



COURT OF APPEAL FOR ONTARIO

CITATION: Cousineau (Re), 2021 ONCA 760

DATE: 20211027

DOCKET: C68885

Paciocco, Nordheimer and Thorburn JJ.A.

IN THE MATTER OF: Tyler Cousineau

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti and Maya Kotob, for the appellant

Dena Bonnet, for the respondent, Attorney General of
    Ontario

James Thomson and Julia Lefebvre, for the respondent,
    Person in Charge of Waypoint Centre for Mental Health Care

Heard: October 15, 2021 by video conference

On appeal from the disposition of the Ontario Review
    Board dated November 10, 2020, with reasons dated November 27, 2020.

Paciocco J.A.:


OVERVIEW

[1]

Tyler Cousineau, who suffers from schizophrenia, has a disturbing
    history of violence linked to his mental illness. He has twice been found not criminally
    responsible by reasons of mental disorder (NCRMD) relating to violent
    offences, most recently on October 15, 2018, with respect to two counts of
    second-degree murder.

[2]

After this most recent NCRMD finding the trial judge accepted the
    Crowns uncontested application made pursuant to s. 657.64(1) and declared Mr.
    Cousineau to be a high-risk accused. This designation limits the dispositions
    the Ontario Review Board (Board) can make, effectively requiring Mr.
    Cousineaus detention in a hospital with only highly restrictive supervised community
    access. Once a high-risk accused designation is made, it can be removed only by
    a superior court judge on an application from the Board.

[3]

Based on his progress, Mr. Cousineau contends that he is no longer a high-risk
    accused. To promote an application to the Superior Court to remove his
    designation Mr. Cousineau asked the Board to order an assessment to determine
    whether he qualifies as a high-risk accused. On November 10, 2020, the Board declined
    to order the requested assessment. Mr. Cousineau claims that it erred in doing
    so. For reasons that follow, I disagree.

MATERIAL FACTS

[4]

On April 8, 2011, Mr. Cousineau attempted to force his way into a church,
    assaulted a custodian and threatened him with a knife while under the delusion
    that there were two little girls inside the church.

[5]

On May 3, 2011 he broke into a home looking for a female named Melissa.
    After the occupant denied that Melissa was there, Mr. Cousineau threatened to
    kill her with an axe he had in his truck. Mr. Cousineau was arrested immediately
    after this incident and was found to be in possession of a hatchet and a knife.

[6]

On July 11, 2011 Mr. Cousineau was found NCRMD relating to both the
    April 8, 2011 and May 3, 2011 events. Initially, a detention order was made,
    and then Mr. Cousineau earned a conditional discharge. On April 21, 2015, Mr.
    Cousineau was absolutely discharged from the Boards jurisdiction. Although he
    was refusing at the time to meet face to face with his psychiatrist and was
    unmedicated, Mr. Cousineau had been displaying insight into his mental illness.
    He had continued to hear voices but denied he was experiencing command
    hallucinations. By majority the Board determined that Mr. Cousineau could not
    be shown to pose a significant threat of serious harm to the community hence
    the absolute discharge.

[7]

Following his absolute discharge, Mr. Cousineau did nothing to address
    his illness, even as his condition degraded and he was becoming acutely delusional.
    He attempted to treat his chronic insomnia with cannabis and was socially
    distant. His decline was dramatic and tragic. On March 7, 2017, in the throes
    of psychotic persecutorial delusions, Mr. Cousineau brutally stabbed to death two
    elderly neighbours who had befriended him. This event led to the second NCRMD
    finding, a detention order, and the s. 672.64(1) high-risk accused designation that
    is the subject of this appeal.

[8]

Section 672.64(1) authorizes the high-risk accused designation, and s.
    672.64(2) establishes the criteria to be considered. These sections provide:

672.64

(1)
On
    application made by the prosecutor before any disposition to discharge an
    accused absolutely, the court may, at the conclusion of a hearing, find the
    accused to be a high-risk accused if the accused has been found not criminally
    responsible on account of mental disorder for a serious personal injury
    offence, as defined in subsection 672.81(1.3), the accused was 18 years of age
    or more at the time of the commission of the offence and

(a)
the court is
    satisfied that there is a substantial likelihood that the accused will use
    violence that could endanger the life or safety of another person; or

(b)
the court is of
    the opinion that the acts that constitute the offence were of such a brutal
    nature as to indicate a risk of grave physical or psychological harm to another
    person.

