



COURT OF APPEAL FOR ONTARIO

CITATION: Wightman (Re), 2021 ONCA 429

DATE: 20210617

DOCKET: C68894

Rouleau, Hoy and van Rensburg
    JJ.A.

IN THE MATTER OF: Alexander Wightman

AN APPEAL UNDER PART XX.1 OF THE
CODE

Erin Dann, for the appellant

Natalya Odorico, for the respondent,
    Attorney General of Ontario

Julie A.
    Zamprogna Ballès, for the respondent, Person in Charge of Southwest Centre for
    Forensic Mental Health Care, St. Josephs Health Care London

Heard: June 3, 2021 by video
    conference

On appeal from the disposition of the
    Ontario Review Board, dated November 10, 2020, with reasons dated December 3,
    2020.

van Rensburg J.A.:

A.

Overview

[1]

The appellant appeals the most recent disposition of the Ontario Review
    Board (the Board) dated November 10, 2020, continuing his conditional
    discharge. He contends that the Boards conclusion that he continued to
    represent a significant threat to the safety of the public, was unreasonable.
    The appellant also relies on fresh evidence  a letter providing certain
    information about his current status, and confirming that an early hearing has
    been scheduled at the request of St. Josephs Health Care, London (the
    Hospital), at which the Hospital intends to recommend an absolute discharge.
    The appellant asks this court to order an absolute discharge.

[2]

For the reasons that follow I would dismiss the appeal.

[3]

First, I am not persuaded that the November 2020 Board disposition was
    unreasonable at the time it was made. The conclusion that the appellant
    continued to pose a significant threat is well-supported by the evidence before
    the Board, and the Board applied the correct test.

[4]

Second, although this court can grant an absolute discharge based on
    fresh evidence, I would decline to do so in this case. An early review of the
    November 2020 disposition is scheduled for July 12, 2021. It is preferable that
    the Board make the determination of whether, in light of this evidence and the
    record before it, the appellant no longer poses a significant threat such that
    an absolute discharge is warranted.

B.

BACKGROUND Facts

[5]

The appellant was found not criminally responsible on account of mental
    disorder (NCRMD) on a charge of attempted murder in November 2009. The index
    offence occurred in April 2009, when the appellant, without warning, repeatedly
    stabbed a neighbour with a six-inch knife. At the time of the offence, he was
    experiencing paranoid persecutory delusions, he was non‑compliant with
    prescribed antipsychotic medication and he was not under psychiatric care.

[6]

The appellants diagnoses then, and now, are schizophrenia, substance
    use disorder and antisocial personality disorder traits. For his first five
    years under the Boards jurisdiction the appellant was detained in the maximum
    secure facility at Oak Ridge (now Waypoint). After showing slight progress,
    at his 2014 annual hearing the Board ordered the appellants transfer to St.
    Josephs Health Care, Hamilton, where he began to make real progress. Following
    an early review in November 2015 the appellant was moved to a general forensic
    unit and, following his 2016 annual review, he was transferred to the
    rehab-readiness unit at the Southwest Centre of the Hospital. The appellant
    remained under a detention order, but began his transition to community living
    in November 2017.

[7]

In February 2019 the appellant was referred to the Chatham-Kent Health
    Alliance for a community psychiatrist, and to the local Canadian Mental Health
    Association (CMHA) Long-Acting Injection clinic for bi-weekly injections, a
    service that commenced in April 2019. Since April 2019 the appellant has been
    living in his own one-bedroom apartment in Chatham.

[8]

On November 25, 2019, the appellant was ordered conditionally
    discharged. The disposition required the appellant to reside at his current
    address, to take psychiatric treatment (on his consent), and to report to the
    Hospital four times per month.

[9]

At the 2020 review hearing in November 2020 the appellant sought an
    absolute discharge, which was opposed by the Hospital and the Crown.

C.

