



COURT OF APPEAL FOR ONTARIO

CITATION: Santia (Re), 2021 ONCA 617

DATE: 20210915

DOCKET: C69107

Paciocco, Nordheimer and Coroza JJ.A.

IN THE MATTER OF:  Daren Santia

AN APPEAL UNDER PART XX.1 OF THE
CODE

Sarah Weinberger, for the appellant

Sunil Mathai, for the respondent, Attorney
    General of Ontario

Julia Lefebvre, for the respondent,
    North Bay Regional Health Centre

Heard: August 31, 2021 by
    videoconference

On appeal from the disposition of the
    Ontario Review Board, dated October 7, 2020, with reasons dated November 6,
    2020.

REASONS FOR DECISION

[1]

Mr. Santia appeals from the disposition of the Ontario
    Review Board that continued the detention order against him. The appellant
    submits that the Board erred in continuing the detention order. In particular,
    he submits that the Board erred in the test that it applied for its finding
    that the appellant continues to pose a significant risk to the safety of the
    public and arrived at an unreasonable decision. He asks that the detention
    order be set aside and that an absolute discharge be granted. Alternatively,
    the appellant asks for a new hearing. For the following reasons, we would allow
    the appeal and grant an absolute discharge.

[2]

The appellant has been under the auspices of the
    Board since January 2012. He is currently 28 years old. In 2011, the appellant became
    enraged while he was at home. He uttered threats against the police, including
    threatening to decapitate and kill police officers. He was taken to a local
    hospital. While at the hospital, he was heard to repeat those threats by the
    police officers who were present. When the police were advised by the hospital
    that it would not commit the appellant under the
Mental Health Act
,
R.S.O. 1990, c. M.7, he was arrested for uttering threats. At this point, the
    appellant yelled that he would not be arrested, leapt from the hospital bed,
    and attacked a police officer. The appellant was restrained. However, as he was
    being taken from the hospital, he yelled that he was gonna fucking kill you
    directed at the officer he had attacked. Once placed in the police cruiser, he
    smashed his head against and/or kicked the plexiglass partition. In January
    2012, he was found not criminally responsible (NCR) with respect to the
    offences.

[3]

After the NCR finding, the appellant was
    admitted to the North Bay Regional Health Centre where he has remained since.

[4]

The appellant has progressed over the years. The
    year prior to the hearing before the Board (i.e. 2019) was described as
    positive. The appellant has willingly taken treatment and has attended various
    group meetings in that regard. His primary counsellor describes the appellant
    as engaged, positive and attentive in affect and mood. His behaviour in the
    ward has improved over time.

[5]

The appellant had visited his parents without
    incident, prior to the advent of the COVID-19 pandemic, which prevented such
    visits. He speaks with his parents regularly by telephone. He has been deemed
    suitable for admission into the Maplewood Transition House, a transitional
    rehabilitative housing program that has North Bay Regional Health Centre
    support staff. Unfortunately, the COVID-19 pandemic has also interrupted those
    plans.

[6]

On this most recent review, the Board concluded
    that the appellant still presents as a significant risk to the public. The
    appellant takes issue with that finding. He submits that the Board applied the
    wrong test and arrived at an unreasonable finding. We agree.

[7]

In its reasons, the Board said that the
    appellant suffers from a serious illness which is treatment resistant. It is
    not clear where the conclusion that the illness is treatment resistant comes
    from. Counsel could not point to anything in the record before us that would
    support such a conclusion.

[8]

The Board also found that the appellant continues
    to pose a significant risk to the community including illegal consumption of
    drugs and distribution of same, potentially relapse including breaking away
    from his anti-psychotic medication and treatment, and finally acting out in a
    way that puts the public at risk. The Board does not provide any factual
    foundation for this conclusion. Indeed, the evidence before the Board is that
    the appellant has never acted in a violent manner over the past number of years,
    save for a single exception when he punched a wall in 2016.

[9]

The respondent, Attorney General, accepts that
    the Board could have done a better job of articulating the basis for the
    finding of significant risk. He submits, however, that there is evidence that
    the appellant has sold drugs to other patients and that conduct constitutes a
    serious risk. We do not agree.

[10]

The Supreme Court of Canada articulated the test
    for a significant risk in its decision in
Winko v British Columbia
    (Forensic Psychiatric Institute)
,
[1999] 2 S.C.R. 625. It said, at
    para. 57, that for the risk to be significant 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. The instances of drug
    dealing by the appellant, to which the Attorney General points, do not satisfy
    this test. On that point, we note that the appellant has no criminal record and
    the psychiatrist testified that the police were not interested in pursuing
    these allegations.

[11]

We also note that, unlike the situation in
Medcof
    (Re)
,
2020 ONCA 105 upon which the Attorney General relies, the
    appellant has insight into his mental illness, he is not treatment resistant,
    and there is no evidence of instances of decompensation leading to violent
    acts.

[12]

Given the flaws in the analysis conducted by the
    Board, and the lack of evidence capable of establishing that the appellant
    poses a significant threat to the safety of the public, the Boards disposition
    cannot stand. The appeal must be allowed. Given the lack of a factual
    foundation for the finding of significant risk, the appellant is entitled to an
    absolute discharge. The wording of s. 672.54(a) of the
Criminal Code
is
    clear on this point. It reads:

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;

[13]

The appeal is allowed, the detention order is
    set aside, and the appellant is granted an absolute discharge.

David
    M. Paciocco J.A.

I.V.B. Nordheimer J.A.

S. Coroza J.A.