(2)
In
    deciding whether to find that the accused is a high-risk accused, the court
    shall consider all relevant evidence, including

(a)
the
    nature and circumstances of the offence;

(b)
any
    pattern of repetitive behaviour of which the offence forms a part;

(c)
the
    accuseds current mental condition;

(d)
the
    past and expected course of the accuseds treatment, including the accuseds
    willingness to follow treatment; and

(e)
the
    opinions of experts who have examined the accused.

[9]

The trial judge found both alternative bases for the high-risk accused
    designation set out in s. 672.64(1) to be satisfied. Specifically, he concluded
    that Mr. Cousineau is substantially likely to use violence that could endanger
    the life or safety of another person in the future. This finding was based primarily
    on Mr. Cousineaus history of dealing with his mental illness, the double
    homicide he committed just two short years after his release from the
    previous NCRMD finding, as well as the opinion of Dr. Eayrs, one of his
    attending psychiatrists. Dr. Eayrs opined, that if Mr. Cousineau stopped taking
    his medication, he would likely become psychotic again, raising a very high
    risk of future violent behaviour. The trial judge also found that the homicides
    were of such a brutal nature to indicate a risk of grave physical harm to
    another person.

[10]

It
    is not disputed that Mr. Cousineau has done well since the NCRMD finding
    relating to the double homicide. He appears stable while being treated, his
    psychotic symptoms have resolved, he has not engaged in threatening or
    aggressive behaviour, his urine screens have been negative, he has demonstrated
    some insight into his illness and the need for ongoing psychotic treatment, and
    he is now capable of making treatment decisions. Mr. Cousineau has also continued
    to maintain a high level of privilege within the high security unit at Waypoint
    Centre for Mental Health Care. He accepts that he remains a significant threat
    to public safety. However, given his progress Mr. Cousineau does not believe he
    qualifies as a high-risk accused.

[11]

Only
    a superior court can review a high-risk accused designation, and it is the
    Board, pursuant to s. 672.84(1), that refers the matter for review. Section
    672.84(3) authorizes courts to revoke the designation. These sections provide:

672.84

(1)
If
    a Review Board holds a hearing under section 672.81 or 672.82 in respect of a
    high-risk accused, it shall, on the basis of any relevant information,
    including disposition information as defined in subsection 672.51(1) and an
    assessment report made under an assessment ordered under paragraph 672.121(c),
    if it is satisfied that there is not a substantial likelihood that the
    accused   whether found to be a high-risk accused under paragraph
    672.64(1)(a) or (b)    will use violence that could endanger the
    life or safety of another person, refer the finding for review to the superior
    court of criminal jurisdiction.



(3)
If the Review Board refers the
    finding to the superior court of criminal jurisdiction for review, the court
    shall, at the conclusion of a hearing, revoke the finding if the court is
    satisfied that there is not a substantial likelihood that the accused will use
    violence that could endanger the life or safety of another person, in which
    case the court or the Review Board shall make a disposition under any of
    paragraphs 672.54(a) to (c).

[12]

In
    February 2020, in an effort to encourage the Board to bring a s. 672.84(1) request
    for a review, Mr. Cousineau brought an application before the Board asking it
    to order a psychiatric assessment, pursuant to s. 672.121(c), to determine
    whether he qualifies as a high-risk accused. Section 672.121(c) provides:

672.121
The Review Board that has jurisdiction over an accused found not
    criminally responsible on account of mental disorder or unfit to stand trial
    may order an assessment of the mental condition of the accused of its own
    motion or on application of the prosecutor or the accused, if it has reasonable
    grounds to believe that such evidence is necessary to



(c)
determine
    whether to refer to the court for review under subsection 672.84(1) a finding
    that an accused is a high-risk accused.

[13]

The
    Crown opposed Mr. Cousineaus request for an assessment. It argued that there
    has been no change in Mr. Cousineaus mental status since the high-risk accused
    designation was made, and that the medical reports, assessments and hospital
    reports that exist are sufficient to show that he remains a high-risk accused, making
    a s. 672.121(c) assessment unnecessary.