The Boards Reasons

[10]

A
    majority of the Board concluded that the threshold test for significant threat
    continued to be met. The risk flowed mainly from the appellants major mental
    illness (schizophrenia), as well as his diagnosis of antisocial personality
    traits, and his low threshold for stress, as well as his historical use of
    alcohol and illicit drugs. The Board noted that the index offence, which was
    extremely serious, and could have been lethal, occurred when the appellant was
    experiencing symptoms of his major mental illness, likely exacerbated by the
    use of alcohol. The Board accepted that the appellant had made good progress
    over the past number of years: he had willingly engaged with forensic staff,
    complied with medication, and had shown increased insight into his mental
    illness and receptiveness to suggestions on coping and alleviating stress. The
    Board concluded:

However, given Mr. Wightmans history of significant violence
    when he is less well, the challenge is to ensure that Mr. Wightman remains
    engaged with professional supports and treatment compliant when he is no longer
    subject to a Review Board disposition. Put simply, despite the progress that he
    has made, ongoing therapeutic oversight and support of Mr. Wightman is
    necessary to minimize his risk going forward.

[11]

The
    Board noted that the appellants relationship with Dr. Rafiq, the community
    psychiatrist who had been overseeing his care for the past seven months, had
    just begun to develop and that the ability to establish a strong therapeutic
    alliance had been impacted by restrictions imposed due to the pandemic,
    including the lack of in-person meetings. The Board agreed with the appellants
    forensic psychiatrist, Dr. Ugwunze (who testified at the hearing) and Dr. Rafiq
    (whose views were communicated by Dr. Ugwunze), that a longer period of
    transition of care was required. The Board concluded that a period of
    overlapping care was necessary to ensure a successful transition and no
    increase in the risk to public safety, and that until the successful transition
    was achieved, the test for significant threat continued to be met.

[12]

One
    Board member would have granted the appellant an absolute discharge. She noted
    that there had been several meetings between the appellant and Dr. Rafiq. Given
    the appellants excellent progress, his current stability and connection to at
    least some CMHA services, she could not say that the appellant posed a
    significant risk to the safety of the public.

[13]

The
    Board continued the conditional discharge disposition. It reduced the
    appellants reporting frequency from four to two times per month, and, in order
    to test the appellants commitment to long-term compliance with medication, the
    Board removed the consent to treatment conditions from the disposition.

Issue One: Was the Disposition Reasonable at the Time It Was
    Made?

[14]

A
    Boards determination on significant risk will only be disturbed on appeal if
    the decision is unreasonable or cannot be supported by the evidence, the
    decision is based on a wrong decision on a question of law, or there has been a
    miscarriage of justice:
Criminal Code
, s.
    672.78. The Board is provided with expert membership and broad inquisitorial
    powers. The assessment of whether an accuseds mental condition renders him a
    significant threat calls for significant expertise:
R. v.
    Owen
, 2003 SCC 33, [2003] 1 S.C.R. 779, at paras. 29-30. The
    reasonableness of a Board disposition is assessed by reference to the Boards
    reasoning process and the outcome and whether the decision properly reflects
    an internally coherent and rational chain of analysis that is justified in
    relation to the facts and law:
Re Fotiou
,
    2020 ONCA 153, at para. 7, citing
Canada (Ministry of Citizenship
    and Immigration) v. Vavilov
, 2019 SCC 15, 441 D.L.R. (4th) 1, at
    paras. 83, 85.

[15]

The
    appellant asserts that the Boards conclusion that he continued to pose a
    significant threat to the safety of the public was unreasonable.
[1]

[16]

He
    submits that the Board concluded there was a significant threat after applying
    an incorrect test. A significant threat requires a risk of serious physical or
    psychological harm to members of the publicresulting from conduct that is
    criminal in nature but not necessarily violent:
Criminal Code
,
    s. 672.5401. Instead, the Board considered whether an ideal non-forensic clinical
    care scenario had been achieved.

[17]

The
    appellant argues that there was an absence of positive evidence of a
    substantial risk; rather the evidence showed that there was a low risk of
    reoffence if the appellant remained treatment compliant. The necessary
    threshold was not met because the Board did not conclude that there was a high
    risk that he would become non-compliant with his medication. In oral
    submissions, the appellant, relying on
Re Negash
,
    2021 ONCA 280, says that as in that case, the conclusion that there was a
    significant risk to public safety because of the
possibility
rather than
    the
probability
of harm, descended into the realm of speculation.

