



COURT OF APPEAL FOR ONTARIO

CITATION: Fotiou (Re), 2020 ONCA 153

DATE: 20200226

DOCKET: C67102

Benotto,
    Huscroft and Jamal JJ.A.

IN THE MATTER OF: Theophilos Fotiou

AN APPEAL
    UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Megan Petrie, for the respondent,
    Attorney General of Ontario

Janice E. Blackburn, for the
    respondent, Person in Charge of St. Josephs Healthcare Hamilton

Heard: February 21, 2020

On appeal against the disposition of the
    Ontario Review Board dated May 23, 2019, with reasons dated June 10,
    2019.

REASONS FOR DECISION

Introduction

[1]

On March 6, 2019, the appellant was found not
    criminally responsible on account of mental disorder (NCR) on charges of
    assault causing bodily harm and assaulting a peace officer. The appellant had attacked
police officers who responded to a 911 call when the appellant
    threatened to kill one of his housemates. The police had attended at the same
    house a few nights earlier when the appellant had allegedly thrown a kitchen
    knife at another housemate. While being arrested the appellant punched two
    officers in the face, breaking one officers nose. He then made more death
    threats while receiving medical attention at the St. Josephs Healthcare
    Hamilton (St. Josephs). His bail pending trial was revoked for threatening another
    police officer. His threatening and aggressive behavior continued while he was in
    hospital.

[2]

The appellants
current diagnoses are schizoaffective disorder and substance abuse
    disorder. He has a long history of mental illness and hospitalizations, often
    on an involuntary basis, related to being undermedicated and engaging in
    bizarre and aggressive behaviour.

[3]

The appellant now appeals his initial
    disposition by the Ontario Review Board (the Board) dated May 23, 2019. The
    Board concluded that
the appellant posed
    a significant threat to the safety of the public and ordered him detained at
    St. Josephs, with privileges up to and including living in the community in
    approved accommodation.

Issues

[4]

The appellant raises two issues. First, he asserts that the Boards
    finding that he posed a significant threat to the safety of the public under
    s. 672.54(a) of the
Criminal Code
, R.S.C.
    1985, c. C-46, is unreasonable under s. 672.78(1)(a) of the
Criminal Code.
Second, in the alternative, he asserts
    that the Board should have granted him a conditional discharge.

Discussion

(i)

Did the Board err in concluding that the appellant posed a significant
    threat to the safety of the public?

[5]

The appellant asserts that he lived in the community without incident
    for more than three years while on bail between the index offence and the NCR
    verdict and that it was purely speculative for the Board to conclude that he
    posed a greater risk at the time of the disposition than he did when he lived
    in the community. He also claims that the Board relied on circular logic in finding
    that the fact that he lived in the community without incident while on bail
    speaks to his level of wellness at the time, when the Board had no
    information about his mental condition at that time. Finally, he asserts that
    his risk has been escalating progressively while he has been in hospital and
    that the Board should have found that his enforced detention is worsening his
    mental state.

[6]

We reject this submission.

[7]

Absent a wrong decision on a question of law or a miscarriage of
    justice, this court may allow an appeal against a disposition of the Board only
    where it is of the opinion that the Boards disposition is unreasonable or
    cannot be supported by the evidence:
Criminal Code
,
    s. 672.78(1);
R. v. Owen
, 2003 SCC 33, [2003]
    1 S.C.R. 779, at paras. 31-32;
Canada (Minister of
    Citizenship and Immigration) v. Vavilov
, 2019 SCC 65, at para. 34.
    In our view, the Boards decision was entirely reasonable having regard to its
    reasoning process and the outcome and properly reflected an internally
    coherent and rational chain of analysis that was justified in relation to the
    facts and law:
Vavilov
, at paras. 83, 85.

[8]

The Boards finding that the appellant posed a significant threat to
    the safety of the public was amply supported by the evidence cited at paras.
    50-51 of the Boards decision, including the expert evidence that the appellant
would now be deemed a high risk for repeated
    violent behaviour, his history of violent criminal conduct and record of
    police involvement associated with the numerous lapses in his mental disorder,
    his lack of insight into his mental condition, his refusal to consent to a
    medication increase recommended by his treatment team, and his history of
    falling away from treatment leading to assaultive behaviour.

[9]

The Board was also aware that the appellant had lived in the community
    while on bail and was entitled to find on the evidence that his condition had
    worsened to the point that he posed a significant threat. As the Board found:
    The assessment of risk is a dynamic process and, at the present time, the
    expert evidence before this Board assessed [the appellants] risk as falling
    within the 
high
 range (emphasis in
    original). Further, contrary to the appellants allegation, the Board did have
    information about his mental condition while he was on bail, which showed that
    he was taking a higher dose of his antipsychotic medication at that time and
    that there was a likelihood he would deteriorate further and become aggressive
    again if he were to stop taking his medication. Both doctors who testified at
    the hearing also expressly rejected the suggestion that the appellants risk
    level and aggression were caused by being hospitalized, and instead concluded
    that they stemmed from his acute psychosis.

[10]

In
    sum, there was nothing unreasonable about the Boards reasoning process or its conclusion
    in finding that the appellant posed a significant threat to the safety of the
    public.

(ii)

Did the Board err in imposing a detention order rather than granting a
    conditional discharge?

[11]

The
    appellants second ground of appeal asserts that the Board should have granted
    him a conditional discharge. He claims that the reasons given by the Board for
    a detention order were pro forma and unconnected to his unique situation,
    including that he had been living in the community on bail without incident for
    more than three years.

[12]

We
    also reject this submission. The Board explained its rationale for imposing a
    detention order with community living privileges as being necessary to
    safeguard public protection for the following reasons, at para. 56:

In our opinion, the evidence presented indicates that the
    hospital requires the authority of a Detention Order for two critical risk
    management purposes. The first is to provide the hospital with the authority to
    approve Mr. Fotious community residence should he become a candidate for
    discharge to ensure that he is provided with the requisite level of support,
    monitoring and supervision. The second is to ensure that the hospital has the
    authority to promptly readmit Mr. Fotiou in the event that he relapses to
    substance use or otherwise suffers a significant deterioration in his mental
    status. A Conditional Discharge Disposition (even one containing a treatment
    condition) would not offer adequate safeguards for public protection.

[13]

It
    is well established that the Boards need to supervise housing justifies a
    detention order rather than a discharge: see
Munezero (Re)
,
    2017 ONCA 585, at para. 9;
R. v. Simpson
, 2010
    ONCA 302, at para. 4; and
Brockville Psychiatric Hospital
    v. McGillis
(1996), 93 O.A.C. 226 (C.A.), at para. 4. In our view, given
    that the appellant had threatened his housemates at the time of the index
    offence, the Board reasonably found its need to supervise his housing to be a
    critical risk management purpose that warranted a detention order.

[14]

We therefore see no basis to impugn the Boards reasoning process or its
    conclusion. The crafting of the specific terms of a disposition is properly
    left to the Boards specialized knowledge and expertise in assessing the NCR
    accuseds level of risk and how best to manage that risk:
Winko
    v. British Columbia (Forensic Psychiatric Institute)
, [1999] 2
    S.C.R. 625, at paras. 59-61;
Pinet v. St. Thomas Psychiatric
    Hospital
, 2004 SCC 21, [2004] 1 S.C.R. 528, at para. 22; see also
Vavilov
, at para. 93. In the circumstances, the Boards
    decision to impose a detention order with community living privileges is
    entitled to deference.

Disposition

[15]

The
    appeal is dismissed.

M.L.
    Benotto J.A.

Grant
    Huscroft J.A.

M.
    Jamal J.A.