[14]

The
    Board dismissed Mr. Cousineaus request for an assessment. Although the Boards
    analysis was more cryptic than it should have been, the reasons are clear when
    read as a whole. The Board concluded that it was not reasonable to believe that
    the requested assessment is necessary because: (1) whether or not he remains a
    high-risk accused, there is no prospect in the near future that Mr. Cousineau
    will be considered for community living or indirectly supervised community
    privileges; and (2) even with an assessment that opines there is no
    substantial likelihood that he will act violently, thereby endangering the life
    or safety of another person a Board would not have grounds pursuant to s.
    672.84(1) to refer Mr. Cousineau to the Superior Court to review his high-risk
    designation given the substantial evidence to the contrary.

THE ISSUES

[15]

Mr.
    Cousineau argues that the Board committed legal errors and arrived at an
    unreasonable determination in denying his assessment. Specifically, he argues
    that:

A.

The Board misapplied
    the test by failing to apply the reasonable grounds standard.

B.

The Board misapplied
    the test for an assessment by conflating the significant threat test used in
    determining an appropriate disposition, with the substantial likelihood test that
    s. 672.84(1) requires.

C.

The Board decision was
    unreasonable.

[16]

During
    the oral hearing, counsel for Mr. Cousineau (appeal counsel) did not push the
    first ground of appeal, but this ground of appeal was not formally abandoned. I
    will therefore address it in these reasons.

[17]

During
    the oral hearing, appeal counsel also asked us for broader guidance on the high-risk
    accused provisions, which have not previously received treatment by appellate
    courts. Specifically, she raised three issues, the first two of which she
    recognized to be collateral.

[18]

First,
    appeal counsel noted that once a high-risk accused designation has been made,
    s. 672.64(3) does not permit unescorted absence from the hospital, but there
    is uncertainty as to whether hospital includes hospital grounds. She urged us
    to take the opportunity to endorse the view taken by the Ontario Review Board
    in
Grant (Re
)
, [2020] ORBD No. 2518, that a high-risk accused
    designation does not prevent unescorted absence on hospital grounds. The Crown submits
    that this court should not make a general ruling on the meaning of hospital, pointing
    out that some hospitals have secure grounds and others do not. It referenced
    the decision in
Penetanguishene Mental Health Centre v. Ontario (Attorney
    General)
, 2004 SCC 20, [2004] 1 S.C.R. 498, where the court recognized
    that a person subject to a disposition made pursuant to s. 672.54 requiring
    custody in a hospital may or may not receive grounds privileges.

[19]

I
    would decline to resolve this issue because, although it has broader practical
    implications, it is not raised in this appeal. I will say, however, that even
    if hospital is broad enough to include hospital grounds, the court or Board making
    a disposition is not compelled to include unescorted grounds privileges in the
    disposition it makes. The limits imposed on available dispositions for
    high-risk accused pursuant to s. 672.64(3) set out the maximum community
    privileges that can be provided, not the minimum. If public safety is
    jeopardized by grounds privileges because grounds are not secure at the
    facility, confinement to the physical hospital buildings could be ordered
    pursuant to s. 672.54(c). The point, of course, is that hospital in s. 672.64(3)
    could be read to include hospital grounds, without jeopardizing public safety.

[20]

The
    second collateral issue appeal counsel raised was whether, by its terms, s.
    672.64(c) only permits supervised community visits for medical or therapeutic
    purposes, as opposed to, for example, legal or compassionate purposes. Once
    again, I would decline to rule on this issue because it is not before us.

[21]

Third,
    appeal counsel asked us to clarify the substantial likelihood standard that
    requires a Board to refer a high-risk accused designation to a court for review
    pursuant to s. 672.84(1). The uncertainty she raises does not relate to the
    level of risk or the nature of the apprehended harm that s. 672.84(1)
    contemplates. These matters have been carefully and thoroughly canvassed in
R.
    v. Schoenborn,
2017 BCSC 1556, 354 C.C.C. (3d) 393. The issue she asks us
    to clarify relates to the context within which substantial likelihood is to
    be evaluated. Mr. Cousineau argues that different outcomes could be produced by
    asking whether there is a reasonable likelihood that the accused will use
    violence: (1) now, in the present circumstances; as opposed to (2) if
    discharged from Board supervision; as opposed to (3) if the high-risk accused
    designation is removed. Mr. Cousineau favours the last option.

