting in the appellants placement at
    Providence, both Providence and North Bay filed as fresh evidence the affidavit
    of Dr. Michael Chan, the appellants attending psychiatrist. The affidavit
    addressed the risk posed by the appellant, based on new psychological testing
    that occurred after the Board hearing.

[14]

It is
    necessary to place this new testing in context. At his initial disposition
    hearing in 2007, the appellants risk of recidivism was assessed as extremely
    high, if not approaching certainty. In December 2015, while he was at
    Waypoint, the appellant was assessed using the HCR-20, a clinical judgment tool
    designed to predict violent recidivism. He was assessed as a high risk for
    violent re-offence.

[15]

In
    January 2017, before the hearing of the appeal, the appellant was assessed by
    Dr. Jan Looman, a clinical forensic psychologist. He met with the appellant for
    six hours over the course of three days, and reviewed previous hospital reports
    prepared for Board hearings, including previous risk assessments. In a written
    report, Dr. Looman addressed the appellants December 2015 rating on the HCR-20:

This assessment suggested that [Mr. Krivicic] was [a] high risk
    for violent re-offence. However, Mr. Krivicic does not have a history of
    previous violence. Given this, it is not clear that this instrument is
    appropriate for assessing the risk for violence in this case. In addition, Mr.
    Krivicic has not acted out violently while in hospital, despite his obvious
    anger and frustration with what he sees as his unjust detention and inadequate
    medical care. Given that he is 38 years old and that risk for violence begins
    to decrease after the age of 40, it seems reasonable to assume that if Mr.
    Krivicic has not engaged in violence to this point he is unlikely to do so in
    the future. Previous research related to the initiation of violent offending
    indicates that the peak period is in the late teens and early 20s and very few
    people commit their first violence offence beyond that age. [Internal footnote
    omitted.]

[16]

Dr.
    Looman was concerned that, given the appellants index offences and lack of
    violent history, risk assessment tools predicting general violent recidivism
    may fail to meaningfully evaluate the appellants risk. He administered a more
    specific test  the Stalking Risk Profile (SRP), as the appellants index
    offence was best characterized as stalking. The SRP measures risk in three
    categories  risk of stalking violence, risk of persistence, and risk of
    reoccurrence. The appellant was determined to be a low risk across all three
    measures. Dr. Looman concluded that overall, the appellant presented a low risk
    for violence. These results formed the basis of an up-to-date medical report
    prepared by Dr. Chan, in which he endorsed Dr. Loomans conclusion and opined
    that the appellant no longer met the significant threat threshold. Counsel who
    appeared on behalf of both North Bay and Providence supported this conclusion. Counsel
    for the Ministry of the Attorney General opposed it.

[17]

As already
    noted, this court unanimously concluded that the Boards finding that the
    appellant ought to be detained could not stand in light of the new risk
    assessment. Writing for the majority, Huscroft J.A. held that the Board should
    make the ultimate determination as to the impact of this new evidence alongside
    the evidence it relied on in making its prior dispositions (para. 15). In
    remitting the appellants case back to the Board for an early hearing, Huscroft
    J.A. said, at para. 18:

It is not for the court to reconcile the competing psychiatric
    evidence in this case. That is the responsibility of the Board, an expert body charged
    with responsibility for evaluating the medical evidence, and the Board must be
    permitted to do its job.

[18]

Feldman
    J.A. held that, in light of the fresh evidence, and with no contradictory
    evidence either tendered or proposed (para. 22), the appellant was entitled to
    an absolute discharge. Noting that both hospitals endorsed Dr. Chans opinion,
    Feldman J.A. concluded, at para. 40:

In this case, although the Board has not had an opportunity to
    assess the fresh evidence, that evidence is unequivocal and one-sided. Based on
    the record before this court, there is no evidence that the appellant continues
    to pose a significant risk to the safety of the public.

(3)

Most
    recent Board hearing

[19]

The
    Board convened on June 14, 2017, to consider the appellants status. The
    appellant sought an absolute discharge. This was supported by counsel for
    Providence and reflected in the hospital report prepared on May 17, 2017. The
    Attorney General again opposed this result, recommending a detention order with
    hospital privileges, or a conditional discharge.

