



COURT OF APPEAL FOR ONTARIO

CITATION: Muthulingam (Re), 2020 ONCA 680

DATE: 20201028

DOCKET: C68139

Watt, Tulloch and van Rensburg JJ.A.

IN THE MATTER OF: Ramanan Muthulingam

AN APPEAL UNDER PART XX.1 OF THE
CODE

Ramanan Muthulingam, acting in person

Sarah Weinberger,
amicus curiae

Chris Dwornikiewicz, for the Attorney
    General of Ontario

Heard: September 18, 2020 by
    videoconference

On appeal against the disposition of the
    Ontario Review Board, dated November 28, 2019 with reasons reported at [2019]
    O.R.B.D. No. 2794.

REASONS FOR DECISION


[1]

On
October 15, 2014, the appellant was
    found not criminally responsible (NCRMD) on a charge of attempted murder. Since
    that time, he has been under the jurisdiction of the Ontario Review Board. His
    current disposition is a detention order requiring that he be detained in the
    Forensic Program on a general unit at Ontario Shores. His conditions permit
    hospital and grounds privileges with indirect supervision and community passes
    with accompaniment.

[2]

Assisted by
amicus
, he appeals from
    this disposition. He seeks an absolute discharge, or alternatively, a
    conditional discharge. The Crown and Person in Charge oppose his request.

The Background Facts

[3]

The index offence occurred a matter of months
    before the finding of NCRMD. The appellant attended an appointment with his
    psychiatrist. When his name was called, he followed the doctor into his
    consulting room. There, the appellant produced a knife that he had brought with
    him. He reached around to the front of the doctor's neck from behind and cut
    the doctor's throat. The appellant then dropped the knife and said, I will be
    waiting outside". True to his word, he remained outside the office where
    he was arrested shortly thereafter.

[4]

The appellant had not seen his psychiatrist for
    several months prior to these events. His sister reported that he had stopped
    taking his medication one or two weeks earlier. He had become paranoid and
    suspicious.

[5]

The appellant had been found NCRMD on charges of
    aggravated assault and assault with a weapon a decade earlier. At the initial
    hearing before the Review Board about two months later, the Board was not
    satisfied that the evidence established that the appellant was a substantial
    threat. He was discharged absolutely.

[6]

The appellants current diagnoses are Schizophrenia
    and Cannabis Use Disorder.

The Grounds of Appeal

[7]

The appellant contends that the Board unreasonably
    found that he posed a significant threat to public safety. The evidence, he
    says, does not satisfy this onerous standard. It follows, he argues, that he
    should be discharged absolutely.
Amicus
advances two grounds of appeal.
    She submits that the Board erred:

i.

in failing to apply the correct legal test to
    determine whether the appellant posed a significant threat to community safety;
    and

ii.

in rendering a decision that was unreasonable
    and procedurally unfair because it included a portion of the reasons of the Board's
    decision rendered at the conclusion of the prior year's hearing.

Discussion

[8]

As we will explain, we are satisfied that this
    appeal fails.

The Significant Threat Issue

[9]

In the year under review, the appellant continued
    to suffer from the treatment resistant symptoms of Schizophrenia. At times, his
    thinking was grossly disorganized, and he was very difficult to redirect. He
    perseverated on his delusions which were grandiose and paranoid.

[10]

The appellant was verbally aggressive with
    hospital staff. He used cannabis on hospital grounds. He had a physical
    altercation with a co-patient. On one occasion, when in the community, he
    threatened to kill a WSIB worker and told her that he had killed others. The
    worker was quite frightened by the appellants conduct.

[11]

The appellant does not appreciate the
    psychological harm his conduct causes others. He often refuses, or is too
    disruptive, to participate in any psychoeducational group programs to address
    his condition.

[12]

The appellants treating psychiatrist testified
    that the appellant has a diagnosis of Schizophrenia and Cannabis Use Disorder.
    He suffers from treatment resistant symptoms of his illness. He continues to lack
    insight into his illness, his need for treatment, and the severity of the index
    offence. During the year under review, he continued to make very serious
    threats towards both staff and community workers. He was involved in two
    incidents of serious physical aggression.

[13]

In our view, the cumulative force of the
    evidence adduced at the hearing, including the Hospital Report and the
    testimony of the appellant's attending psychiatrist, brings this case within
    the ambit of significant threat as defined in s. 672.5401 of the
Criminal
    Code
. The Boards finding that the significant threat threshold was met is
    reasonable and supported by the evidence adduced at the hearing.

The Application of the Wrong Test

[14]

The reasons of the Board on the issue of
    significant threat are contained in a single paragraph:

The Board unanimously finds that Mr.
Muthulingam
continues to pose a
    significant threat to the safety of the public. We find on all the evidence
    there is a foreseeable and substantial risk that Mr.
Muthulingam
would commit a serious criminal offence if
    discharged absolutely as defined by the Supreme Court of Canada
in
Winko
.
The Board notes the issue of risk was not contested by any of the parties. The Board
    accepts the uncontroverted evidence of Dr. Harrigan that Mr.
Muthulingam
continues to pose a
    significant risk and as well, the Board relies on the Hospital Report and the
    evidence that Mr.
Muthulingam
suffers from a major mental illness; namely, Schizophrenia, which in the past
    has been compounded by medication noncompliance and substance abuse. The Board accepts
    that without close supervision that Mr.
Muthulingam
would likely become noncompliant once again with
    medication, and may resume substance use which could lead to a decompensation
    and re-emergence of behaviours similar to that of the index offence.