[22]

This
    question must be addressed to resolve this appeal. As will be made evident
    below, the application of the substantial likelihood standard is critical in
    determining whether the Board acted reasonably in refusing to order an
    assessment. This interpretative issue will therefore be considered when
    addressing the third ground of appeal, relating to whether the Board decision
    to deny an assessment was reasonable.

[23]

One
    final contextual point relating to the issues before us. Mr. Cousineau urges
    that when determining these issues, it is important to keep in mind that the
    Boards inquisitorial responsibility to seek out evidence is heightened given
    the gatekeeping function the Board plays in determining whether a high-risk
    accused designation will be reviewed. I will address below Mr. Cousineaus
    submission that the Board was required, given its inquisitorial function, to
    seek out an assessment, and I will comment on the Boards conception that the
    onus was on Mr. Cousineau to establish the need for an assessment.

ANALYSIS

A.

dID THE bOARD fAIL TO aPPLY THE rEASONABLE gROUNDS sTANDARD?

[24]

Mr.
    Cousineau argues that the Board failed to apply the reasonable grounds
    standard set out in s. 672.121(c). I disagree.

[25]

Mr.
    Cousineaus primary, if not only, submission in this regard is that the Board
    deviated from this standard by considering whether the high-risk accused
    designation prejudiced Mr. Cousineaus ability to engage in available
    therapies or to be considered for community placement. Mr. Cousineau argues
    that this was in error, as [t]he only relevant question is whether the Board
    can be satisfied that there is not a substantial likelihood that Mr. Cousineau
    will use violence that could endanger the life or safety of another person.

[26]

With
    respect, Mr. Cousineau appears to have misconceived the relevant inquiry. The reasonable
    grounds test in s. 672.121(c) does not relate directly to whether the accused
    will use violence that could endanger another. It focuses instead on whether
    the Board has 
reasonable grounds to believe that [an assessment] is
    necessary to

determine whether to refer to the court for review
under subsection 672.84(1) a finding that an accused is a high-risk accused
    (emphasis added).

[27]

The
    Board clearly understood this. It referred repeatedly to the reasonable
    grounds standard, focused its analysis on the need for an assessment to
    determine whether it should request a review of Mr. Cousineaus high-risk
    accused designation, and concluded that It is not reasonable in such
    circumstances to believe that the assessment is necessary.

[28]

Specifically,
    the Board concluded that even if the requested assessment opines there is no
    substantial likelihood that [Mr. Cousineau] will act violently, thereby
    endangering the life or safety of another person. there is also substantial
    evidence to the contrary that the Board hearing [a s. 672.84(1) application]
    would also have to weigh. It is not reasonable in such circumstances to
    believe that the assessment is necessary.

[29]

At
    first blush, this language appears more dismissive than it is. It is evident,
    in my view, that the point the Board was attempting to make was that, given the
    evidence to the contrary, even an assessment that favoured Mr. Cousineau could
    not reasonably alter its conclusion that there is a substantial likelihood that
    he will use violence that could endanger the life or safety of another person. Since
    an assessment could make no difference in deciding whether to request a review,
    there are no reasonable grounds for finding that an assessment is necessary
    to determine whether to refer the designation to a court for review. Leaving
    aside for the moment the reasonableness of the Boards conclusion that an
    assessment could not affect the outcome, this analysis is appropriate and responsive
    to the relevant inquiry, namely, whether there were reasonable grounds to believe
    that [an assessment] is necessary to determine whether to refer to the court
    for review under subsection 672.84(1).

[30]

Nor
    do I accept Mr. Cousineaus submission that the Board departed from this
    standard when it reasoned:

Absent evidence, that for example, Mr. Cousineaus engagement
    in certain therapy, or consideration of community placement is hindered by the
    high-risk accused designation, there is no need to refer the matter back to
    Court and the designation carries forward.

[31]

When
    reading this passage, it is important to bear in mind that s. 672.121(c) gives
    Boards discretion whether to order assessments. The relevant part of the
    provision bears repeating:

The Review Board
may
order an assessment of the mental
    condition of the accused on application of the accused, if it has reasonable
    grounds to believe that such evidence is necessary to determine whether to
    refer to the court for review under subsection 672.84(1) a finding that an
    accused is a high-risk accused. [Emphasis added.]

