



COURT OF APPEAL FOR ONTARIO

CITATION: Medcof (Re), 2020 ONCA 105

DATE: 20200212

DOCKET: C66962

Doherty, Watt and Hourigan JJ.A.

IN THE MATTER OF:  William R. Medcof

AN APPEAL UNDER PART XX.1 OF THE
CODE

Mercedes Perez, for the appellant

Lisa Fineberg, for the respondent, Her Majesty the Queen

Michele Warner, for the Person in Charge of the Centre
    for Addiction and Mental Health

Heard: January 31, 2020

On appeal against the disposition of the Ontario Review
    Board dated, April 4, 2019.

REASONS FOR DECISION

[1]

On November 29, 2002 the appellant was found not criminally responsible
    on account of mental disorder (NCRMD) of several offences committed on three
    separate victims over a period of two days. The offences included aggravated
    assault; assault with a weapon; kidnapping; uttering death threats; and
    criminal harassment, as well as breach of probation and of a form of judicial
    interim release. The victims included his roommate and his parents in separate
    incidents.

[2]

During the first decade of his supervision by the Ontario Review Board,
    the appellant was generally detained in the minimum and medium secure units of
    two local mental health facilities. He was found treatment incapable in 2006
    and remains so to this day. The Public Guardian and Trustee is his substitute
    decision-maker.

[3]

In 2012, the appellant was discharged to reside in the community in
    supportive housing. He has been re-hospitalized on many occasions as a result
    of urine screens positive for cannabis. Once transitioned to an injectable form
    of anti-psychotic medication in 2013, the appellant has remained compliant.

[4]

The appellant, currently 52 years old, has not been involved in any
    violent or other criminal behaviour in the community since his discharge to the
    community in 2012. Since May 8, 2017, the appellant has been subject to a
    conditional discharge.

The Current Disposition

[5]

On April 4, 2019 the Review Board ordered that the appellant be
    conditionally discharged. He lives in the community in a supervised residence.
    Among other terms, he is required to report to the Hospital not less than once
    every four weeks. The frequency of his reporting is linked to the schedule for
    injections of his anti-psychotic medication. He is also entitled to travel
    passes for up to four weeks duration with the prior approval of the Person in Charge
    of the Hospital.

The Grounds of Appeal

[6]

The appellant seeks an absolute discharge, in the alternative, a new
    hearing before a differently constituted panel of the Review Board. He advances
    two grounds of appeal. He says that:

i.

the Board's determination that he remains a significant threat to the
    safety of the public is unreasonable and cannot be supported on the evidence
    adduced on the hearing; and

ii.

the Board misapprehended the sufficiency of the availability of civil
    mechanisms to manage the appellant's risk were he to be discharged absolutely.

[7]

In our view, this appeal fails.

Ground #1: Unreasonable Finding of Significant Threat

[8]

The appellant says that the Board's finding that he remained a
    significant threat to the safety of the public" nearly two decades after
    he was found NCRMD is unreasonable and not supported by the evidence adduced at
    the hearing. Several factors, the appellant argues, taken together, support
    this conclusion. Among them are these:

i.

since the index offence, the appellant has not engaged in any violent
    conduct in or out of hospital;

ii.

the appellant has not been hospitalized since 2016;

iii.

the appellant, apart from two brief lapses several years ago, has been
    compliant with his anti-psychotic medication even in the absence of direct
    legal compulsion to do so;

iv.

the Board failed to expressly analyse the likelihood, timing, nature and
    gravity of recidivistic violence;

v.

the Board equated lack of insight and the prospect of non-compliance
    with anti-psychotic medication with the requirement of significant
    threat";

vi.

the Board relied on the appellant's history of decompensation when not
    medication-compliant or suboptimally medicated, but failed to consider the
    absence of violence on these occasions; and

vii.

the Board cut and pasted into its reasons several paragraphs of a prior Board's
    Reasons for Disposition which included recitals of evidence by the treating
    psychiatrist and reference to certain test results which were not before the
    Board on the hearing in this case.

