



COURT OF APPEAL FOR ONTARIO

CITATION: Waite (Re), 2017 ONCA 56

DATE: 20170123

DOCKET: C62524

Doherty, Blair and Lauwers JJ.A.

IN THE MATTER OF: Andrew B. Waite

AN APPEAL UNDER PART XX.1 OF THE
CODE

Erin Dann, for the appellant

Kevin Rawluk, for the Attorney General

Janice Blackburn, for the North Bay Regional Health
    Center

Heard: January 19, 2017

On appeal form the order of the Ontario Review Board
    dated, April 28, 2016.

ENDORSEMENT

[1]

The appellant challenges the disposition of the Ontario Review Board by
    which his previous disposition was continued. Under that disposition he
    continues to be discharged from the North Bay Regional Health Center  North
    Bay site, subject to a number of conditions.

[2]

The appellant makes two arguments in this appeal. First, he argues that
    the Board failed to focus on whether he poses a significant risk of serious
    harm to the public, as it is required to do under s. 672.54 of the
Criminal
    Code
. Instead it wrongly focussed on the evidence of Dr. Rachel Henry who
    testified that if the appellant were no longer under the jurisdiction of the
    Review Board, he would discontinue his medication.

[3]

We do not accept this argument. The appellant suffers from a
    schizoaffective disorder  bipolar type that is control by medication. The evidence
    is clear that the appellant would discontinue his medication if he could. If he
    did so, Dr. Henry testified that he would discontinue his medication,
    decompensate and revert to his previous aggressive behaviour in the community.
    This raises the risk that he would revert to his previous criminal behaviour.
    In this case the index offences were one charge each of assault and criminal
    harassment, and two charges of breach of probation, on July 7, 2005. His
    criminal record involving violence is more extensive. Moreover, we observe that
    the Assertive Community Treatment team sees Mr. Waite 12 times per week and
    that an earlier effort to reduce the frequency of visits was unsuccessful.

[4]

It was entirely within the Boards expertise to conclude that if the appellant
    were given an absolute discharge, he would discontinue medication and would inevitably
    progress to the behaviour that led to the index offences. The decision was
    entirely reasonable.

[5]

The appellants second ground of appeal is that the Board erred in
    failing to consider whether a community treatment order under the
Mental
    Health Act
could serve to mitigate any residual risk to the public that
    would be posed by the appellant if he were absolutely discharged.

[6]

We reject this argument, because it was not advanced before the Board
    and there is no supporting evidence for it: see
Re Petroniuk
, 2016 ONCA
    186. We add that the Board itself has no authority to make a community
    treatment order. That is the task of a medical doctor under s. 33.1 of the
Mental
    Health Act
. Nor is there evidence that the conditions precedent to such an
    order as set out in s. 33.1(4) of the
Mental Health Act
have been met.

[7]

The appeal is dismissed.

Doherty J.A.

R.A. Blair J.A.

P. Lauwers J.A.


