



COURT OF APPEAL FOR ONTARIO

CITATION: Mott (Re), 2019 ONCA 560

DATE: 20190704

DOCKET: C66056

Sharpe, Brown and Roberts JJ.A.

IN THE MATTER OF:  Brandon Mott

AN APPEAL UNDER PART XX.1 OF THE
CODE


Dean F. Embry, for the appellant

Linda Shin, for the respondent, Attorney General of
    Ontario

Julie A. Zamprogna, for the respondent, Southwest Centre
    for Forensic Mental Health Care St. Josephs Health Care London

Heard: June 18, 2019

On appeal from the October 3, 2018 disposition of the
    Ontario Review Board, with Reasons for Disposition dated October 15, 2018.

REASONS FOR
    DECISION

[1]

On October 28, 2014, the appellant was found not criminally responsible (NCR)
    for the offence of theft under $5,000, which occurred on August 5, 2013.  In
    the early hours of the morning, he entered into the complainants residence
    while they were asleep, moved around papers and took a cigarette and a
    lighter.  When confronted by one of the complainants, he fled.

[2]

The appellant has been under the Ontario Review Boards supervision since
    October 21, 2014.  The trial judge granted him a conditional discharge directly
    after his trial.  He lived in the community until July 9, 2015, when the Board
    ordered him detained at the respondent facility.  The diagnosis of his mental
    illness includes schizophrenia, anti-social personality disorder and substance
    abuse disorder.  He has been found incapable of consenting to treatment and his
    mother is his substitute decision maker.

[3]

The appellant appeals from the Boards most recent disposition.  He submits
    that the Board erred in ordering his continued detention because there was no
    evidence that he poses any significant risk of physical or psychological
    violence to the public.  In particular, the appellant argues, there is no
    evidence that the appellant has been violent or engaged in violent ideation for
    several years, including the last review period.  According to the appellant,
    he should be granted an absolute discharge or a new hearing.

[4]

We disagree.

[5]

It is well-established that there is no presumption that an NCR accused
    poses a significant threat to the safety of the public and that restrictions on
    his liberty can only be justified if, at the time of the hearing, the evidence
    before the Board shows that he actually constitutes such a threat:
Winko v.
    British Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.J. No. 31,
    at para. 62.  In our view, there was ample evidence to support the Boards
    finding that the appellant posed a significant threat to the safety of the
    public.

[6]

In determining that the appellant posed a significant threat to the
    safety of the public and that a detention order was the least onerous
    disposition, the Board did not simply focus on the appellants mental illness as
    determinative but, rather, in accordance with s. 672.54 of the
Criminal
    Code
, R.S.C. 1985, Chap. C-46, it conducted a broad inquiry, including the
    myriad factors suggested by the Supreme Court in
Winko
, at para. 61:

[T]he circumstances of the
    original offence, the past and expected course of the NCR accuseds treatment
    if any, the present state of the NCR accuseds medical condition, the NCR
    accuseds own plans for the future, the support services existing for the NCR
    accused in the community and, perhaps most importantly, the recommendations
    provided by experts who have examined the NCR accused.

[7]

In particular, the Board examined the appellants serious history of
    mental health and substance abuse issues, his lengthy criminal record,
    including assault, break and enter, and failures to comply, his paranoid and aggressive
    behaviour while in detention at the respondent facility, his resistance to
    treatment, including medications, his moderate to high risk scores on risk
    assessment tests, his breach of hospital rules, including attempting to
    abscond, and his lack of insight into the index offence, his condition and his
    need for treatment.  The Board accepted the opinion of the appellants treating
    psychiatrist that the appellant posed a significant threat to public safety
    based on these factors.

[8]

We do not accept the appellants submission that the absence of violent
    behaviour on his part eliminates the risk of significant harm to the public.

[9]

First, s. 672.5401 of the
Criminal Code
provides that a
    significant threat to the safety or 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.

[10]

Further,
    the absence of a significant or recent history of violence by itself is not
    determinative of whether an NCR accused poses a significant threat to the
    safety of the public: evidence of the potential for physical or psychological
    violence, such as a lack of insight into the index offence and mental illness,
    rule breaking and concerns over discontinuing medication and substance abuse,
    which could result in decompensation, psychosis and problematic conduct, like
    in the present case, may support such a finding: see, for example:
Abdikarim
    (Re)
, 2017 ONCA 793, at paras. 6-7, 15, 16;
Beam (Re)
, 2018 ONCA
    532, at paras. 5-9.  Moreover, as the appellants treating psychiatrist
    testified, the respondent facility forestalled through immediate intervention in
    a structured environment the threat of violence the appellant posed by his
    aggressive conduct towards hospital staff.

[11]

While
    the appellant has been ill, the appellants treating psychiatrist is hopeful
    that his new medication will improve his mental state and behaviour on the
    unit, and that his substance use disorder will be addressed in a concurrent
    disorder program in the coming year.  According to his treating psychiatrist, if
    the appellant continues treatment and addresses the substance use and
    personality disorder risk factors, community living could be discussed as a
    possibility.

[12]

In
    our view, the Boards disposition was reasonable and the least onerous in the
    circumstances of this case.  We see no error that would justify appellate
    intervention.

[13]

Accordingly,
    we dismiss the appeal.

Robert
    J. Sharpe J.A.

David
    Brown J.A.

L.B.
    Roberts J.A.