[32]

In
    exercising the discretion that s. 672.121(c) confers it is certainly
    appropriate for the Board to consider what purpose a review of the high-risk
    accused designation would serve. If there is no point in requesting a review,
    there is no point in exercising discretion to order an assessment to help
    determine whether to request a review.

[33]

In
    my view, this is what the Board was addressing. Had the restrictions associated
    with a high-risk accused designation been compromising appropriate therapy for Mr.
    Cousineau, or if they had been impeding consideration of his community
    placement, assuming the reasonable grounds test could be met, it would have been
    important to get a review so that appropriate therapy and community placement
    orders could be implemented. But as the high-risk accused designation was not impeding
    Mr. Cousineaus appropriate therapy, or compromising consideration of his
    community placement, requesting a review would serve no purpose, thereby making
    the assessment pointless for the Board.

[34]

Therefore,
    I am not persuaded that the Board misapplied the reasonable grounds test when
    considering the impact of the high-risk accused designation on Mr. Cousineau.
    Nor am I convinced that the Board was labouring under the misconception that there
    must be a finding of prejudice before a review can be requested. The Board was simply
    exercising its discretion not to order an assessment it considered to be
    pointless.

B.

DID the Board fail to apply the Substantial Likelihood standard?

[35]

In
    arriving at its conclusion that it would find that there was a substantial
    likelihood that Mr. Cousineau will use violence that could endanger the life
    or safety of another person, even in the face of an assessment to the
    contrary, the Board relied on assessments that were undertaken to determine
    whether Mr. Cousineau presented a significant threat. Mr. Cousineau argues
    that by doing so the Board erroneously relied on the significant threat test,
    instead of the higher and more demanding substantial likelihood test that it
    was required to use.

[36]

I
    disagree. First, as the Crown points out, the provision that authorizes a Board
    request for a review, s. 672.84(1), reproduced above in para. 11, specifically
    directs the Board to consider any relevant information, including disposition
    information as defined in subsection 672.51(1). Section 672.51(1) defines
    disposition information as including an assessment report submitted to the
    court or Review Board. A Board cannot be found to have misapplied the test set
    out in a provision by adhering to the direction found in that very provision relating
    to the information to be consulted.

[37]

There
    is no doubt that assessment reports are to be relied upon, pursuant to s.
    672.84(1), because they provide relevant evidence. Although the assessment
    reports relied upon in this case were focused on whether Mr. Cousineau posed a
    significant threat, those assessment reports contained detail about Mr.
    Cousineaus level of threat that was highly relevant in determining whether he
    continued to meet the substantial likelihood test. Had the Board relied only
    on the bottom-line conclusions expressed in these assessment reports, Mr.
    Cousineau would have a point. But that is not what happened. The Board
    considered the assessment reports as a whole, along with other evidence that is
    recounted below. I am not satisfied that the Board conflated the relevant
    standards.

[38]

Nor
    was it improper for the Board to read Dr. Danyluks assessment as implicit
    opinion evidence that Mr. Cousineau remained a high-risk accused. Dr. Danyluks
    assessment concluded that absent strict supervision and given his poor
    motivation, Future problems with Mr. Cousineaus treatment or response to
    supervision can be anticipated. She expressed the opinion that those problems
    will lead to psychotic decompensation and the increased likelihood of serious
    physical harm to others, a risk she described as high. Although Dr. Danyluk
    did not express those conclusions using substantial likelihood language, by
    implication her opinion supports a finding that there is a substantial
    likelihood that Mr. Cousineau would cause serious harm by violence to others.

C.

Was the Boards Determination Unreasonable?

[39]

Mr.
    Cousineau argues that the Boards decision to deny his application for an
    assessment was unreasonable. In support of that contention he submits that it
    was unreasonable for the Board to deny his request for a psychiatric assessment
    after Dr. Danyluk refused to express an opinion on whether Mr. Cousineau
    qualified as a high-risk accused. He also argued more broadly that it was
    unreasonable for the Board to deny his request for an assessment without an
    expert opinion on whether he qualified as a high-risk accused. I will begin by
    addressing these specific arguments before considering the larger question of
    whether the Boards denial of an assessment was unreasonable, given the
    evidence that was available to the Board.

