



COURT OF APPEAL FOR ONTARIO

CITATION: Mihaljevich (Re), 2019 ONCA 1010

DATE: 20191220

DOCKET: C66922

Hoy A.C.J.O., Lauwers and Nordheimer JJ.A.

IN THE MATTER OF:  ANTE MIHALJEVICH

AN APPEAL UNDER PART XX.1 OF THE
CODE

Suzan E. Fraser, for the appellant

Adam Wheeler, for the respondent Attorney General of
    Ontario

Janice Blackburn, for the respondent Person in Charge of
    the Waypoint Centre for Mental Health Care

Heard: December 11, 2019

On appeal against the disposition of the Ontario Review
    Board, dated April 4, 2019, with reasons for disposition dated May 1, 2019,
    reported at [2019] O.R.B.D. No. 878.

REASONS FOR DECISION

[1]

The appellant, Ante Mihaljevich, appeals from the disposition of the
    Ontario Review Board dated April 4, 2019, ordering that he continue to be
    detained at the Waypoint Centre for Mental Health Care  Provincial Forensic
    Programs Divisions (Waypoint or the Hospital), with hospital grounds
    privileges beyond the secure perimeter escorted by staff. He asks the court to
    set aside the Boards disposition and order a new hearing.

The Background

[2]

The appellant is a 44-year old male. He has been subject to the Boards
    jurisdiction since 2003, when he was found not criminally responsible on
    account of mental disorder of criminal harassment in relation to his mother and
    of failing to comply with a probation order. He previously progressed to
    community living, where he resided for five years before his use of illicit
    drugs and psychotic symptoms reportedly led him to assault a security guard in
    2015, holding a knife to her throat.

[3]

He was then detained at the Centre for Addiction and Mental Health
    (CAMH). After several incidents, including assaulting three staff members and
    separately assaulting a physician in 2015, he was transferred from CAMH to the
    Toronto South Detention Centre (TSDC). He was transferred to Waypoint after allegedly
    assaulting a correctional officer in 2016 at TSDC. At least some of these assaults
    were in connection with psychotic symptoms and drug-seeking behaviours. At
    Waypoint, he assaulted a nurse in February 2017. In the year preceding the
    hearing before the Board, he again assaulted a nurse, later explaining that he
    believed this occurred because he was the victim of mind control. He also
    engaged in other aggressive incidents over the reporting year which were effectively
    de-escalated through the intervention of staff.

[4]

The appellant has diagnoses of Schizophrenia, Opioid Use Disorder, in
    remission in a controlled environment and on replacement therapy, and
    Antisocial Personality Disorder. He has historical diagnoses of Polysubstance
    Abuse (currently in remission in a controlled environment) and ADHD.

[5]

The Hospitals report indicates that the appellants score on the Violence
    Risk Appraisal Guide (VRAG) was associated with the seventh of nine ascending
    categories for risk of violent recidivism. 64% of individuals with the same
    risk category as the appellant re-offended violently within ten years of
    opportunity. It further indicates that on the Psychopathy Checklist  Revised
    (PCL-R), the appellant scored 35.8 out of a possible 40 points, which is
    considered to fall within the Very High range of psychopathy.

[6]

In the Hospitals report, the appellants clinical team noted that he
    had a difficult year. There were some signs of improvement since being
    started on a new medication, but he continues to present with active and
    behaviour-influencing symptoms of schizophrenia. These symptoms and behaviours have
    led to violence in the past, and have only been marginally less salient over
    the past few months. He requires further stabilization and rehabilitation.

[7]

The Hospital reported that he continued to seek medications of potential
    abuse, even in the Hospital, and it would be easier for him to access illicit
    substances in a less secure facility. His attending physician, Dr. Corriveau,
    testified at the hearing that there was a direct connection between his use of
    illegal substances and risk of violence.

[8]

Dr. Corriveau also testified that the appellant had a significant
    history of non-compliance with his medication even under the watchful eye of
    his Outreach Team. She was concerned that he would immediately discontinue his
    medication if discharged.

[9]

In the clinical teams opinion, the appellant continued to require the
    structure provided in the Hospital and, without it, could represent a threat to
    the safety of the public. The team noted that he had functioned in the
    community for five years and the team hopes he will progress in the next
    review period in order to move in the direction of rehabilitation and eventual transition
    back into the community.

[10]

Dr. Corriveau elaborated that the appellant is quite reticent to engage
    therapeutically with this clinical team, but that the team is hoping to engage
    him further in therapeutic treatment. It is seeking to manage his symptoms so
    that they can move him forward in his disposition. In response to a question by
    a Board member probing the question of rehabilitation, Dr. Corriveau discussed
    the Beckwith Program, which focuses on structure and addressing
    treatment-resistant symptoms. In her opinion, given the appellants symptoms, such
    as his claustrophobia, the amount of lockups in the Beckwith Program could make
    the appellant worse. The Board also explored a medication change. Dr. Corriveau
    also explained that the appellants aversion to needles was a barrier to a
    further medication change. The clinical team want his suffering to be as
    minimal as possible.