[9]

In our view, the Board's conclusion on the issue of significant threat
    falls within the range of reasonable outcomes available on the evidence adduced
    at the hearing. That evidence included several factors identified by this court,
    on a prior appeal by the appellant; as relevant to the significant
    threat" determination:

i.

the appellant suffers from a major mental illness;

ii.

the serious nature of the index offences;

iii.

the appellant's lack of insight into his mental illness, his need for
    continuing treatment and the role his illness played in the index offences;

iv.

the appellant's historic resistance to treatment and his declared and
    unwavering intention to discontinue his psychotropic medication if absolutely
    discharged;

v.

his history of decompensation when not medication-compliant or when
    suboptimally medicated; and

vi.

the unanimous conclusion of the treatment team that he constitutes a significant
    threat".

See,
Medcof (Re)
, 2018 ONCA 1011, at para. 3.

[10]

In our assessment of the reasonableness of the finding of significant
    threat" in a case such as this where violent recidivism has not occurred
    during the Board's supervision of the appellant, we also keep in mind the
    exhaustive definition of a significant threat to the safety of the
    public" in s. 672.5401 of the
Criminal Code
:

For the purposes of section 672.54, a significant threat to the
    safety of the public means a risk of serious physical or psychological harm to
    members of the public  including any victim of or witness to the offence, or
    any person under the age of 18 years  resulting from conduct that is criminal
    in nature but not necessarily violent.

[11]

In addition, there was evidence before the Board that on the two prior
    periods of decompensation occasioned by medication non-compliance, the
    behavioural changes  increased antagonism, hostility and persecutory beliefs 
    were the very factors afoot when the index offences were committed.

[12]

In a portion of its
Reasons for Disposition
under the heading,
Evidence
    at the Hearing
, the Board cut and pasted seven paragraphs of the
Reasons
    for Disposition
of the Board on the previous year's annual review. This
    was ill-advised and should not be repeated. The phrase 
Evidence at the Hearing
" is
    self-explanatory. It means what it says. Nothing more. Nothing less. And
    nothing other than 
Evidence at The Hearing
".

[13]

Despite this error, we are not persuaded that it resulted in an
    unreasonable finding of significant threat". In large measure, the copied
    information was contained in the Hospital Report to the Board on which both
    parties relied at the hearing. The actuarial risk assessments referred to in
    the incorporated paragraphs were re-administered within a month of the hearing
    with which we are concerned without inclusion of the actual scores on the
    relevant tests. The conclusions replicated those of the prior year.

[14]

We do not give effect to this ground of appeal.

Ground #2: Misapprehension of the Availability of Civil Mechanisms

[15]

The second ground of appeal alleged error in the Board's failure to
    appreciate the sufficiency of available civil mechanisms, coupled with an
    absolute discharge, to contain the risk to the public arising from the need to
    ensure that the appellant remained medication-compliant.

[16]

On the annual hearing with which we are concerned, the appellant was
    subject to a Community Treatment Order (CTO) on the basis of the consent
    provided by his substitute decision-maker, the
Public Guardian and Trustee
. The order was issued under the
    provisions of s. 33.1 of the
Mental Health Act
, R.S.O. 1990, c. M. 7 on
    the basis that if the appellant does not receive continuing treatment or care
    while residing under supervision in the community, he is likely at risk of
    causing serious bodily harm to another person or suffering substantial mental
    deterioration. The order was monitored by the appellants attending
    psychiatrist in the Extended Forensic Outpatient Service at CAMH. The order was
    in force for six months and could be renewed for a further six-month period.

[17]

On the hearing of the appeal, we were advised that the appellant's CTO
    expired four months after the hearing. It was not renewed. In these
    circumstances, the appellant did not press this ground of appeal and we see no
    reason to consider it further.

[18]

The Crown respondent applied to introduce a victim impact statement from
    the appellants father as fresh evidence on the hearing of the appeal. We did
    not receive submissions from the parties on the admissibility of this proposed
    fresh evidence. As a result, we have not considered this statement in reaching
    our conclusion on this appeal.

Disposition

[19]

The appeal is dismissed.

Doherty J.A.

David Watt J.A.

C.W. Hourigan J.A.