(a)

The
    evidence

(i)

Updated
    risk assessment

[20]

Prior
    to the hearing, Dr. Looman conducted another risk assessment. In the excerpted
    passage from his January 2017 report, reproduced in para. 15 above, Dr. Looman
    administered the SRP on the assumption that the appellant had not acted out
    violently while in hospital. At some point before the new hearing, Dr. Looman
    learned that the appellant had engaged in violent and aggressive behaviour
    while hospitalized. However, in fairness to Dr. Looman, the only information he
    missed is referenced in para. 9 above. It is minor and mostly dated.

[21]

In
    light of this information, Dr. Looman administered the HCR-20
V3
 a
    revised version the HCR-20 test administered to the appellant in 2015. As Dr.
    Looman wrote in his Updated Risk Assessment, dated June 14, 2017:

[A]ccording to the HCR-20
V3
[Mr. Krivicic] presents
    a moderate long-term risk for violent re-offence, moderate risk according to
    clinical factors and moderate-high in terms of risk management factors,
thus, overall, he presents a moderate risk for violent
    re-offence.

Mr. Krivicic was previously assessed using the HCR-20 in 2015
    at the Waypoint Centre for Mental Health.
He was assessed
    as presenting a high risk at that time. Thus, the current assessment assigns
    him a lower level of risk than the previous assessment. In part this can be
    attributed to changes in the instrument, as the current assessment uses the
    HCR-20V3. As well, Mr. Krivicics behaviour appears to be somewhat less
    problematic than while he was at Waypoint.
[Emphasis added.]

(ii)

Dr.
    Loomans testimony

[22]

Dr.
    Looman testified before the Board and explained that he did not consider the
    most recent test results indicative of the appellants real risk. In terms of
    clinical and risk management factors, a number of the items that the appellant scored
    poorly on relate to the fact that he is hospitalized and refuses treatment.
    Also, the HCR-20
V3
does not reflect the fact that violence tends to
    decrease with age.

[23]

Dr.
    Looman was of the view that, in the community, the appellant would be better
    able to attend to his medical needs in the way he desires, in terms of accessing
    services and buying his preferred foods. Consequently, his irritability would
    likely diminish because the pressures affecting his behaviour in detention
    would no longer exist. Dr. Looman said, Theres a lot of people who have
    delusions and preoccupations who live in the community and function okay and
    without getting themselves into trouble and I dont know that he wouldnt be
    one of those.

[24]

The
    Board pressed Dr. Looman on his views. He explained that the appellants delusions
    are currently persecutory and somatic in nature. While refusing treatment is
    generally an important factor in assessing risk, it has less of a role to play
    in the appellants case. As he explained:

If it wasnt for his refusing treatment, he would be at [a] low
    risk.
What Im saying is a lot of the symptoms hes
    currently presenting are unrelated to risk to the public in the community.

. . .

Hes got the somatic delusions, if we think theyre delusions,
    somatic complaints and theyre related to our refusing to provide him the
    appropriate medical care and appropriate diet.
So if he
    was out in the community where he could seek out the care that he wants and eat
    the food that he wants, that would be gone. Right now none of his symptoms of
    mental illness actually create a risk to the public.
[Emphasis added.]

[25]

The
    Board challenged Dr. Looman on the notion that the appellants risk assessment
    was the result of where he is. As Dr. Looman said:

No
, like I said, theres lots of
    people out in the community who are walking around with all sorts of somatic
    complaints and being a burden to the health care system because theyre never
    satisfied with the treatment they get, but we dont lock them up in the
    forensic system because they arent a threat to the public.

His persecutory delusions are related to
    the fact that hes involuntarily in the hospital.
Its all focused on
    that. So, the risk to the public in holding those delusions, there is none.
He comes out as high risk because hes refusing treatment and
    hes lacking insight and hes not complying with, you know, hes not
    cooperating with the things we

want him to
    cooperate with, but does that mean hes a high risk to the public? I cant see
    it.
[Emphasis added.]

[26]

Dr.
    Looman was asked about the appellant being released without conditions, and how
    he would establish himself in the community. Dr. Looman acknowledged that the
    appellant is probably not adequately prepared for just being turned loose, but
    added, The question is, does he meet the threshold of risk, its not how
    prepared he is to move out. However, Dr. Looman agreed that stressors
could
have
    a significant impact on the appellants risk.

