



COURT OF APPEAL
    FOR ONTARIO

CITATION:
Krist (Re), 2019 ONCA 802

DATE: 20191007

DOCKET: C66396

Juriansz,
    Pepall and Roberts JJ.A.


IN THE MATTER OF: Erick Krist

AN APPEAL
    UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the
    appellant

Sean Horgan, for
    the respondent, Attorney General of Ontario

Kathryn Hunt, for
    the respondent, Centre for Addiction and Mental Health

Heard:  September 17, 2019

On appeal from the December
    28, 2018 disposition of the Ontario Review Board, with reasons dated January
    14, 2019.

REASONS FOR DECISION

[1]

The appellant appeals from the Ontario Review Boards
    (Board) most recent disposition that he be detained at the General Forensic
    Unit of the Centre for Addiction and Mental Health (CAMH), but with the
    ability to live in the community in approved accommodations, in CAMHs discretion.

[2]

On December 1, 2004, the appellant was found not
    criminally responsible (NCR) for the offences of sexual assault against his
    roommates girlfriend and breach of probation.  At the time of the index offences,
    the appellant was bound by two separate probation orders in relation to 2002
    and 2003 convictions involving threats against his family members and an
    assault against his former girlfriend.

[3]

The appellant has been under the Boards
    supervision since December 1, 2004.  The appellant has been subject to a detention
    order ever since, except for two occasions when the appellant was granted conditional
    discharges in October 2009 and December 22, 2017.

[4]

The diagnosis of the appellants mental illness
    includes schizoaffective disorder (bipolar subtype); stimulant use disorder;
    cannabis use disorder in partial remission; and specified personality disorder
    (narcissistic and antisocial personality traits).  He does not accept this
    diagnosis.  While he is capable of consenting to treatment, he has not been
    consistently compliant with his medications or other treatment recommendations. 
    He has often expressed the view that if he were absolutely discharged, he would
    discontinue his medications and treatments.

[5]

Over the past 15 years, the appellant has experienced
    ups and downs:  he has successfully operated his own businesses and attended
    university courses towards a degree; but has often struggled with his cocaine
    addiction and his living arrangements, which have resulted in breaches of his detention
    and conditional discharge orders.

[6]

The appellant submits that the Board erred in failing
    to continue the December 22, 2017 conditional discharge order because there was
    no evidence that he poses any significant risk of physical or psychological violence
    to the public.  In particular, the appellant argues, there is no evidence that
    the appellant has engaged in any criminal, violent, aggressive or threatening
    behaviour in the last 15 years.  According to the appellant, he should be
    granted an absolute discharge.  In the alternative, the appellant submits that a
    conditional discharge with his new residential address that he provided at the
    hearing of the appeal would be the least onerous and least restrictive, and the
    most appropriate disposition.  In the further alternative, the appellant
    requests that that the matter be returned to the Board for a re-hearing.

[7]

For the reasons that follow, we disagree that
    the Board erred in concluding that the appellant continues to pose a significant
    threat to the safety of the public and in determining that a detention order
    was the least onerous and least restrictive, and the most appropriate disposition
    in the circumstances of this case.

[8]

There is no question of the analysis that the
    Board was required to undertake under 672.54 of the
Criminal

Code
,
    R.S.C. 1985, c. C-46.  As this court most recently explained in
Sheikh (Re)
,
    2019 ONCA 692, at para. 34:

An NCR accused is entitled
    to his liberty absent a reasonable finding that he constitutes a significant threat
    to the safety of the public:
Wall (Re
)
,
2017
    ONCA 713
,
417
    D.L.R. (4th) 124
. A significant threat is defined in s. 672.5401 of
    the
Criminal Code
as a risk of
    serious physical or psychological harm to member of the public ... resulting
    from conduct that is criminal in nature but not necessarily violent. There
    must be a risk that the NCR accused will commit a
serious
criminal offence, and a minuscule risk of grave harm
    is not sufficient:
R. v. Winko
,
[1999] 2 S.C.R. 625
, at paras. 57, 69. The significant threat
    must be more than speculative and supported by evidence:
Winko
, at para. 57.
    That is, there must be both a likelihood of a risk materializing and the
    likelihood that serious harm will occur:
Re

Carrick
,
2015
    ONCA 866
,
128 O.R.
    (3d) 209
, at para. 16.

[9]

We are of the view that it was open to the Board
    on the evidence before it to conclude that the appellant continues to pose a
    significant threat to the safety of the public. We do not accept that the Boards
    finding was speculative: as stated in its reasons, the Board unanimously found
    that the appellant 
continues
to pose a significant threat to the safety
    of the public (emphasis added).  We also disagree with the appellants
    submissions that the Board allowed certain factors, such as his psychiatric diagnoses,
    lack of insight into his illness or chronic substance abuse, to overwhelm its analysis. 
    The Boards reasons demonstrate that it considered all the relevant factors and
    conducted an even-handed review of the evidence.  As such, the present case is
    distinguishable from
Sim

(Re
)
, 2019 ONCA 719 and
Sheikh
    (Re
)
on which the appellant relies, where the Board erred in its
    analysis.

