



COURT OF APPEAL FOR ONTARIO

CITATION: Wall (Re), 2017 ONCA 713

DATE: 20170914

DOCKET: C63410

Watt, Huscroft and Trotter JJ.A.

IN THE MATTER OF: 
    Abraham Wall

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Anita Szigeti, for the appellant Abraham Wall

Janice Blackburn, for the respondent the Person in
    Charge of St. Josephs Health Care Hamilton

Rebecca Schwartz, for the respondent Attorney General of
    Ontario

Heard: August 31, 2017

On appeal from the disposition of the Ontario Review
    Board, dated February 10, 2017, with reasons dated February 23, 2017.

BY THE COURT:


[1]

Abraham Wall appeals from the February 10, 2017 disposition of the Ontario
    Review Board. A majority of the Board concluded that the appellant constitutes
    a significant threat to the safety of the public and ordered his continued
    detention at St. Josephs Health Care Hamilton with community living
    privileges.

[2]

The appellant argues that he is not a significant threat to the safety
    of the public and seeks an absolute discharge. The Crown and the Person in Charge
    of St. Josephs oppose the appellants release and seek to uphold the Boards
    disposition.

[3]

For the reasons that follow, we have concluded that the Boards
    conclusion that the appellant is a significant threat to the safety of the
    public is not reasonable. Mr. Wall is entitled to an absolute discharge.

Background

[4]

The appellant is a 37 year-old man diagnosed with bipolar disorder,
    attention deficit hyperactivity disorder, polysubstance abuse, and antisocial
    personality disorder. He is capable of consenting to treatment and complies
    with his medication. He has good insight into his mental disorder and his need
    for medication.

[5]

The appellant has an extensive criminal record that includes 44 convictions
    that were committed before the index offence. This includes numerous
    convictions in youth court. His adult record includes robbery, assault, assault
    with a weapon, and many property offences, in addition to several failures to
    comply.

[6]

The index offence occurred in 2011. The appellant threatened two police communications
    staff during 911 calls he made in the course of seeking treatment. The
    appellant told them he had a .50 calibre gun on their foreheads. He was
    arrested at St. Josephs, where he received treatment for his aggressive
    behaviour and then was released into police custody. In the course of
    investigating the 911 calls, the police found that the appellant had also made
    numerous calls to his ex-girlfriend, who was in hiding from him.

[7]

The appellant was found not criminally responsible on account of mental
    disorder (NCR). The Board issued a disposition ordering his detention in the
    general forensic unit at St. Josephs. The disposition included the possibility
    of community living in approved accommodation.

[8]

The appellant was discharged to the community and returned to the
    hospital on several occasions. He was discharged in February 2013, but was
    returned after absconding to Alberta. He was discharged in July 2015 and
    returned following positive drug tests. He was discharged in May 2016 following
    substance abuse treatment, but readmitted to St. Josephs on four occasions in
    2016 following positive drug tests. On the last two admissions, the hospital
    report notes that the appellant showed signs of cognitive impairment and
    hypomanic symptoms.

The Legislation

[9]

The Supreme Court of Canada summarized the operation of the NCR process
    in
Winko v. British Columbia (Forensic Psychiatric Institute)
, [1999]
    2 S.C.R. 625, and at para. 33 emphasized the obligation to accord maximum
    liberty to offenders compatible with the goals of public protection and
    fairness to the NCR accused:

The only justification there can be for the criminal law
    detaining a person who has not been found guilty (or is awaiting trial on an
    issue of guilt) is maintaining public safety. Once an NCR accused is no longer
    a significant threat to public safety, the criminal justice system has no
    further application.

[10]

The
    Board is charged with determining whether an NCR accused poses a significant
    threat to public safety. An NCR accused is not presumed to be dangerous and
    bears no burden of proof in proceedings before the Board.

[11]

The
    Boards obligations are set out in s. 672.54 of the
Criminal Code
:

When a court or Review Board makes a disposition under
    subsection 672.45(2), section 672.47, subsection 672.64(3) or section 672.83 or
    672.84, it shall, taking into account the safety of the public, which is the
    paramount consideration, the mental condition of the accused, the reintegration
    of the accused into society and the other needs of the accused, make one of the
    following dispositions that is necessary and appropriate in the circumstances:

(
a
) where a verdict of not criminally responsible on
    account of mental disorder has been rendered in respect of the accused and, in
    the opinion of the court or Review Board, the accused is not a significant
    threat to the safety of the public, by order, direct that the accused be
    discharged absolutely.

