



COURT OF APPEAL FOR ONTARIO

CITATION: Aggio (Re), 2020 ONCA 214

DATE: 20200316

DOCKET: C67258

Watt, Fairburn and Zarnett JJ.A.

IN THE MATTER OF:  David Aggio

AN APPEAL UNDER PART XX.1 OF THE
CODE

David Aggio, acting in person

Andrew Hotke, for the respondent, Attorney General of
    Ontario

No one appearing for the respondent, Person in Charge of
    St. Josephs Healthcare Hamilton

Naomi Lutes, duty counsel

Heard and released orally: March 10, 2020

On appeal against the disposition of the Ontario Review
    Board dated May 31, 2019.

REASONS FOR DECISION

[1]

The appellant appeals from a disposition of the Ontario Review Board
    directing that he be detained at the Forensic Psychiatric Program at St.
    Josephs Healthcare Hamilton with various privileges, up to and including
    community living in accommodation approved by the Person in Charge.

The Background Facts

[2]

The appellant was found not criminally responsible on account of mental
    disorder (NCRMD) on October 24, 2011 on index offences of uttering threats and
    resisting arrest. These offences arose out of the appellants conduct when
    stopped by police for a routine investigation into an alleged
Highway
    Traffic Act
offence.

[3]

The appellant drove to a police station to speak to the ticketing
    officers supervisor. There, he became belligerent. He made several threats, among
    them, threats to kill police or have them kill him as part of a murder-suicide
    plot.

[4]

At the police station, officers detained the appellant under the
Mental
    Health Act
. He refused to comply. He tried to attack the officers. He was
    tasered, yet persisted in his threats. He was then taken to a local hospital
    and admitted on Form 1 under the
Mental Health Act
. When released from
    the hospital, about two weeks later, he was arrested.

[5]

During his tenure under the authority of the Ontario Review Board, the appellant
    has always been subject to a detention order. At the hearing with which we are
    concerned, the Hospital and Crown supported the continuation of the detention
    order. The appellant sought an absolute discharge. His counsel made no
    submissions in favour of a conditional discharge.

The Arguments on Appeal

[6]

In this court, duty counsel contends that the Board erred in failing to
    give meaningful consideration to the availability of the conditional discharge.

[7]

Duty counsel submits that the Board determined that a detention order
    was required solely on the basis that it was easier to return the appellant to
    hospital under a detention order than would be the case were he to be
    conditionally discharged. The duty of the Board, duty counsel reminds us, to impose
    the least onerous and least restrictive disposition, requires more than mere
    convenience to the Hospital.

Discussion

[8]

In our view, this is not a case in which the Boards conclusion, that a
    detention order was the least onerous and least restrictive disposition, was grounded
    solely on the Hospitals convenience.

[9]

When read as a whole, the reasons reflect the evidence adduced before
    the Board. They explain why the Board considered that a conditional discharge
    was not a necessary and appropriate disposition. The Board concluded:

We have considered a conditional discharge but find that it is
    not the necessary and appropriate Disposition. The treatment team requires the
    ability to return Mr. Aggio to the Hospital quickly should be begin to
    decompensate. Mr. Aggio is treatment capable and given his presentation, this
    would not be possible under the
Mental Health Act
. We also find that
    the treatment team should have the ability to approve Mr. Aggios
    accommodation. Mr. Aggio has a significant substance use disorder which
    directly impacts his mental health. When Mr. Aggio is first discharged into the
    community it will be essential that his accommodation is such that his risk of
    relapse would not be increased. Given that Mr. Aggios insight into his
    substance use and its impact on his mental health fluctuates, this would likely
    impact his ability to choose appropriate accommodation.

[10]

The Board noted the appellants progress over the reporting year with
    which it was concerned. It also pointed out that the appellants ability to
    live in the community in the year ahead is largely dependent on his
    participation in the programming offered and recommended by the treatment team,
    and that he remains abstinent from substance abuse. The Board expressed the
    hope  one that we share  that the appellant will take advantage of the
    therapy offered to him.

Disposition

[11]

The appeal is dismissed.

David Watt J.A.

Fairburn J.A.

B. Zarnett J.A.