[40]

I
    do not accept it was unreasonable for the Board to deny Mr. Cousineaus request
    for an assessment after Dr. Danyluk, Mr. Cousineaus attending psychiatrist,
    declined to offer an opinion about whether Mr. Cousineau qualified as a
    high-risk accused. The absence of an opinion from Dr. Danyluk is not
    affirmative evidence that Mr. Cousineau does not qualify as a high-risk accused.
    Indeed, Dr. Danyluk explained that she could not offer an opinion because she
    had not been given prior notice that her opinion on this issue would be sought
    and had not had time to consider it.

[41]

Nor
    do I accept Mr. Cousineaus broader submission that it was unreasonable for the
    Board to decide not to request a review without an expert assessment. During
    oral argument, Mr. Cousineau made clear that he is not arguing that a Board
    cannot reasonably assess a high-risk accused designation without direct expert
    evidence as to whether the accused qualifies as a high-risk accused. He is
    arguing instead that it was unreasonable given the evidence in this case for
    the Board to refuse to request a review without direct expert evidence as to
    whether Mr. Cousineau qualifies as a high-risk accused.

[42]

To
    determine whether this is so, it is necessary to address the issue described
    above and to identify the appropriate context of a substantial likelihood
    inquiry pursuant to s. 672.84(1). Is the Board required to inquire into the
    substantial likelihood that the accused will use violence that could endanger
    the life or safety of another person: (1) now, in the present circumstances;
    as opposed to (2) if discharged from Board supervision; as opposed to (3) if
    the high-risk accused designation is removed?

[43]

Clearly,
    the first option  asking whether the accused poses a substantial likelihood of
    violence now, in the present circumstances  is not realistic. The circumstances
    that apply now include the high-risk accused designation coupled with the mandatory
    constraints on liberty imposed to secure public safety. The designation and those
    mandatory constraints are put in place for the very purpose of removing the
    substantial likelihood that the accused will use violence that could endanger
    others. Interpreting s. 672.84(1) according to this first option would therefore
    effectively require the Board to request a review of the designation in every
    case where there are reasonable grounds to believe that the designation is achieving
    its purpose.

[44]

Mr.
    Cousineau argues that the latter inquiry is the appropriate one. He argues that
    if there are reasonable grounds to believe that there would not be a
    substantial likelihood that he would use violence endangering others if his
    high-risk accused designation was removed and he was subjected to a less
    restrictive disposition than the high-risk accused designation requires, then
    the Board is obliged to request a review of his high-risk accused designation.
    He argues that the Board decision in
Grant (Re)
supports his position.
    In that case the Board requested a review of Mr. Grants high-risk accused
    designation because there was not a substantial likelihood that he would
    violently endanger others when under the jurisdiction of the board: at para.
    20.

[45]

I
    do not agree that the substantial likelihood inquiry is to be undertaken on
    the assumption that the restrictions of a disposition order are in place. Instead,
    the inquiry must be into whether, based on the inherent or endemic risk of
    violence the accused currently poses, there continues to be a substantial likelihood
    that the accused will use violence that could endanger the life or safety of
    another. Put in the terms expressed by Mr. Cousineau, the requisite inquiry is
    to evaluate whether there would be a substantial likelihood that the accused
    would use violence that could endanger the lives or safety of others, if
    discharged from Board supervision.

[46]

The
    starting point in arriving at this conclusion is to recognize that a s. 672.84(1)
    request for review involves a preliminary evaluation by the Board of the
    substantial likelihood that the accused will use violence that could endanger
    others. Significantly, this preliminary evaluation is undertaken for the
    purpose of determining whether a court should be asked to review its evaluation
    of the substantial likelihood that the accused will use violence that could
    endanger others. In effect, the Boards review performs a screening function. It
    would not make sense if the criteria the Board was to consider during its preliminary
    screening review differed from the criteria that a court would ultimately apply
    while conducting a requested review. And quite clearly, a court that is
    conducting a review is not to do so on the assumption that a disposition order
    will be in place. Instead, the court is to assess the intrinsic or endemic risk
    the accused would present if not subject to the restrictions under a
    disposition order. I say this for three reasons.

