


WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 672.501(1), (2), or (3) of the
Criminal Code
shall continue.  These
    sections of the

Criminal Code
provide:

672.501 (1) Where a
    Review Board holds a hearing referred to in section 672.5 in respect of an
    accused who has been declared not criminally responsible on account of mental
    disorder or unfit to stand trial for an offence referred to in subsection
    486.4(1), the Review Board shall make an order directing that any information
    that could identify a victim, or a witness who is under the age of eighteen
    years, shall not be published in any document or broadcast or transmitted in
    any way.

(2) Where a Review Board
    holds a hearing referred to in section 672.5 in respect of an accused who has
    been declared not criminally responsible on account of mental disorder or unfit
    to stand trial for an offence referred to in section 163.1, a Review Board
    shall make an order directing that any information that could identify a
    witness who is under the age of eighteen years, or any person who is the
    subject of a representation, written material or a recording that constitutes
    child pornography within the meaning of section 163.1, shall not be published
    in any document or broadcast or transmitted in any way.

(3) Where a Review Board
    holds a hearing referred to in section 672.5 in respect of an accused who has
    been declared not criminally responsible on account of mental disorder or unfit
    to stand trial for an offence other than the offences referred to in subsection
    (1) or (2), on application of the prosecutor, a victim or a witness, the Review
    Board may make an order directing that any information that could identify the
    victim or witness shall not be published in any document or broadcast or
    transmitted in any way if the Review Board is satisfied that the order is
    necessary for the proper administration of justice.

Subsections 672.501(11)
    and (12) provide:

(11) Every person who
    fails to comply with an order made under any of subsections (1) to (3) is
    guilty of an offence punishable on summary conviction.

(12) For greater
    certainty, an order referred to in subsection (11) also prohibits, in relation
    to proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim or witness whose identity is protected
    by the order.




COURT OF APPEAL FOR ONTARIO

CITATION: K.S. (Re), 2022 ONCA 170

DATE: 20220301

DOCKET: C69397

Fairburn A.C.J.O., Miller and
    George JJ.A.

IN
    THE MATTER OF: K.S.

AN APPEAL UNDER PART XX.1 OF THE
CODE

Erin Dann, for the appellant

Mark Luimes, for the respondent Attorney
    General for Ontario

Julia Lefebvre, for the respondent, Person
    in Charge of North Bay Regional Health Care

Heard: February 18, 2022 by
    video conference

On appeal against the disposition of the
    Ontario Review Board, dated March 15, 2021, with reasons dated April 13, 2021.

REASONS FOR DECISION

[1]

The appellant was found not criminally
    responsible by reason of mental disorder. The index offence involved
    threatening his cousin with a knife. When the police located the appellant, he
    threatened to cut their throats.

[2]

The appellant has been under the jurisdiction of
    the Ontario Review Board (the Board) since November 2011. He is diagnosed
    with schizophrenia, alcohol use disorder (in sustained remission), cannabis use
    disorder, and avoidant personality traits. At his most recent hearing in March
    2021, the Board rejected the appellants position that he is entitled to be
    absolutely discharged. Rather, based on all of the evidence and submissions
    of the parties, which were detailed in its reasons, the Board concluded that the
    appellant continues to represent a significant threat to the safety of the
    public.

[3]

Accordingly, the Board continued the conditional
    discharge imposed in 2020. At the same time, the Board turned its attention to
    what conditions should attach to the disposition to ensure they meet the
    statutory criteria of being necessary and appropriate. In doing so, the Board
    concluded that two conditions that had been imposed in the previous disposition
    could be removed: (a) a condition that the appellant abstain absolutely from the
    non-medical use of alcohol or drugs or any other intoxicant; and (b) a
    condition that the appellant, on his consent, agree to take
    treatment/medication as prescribed by the person in charge.

[4]

The appellant argues that the Boards
    disposition is unreasonable because it lacks evidentiary support. The treating
    psychiatrist opined that if the appellant were to take substances he would
    decompensate, and that the decompensation would lead to a lack of insight and medication
    non-compliance, resulting in a significant threat to the safety of the public.

[5]

The appellant argues that this is an unsupported
    opinion. While the appellant acknowledges that there is evidence to support the
    opinion that he would use substances if absolutely discharged, there is nothing
    in the record to support the opinion that he would then decompensate and stop
    taking medication. Indeed, the appellant argues that the evidentiary record
    points in the opposite direction, including support for the fact that when the appellant
    has used drugs in the past, it has not had this profound decompensating effect.
    The appellant further emphasizes that the Boards reasons suggest it did not
    come to grips with this evidence that is said to undermine the threadbare
    opinion as testified to by the treating psychiatrist.

[6]

Despite the very capable argument, we do not
    agree that the Board was operating in a factual lacuna or that its reasons
    demonstrate a fundamental failure to appreciate the evidence before it. While
    the analysis portion of the Boards reasons could have better explained how it
    arrived at the conclusion that the appellant remains a significant risk to
    public safety, perfection in the Boards reasoning process is not required.
    Read contextually, the Boards reasons demonstrate that it appreciated the
    evidence before it and arrived at a conclusion open to it.

[7]

The expert Board was entitled to and did accept
    the appellants expert treatment teams opinion that he remains a significant
    threat to the safety of the public. That opinion was based upon years of
    experience with the appellant, as documented in the hospital report. Based upon
    all that information, which was before and reviewed by the Board, the treatment
    team and treating psychiatrist came to the opinion that, among other things:

-

If the appellant used substances, it would be highly
    likely to result in a decompensation of his mental state, precipitating an
    increase in the level of risk;

-

That substance use would lead to an acute
    deterioration of [the appellants] mental health which would increase his risk
    significantly and put him at risk of offending to the same or similar degree as
    the index offence given the nature of the symptoms that he presents with when
    hes ill; and

-

Cannabis use could lead to a resurgence of acute
    symptoms of his mental illness, including auditory hallucinations.

[8]

One of the psychiatrist members of the Board
    asked the treating psychiatrist about the level of risk associated with the appellant
    engaging in serious criminal conduct should he resume substance abuse. The treating
    psychiatrist answered as follows:

On balance, I think the steps would be  use
    of substances, decompensation, and then non-adherence with his medication when
    hes very ill and loses more insight. And at that point the likelihood of him
    re-offending to the same degree would be high when he gets to that point. I
    dont think its something that would happen immediately, I think there would
    definitely be a period of decompensation first which would obviously be
    concerning in itself.

[9]

The psychiatrist arrived at that conclusion
    through the application of his expert knowledge to the specific factors operative
    in this case, ones he knew about as the appellants treating psychiatrist.

[10]

In our view, contextually approached, the Boards
    reasons explain why it arrived at the conclusion that the appellant remains a
    significant threat to public safety. This was a conclusion that was available
    on the evidence.

[11]

Despite concluding that the appellant remains a
    significant risk to public safety, as previously noted, the Board quite
    correctly turned its mind to the necessary and appropriate disposition,
    resulting in the removal of two conditions. The removal of the condition
    involving the abstention from alcohol and non-prescribed drugs rested on the
    strength of the appellants assurances not to consume those intoxicants. As the
    Board pointed out, the removal of the condition gave the appellant the
    opportunity to build trust with the hospital and his treatment team. We express
    our sincere hope that this has been achieved in the past year. It is a factor
    that will undoubtedly be taken into account at the next Board hearing.

[12]

The appeal is dismissed.

Fairburn A.C.J.O.

B.W. Miller J.A.

J. George J.A.

