



COURT OF APPEAL FOR ONTARIO

CITATION: Sokal (Re), 2018 ONCA 113

DATE: 20180207

DOCKET: C63652

Rouleau, Watt and Brown JJ.A.

IN THE MATTER OF:  Roman Sokal

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the Appellant, Roman Sokal

Rebecca De Filippis, for the Respondent, Her Majesty the
    Queen

Heard: January 11, 2018

On appeal against the disposition of the Ontario Review
    Board dated, April 18, 2017.

REASONS FOR DECISION


I.

overview

[1]

The appellant, Roman Sokal, appeals from the April 18, 2017 disposition
    of the Ontario Review Board (the Board) ordering his discharge on conditions.
    Mr. Sokal lives independently in the community. The conditions include
    requirements that he report to St. Josephs Health Care Hamilton (the
    Hospital) every two months, abstain absolutely from the non-medical use of
    alcohol or drugs, and submit urine samples as requested to test for alcohol or
    drugs.

[2]

Mr. Sokal submits the Board erred in failing to grant him an absolute
    discharge. The Crown opposes, arguing the Board did not err in concluding Mr.
    Sokal poses a significant risk to the safety of the public. The Hospital did
    not participate in the appeal.


II.

BACKGROUND

[3]

Mr. Sokals current diagnosis is schizoaffective disorder and
    polysubstance use disorder (in remission).

[4]

Prior to his commission of the index offences in late 2012 and early
    2013, Mr. Sokal had a history of substance abuse, involving a variety of drugs.
    Between 2008 and 2012 Mr. Sokal was hospitalized 23 times for mental health
    issues. Most of those admissions took place in 2011 and 2012, with many
    resulting from Mr. Sokals attendance at a hospitals emergency room asking for
    treatment or a place to stay.

[5]

During the period from 2008 until 2012, Mr. Sokal frequently was
    homeless, confused, and delusional. His parents tried to support him in many
    ways, but their efforts proved ineffective due to Mr. Sokals lack of
    responsiveness.

[6]

On one occasion in late 2009, prior to the NCR verdict, Mr. Sokal bit a
    security guard upon his attendance at a hospital emergency room; he was
    convicted of mischief and assault.

[7]

Mr. Sokal was admitted to the Hospital in March 2013. In April of that
    year, he was found not criminally responsible on account of mental disorder on
    two charges of criminal harassment. Mr. Sokal had become delusional about two
    of his former community college professors during a period of time when he was
    not taking his medications and was abusing substances. The harassing conduct
    included making abusive, and occasionally threatening, phone calls to the
    professors and, on one occasion, shouting vulgarities at one professor when he
    encountered him in a hospital lobby.

[8]

The Boards initial June 2013 disposition ordered Mr. Sokal to be
    detained at a minimum secure forensic unit at the Hospital. However, the
    initial disposition also contained a condition permitting community living,
    which was implemented in March 2014. In early 2015, the Board ordered Mr. Sokal
    discharged, subject to conditions. Since March 2014, Mr. Sokal has lived in the
    community  for the most part living independently in an apartment  with the
    exception of a one-month re-admission in June 2016 when he tested positive for
    crystal methamphetamine. Although Mr. Sokal has only worked occasionally since
    2013, at the time of the Board hearing he was employed on a part-time basis
    with a photography business.

[9]

The evidence reveals that since the NCR verdict, Mr. Sokal has made
    significant progress, has been compliant with his medications, displays none of
    the symptoms that led to the index offences, and has not been physically
    violent.


III.