[47]

First,
    s. 672.84 provides a mechanism for courts to conduct the review of a designation
    that was made pursuant to s. 672.64. A review, by its nature, necessarily
    inquires into whether the original designation remains appropriate. Naturally, that
    review should be undertaken using the same criteria that were used to make
    the designation that is being reviewed.
[1]
The criteria that are applied when an initial designation is made focus exclusively
    on the inherent or endemic risk posed by the accused as an individual, not on the
    risk the accused would present if subject to constraints on their liberty. This
    is evident from the fact that the focus of the inquiry is expressed to be into
    the risk the accused poses. Moreover, although the list of relevant factors
    provided for in s. 672.64(2) is not exhaustive, each of those factors are
    relevant only to the intrinsic or endemic risk the accused presents.
    Specifically, they focus on the accuseds past behaviour and mental health, including
    the nature and circumstances of the [index] offence the accused committed; any
    pattern of repetitive behaviour [by the accused] of which the offence forms
    part; the accuseds current medical condition; the past and expected course
    of the accuseds treatment, including the accuseds willingness to follow
    treatment and the opinions of experts who have examined the accused. None of
    these factors engage the risk the accused would pose if subject to constraints.

[48]

Second,
    to require a court to consider the ameliorating effects of a disposition order
    in evaluating the risk the accused presents is not in keeping with the
    step-by-step approach set out in s. 672.84(3). That provision contemplates that
    a court will first determine whether to set aside the high-risk accused
    designation, and only then will the appropriate disposition be determined. If a
    court was required to consider the ameliorating effects of a disposition order
    before that disposition order is even identified, the best the court could do would
    be to speculate as to what the disposition order could look like. If that
    speculation proves wrong, a disconnect would be created. A court could revoke a
    high-risk accused designation on an assumption that never materializes. There
    is no sense in such a regime.

[49]

Third,
    a high-risk accused designation under s. 672.64 is part of the scheme for identifying
    the available dispositions. Its role is to determine where on the ladder of
    available dispositions the accuseds case should stand. Specifically, if the
    accused is found not to present a significant threat to the safety of the
    public the accused is to be absolutely discharged pursuant to s. 672.54(a). If
    the accused poses a significant threat to the safety of the public, the
    accused is to be subject to any disposition available pursuant to s. 672.54(b)
    and (c), including a conditional discharge or a detention order with conditions.
    If the accused is not simply a significant threat to the safety of the public
    but also qualifies as a high-risk accused and is designated a high-risk accused
    by a court pursuant to s. 672.64(1), the accused will be restricted to the
    disposition restrictions identified in s. 672.64(3). It is sensible and
    important that each of these inquiries take place employing the same focus, and
    it is not controversial that the other steps in the disposition eligibility
    ladder involve an examination of the inherent or endemic risk of violence the
    accused presents.

[50]

I
    am therefore persuaded that a Board conducting a s. 672.84(1) review, is to
    examine the risk posed by the accused on the assumption that the accused is not
    subject to external constraints imposed to reduce that risk. Put otherwise, the
    Boards assessment is to be undertaken relating to the risk the accused would
    pose if not under the Boards jurisdiction.

[51]

The
    question remains, given that this is the proper focus, was it reasonable for
    the Board to deny Mr. Cousineaus request for an assessment on the footing that,
    even if an assessment was undertaken and proved to be favourable to Mr.
    Cousineau, that assessment could not, on the evidence as a whole, cause the
    Board to be satisfied that there is not a substantial likelihood that Mr.
    Cousineau will use violence that could endanger the life or safety of another
    person? In my view it was. The existing evidence in support of this finding was
    formidable.

[52]

Specifically,
    the evidence before the Board was that Mr. Cousineau had used violence on three
    occasions in the recent past that endangered the life and safety of another
    person. That last occasion, which happened within two years of Mr. Cousineau
    showing the kind of progress he was showing at the time of Mr. Cousineaus application
    for an assessment, resulted in a brutal double homicide linked to persecutory
    delusions. The Board was entitled to consider that the improvement in Mr.
    Cousineaus mental state and insight that had occurred after the
    double-homicide was achieved within a highly structured environment in which
    his medication was being monitored. The Board was also entitled to consider
    that Mr. Cousineau is a poorly motivated patient and an unreliable reporter. The
    expert opinions that were before the Board included cautions that risk
    management in a highly structured living environment with significant everyday
    living support, supervision and assistance with the monitoring of medication
    compliance is crucial in managing Mr. Cousineaus risk of future violence. As
    well, the Board was entitled to accept the Crowns position that Mr.
    Cousineaus mental state had not changed materially since the high-risk
    accused designation. Finally, there was evidence before the Board that even
    with Mr. Cousineaus progress there were continuing warning signs.
    Specifically, Mr. Cousineau had stopped receiving injections of his anti-psychotic
    medication and reduced the dose he received because he did not like the side
    effects of the medication. He also remained withdrawn, not initiating
    communication with staff and he has declined to participate in groups. As well,
    he spends his leisure time sleeping rather than engaging, which is concerning.