[27]

In
    follow-up questions, Dr. Looman agreed that the appellant would score the same on
    the HCR-20
V3
whether hospitalized or not, and agreed that the HCR-20
V3
is considered to be a valid and helpful instrument for assessing violent
    risk. Nevertheless, he maintained his opinion that, in all of the
    circumstances, the test artificially inflated the appellants risk.

(iii)

Dr.
    Chans testimony

[28]

Dr.
    Chan described the appellants stay at Providence over the previous 10 months,
    noting that the appellant had not engaged in any violence with staff or other
    patients. He testified that a more accurate diagnosis for the appellant was
    delusional disorder, rather than schizophrenia. This was based on his
    observations that the appellant did not exhibit recurring disordered thought
    patterns that are typical of schizophrenia. Recognizing that delusional disorder
    is more difficult to treat, Dr. Chan said that the appellants current
    pre-occupations are somatic; he exhibits no inclination to stalk the victim of
    his offences, nor anyone else.

[29]

It was
    Dr. Chans decision to involve Dr. Looman in the appellants case. Dr. Chan was
    concerned that the appellant had been detained for over 10 years as a result of
    stalking behaviour. As he said, I felt we needed to have the best fit between
    the risk instrument used and the index problem. Referring to the HCR-20
V3
results, Dr. Chan observed that the appellants score had improved. Still, he
    echoed Dr. Loomans concerns that the test overstated the appellants actual
    risk.

[30]

Dr.
    Chan testified that, based on the risk assessments
and
our
    clinical contact with him over the time he has been with us, [the appellant
    does] not present a significant risk to the safety of the public.

[31]

Dr.
    Chan acknowledged that the appellant remains untreated. Efforts to treat him
    have been thwarted by his SDM. He referred to the appellant as pretty much
    legally untreatable. In light of this history, when the appellant came to
    Providence, Dr. Chan did not wish to instigate an adversarial relationship with
    him. Given that efforts to treat the appellant in the previous 10 years had
    been unsuccessful, Dr. Chan thought future attempts would be futile and
    unproductive.

[32]

In
    terms of the risk posed by the appellant if released into the community, Dr.
    Chan said that it could be looked at in two ways. On the one hand, the
    appellant could be less stressed because he would be able to seek the
    treatments that he desires for his medical needs. On the other hand, there was
    an outside possibility that the day-to-day stress of living could create
    fluctuations in his mental state. However, Dr. Chan observed that, while
    detained, the appellants frustrations have not led to violence; instead, he
    has used legal means to pursue his grievances. Dr. Chan said, At this point I
    dont foresee that it will necessarily lead to disturbed or violent behaviour,
    but his mental state can fluctuate given new environments and new challenges.

[33]

A
    number of Board members challenged Dr. Chan on his opinion. Concerns were expressed
    about the appellant apparently responding to voices and saying, I will get
    you. This happened almost two years prior to the hearing. Because so little
    was known about the circumstances, Dr. Chan did not acknowledge that the
    appellant was hallucinating at the time. Dr. Chan agreed that the appellants
    symptoms could worsen if he consumed THC. Dr. Chan testified that the appellant
    might be tempted to smoke marijuana in a non-controlled environment.

[34]

Dr.
    Chan agreed that it would be preferable to gradually release the appellant into
    the community, rather than doing so abruptly, without supports. As he said, I
    would always prefer that approach. However, he did not intend to release the
    appellant without any support. Dr. Chan said, We would do our best to link him
    up with the mental health community services. He acknowledged that being
    released from the forensic system could be a huge stressor, but whether that
    will lead to risky scenarios, its
possible
 I cant rule it out (emphasis added.) Dr.
    Chan also expressed doubt that any possible problems would lead to physical violence.
    He said, Knowing him the way hes been here he might react verbally but Im
    not sure it will necessarily escalate to physical violence honestly.