THE BOARDS DISPOSITION

[10]

In
    declining to grant an absolute discharge and, instead, continuing the
    conditional discharge, the Board wrote that substance abuse remains the
    critical factor in assessing Mr. Sokals risk. In late November 2015, Mr.
    Sokal tested positive for cocaine. Then, in June 2016, prior to being tested,
    he self-reported using crystal methamphetamine to his treatment team. He then
    agreed to his re-admission into the Hospital for about one month. In light of
    those events, the Board accepted the evidence of the treating psychiatrist, Dr.
    Kolawole, that Mr. Sokal needs to demonstrate an ability to remain drug free
    for a 12-month period. The Board unanimously concluded that given Mr. Sokals
    pre-NCR offence psychiatric history and long and significant history of
    substance abuse, the test of significant threat to the safety of the public
    had been met.


IV.

THE GOVERNING PRINCIPLES

The standard of review

[11]

The
    reasonableness standard of review applies to an appeal from a disposition of
    the Board:
R. v. Owen
, 2003 SCC 33, [2003] 1 S.C.R. 779 at para. 37;
Criminal
    Code
, s. 672.78(1)(a).

[12]

An
    appellate court must always recall the difficulty of assessing whether a given
    individual poses a significant threat to public safety:
Winko v. British
    Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625, at para.
    61. The appeal court does not make its own judgment on the question of significant
    threat and use that judgment as the benchmark for assessing the reasonableness
    of the Boards decision. Nor does the court re-weigh the considerations that
    were before the Board:
Wall (Re)
, 2017 ONCA 713, at para. 21.

[13]

The
    reasonableness of the Boards decision must be evaluated by considering the
    reasons it proffers in the context in which the decision is made. At issue is
    whether the Board reached an acceptable and defensible outcome, keeping in mind
    the need to protect the liberty of the NCR accused as much as possible, while
    also protecting society:
Wall
, at para. 22.

The significant risk requirement in s. 672.54

[14]

Part
    XX.1 of the
Criminal Code
can only maintain its authority over an NCR
    accused where the court or Review Board concludes that the individual is a
    significant threat to the safety of the public. A significant threat to the
    safety of the public means 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:
Criminal Code
, s. 672.5401. Or, as put in
Winko
,
    at para. 57, the court or Review Board must conclude the individual poses a
    significant risk of committing a serious criminal offence.

[15]

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, foreseeable risk of physical or psychological harm occurring
    to individuals in the community and in the sense that this potential harm must itself
    be serious:
R. v. Ferguson
, 2010 ONCA 810, at para. 8. The likelihood
    of a risk materializing and the seriousness of the harm that might occur must
    be considered together:
Re Carrick
, 2015 ONCA 866, at para. 16.


V.

ANALYSIS

[16]

The
    April 2017 clinical risk assessment in the Hospital Record prepared by Dr.
    Kolawole recognized that Mr. Sokal continued to make progress with his
    rehabilitation and recovery in the community. Indeed, at the Board hearing Dr.
    Kolawole testified that he thought an absolute discharge was achievable for Mr.
    Sokal in the next year, given the progress that [he] has made so far over the
    past four years and [a]lso given the fact that hes now engaged with the
    Hamilton Program for Schizophrenia. However, in his clinical risk assessment
    Dr. Kolawole stated:

It is quite likely that absent the supervision, monitoring and
    prohibitions under his current disposition, Mr. Sokal would revert to using the
    variety of substances that he has used before. In the event that he resorts to
    using illicit substances and becomes non-adherent with his medication, he would
    likely suffer a decompensation of his mental health with an increased risk of
    future offending.

[17]

Dr.
    Kolawole had included similar statements in his clinical risk assessments
    dating back to April 2014.

[18]

The
    Board relied heavily on that evidence from Dr. Kolawole to conclude Mr. Sokal
    posed a significant threat to the safety of the public. The Board stated the
    appellants substance abuse remained the critical factor in assessing his risk.
    Certainly, there was evidence before the Board that the appellant had taken
    drugs twice in the previous two years: cocaine in November 2015, and
    methamphetamine in June 2016. (The Hospital Report also noted four presumptive
    positive test results for methamphetamines, although the appellant explained
    them as resulting from taking over-the-counter medications for sinus
    infections.) However, the Board then used the evidence of the drug incidents to
    find that the appellant needed to demonstrate an ability to remain drug free
    for a 12-month period. It went on to conclude that given the appellants
    pre-NCR offence psychiatric history and long and significant history of
    substance abuse, the statutory test had been met.

