



COURT OF APPEAL FOR ONTARIO

CITATION: Scalabrini (Re), 2019 ONCA 219

DATE: 20190320

DOCKET: C65493

Strathy C.J.O., Rouleau and Miller JJ.A.

IN THE MATTER OF:  Jean-Paul Scalabrini

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant, Jean-Paul Scalabrini

Vallery Bayly, for the respondent, Attorney General of
    Ontario

Gavin S. MacKenzie, for the respondent,
Centre for Addiction and Mental Health

Heard: March 8, 2019

On appeal against the disposition of the Ontario Review
    Board dated, June 26, 2018.

REASONS FOR DECISION

[1]

Jean-Paul Scalabrini appeals from the June 26, 2018 disposition of the
    Ontario Review Board, ordering him detained at the General Forensic Unit of the
    Centre for Addiction and Mental Health, Toronto. He appeals on the basis that
    the Boards decision was unreasonable in finding that he poses a significant
    risk of serious harm to the public. The appellant seeks an absolute discharge,
    and in the alternative, a conditional discharge.

[2]

We do not agree that the Boards disposition was unreasonable. For the
    reasons that follow, we dismiss the appeal.

[3]

The index offenses occurred on March 28, 2013, near Sudbury. The
    appellant had been living transiently for six years and had a history of brief
    contacts with the mental health system. At the time of the offenses, he had
    been living in a makeshift shelter in the woods. He assaulted and robbed two
    young men he encountered in the woods, threatening them with his knife and an
    air pistol he took from one of them. He was found not criminally responsible
    due to mental disorder of various offences related to these acts.

[4]

He has been detained since the index offenses. He is currently diagnosed
    with schizophrenia, paranoid type and substance abuse disorder, in remission in
    a controlled environment. He has had impressive educational achievements while
    detained, and has not been violent since the index offenses.

[5]

The Board noted in its reasons that the appellant has had persistent
    difficulty with abstaining from using marijuana, and has gone to elaborate
    means to defeat the hospitals drug monitoring regime. Although he has also
    engaged in other, comparatively minor, rule-breaking, which has resulted in him
    losing privileges, his main obstacle to increased privileges has been his drug
    use. The appellants treating psychiatrist testified that his use of marijuana
    and his more recent use of SPICE, a synthetic cannabinoid that is hard to
    detect with current screening methods, are of significant concern. This is
    because notwithstanding the appellants full compliance with his anti-psychotic
    medication, the appellant is very sensitive to developing symptoms of psychosis
    when abusing these drugs.

[6]

The appellant argues, however, he has not been violent since the index
    offences, despite his drug use, and although his behaviour may be odd, he does
    not present a significant risk of serious harm to anyone.

[7]

We have concluded that the appeal must be dismissed. On review, this
    court must determine whether the Board, in the exercise of its specialized
    knowledge and expertise, made a decision that falls within a range of
    reasonable outcomes. As Huscroft J.A. said in
Carrick (Re)
, 2015 ONCA
    866, 128 O.R. (3d) 209 at para 26:

This 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 this court re-weigh the
    considerations before the board. The reasons for the boards decision and the
    substantive decision reached by the board must be considered together to
    determine whether an acceptable and defensible outcome has been reached.

[8]

Here, the decision of the Board was reasonable, given its concerns about
    immediate decompensation triggered by the appellants drug use, together with
    the appellant having no experience with living in the community under the
    current disposition.

[9]

We acknowledge that the reason the appellant has no track record of
    living in the community is because he has not been afforded any opportunity to
    establish one. His continual drug use, and the amount of time it takes to eliminate
    traces of drugs from his system for continual monitoring to be effective, has
    become an insurmountable barrier to obtaining any additional living privileges.
    He now appears to be regressing in treatment. The Boards reasons do not
    explain why there is no current plan to see the appellant increasing in
    privileges, towards living in the community under the current disposition,
    particularly when the appellant is willing to consent to receiving medication
    through long-lasting injection. The drug use might constitute a categorical
    reason to deny community privileges if it were established that it contributed
    to violent behaviour. But notwithstanding its immediate impact on the
    appellants psychosis, the appellant has not acted violently in the hospital setting
    when exhibiting psychotic symptoms. We would hope, in the upcoming annual
    review, that notwithstanding the appellants failure to abstain from marijuana
    use, the Board will consider crafting a disposition that would facilitate the
    appellants ability to gain some experience of living in the community, with
    the hope that this could lead to a conditional or absolute discharge in the
    future.

DISPOSITION

[10]

The
    appeal is dismissed.

G.R. Strathy C.J.O.

Paul Rouleau J.A.

B.W. Miller J.A.