[35]

According
    to Dr. Chan, the HCR-20
V3
exaggerated the appellants risk, largely
    because the instrument places significance on historical information that will
    never change. The fact that the appellant has refused treatment did not help.
    Dr. Chan said, Im not saying there would be no risk, Im not saying that at
    all. There is risk and there will always be risk given the past. We cant go
    back and change that. However, by adding the SRP scores to the equation, Dr.
    Chan said, We thought [it] would give a bigger picture and we think [his risk is]
    tempered a little bit, not down to very low, but its tempered a bit. In our
    opinion its dropped below the threshold. I mean, we can always make arguments
    one way or the other.

[36]

Ultimately,
    Dr. Chan did not waiver from his view that the appellant could be released
    safely into the community. As he said, If I felt that when he walked through
    that door he would get himself in trouble and get arrested for criminal
    problems, no, I wouldn't want thatI wouldnt recommend that type of scenario.

(iv)

The
    Appellants testimony

[37]

The appellant
    testified that, if released, he plans to move to Saskatchewan. He was somewhat
    vague on the details of his plans. He said that on the two occasions when he
    eloped from CAMH, his main focus was obtaining medical attention for his physical
    ailments, which he felt were not being adequately addressed during his
    detention. He attempted to seek asylum in the United States on both occasions,
    but was returned to hospital. The appellant testified that the main stress he
    felt while AWOL was being captured and brought back. He was able to find
    accommodation and eat as he pleased by drawing on his CPP, along with assistance
    from his family.

[38]

Questioned
    by counsel for the Attorney General and Board members, the appellant denied any
    temptation to smoke marijuana and said he had not thought about the victim of
    his index offences in many years.

(b)

The
    Boards reasons

[39]

In its
    Reasons for Disposition (see [2017] O.R.B.D. No 1686), the Board provided a
    detailed summary of all of the evidence adduced at the hearing. In its
    narrative, the Board mentioned the previous decision of this court.
    Specifically, at para. 25, the Board quoted from Huscroft J.A.s reasons (at
    para. 17): If Dr. Chans evidence is accepted by the Board, the appellant is
    entitled to an absolute discharge. As discussed below, this was not the
    appellants only route to an absolute discharge.

[40]

The
    Board rejected the opinions of Dr. Chan and Dr. Looman, the position of counsel
    for Providence, and the submissions of the appellants counsel. It agreed with
    the Attorney General that the appellant should be detained.

[41]

The
    Board found that the updated HCR-20
V3
risk assessment significantly
    contradicts the testimonial opinions of Drs. Looman and Chan. The Boards
    ultimate conclusions are reflected in paras. 36-39:

The Board is fully aware that in reaching a conclusion that Mr.
    Krivicic continues to represent a significant risk, it is reaching a conclusion
    different from both Dr. Chan and Dr. Looman.
With
    respect, the Board cannot agree with their opinion that Mr. Krivicic no longer
    represents a significant threat.

Dr. Chan's support for his opinion, both in the Court of Appeal
    and before this Board, was founded on the assessment using the Stalking Risk
    Profile (SRP). Dr. Chan maintained this opinion before the Board notwithstanding
    his acknowledgement that the HCR-20 v3 Risk Assessment Tool reached a
fundamentally different conclusion
. He did acknowledge
    that granting Mr.
Krivicic
an
    absolute discharge and releasing him to the community without any form of
    support plan in place would likely be a significant stressor
potentially
leading to a risk to the safety of the
    public.

Dr. Looman's conclusion that there was not a significant risk
    was that the scoring on the HCR-20 v3 overstated the risk of violence. He went
    on to say that the lack of Mr.
Krivicic's
insight into his illness is
    not related to his potential risk. Although it seemed that the main reason for
    rejecting the outcome of this assessment tool was that it was scored while
    Mr.
Krivicic
was
    in the hospital, Dr. Looman did eventually agree that the results would not be
    any different if scored with Mr.
Krivicic
in the community.

The Board is unanimous in rejecting Dr. Looman's evidence on
    the issue of significant risk. The HCR-20 v3 is a widely recognized and accepted
    assessment tool used internationally. Dr. Looman agreed with this point.
    Nothing in the evidence before the Board calls into doubt its value as one of
    the factors to be considered.
When taken together with
    all the evidence outlined above, the Board is unanimous in concluding that
    Mr. Krivicic continues to represent a significant threat to the
    safety of the public
. [Emphasis added.]

