



COURT OF APPEAL FOR ONTARIO

CITATION: Hart (Re), 2016 ONCA 277

DATE: 20160418

DOCKET: C61013

Doherty, Watt and Miller JJ.A.

IN THE MATTER OF: Dakota Hart

AN APPEAL UNDER PART XX.1 OF THE
CRIMINAL CODE

Suzan E. Fraser and Cate Martell, for the appellant

Brock Jones, for the Attorney General of Ontario

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

Heard: April 12, 2016

On appeal against the disposition of the Ontario Review
    Board dated August 14, 2015.

ENDORSEMENT

Overview

[1]

The appellant appeals the disposition of the Ontario Review Board
    (the Board) dated August 14, 2015, with reasons issued September 1, 2015. The
    Board ordered the appellant detained at a secure forensic unit of St. Josephs
    Healthcare, Hamilton, with escorted hospital, grounds, and community
    privileges.
The appellant seeks an absolute discharge
    or, in the alternative, a conditional discharge, and in the further
    alternative, an order transferring him to the secure forensic unit at the
    Centre for Addiction and Mental Health (CAMH) in Toronto.

[2]

In October 2014, the appellant jumped over
    a school fence and carried away a four year old child who had been playing in
    the school yard. The child was terrified. He carried the child down the street
    and threatened him with a metal pole from an election sign, before the child
    was able to escape and run free. The appellant was apprehended and detained at
    St Josephs Healthcare. After the appellant had been detained, a nine year old
    child reported to police that in the previous month he had encountered the
    appellant on the street, and the appellant had demanded the childs scooter and
    iPad, and had lifted the childs shirt and touched his navel. The child ran
    away.

[3]

On March 11, 2015, the appellant was
    found not criminally responsible on account of mental disorder on charges of
    forcible seizure of a child, assault, assault with a weapon, and breaches of
    probation.

[4]

The Boards initial disposition on
    August 14, 2015 unanimously found that the appellant poses a significant threat
    to the safety of the public. The appellant raises three issues on appeal:

1. the Boards conclusion that the
    appellant poses a significant risk to the public is unreasonable and not
    supported by the evidence;

2. the Board failed to give adequate
    consideration to the appellants reintegration needs when it declined to
    transfer him to CAMH; and

3. the Board erred in law by failing
    to consider a conditional discharge.

[5]

For the reasons that follow, the appeal
    is dismissed.

Standard of Review

[6]

The standard of review of a disposition
    or placement decision of the Board is set out in s. 672.78(1) of the
Criminal
    Code
, and its application was explained in
R.
    v Owen
, 2003 SCC 33, [2003] 1 S.C.R. 779, at paras.
    31-37. This court can only set aside an order of the Board where it is of the
    opinion that:

1. the decision is unreasonable or
    cannot be supported by the evidence; or

2. the decision is based on a wrong
    decision on a question of law; or

3. there was a miscarriage of
    justice.

Issue 1: Was
    the conclusion that the appellant poses a significant risk to the public unreasonable
    or unsupported by the evidence?

[7]

The appellant advances three arguments
    to establish that the Boards decision was unreasonable: (1) the evidence
    before the Board was incapable of meeting the significant risk threshold, (2)
    the Board erroneously relied on allegations that did not result in convictions,
    and (3) the Boards finding that the risk posed by the appellant had not
    changed since the time of the index offences was unreasonable.

[8]

We cannot give effect to any of these
    submissions.

[9]

The Board is required to determine
    whether the appellant poses a significant risk of serious harm to the public. The
    Board concluded that he does. This decision was supported by the expert
    evidence of by Dr. J. Ferencz and Dr. M. Mamak.

[10]

Dr. Ferencz assessed the appellants
    fitness to stand trial while in detention, and has since seen the appellant in
    a variety of settings. He diagnosed the appellant with bipolar disorder, a
    diagnosis which was subsequently confirmed by two other psychiatrists. Dr.
    Mamaks assessment was that the appellant continues to present a significant
    risk to act out violently.

[11]

The Board found that the appellant
    lacks insight into his illness, an illness which remains untreated because the
    appellant had refused treatment and medication for his mental illness. The
    appellant has been assessed as incapable to consent to treatment by the Consent
    and Capacity Board and his appeal of that decision was dismissed by the
    Superior Court of Justice. He remains untreated pending an appeal of that decision
    to this court.

[12]

The Board accepted Dr. Ferenczs
    evidence that the appellants risk level has not changed, and that because the
    appellant remains untreated, the situation that gave rise to the child
    abduction could happen again if the appellant were released into the community.

[13]

The appellant argues that the Boards
    decision was unreasonable in that it treated his refusal to accept medication
    as determinative of his risk to the community. He argues that just as his past
    psychotic episodes resolved without medication, so too has this episode. He
    maintains that the totality of the evidence before the Board indicated that he
    is stable and does not pose a threat to the community.

[14]

The appellant also objects to the
    Boards reliance on a threat assessment report prepared by Calgary Police
    Services in assessing the appellants risk to the public. That report sets out
    the appellants history of violent threats, which predates the index offence. There
    was no objection to the admissibility of this report at the hearing, and it was
    properly admissible. This court has held that such information can be used to
    assess whether an accused poses a significant threat to the safety of the
    public and in determining the appropriate disposition:
Re Ranieri
, 2015 ONCA 444, at para. 17. The Board was entitled to
    determine what weight to give to the report, and that determination is entitled
    to deference.

[15]

In our view, the Boards finding that
    the appellant poses a significant risk of harm to the public is not
    unreasonable. It is supported by evidence, particularly the evidence of Dr.
    Ferencz that the appellant remains unstable and requires treatment with
    psychiatric medication in order to stabilize his mental state. There is no
    basis for this court to interfere with this finding.

Issue 2:
    Did the Board err by failing to give adequate consideration to the appellants
    reintegration needs in refusing to transfer him to CAMH?

[16]

The appellant requested a transfer to
    CAMH in Toronto in order to facilitate his integration into the community. Although
    the appellant resides in Hamilton and the index offence occurred in Hamilton,
    the appellant desires to ultimately relocate to Toronto where he can draw on
    the support of a larger gay community.

[17]

The Board held that the appellants application
    was premature. There is a significant waiting list at CAMH, and a pending
    transfer would interfere with treatment planning for the appellant. Additionally,
    there are no therapeutic options available at CAMH that are not available at St
    Josephs in Hamilton. The Board rejected the appellants argument that a
    transfer to CAMH would benefit him by providing access to a larger gay
    community in Toronto, as he currently has no community access at all.

[18]

The Board attended to the appellants submission
    and rejected it on therapeutic and other grounds. We see no error in the
    Boards decision.

Issue
    3: Did the Board err in refusing to consider a conditional discharge?

[19]

Given the Boards finding that the
    appellant poses a significant risk to the community, there was simply no basis
    for a conditional discharge. As such, the Board committed no error in not
    considering it.

Disposition

[20]

The appeal is dismissed.

Doherty
    J.A.

David
    Watt J.A.

B.
    Miller J.A.