[18]

I would not give effect to this argument. In
Negash
this court observed that a significant risk of
    harm to public safety requires 
a real, foreseeable risk that
    is more than speculative and that the consequent physical or psychological harm
    must be serious and criminal in nature:
at para. 10
(relying on
R. v. Ferguson
, 2010 ONCA 810, 264 C.C.C. (3d) 451, at
    para. 8). In that case, the Board proceeded on the basis that the possibility
    of a change in the accuseds medications
could
cause instability, and
    there was an elevated risk associated with the accuseds transition to a
    non-forensic team. Moreover, the Board did not weigh the seriousness of the
    potential harm against the likelihood that it would materialize.

[19]

In the present case, by contrast, the evidence
    demonstrated that the risk that the appellant would stop taking his medication
    if the necessary psychiatric supports were not provided was more than
    speculative, and that serious harm would likely result.
Dr. Ugwunze
    testified that if the appellant were absolutely discharged without psychiatric
    support there was a real risk he would stop taking his medication, which would
    most likely lead to decompensation of his mental state including florid
    psychotic symptoms, notably delusional beliefs of a paranoid persecutive
    nature, as well as auditory hallucinations. The doctor expressed the opinion
    that, it was likely that, in this decompensated mental state, the appellant
    would act on his delusional beliefs, leading to behaviour similar to what
    occurred in the index offence. Dr. Ugwunze said this scenario was very likely
    if the appellant did not take his medication. The
appellants
    compliance with medication was fairly recent (since 2017), and he had a long
    history of refusing or stopping medication both before and after Board
    supervision.

[20]

While the appellant is correct that there was
    general agreement that he is at low risk to reoffend if he remains treatment
    compliant, as the Board noted, the challenge
is to ensure that [he]
    remains engaged with professional supports and treatment compliant when he is
    no longer subject to a Review Board disposition.
The
    appellants relationship with his community psychiatrist, Dr. Rafiq, which was
    in its infancy at the time of the November 2020 Board hearing, was described
    by Dr. Ugwunze as the bedrock for managing the appellants risk. Both the
    need for a strong therapeutic relationship with Dr. Rafiq and the fact that the
    relationship had not yet developed, in part because of the lack of opportunity
    to conduct in‑person assessments, were amply supported by the evidence.

[21]

In
    my view, the Boards disposition was reasonable, based on the evidence at the
    hearing. The Boards conclusion that the appellant met the significant threat
    test is fully supported by the record. The threat was more than speculative in
    nature. It was sig
nificant, both in the sense that there
    was a real risk of physical or psychological harm occurring to individuals in
    the community and in the sense that [the] potential harm [was] serious. And
    the risk was the commission of a serious criminal offence:
Winko v. British
    Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625, at
    para. 57.

Issue Two: Does
    the Fresh Evidence Warrant an Order for Absolute Discharge from This Court?

[22]

Section
    672.73 of the
Criminal Code
provides that an
    appeal against a disposition order shall be based on a transcript of the
    proceedings and any other evidence that the court of appeal finds necessary to
    admit in the interests of justice. Fresh evidence concerning events that
    postdate the disposition order may be admitted where the evidence is
    trustworthy and touches on the issue of risk to public safety:
Owen
, at paras. 48-61, 71.

[23]

All
    parties agree that this court should consider as fresh evidence, a letter dated
    May 14, 2021 from counsel for the Hospital. They agree that the information
    contained in the letter is trustworthy and relevant to the issue of risk to
    public safety. They disagree, however, about the effect the fresh evidence
    should have on the disposition of the appeal.