[12]

A
    significant threat to the safety of the public is defined in s. 672.5401 as
    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.

[13]

The
    likelihood of a risk materializing and the seriousness of the harm that might
    occur must be considered together. As the Supreme Court noted in
Winko

(in discussing s. 672.54, as it then read), at para. 57:

[T]he threat posed must be more than speculative in nature; it
    must be supported by evidence. The threat must also be significant, both in
    the sense that there must be a real risk of physical or psychological harm
    occurring to individuals in the community and in the sense that this potential
    harm must be serious. A minuscule risk of a grave harm will not suffice.
    Similarly, a high risk of trivial harm will not meet the threshold.  Finally,
    the conduct or activity creating the harm must be criminal in nature.
    [Citations omitted.]

The Boards Decision

[14]

The
    Board heard testimony from the appellants treating psychiatrist, Dr. Prat, in
    addition to the appellant and his friend, Mr. McRae.

[15]

Dr.
    Prat testified that he observed hypomanic symptoms on the appellants most
    recent admission to St. Josephs. In his view, the rapid emergence of these
    symptoms provided clear evidence that the appellants chronic marijuana use was
    affecting his mental status and put him at risk of a full manic episode. Dr.
    Prat acknowledged that the appellant had not been violent since 2004 and that he
    had not abstained from substance abuse during this period. He also confirmed
    that the appellant was compliant with treatment and would continue with
    treatment if granted an absolute discharge. However, the appellant would
    continue to use marijuana, and Dr. Prat stated that he was extremely
    dangerous when hypomanic.

[16]

The
    appellant testified that he was not a threat and that the last thing he wanted
    to do was to commit a crime. He was amenable to a community treatment order and
    would be willing to return to hospital if his condition deteriorated and he
    experienced symptoms of mania.

[17]

The
    majority of the Board concluded that the appellant remained a significant
    threat to the safety of the public.
[1]
The majority reasoned as follows, at p. 7:

Significant threat was vigorously challenged at the hearing. In
    historical terms, Mr. Wall has a criminal record of 44 convictions, which
    includes firearms offenses, assault and assault with a weapon. In fairness to
    Mr. Wall, there have been no acts of physical violence since 2004. Yet he destroyed
    two seclusion rooms in 2011 while non-compliant with medication and manic.
    Though this information is not in the Hospital Report, Dr. Prat told the Board
    that during this episode Mr. Wall broke off pieces of metal as if to arm
    himself. In the years since, Mr. Wall has been rude, disrespectful, verbally
    abusive and verbally threatening, but not physically violent.

To his credit, Mr. Wall is treatment capable and compliant with
    medication. Until late 2016, his bipolar disorder was well managed by
    medication and unaffected by his longstanding and ongoing use of marijuana. At
    the hearing, the question of significant threat was linked to Mr. Walls
    cannabis use and its potential impact on his bipolar affective disorder. Dr.
    Prats evidence was that Mr. Walls mental condition changed on his last two
    admissions to hospital: the doctor saw signs of mental deterioration on October
    31, 2016, and hypomanic symptoms on November 16, 2016, only a few hours after
    Mr. Walls discharge on November 15
th
.

In Dr. Prats opinion, Mr. Walls
    symptoms on those occasions were linked to marijuana use and he was clearly
    concerned that chronic use could lead to a full manic episode. Furthermore,
    when manic, Mr. Wall may pose a risk of violent and transgressive behavior. The
    Board does not agree with Dr. Prat that Mr. Wall is extremely dangerous, but
    accepts that his marijuana use is potentially linked to problematic symptoms
    and is sufficient to support a finding of significant threat.

[18]

The
    minority of the Board found that although the appellants unrepentant use of
    marijuana was concerning, the link between that use, the rise of symptoms of
    hypomania, and a consequent risk to public safety was not sufficiently
    established to meet the significant threat threshold. Accordingly, the minority
    of the Board concluded that the appellant was entitled to an absolute
    discharge.