[42]

The
    Board was concerned that an absolute discharge would be risky for the
    appellant, given that he would be in the community without any formal supports.
    Moreover, the Board was critical of the appellants resistance to treatment
    both historically and looking to the future, and of Dr. Chans reluctance to
    engage with a treatment plan. Remarkably, the Board said, at para. 40, the
    Board encourages the hospital to take whatever further steps might be available
    to pursue a treatment plan. Essentially, the Board recommended that the
    hospital attempt to override the decisions of the appellants SDM, in direct
    opposition to the conciliatory approach taken by Dr. Chan.

C.

positions
    of the parties

[43]

The
    appellant submits that he is entitled to an absolute or conditional discharge.
Amici
counsel
    requested an absolute discharge, or alternatively a conditional discharge. The
    hospital (Providence) did not participate in this appeal.

[44]

Counsel
    on behalf of the Attorney General conceded in its factum that it would have
    been open to the Board to reach a different conclusion on the evidence before
    it. However, the Attorney General maintained that the disposition was within
    the range of reasonable outcomes and as such deference is owed.

D.

analysis

[45]

The
    jurisdiction of this court in reviewing decisions of the Board is set out in s.
    672.78(1) of the
Criminal
    Code
, which provides:

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)     it 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.

[46]

Reasonableness
    is at the heart of this appeal. In reviewing a Board decision for
    reasonableness, deference is required, owing to its expertise: see
R. v. Owen
, 2003
    SCC 33, [2003] 1 S.C.R. 779, at paras. 29-30;
Pinet v. St. Thomas Psychiatric
    Hospital
, 2004 SCC 21, [2004] 1 S.C.R. 528, at para. 22; and
Re Campbell
, 2018
    ONCA 140, 139 O.R. (3d) 401, at paras. 27-28.

[47]

Notwithstanding
    the deference that is customarily afforded to the Board, I would allow the
    appeal. The evidence fell short of establishing that the appellant poses a
    significant threat to the safety of the public within the meaning of s. 672.54
    of the
Criminal Code
. The
    evidence raised speculative concerns about the appellants risk of re-offending.
    However, it was no more than that.

[48]

I
    accept that the Board was not required to agree with the hospitals position
    that the appellant no longer met the threshold in s. 672.54: see
Re Hassan
, 2011
    ONCA 561, 283 O.A.C. 154, at paras. 24-25.

[49]

It was
    also open to the Board to reject the opinions of Drs. Chan and Looman, for
    appropriate reasons: see
Re Laberakis
, 2012 ONCA 70, 99 W.C.B. (2d) 832, at para. 3.
    However, as discussed below, I am of the view that the opinions of both doctors
    were not fairly evaluated in the context of all of the evidence that was
    available to the Board. More fundamentally, the Boards rejection of the May
    2017 hospital report, essentially
all
of the evidence adduced at the hearing,
    and the submissions of counsel for the hospital and the appellant, did not
    inexorably lead to the conclusion that the appellant constituted a significant
    threat to the safety of the public. Positive evidence was still required to reasonably
    reach this conclusion. There was no other evidence adduced before the Board.

[50]

After
    sweeping aside all of the evidence and submissions that it did not accept, all
    that the Board was realistically left with was the appellants most recent
    HCR-20
V3
results, which assessed him as a moderate risk to
    re-offend. Standing alone, this fell short of the mark. The appellants refusal
    of treatment, along with his optimistic, yet vague plans for his life after 10
    years in hospital, could not properly fill this void. In detaining the
    appellant based on the record before it, the Board effectively reversed the
    burden of proof.

[51]

The
    Boards mandate is set out in s. 672.54 of the
Criminal Code
,
    which provides:

When a court or Review Board makes a dispositionit 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 [Emphasis added.]

[52]

In
    terms of the nature of the risk contemplated by s. 672.54, I rely upon the following,
    oft-quoted passage from
Winko v. British

Columbia (Forensic Psychiatric Institute)
,
    [1999] 2 S.C.R. 625, in which McLachlin J. (as she then was) said the
    following, 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. [Emphasis added, internal citations omitted.]