[11]

Notwithstanding some signs of improvement, the clinical teams opinion
    was that his assaultive history in addition to his acute psychotic symptoms
    and lack of insight into his diagnosis and drug-seeking behaviours, together
    with his high 
    PCL-R score, cause the clinical team concern insofar as recommending that he
    transfer [to a less secure facility] at this time. The team recommended no
    change to his current disposition. Dr. Corriveau reiterated this opinion at the
    hearing: the appellants risk to the public cannot be adequately managed in a
    facility less secure than Waypoint. She noted that CAMH indicated that they were
    unable to manage the appellant at his current level of risk.

[12]

The Board addressed the issue of reintegration at para. 15 of its
    reasons:

When questioned by Counsel as to how his client could move on
    through the system, Dr. Corriveau said it would be necessary for him to
    demonstrate adherence to his oral medications and demonstrate he could
    successfully follow the rules at Waypoint and engage in psychoeducational
    programming. She expressed the view that his non-participation represented a
    barrier to him making further progress.

[13]

The Board concluded, at paras. 22 and 24 of its reasons:

Having heard all the evidence and reviewed the various reports
    made available to us, the Board found [the appellant] continues to represent a
    significant threat to the safety of the public. He remains symptomatic and has
    very poor insight with respect to his mental illness and the disturbing
    behaviours he exhibits on a frequent basis at Waypoint, which have involved
    threatening and aggressive behaviour. [The appellant] has a history of
    non-compliance with medications, substance abuse, and drug-seeking behaviour,
    all of which contribute to the risk he poses.



[I]t is clear to this Board that [the appellant] requires the
    structure and support available to him at Waypoint, and that this represents
    the least onerous and least restrictive Disposition at this time.

The Issues Raised by the Appellant

[14]

The appellant challenges the Boards disposition on three, linked
    grounds. First, he argues that, in determining the question of significant
    threat and the appropriate disposition, the Board committed a legal error by
    failing to consider two of the four statutory factors that s. 672.54 of the
Criminal
    Code
, R.S.C., 1985, c. C-46
prescribes: his reintegration into society and his other needs. Second, he
    argues that the Board did not address these two factors in its analysis of
    risk, leading to an unreasonable disposition. Third, he argues that the Board
    did not exercise the constant vigilance and inquiry this court held in
Tolias
    (Re)
, 2019 ONCA 123, at para. 22, is required in the case of a long-term
    detainee where the index offence was not violent.

Analysis

[15]

We reject these arguments.

[16]

Contrary to the appellants submissions, it is clear the Board
    considered the Hospitals evidence related to community reintegration and the
    appellants other needs, making its own inquiries when necessary. As noted
    above, the Board asked questions about the appellants reintegration and other
    needs. Its failure to make some aspects of its analysis explicit in its reasons
    is not an error of law.

[17]

Further, Dr. Corriveau considered the appellants reintegration and
    other needs in recommending no change to his current disposition. In our view,
    and having regard to all the relevant factors, the evidence reasonably
    supported the Boards conclusion that the appellant remained a significant
    threat to the safety of the public and that his continued detention at Waypoint
    represented the least onerous and restrictive disposition at the time of its
    review.

[18]

Finally, this case is different from
Tolias
.

[19]

In 2005, Ms. Tolias, who suffers from schizoaffective disorder, with
    persecutory delusions, was found not criminally responsible on account of
    mental disorder of four charges of making harassing phone calls to a staff
    psychiatrist at CAMH with whom she had become infatuated, three charges of
    failure to comply with a recognizance, and two charges of failure to comply
    with probation:
Tolias
, at paras. 5, 8. Since the disposition on the
    index offences, she was detained and treated at several hospitals: at para. 10.
    She appealed the Boards disposition of March 2018, ordering that she continue
    to be detained on the secure forensic unit at the Providence Care Hospital in
    Kingston: at para. 1. She sought an absolute discharge or, in the alternative,
    a conditional discharge or transfer to CAMH: at para. 2.

[20]

This court dismissed her appeal but, in so doing commented that cases
    such as this require constant vigilance and inquiry by the Board into the
    appropriate disposition, especially the appropriateness of a conditional discharge
    with community living: at para. 22. The court alerted the Board that, at the
    next review hearing, it expected the Board to inquire actively into the
    appropriateness of alternative dispositions for Ms. Tolias: at para. 23.

[21]

Unlike Ms. Tolias, the appellant has a history of violence and
    aggressive behaviour since his non-violent index offence. Moreover, in the
    appellants case, the Board was alive to the concerns of institutionalization
    of a long-term detainee and specifically probed the question of rehabilitation.

Disposition

[22]

Accordingly, the appeal is dismissed.

Alexandra Hoy
    A.C.J.O.

P. Lauwers J.A.

I.V.B. Nordheimer
    J.A.