The Standard of Review

[19]

The
    standard of review on this appeal is established by s. 672.78(1) of the Criminal
    Code:

The court of appeal may allow an appeal against a disposition
    or placement decision and set aside an order made by the court or Review Board,
    where the court of appeal is of the opinion that

(
a
) it is unreasonable or cannot be supported by the evidence;

(
b
) it is based on a wrong decision on a question of
    law; or

(c
) there was a miscarriage of justice.

[20]

The
    question in this case is whether the Boards decision was reasonable.

Analysis

[21]

The
    task of determining whether or not an NCR accused poses a significant threat to
    the safety of the public is a difficult one, and the Boards decision is
    entitled to deference. On appeal, the court does not make its own judgment on
    the significant threat question and use that judgment as the benchmark for
    assessing the reasonableness of the Boards decision. Nor does the court
    re-weigh the considerations that were before the Board.

[22]

The
    reasonableness of the Boards decision must be evaluated by considering the
    reasons proffered by the Board in the context in which the decision was made. The
    reasons for the Boards decision and the substantive decision reached by the
    Board must be considered together in determining whether an acceptable and defensible
    outcome has been reached, keeping in mind the need to protect the liberty of
    the NCR accused as much as possible, while also protecting society.

[23]

This
    is not a case in which the Board was required to resolve conflicts in the
    expert evidence. Dr. Prat was the only medical professional who gave evidence.
    The Board rejected his evidence that the appellant was extremely dangerous.
    However, the Board accepted that the appellants marijuana use is potentially
    linked to problematic symptoms and is sufficient to support a finding of
    significant threat: at p. 8.

[24]

In
    our view, this conclusion is unreasonable.

[25]

Plainly,
    the appellant has a lengthy history of mental illness and substance abuse and
    has committed numerous offences. The risk that he will abuse marijuana and commit
    additional offences if he is given an absolute discharge is substantial. But he
    cannot be detained indefinitely on this account. The appellant is entitled to
    be discharged unless the Board concludes that he poses a significant threat to
    the safety of the public.

[26]

As
    this court stated in
Re Carrick
, 2015 ONCA 866, 128 O.R. (3d) 209, at
    para. 17:

[T]he significant threat standard is an onerous one. An NCR
    accused is not to be detained on the basis of mere speculation. The Board must
    be satisfied as to both the existence and gravity of the risk of physical or psychological
    harm posed by the appellant in order to deny him an absolute discharge.

[27]

It
    is not contested that, despite his lengthy record, the appellant has not
    committed an act of violence since 2004. The incident from 2011, in which the
    appellant damaged seclusion rooms and, according to the evidence of Dr. Prat,
    broke off pieces of metal as if to arm himself, was the only evidence
    connected to the risk of physical harm, and it was dated and speculative.

[28]

The
    Board accepted that the appellant has insight into his mental disorder and need
    for medication. He has, since 2011, been rude, disrespectful, verbally abusive
    and verbally threatening, but he has not been physically violent nor has he
    caused psychological harm. Moreover, in answer to questions from the court
    during the hearing of the appeal, counsel advised that there have been no
    further incidents of telephone harassment and the appellant has not contacted
    his ex-girlfriend.

[29]

The
    Board was concerned about recent signs of deterioration, but at its highest,
    the Board could do no more than conclude that the appellants marijuana use is
potentially
linked to
problematic symptoms
. It is not reasonable to deny the
    appellant an absolute discharge on so general a basis. As the minority of the
    Board recognized, it is not sufficient to meet the high threshold established
    by the Supreme Court in
Winko
.

[30]

We
    accept that, as was the case in
Re Ferguson
, 2010 ONCA 810, 271 O.A.C.
    104, an absolute discharge may not be in the appellants best interests: see
    para. 45. But that is not relevant to the Boards duty and this courts task on
    appeal. The appellant is entitled to his liberty absent a reasonable finding
    that he constitutes a significant threat to the safety of the public.

[31]

The
    appeal is allowed. The order of the Board is set aside and an absolute
    discharge is granted.

Released:

DW                                                  David
    Watt J.A.

SEP 14 2017                                    Grant
    Huscroft J.A.

G.T.
    Trotter J.A.







[1]
The Board also concluded that two restrictions on liberty imposed on the
    appellant in 2016 were warranted and justified. Those ROLs are not at issue in
    this appeal.