[19]

With
    respect, by imposing on the appellant the need to demonstrate a specified drug-free
    period the Board miscast the nature of the inquiry required by s. 672.54 of the
Criminal Code
 that is, did the evidence demonstrate the NCR accused
    posed a significant threat to public safety? If it did not, the statute
    required granting an absolute discharge. The legal and evidentiary burden of
    establishing a significant threat to public safety remained with the Board; it
    did not shift to the NCR accused:
Winko
, at para. 54.

[20]

The
    Boards misdirection led it to put to one side evidence relevant to the issue
    of whether the appellant posed a significant risk of committing a serious
    criminal offence. Recall that for a threat to be significant, there must be a
    real, foreseeable risk of physical or psychological harm occurring to
    individuals in the community and this potential harm must itself be serious. A
    minuscule risk of a grave harm will not suffice.  Similarly, a high risk
    of trivial harm will not meet the threshold.  The conduct or activity
    creating the harm must be criminal in nature:
Winko
, at para. 57.

[21]

The
    evidence before the Board was that there were no concerns about violence or
    aggression. Although the appellant had an extensive history of major mental
    illness and substance abuse prior to the index offences, there was evidence of
    only one instance of physical violence  when the appellant bit a hospital
    security guard in 2009. Since his initial disposition, the appellant had spent
    most of his time living independently in the community without incident. As the
    Board noted, [t]here have been no incidents of violence or aggression.

[22]

Although
    in the past there were issues concerning the appellants compliance with taking
    his anti-psychotic medication, Dr. Kolawole acknowledged the appellant had done
    very well since 2013 and was receiving the correct dosage by way of depot
    injection. While the appellant had expressed a desire to reduce the dosage,
    there was no evidence he wanted to discontinue the medication.

[23]

As
    well, the appellant had just been accepted by a specialized community group
    that deals with persons suffering from schizophrenia, the Hamilton Program for
    Schizophrenia. According to the Hospital Record, referral to that program is
    designed to transition Mr. Sokal to a non-forensic service so that he would be
    well supported when he received an absolute discharge.

[24]

Notwithstanding
    this evidence, the Board focused its risk analysis on the issue of the
    appellants substance abuse. As mentioned, there were two incidents of substance
    abuse in the 18 months prior to the disposition. However, as the Board noted,
    the appellant had not displayed any psychotic symptoms since 2013, even upon
    his re-admission in June 2016 following his consumption of methamphetamine.

[25]

With
    respect, the Board used Dr. Kolawoles desire to see a 12-month drug-free
    period and his chain of reasoning to extrapolate from evidence of the
    appellants pre-NCR verdict substance abuse to conclude the significant threat
    standard had been met. Given the entirety of the evidence before it concerning
    Mr. Sokals status at the time of the hearing - his medication compliance, lack
    of violence and aggression, a 10-month drug-free period, his admission to the
    Hamilton Program for Schizophrenia, and lack of psychotic symptoms associated
    with recent drug use - the Boards conclusion that the appellant posed a
    significant threat to public safety was speculative.  It was not reasonable for
    the Board to deny the appellant an absolute discharge in light of the evidence
    before it.


VI.

DISPOSITION

[26]

The
    appellant is entitled to be discharged unless he constitutes a significant
    threat to the safety of the public. The evidence failed to meet the onerous
    standard under s. 672.54:
Carrick
, at para. 17. The appeal is allowed.
    The decision of the Board is set aside. Pursuant to s. 672.78(3)(a), in its
    place we order an absolute discharge.

Paul
    Rouleau J.A.
David Watt J.A.
David Brown J.A.