[24]

The
    May 14, 2021 letter confirms that, since the November 2020 disposition, the
    appellant has continued to live independently in the community and has
    demonstrated ongoing stability, and that the relationship between the appellant
    and Dr. Rafiq has progressed. Although the appellant has declined to consent to
    a community treatment order, he has been compliant with his treatment, that is
    now prescribed and overseen by Dr. Rafiq. He is supported by the CMHA for intra‑muscular
    medication and follow-up. He was declined for formal case‑management
    services by the CMHA because of the existing support provided by Dr. Rafiq and
    the CMHA injection team. Although the letter does not indicate whether
    in-person meetings have taken place, the treatment team at the Hospital
    considers that a strong therapeutic relationship has developed between the
    appellant and Dr. Rafiq, and that the appellant is adequately supported in the
    community. No concerns have been conveyed to the Hospital by Dr. Rafiq
    concerning the appellants engagement or mental wellness.

[25]

The
    letter advises that an early Board hearing was requested by the Hospital and
    has been scheduled for July 12, 2021, and that the Hospital confirms that it
    intends to recommend an absolute discharge for the appellant at that hearing.

[26]

The
    appellant asks that this court grant an absolute discharge based on the fresh
    evidence. First, he contends that the fresh evidence bolsters his argument that
    the disposition of the Board in November 2020 was unreasonable. The information
    contained in the letter shows that the situation has progressed and undermines
    the Boards determination that the appellant  as of November 2020  presented
    a significant threat. I disagree. Nothing in the fresh evidence, which speaks
    to what has occurred since the November 2020 disposition, detracts from the
    conclusion that the disposition was reasonable and fully supported by the
    record at the time it was made.

[27]

The
    appellant asserts, in the alternative, that, based on the fresh evidence, he no
    longer continues to present a significant threat. The only concern of the Board
    in November 2020  that there had been an insufficient therapeutic relationship
    between the appellant and Dr. Rafiq  has been resolved. The appellant asserts
    that, as in
R. v. Stanley
, 2010 ONCA 324, 100
    O.R. (3d) 81, the only reasonable outcome of this appeal, once the fresh
    evidence is considered, is an absolute discharge. The Hospital supports the
    request.

[28]

The
    Crown submits that the determination of the effect of the fresh evidence on the
    November 2020 disposition is best left to the Board. This court does not have
    the full evidentiary picture and it is appropriate for a hearing pursuant to
    the procedure prescribed by s. 672.5 of the
Criminal Code
to take place, including the right of the victim to have notice of the hearing
    and to attend.

[29]

I
    agree with the Crowns position. While I accept that this court has the ability
    in an appropriate case, to allow an appeal and to grant an absolute discharge
    based on fresh evidence respecting the appellants progress since the date of
    the disposition under appeal, there are reasons why the approach in
Stanley
should not be followed in this case.

[30]

In
Stanley
,

the appellants treating
    physician had testified before the Board that, if a CTO were available, it
    would be difficult to maintain that the appellant continued to pose a
    significant risk. The fresh evidence was an affidavit from the same physician
    confirming his opinion that a CTO was appropriate and had been issued, and that
    he was satisfied that the appellant would adhere to the terms of the CTO. No
    early hearing had been requested.

[31]

In
    this case, by contrast, the fresh evidence consists of a letter, not an
    affidavit or report, and without the opinion of the appellants forensic or
    community psychiatrist addressing the central question of significant threat.
    Moreover, the Hospital initiated the early review process with the Board, and
    the hearing will occur in short course.

[32]

Although
    the circumstances are not identical, I would follow the approach of the
    majority of this court in
Re Krivicic
, 2017
    ONCA 379. In that case, the fresh evidence consisted of the report of the
    appellants treating psychiatrist that expressed the opinion that he did not
    meet the significant threat threshold and was entitled to an absolute
    discharge. The evidence called into question the Boards determination of
    significant threat, which was based on the record from an earlier hearing, and
    did not include an updated psychiatric opinion. This court concluded that the
    fresh evidence rendered the Boards determination of significant threat at first
    instance unreasonable, and allowed the appeal. Although the appellant and the
    Hospital invited this court to substitute an absolute discharge based on the fresh
    evidence, the matter was remitted to the Board for a fresh determination in
    light of that evidence and any other evidence it considered relevant: at paras.
    18-19. The court recognized that it was the responsibility of the Board, as an
    expert body, to evaluate the medical evidence and that it must be permitted to
    do its job: at para. 15.