[15]

These reasons are an exact duplicate of the
    reasons of the Board delivered by the same chairperson one year earlier with
    one exception: the name of the psychiatrist who testified. They erroneously
    record that the issue of risk was not contested by any of the parties".
    In the 2018 hearing, the issue of significant threat was not contested. In the
    2019 hearing, with which we are concerned, significant threat was contested:
    the appellant sought an absolute discharge.

[16]

Amicus
fastens
    upon the sentence:

T
h
e
Board accepts that without close supervision that Mr.
Muthulingam
would likely become
    noncompliant once again with medication, and may resume substance use which
    could lead to a decompensation and re-emergence of behaviours similar to that
    of the index offence.

[17]

This
, amicus
says, is an incorrect
    application of the significant threat" standard as defined by s.
    672.5401. What is required is a determination of the real risk of physical or
    psychological harm occurring as a result of the appellant engaging in serious
    criminal conduct if granted an absolute discharge.

[18]

The language used by the Board is similar to that
    found in
Sheikh (Re)
, 2019 ONCA 692, 157 W.C.B. (2d) 527, a decision
    released about three months before the decision of the Board in this case. The
    court in
Sheikh
concluded that the Board had applied the wrong test.
    The test is
not
whether the appellants behaviour
could
lead
    to decompensation and therefore the risk of serious harm. The test is whether
    there is evidence to support a positive finding that there
is
a
    significant threat to public safety:
Sheikh
, at para. 10.

[19]

Read in isolation, the excerpted passage
    reflects a mistake in the legal standard to be applied in assessing whether the
    appellant was a significant threat to the safety of the public. Said otherwise,
    an error of law.

[20]

It is well settled that in determining whether
    reasons reflect legal error, appellate courts are required to read those
    reasons as a whole, in the context of the evidence adduced in the proceeding.
    Not every legal error is fatal, including those that cause no substantial wrong
    or miscarriage of justice:
Criminal Code
, s. 672.78(2)(b).

[21]

In this case, unlike in
Sheikh
, there
    is substantial evidence to satisfy the significant threat standard. A review of
    the reasons, taken as a whole, reveals that the Board had a firm grasp of the
    evidence adduced at the hearing and accepted those aspects of the evidence
    critical to satisfy the significant threat threshold.

[22]

The appellant continued to experience ongoing
    treatment resistant symptoms of his illness, including but not only, grandiose
    religious and somatic delusions. In the year under review, he was involved in
    an incident of serious physical aggression against a co-patient and threatened
    a staff member and a community worker. He displayed affective instability and a
    poor tolerance for frustration. He lacked insight into the symptoms of his
    illness, the index offence he committed, and his risk for re-offence. He
    continues to be unable and/or unwilling to meaningfully participate in
    essential group therapy. The prospect of decompensation due to cannabis use or
    noncompliance with medication, while relevant, were subordinate to the other
    more pressing and obvious concerns.

The Copying Ground

[23]

The final ground of appeal advanced by
amicus
targets the origin of the single paragraph of the Boards reasons explaining
    why it found that the appellant was a significant threat to the safety of the
    public. We have already rejected the claim that the finding was unreasonable
    and based upon a legally incorrect application of the statutory standard.

[24]

Amicus
says
    that the Board erred when it recycled several paragraphs of its reasons from
    the previous year to explain its conclusion at the hearing under review. The
    failure to provide reasons responsive to the issues raised and reflective of
    the evidence adduced at the hearing is at once unreasonable and procedurally
    unfair. While the Board was not obligated to accept the appellants position
    about the level of risk he posed, it was required to assess the issue on the
    basis of the evidence and submissions it heard on the hearing conducted in
    2019, not 2018. Reasons responsive to what occurred at a hearing in one year
    cannot be substituted for what happened in another.

[25]

Apart from the Review Board context, reasons are
    sufficient if they are responsive to a case's live issues and the parties key
    arguments:
R. v. Walker
, 2008 SCC 34, [2008] 2 S.C.R. 245, at para.
    20. The basis of a conclusion must be intelligible. In other words, there must
    be a logical connection between the conclusion and the basis for that
    conclusion. To determine whether this logical connection is established, we
    look to the evidence, the submissions of the parties, and the history of the
    proceedings to determine the issues as they emerged:
R. v. M. (R.E.)
, 2008
    SCC 51, [2008] 3 S.C.R. 3, para. 35.

[26]

As a general rule, good judicial practice
    requires a judge to set out the contending positions of the parties on the
    facts and the law and to explain, in the judge's own words, their conclusions
    on those positions. Judicial copying is a long-standing and accepted practice, but
    it can create problems. In some cases, at least, it can cause a judgment to be
    set aside. This occurs when the incorporation of the material of others would
    lead a reasonable person, taking all relevant circumstances into account, to
    conclude that the decision-making process was fundamentally unfair, in the
    sense that the judge did not put their mind to the facts, the arguments, and
    the issues, and decide them impartially and independently:
Cojocaru
    (Guardian ad litem of) v. British Columbia Women's Hospital and Healthcare
,
    2013 SCC 30, [2013] 2 S.C.R. 357, at para. 13.

[27]

These principles, while not directly applicable
    to a Review Board, provide a valuable
vade mecum
for Review Board decision-makers.
    Reasons must be responsive to this year's evidence, not to last year's. To this
    year's issues, not to last years. To this year's positions, not to last years.

[28]

In this case, despite the ill-advised and
    unnecessary copying by the chairperson of portions of her previous year's
    reasons, we are not persuaded that it warrants a new hearing.

Disposition

[29]

For these reasons, the appeal is dismissed.

David
    Watt J.A.

M.
    Tulloch J.A.

K. van
    Rensburg J.A.