As Simmons J.A. clarified in
Re Medcof
, 2018
    ONCA 299, 145 W.C.B. (2d) 377, at para. 26: While the conduct must be criminal
    in nature, not all criminal conduct will suffice to establish significant risk.
    There must be a risk that the NCR accused will commit a serious criminal
    offence.

See also
Re Carrick
, 2015
    ONCA 866, 128 O.R. (3d) 209, at para. 17.

[53]

Onus
    is critical in this context. Dangerousness is not presumed; it is the other way
    around. As McLachlin J. said in
Winko
, at paras. 46 and 54:

In my view, properly read, [s. 672.54] does not create a
    presumption of dangerousness and does not, in its effect, impose a burden of
    proving lack of dangerousness on the NCR accused.

. . .

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.

See also
Re Sokal
, 2018 ONCA 113, 145 W.C.B.
    (2d) 378, at para. 19
.

[54]

In
    assessing the reasonableness of the Boards decision in this case, I start with
    its treatment of Dr. Loomans evidence. His evidence was critical because it
    was the foundation for Dr. Chans evidence, as well as the hospitals position.

[55]

In my
    view, the Board misapprehended Dr. Loomans evidence. Dr. Looman was of the
    view that the HCR-20
V3
exaggerated
    the appellants risk because of his refusal to accept treatment while
    hospitalized, and because the test failed to account for the reduction in
    violence based on increased age. Dr. Loomans qualification of these test
    results clearly troubled the Board. As the Alternate Chair said during the
    hearing, the Board regularly relies on these types of test results.

[56]

However,
    Dr. Looman did not launch a broad attack on the HCR-20; he agreed that it is a
    valid and helpful instrument. Presumably, that is why he administered the
    test. Valid and helpful is not synonymous with universally reliable. Dr.
    Looman and Dr. Chan merely used the test as an aid in assessing the appellants
    risk, in light of his specific diagnosis, presenting symptoms, and behaviour
    while detained. In their view, looking to the SRP in addition to the HCR-20
V3
provided a more holistic evaluation of the appellants risk in his unique
    circumstances. Their evidence stood uncontradicted.

[57]

At the
    hearing, it was not disputed that the appellants delusions are now focused on
    persecutory themes and somatic complaints, which are very different from how
    his illness contributed to the index offences. Dr. Loomans evidence must be
    seen in this light. While he acknowledged that refusing treatment is generally
    an important factor in assessing risk, it has less of a role to play in the
    appellants case because a lot of the symptoms hes currently presenting are
    unrelated to risk to the public. Although it was open to the Board to reject
    Dr. Loomans evidence, I have concerns that his position was not properly
    understood.

[58]

Having
    rejected Dr. Loomans and Dr. Chans evidence, and after lauding the value of
    the HCR-20
V3
, the Board said, at para. 39: When taken together with
    all of the evidence outlined above, the Board is unanimous in concluding that
    Mr. Krivicic continues to represent a significant threat to the safety of the
    public. It is unclear to what evidence the Board was referring, especially
    since it had discounted most, if not all, of the testimonial evidence adduced
    at the hearing.

[59]

Assuming
    for the sake of argument that the most recent HCR-20
V3
results should
    be taken at face value (without any explanation by an expert in the field), standing
    alone, they did not supply the evidence required to meet the threshold in s.
    672.54 in this case. The Boards decision appeared to be predicated on the
    assumption of a direct correspondence between the appellants test scores and
    the significant threat standard in s. 672.54. However, the appellant was
    assessed as only a moderate risk to reoffend. In the absence of expert evidence
    on this issue, the Board could not reasonably draw a straight line between the
    test score and the significant threat threshold in s. 672.54.

[60]

Moreover,
    HCR-20
V3
results are only capable of feeding into half of the
    equation mandated by s. 672.54. As
Winko
makes clear, s. 672.54 requires an
    inquiry into: (1) the likelihood of the risk of reoffending
and
(2)
    the seriousness or magnitude of that offending. The HCR-20
V3
says
    nothing of the latter: see
R. v. Montgrand
, 2017 SKCA 49, 352 C.C.C. (3d) 485, at
    paras. 14-20, for a discussion of the limits of risk prediction assessments in
    the context of dangerous offender applications.