[33]

The
    appellate courts vigilance in protecting the liberty of an NCRMD accused must
    be tempered with recognition of the inherent difficulty of the subject matter
    and the expertise of the medical reviewers:
Owen
,
    at para. 40. In the circumstances of this case, it is appropriate for the
    Board, following its proper procedures, to consider all of the evidence placed
    before it, including the fresh evidence, to determine whether the appellant no
    longer meets the threshold of significant threat, and whether he is entitled
    to an absolute discharge.

[34]

For
    these reasons I would dismiss the appeal.

K.
    van Rensburg J.A.

I
    agree. Paul Rouleau J.A.




Hoy J.A. (dissenting):

[35]

Like my colleague, I would admit the fresh
    evidence. The fresh evidence meets the test in
R. v. Palmer
, [1980] 1
    S.C.R. 759.

[36]

In my view, having admitted the fresh evidence,
    the correct approach is to consider the reasonableness of the Boards decision
    in light of the fresh evidence, as the court did in
Re Krivicic
, 2017
    ONCA 379. And as the court did in
Krivicic
, I conclude that the
    Boards disposition is unreasonable in light of the fresh evidence.
    Accordingly, I would allow the appeal.

[37]

Moreover, I would not remit the matter to the
    Board for a fresh determination.

[38]

In
Krivicic
, having concluded that the
    Boards decision was unreasonable in light of the fresh evidence, a majority of
    the court nonetheless concluded that it should return the matter to the Board.
    (Feldman J.A. would have ordered an absolute discharge.) However, the
    circumstances in
Krivicic
were different from this case. In
Krivicic
,
    Huscroft J.A., for the majority, wrote that the opinion of the new psychiatrist
    that the appellant did not meet the significant threat threshold was clearly
    at odds with the psychiatric evidence that the Board had relied on in its
    disposition: at para. 15. He concluded that it was not for the court to
    reconcile the competing psychiatric evidence in this case: at para. 18.

[39]

In this case, the court is not faced with
    competing psychiatric evidence from different psychiatrists. The Boards
    disposition was a close call. Its disposition rested on the concern of the
    appellants treatment team that the appellant had not yet developed a strong
    therapeutic relationship with his community psychiatrist, Dr. Rafiq. The fresh
    evidence is that the
same
treatment team is now satisfied that a strong
    therapeutic relationship has developed between the appellant and Dr. Rafiq
    and that at the early hearing before the Board requested by the Hospital, the
    Hospital intends to recommend an absolute discharge. The Hospital urges the
    court to grant an absolute discharge. There is no competing psychiatric
    evidence in this case. All parties agree that the fresh evidence is
    trustworthy; in these circumstances, the fact that the fresh evidence is in the
    form of a letter, and not an affidavit or a formal report or opinion, is not a
    reason to deny the appellant an absolute discharge.

[40]

Like the court in
R. v. Stanley
, 2010
    ONCA 324, 100 O.R. (3d) 81, I conclude that the only reasonable outcome in
    light of the fresh evidence is to grant the appellant an absolute discharge.
    The fact that, in this case, the Hospital requested an early hearing with a
    view to securing the absolute discharge of the appellant is not a reason to
    distinguish this case from
Stanley
. If anything, it adds weight to the
    fresh evidence.

[41]

I am mindful that the early hearing requested by
    the Hospital is only a month away. However, the delay affects the appellants
    liberty interest.

[42]

I would admit the fresh evidence, allow the
    appeal, and pursuant to s. 672.78(3) of the
Criminal Code
, grant
    the appellant an absolute discharge.

Released: June 17, 2021 P.R.

Alexandra
    Hoy J.A.





[1]

In
    her factum the appellants counsel also submitted that the Board failed to
    consider whether a community treatment order (CTO), combined with CMHA case
    management, would provide a suitable civil alternative to continued Board
    oversight. This argument was not pursued in the oral hearing. The fresh
    evidence indicates that the appellant has declined to consent to a CTO.