[53]

The
    Boards decision is entitled to deference. It was reasonable for the Board to
    conclude that it would not be satisfied that Mr. Cousineau does not continue to
    pose a substantial risk of future violence that could endanger the life or
    safety of another, solely by a medical assessment, in the face of this evidence.

[54]

I
    will make two final points about the reasonableness of the Boards decision in
    order to provide future guidance. First, a decision is more likely to be
    challenged as unreasonable if it is not fully explained, thereby requiring
    interpretation. Unfortunately, it was necessary to interpret this decision to
    identify the Boards reasoning and to verify its reasonableness. It is helpful,
    and appreciated, when Board members fully and clearly explain each material
    component of their reasoning.

[55]

Second,
    given the Boards conclusion in this case that its position could not have been
    changed even by an assessment that favoured the accused, there was a heightened
    risk that its decision would appear to be unreasonably dismissive. In my view
    that risk could have been reduced had the Board made greater effort to explain
    its decision to Mr. Cousineau, fully and with sensitivity.

OBSERVATIONS ON THE BOARDS INQUISITORIAL OBLIGATIONS

[56]

Two
    additional observations are warranted respecting the Boards inquisitorial
    obligations.

[57]

First,
    the Board was wrong to evaluate Mr. Cousineaus application on the assumption
    that the onus was on him to establish the basis for a s. 672.121(c) assessment.
    Proceedings before the Board are not adversarial but are inquisitorial. This is
    because of the vulnerability of mentally disordered accused persons, and the
    fact that the accused is at risk of liberty constraining decisions even though
    the accused has been found not responsible for the crimes they have
    committed. The Boards inquisitorial responsibility does not disappear when the
    Board is evaluating an application brought by an accused person relating to the
    ultimate disposition that will be imposed. The Board therefore erred in
    considering whether Mr. Cousineau had met his onus. The Board should simply
    have asked whether, on the balance of probabilities based on the evidence
    before it, the need for an assessment had been established.

[58]

Having
    said this, given the Boards reasons for decision, Mr. Cousineau was not
    prejudiced by the Boards misconception of how it should be proceeding. The
    Boards decision resulted in a hard no on the question of whether an
    assessment was necessary. That outcome did not turn on who bore the risk of
    loss in the event of an inability to decide. I would not interfere with the
    Board decision based on this error.

[59]

Second,
    I do not accept that the proper discharge of the Boards inquisitorial
    obligation required the Board to order the assessment. The Boards
    inquisitorial obligation relates to the proper discharge of its obligations. As
    understandable as it may be that Mr. Cousineau wants to get an assessment to
    help shed what he believes to be an obsolete and stigmatizing designation,
    having reasonably concluded that the assessment is not required to discharge
    its function, the Board was not obliged by its inquisitorial obligation to nonetheless
    order an assessment.

CONCLUSION

[60]

I
    would dismiss the appeal.

Released: October 27, 2021 D.M.P.

David M. Paciocco
    J.A.

I agree. I.V.B.
    Nordheimer J.A.

I agree. Thorburn
    J.A.





[1]
It should be noted, however, that s. 672.84(3) does restrict the power to
    revoke a high-risk accused designation to cases where the court is satisfied
    that there is not a substantial likelihood that the accused will use violence
    that could endanger the life or safety of another person. Therefore a court
    conducting a review of a high-risk designation cannot maintain that designation
    on the alternative ground that was available pursuant to s. 672.64(b) during
    the initial high-risk accused designation, namely, that the court is of the
    opinion that the acts that constitute the offence were of such a brutal nature
    as to indicate a risk of grave physical or psychological harm.