[10]

As required under s. 672.54 of the
Criminal
    Code
, the Board conducted a broad inquiry, including the constellation of factors
    reviewed by the Supreme Court in
Winko v. British Columbia (Forensic
    Psychiatric Institute
)
,

[1999] 2 S.C.R. 625
, at para. 61:

the circumstances of the original offence, the
    past and expected course of the NCR accuseds treatment if any, the present
    state of the NCR accuseds medical condition, the NCR accuseds own plans for
    the future, the support services existing for the NCR accused in the community and,
    perhaps most importantly, the recommendations provided by experts who have
    examined the NCR accused.

[11]

In determining that the appellant continues to
    pose a significant threat to the safety of the public, the Board referenced the
    absence of any violent behaviour over the last 15 years and did not simply focus
    on the appellants mental illnesses, lack of insight or substance abuse as
    determinative of this inquiry.  In particular, the Board examined the
    appellants long history of mental health and substance abuse issues, his criminal
    record, including the index offences, the  2002 convictions involving threats against
    his family, as well as the other convictions for assaultive offences against
    former partners dating back to 1999, his resistance to treatment, including
    medications,  his lack of insight into the index offences, his present condition
    and his need for treatment.  The Board accepted the unequivocal opinion of the
    appellants treating psychiatrist, Dr. R. Ulrich, that the appellant continues
    to pose a significant threat to public safety based on these factors.

[12]

We agree that the absence of violent behaviour
    on the appellants part is important and commendable.  As evident from the
    references to it in its reasons, the Board took this significant factor into account
    in its consideration of all factors relevant to its assessment of significant
    risk.  However, the absence of violent behaviour by the appellant does not
    serve by itself to eliminate the risk of significant harm to the public.

[13]

First, s. 672.5401 of the
Criminal Code
provides that a significant threat to the safety of the public means a risk of
    serious physical or psychological harm to members of the public  resulting
    from conduct that is criminal in nature but not necessarily violent.

[14]

Second, the appellants abstention from criminal
    or violent acts is not singularly determinative of whether he poses a significant
    threat to the safety of the public.  As the Supreme Court observed in
R. v.
    Owen
, 2003 SCC 33, [2003] 1 S.C.R. 779,

at para. 65: 
Part XX.1 of the
Criminal Code
is designed to take measures to protect the public
    safety
before
violence
    occurs, not (as in the ordinary case) to punish the offender afterwards.

[15]

Evidence of the potential for physical or
    psychological violence, such as a lack of insight into the index offences and
    mental illness, and concerns over discontinuing medication and substance abuse,
    which could result in decompensation and psychosis, like in the present case,
    may support a finding of significant risk to the public: see e.g.,
Abdikarim
    (Re
)
, 2017 ONCA 793, at paras. 6-7, 16;
Beam (Re
)
,
    2018 ONCA 532, at paras. 5-9; and
Mott (Re
)
, 2019 ONCA 560, at
    para. 10.

[16]

As a result, we find no error in the Boards conclusion
    that the appellant continues to pose a significant threat to the safety of the public.

[17]

The appellant submits that the Board erred in
    determining that a detention order was the least onerous and least restrictive
    disposition by unduly focussing on CAMHs requirement that it approve his residence. 
    In particular, it failed to consider this requirement together with the unchallenged
    evidentiary record as to how the appellant has fared when he has lived in the
    community over the last 15 years abstention from violence and the inappropriateness
    of CAMHs choice of residence for the appellant when he spent five years housed
    with other substance users.

[18]

We do not accept these submissions.

[19]

As reflected in its November 10, 2018 report, CAMHs
    initial position was that the appellant should be conditionally discharged with
    a specified address.  In its December 4, 2018 addendum, CAMH explained that it
    changed that position to a recommendation of a detention order with community
    living privileges in approved accommodations because of material changes in the
    appellants circumstances since its November 10
th
report. Most
    importantly, the appellant had agreed to vacate his approved residence without
    securing an alternative residence, suffered significant further relapse into
    drug abuse, could not control or manage his cocaine addiction on his own, and showed
    some resistance to accepting treatment.

[20]

The appellants residence is a relevant
    consideration in determining how the significant risk he poses to the safety of
    the public can be properly managed in the community:
Munezero (Re
)
,
    2017 ONCA 585, at para. 9.  The appellant did not consent to the approval of
    his residence and, without a detention order, CAMH had no control over the
    appellants choice of residence.  In our view, the uncertainty of the appellants
    living arrangements, combined with his further spiral into uncontrolled substance
    abuse, supported the reasonableness of the Boards determination that a
    detention order with community living privileges was the least onerous and least
    restrictive, and the most appropriate disposition.

[21]

As a result, we find no error in the Boards disposition. 
    The Boards decision was supported by reasons that can bear even a somewhat
    probing examination and was within the range of reasonable, possible outcomes:
Owen,
at para. 33;
Carrick
(
Re
)
, 2015 ONCA
    866, 128 O.R. (3d) 209, at paras. 20-26.  As a result, there is no basis for
    appellate intervention.

[22]

Accordingly, we dismiss the appeal.

[23]

In closing, we are advised that the appellant
    has secured a new residence and appears to have regained stability. That, coupled
    with the appellants abstention from re-offending and violence while he has lived,
    studied and worked in the community, are commendable and bode well for his imminent
    annual hearing before the Board.

R.G. Juriansz J.A.

S.E. Pepall J.A.

L.B. Roberts J.A.