[61]

Most
    importantly, the HCR-20
V3
results did not stand alone. The Board also
    had the appellants SRP results, assessing the appellant as a low risk to
    re-offend in a manner similar to the index offences. The appellants score on
    this instrument caused this court to set aside the Boards previous
    disposition. At the new hearing, while mentioned in its reasons, the Board essentially
    ignored the SRP score, noting that it was fundamentally different than the
    most recent HCR-20
V3
results.

[62]

This
    was an overstatement. After all, the appellant was rated as a low risk to re-offend
    on the SRP, and just a moderate risk on the HCR-20
V3
. Having
    rejected the explanations of Drs. Chan and Looman, and without evidence to the
    contrary, the Board was not in a position to make such a categorical finding.

[63]

Taking
    all of these factors into consideration, I conclude that the Boards
    conclusions were speculative. As Huscoft J.A. said in
Re

Carrick
, at
    para. 17: An NCR accused is not to be detained on the basis of mere
    speculation. The Board must be satisfied as to both the existence and gravity
    of the risk of physical or psychological harm posed by the appellant in order
    to deny him an absolute discharge. See also
Re Wall
, 2017 ONCA 713, 141 W.C.B.
    (2d) 646, at para. 26.

[64]

In the
    end, the Boards decision was driven by the appellants most recent risk
    assessment, his refusal to accept treatment, and the vague plan for his release.
    It seized upon Dr. Chans acknowledgement that it would be preferable to
    gradually release (or cascade) the appellant toward unfettered freedom in the community.
    Granted, it would probably be in the appellants interests to proceed in this
    cautious fashion. But that is not the test under s. 672.54: see
Re Ferguson
, 2010
    ONCA 810, 264 C.C.C. (3d) 451, at para. 45;
Re Wall
, at para. 30.

[65]

Through
    its questions, the Board revealed its concern that the appellant would be under
    extreme stress if released without supervision. Dr. Chan acknowledged that this
could
worsen his symptoms and increase his risk. However, whether the appellant would
    act out in a way contemplated by s. 672.54 was a matter of pure speculation:
    see
Re Pellett
, 2017
    ONCA 753, 139 O.R. (3d) 651. In fact, Dr. Chan expressed doubts that any
    problems the appellant could possibly have would rise to criminal conduct or
    physical violence. If anything, the uncontradicted evidence before the Board
    (from Drs. Looman and Chan, and the appellant) was that the appellant would
    likely be less stressed in the community because he would be able to pursue the
    remedies he desired for his medical ailments, likely with the support of his
    family. While it was open to the Board to reject all of this evidence, it did
    not constitute proof positive of the opposite, unless the onus were to be
    reversed.

[66]

Lastly,
    the Board was critical of Dr. Chans evidence, unfairly in my view, because he
    took a non-adversarial approach to the appellants refusal of treatment. However,
    Dr. Chans description of the appellant as legally untreatable reflected the
    appellants recorded history while detained  he continued to use the legal
    process to prevent involuntary treatment, as he was entitled to do. Again, this
    itself does not translate into a significant risk to the safety of the
    public, especially given the appellants more recent symptomology and the long
    passage of time since he has acted out in a violent or threatening manner.

[67]

As mentioned
    above, at para. 53, onus is critical in the application of s. 672.54. It was
    critical in this case. While the appellant may have failed to persuade the
    Board that he was
not
a
    significant risk to the safety of the public, he was not required to do so. As
    this court said in
Re
    Laberakis
, at para. 3:

While the Board does not necessarily err because it declines to
    follow the experts or the hospitals opinion and must make its own decision,
    it must do so on the evidence. The majoritys concerns in effect placed an
    inappropriate burden on the appellant.

[68]

The
    evidence before the Board fell short of the threshold in s. 672.54. As such, the
    appellant is entitled to be discharged absolutely.

E.

Conclusion
    and disposition

[69]

I
    would allow the appeal and set aside the detention order. In its place, and
    pursuant to s. 672.78(3)(a), I would substitute an absolute discharge.

Released: June 11, 2018

G.T.
    Trotter J.A.

I
    agree K. Feldman J.A.

I
    agree L.B. Roberts J.A.


