



COURT OF APPEAL FOR ONTARIO

CITATION: Osawe (Re), 2020 ONCA
    715

DATE: 20201110

DOCKET: C68106

Gillese, Lauwers and Benotto JJ.A.

IN THE MATTER OF: EDWARD OSAWE

AN APPEAL UNDER PART XX.1 OF THE
CODE

Kelley J. Bryan, for the appellant

Michele Warner, for the respondent, the Person
    in Charge of Centre for Addiction and Mental Health

Jeffrey Wyngaarden, for the respondent, the Attorney
    General of Ontario

Heard by videoconference: November 5, 2020

On appeal from the disposition order of the Ontario
    Review Board dated January 16, 2020, with reasons for disposition dated
    February 11, 2020.

REASONS FOR DECISION

Background in Brief

[1]

Mr. Osawe is diagnosed with schizophrenia; polysubstance use disorder,
    in remission; borderline-mild intellectual disability; antisocial personality
    traits; and rule out paraphilia.

[2]

On the afternoon of March 31, 2009, Mr. Osawe randomly struck an older
    female from behind, with a knife, while she stood on a subway platform in
    Toronto. The victim was a stranger to Mr. Osawe. She sustained a six-centimeter
    cut to the right side of her head; seven staples were required to close the
    wound.

[3]

On October 8, 2010, Mr. Osawe was found not criminally responsible
    (NCR) on charges of assault causing bodily harm and failing to comply with an
    undertaking. At the time of the index offence, he was undiagnosed and
    untreated. He had prior charges for sexual interference, theft, acts contrary
    to public order, and possession of marijuana, among others, none of which
    resulted in convictions.

[4]

Following the index offence, Mr. Osawe was detained at CAMH and began a
    daily oral medication. In 2013, he tested positive for the suspected use of
    synthetic cannabis. That same year, he was charged with sexual assault of
    another patient. Those charges were stayed in June 2014, when the victim
    refused to testify, and Mr. Osawe entered into a peace bond.

[5]

In 2015, Mr. Osawe was discharged to a group home funded by
    Developmental Services Ontario (DSO) and run by VITA Community Living Services.
    The VITA residence houses 10 men, of whom Mr. Osawe is one. It is a locked,
    all-male residence with an extremely high level of support, 24-hour supervision,
    and little opportunity for access to substances or other destabilizing
    influences.

[6]

In 2019, the Board granted Mr. Osawe a conditional discharge.

[7]

Mr. Osawe has now been approved for transfer to more independent DSO
    housing. There are two potential housing models open to him. In the first,
    staff is on site. The second is semi-independent living where there may be
    staff on site but not necessarily. However, both models will provide Mr. Osawe
    with much less structure and support than he currently has.

[8]

At his 2020 annual review, Mr. Osawe unsuccessfully sought an absolute
    discharge.

[9]

The Board acknowledged that Mr. Osawe had had a good year and flourished
    in the VITA home. However, it found that this was because the VITA home is
    highly structured and offers Mr. Osawe a high level of support.

[10]

The
    Board accepted the testimony of Dr. Wilkie, Mr. Osawes treating psychiatrist,
    as supported by the hospital report, that Mr. Osawes risk to the public will
    increase with the impending change to his housing and that he needs continuing
    structure and support to manage that risk.

[11]

Consequently,
    the Board maintained Mr. Osawes conditional discharge with some changes to the
    conditions that the parties had proposed.

[12]

Mr.
    Osawe appeals on the basis that the Boards conclusion he continued to pose a
    significant risk to the public was unreasonable. He asks this court to grant
    him an absolute discharge.

[13]

He
    submits that the Boards analysis of significant risk was inadequate. Relying
    on this courts recent decision in
Re Sim
, 2020 ONCA 563, he contends
    that the Board erred in its significant threat analysis by failing to consider
    the likely occurrence of each step in the cascading sequence posited by the
    hospital: that Mr. Osawe would face stress in transitioning to a new housing
    environment; become vulnerable to destabilizers or potential negative
    influences; stop taking his medication; experience mental decompensation; and
    then exhibit aggressive and antisocial behavior. He also contends that the
    Board failed to make an express finding respecting the seriousness of the
    potential harm with which it was concerned and that the evidence did not
    support such a finding.

Issue

[14]

The
    sole issue on appeal is whether the Boards finding that Mr. Osawe remains a
    significant threat to the public was unreasonable.

Analysis

[15]

The
    Board is an expert tribunal and, on appeal, its decisions are entitled to
    considerable deference. Absent an error of law or a miscarriage of justice,
    this court can intervene only if the Boards risk analysis or disposition order
    was unreasonable in that it is not supported by reasons that can bear a
    somewhat probing examination:
R. v. Owen
, 2003 SCC 33, [2003] 1 S.C.R.
    779, at para. 33.

[16]

In
    our view, the Boards decision meets the requisite standard. Its reasons focus
    on the critical issue of Mr. Osawes likely response to his move to a new
    living environment. Relying on Dr. Wilkies testimony and the hospital report,
    it accepted that Mr. Osawe would face stress and destabilizing factors when
    transitioning to a new living environment in which he will enjoy a much-reduced
    level of structure and support than he enjoys at VIDA. It concluded that the
    combination of increased stress and decreased supervision raised concern about
    Mr. Osawes particular vulnerability to destabilizing influences and the risk
    that he would relapse into substance use, cease taking his medication, and
    decompensate, thereby creating the potential for violent re-offending similar
    to the index offence. In reaching its conclusion, the Boards reasons show that
    it was alive to the relevant evidence and the factors that weighed both in
    favour of, and against, a finding of significant risk.

[17]

This
    case is readily distinguishable from
Re Sim
. Before being granted an
    absolute discharge, over a period of six years, Mr. Sim had progressed from
    supervised living to living independently. In July 2014, he moved into a
    24-hour a day supervised group home. In October of that same year, he moved to
    an 8-hour a day supervised home. In September 2016, he moved into shared
    accommodation and in March 2019, he began living independently in a one-bedroom
    apartment.

[18]

Mr.
    Osawe is very differently situated. Unlike Mr. Sim who had a lengthy period of
    semi-independent and then independent living, Mr. Osawe has yet to live even
    semi-independently. His housing at VITA is highly structured and closely
    supervised 24 hours a day. His approved move is into a less structured
    environment that will provide him with less support. The Boards conclusion on significant
    risk is grounded in the expert testimony of Mr. Osawes treating psychiatrist
    that a less structured living situation in which Mr. Osawe will enjoy a
    decreased level of support will increase his risk to the public safety.

[19]

We
    do not view the Boards risk analysis or disposition order to be unreasonable.

Disposition

[20]

Accordingly,
    the appeal is dismissed.

E.E. Gillese J.A.

P. Lauwers J.A.

M.L. Benotto J.A.


