|
Criminal - NCR - 'Significant Threat to the Safety of the Public'. Grant (Re) [SOR]
In Grant (Re) (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal from the ORB, here from a finding "that he posed a significant threat to the safety of the public".
These quotes focus on the standard of review (SOR), which despite this being an appeal, is 'reasonableness':[7] The appellant advances a single argument on this appeal. He submits that the Board incorrectly and unreasonably found that he posed a significant threat to the safety of the public and, accordingly, there should be no change to his current disposition. He also says that there is no evidence to support the conclusion that there is a “foreseeable and substantial risk that the NCR accused will commit a serious criminal offence if discharged absolutely”: Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at para. 69.
[8] We do not accept this argument. Our analysis starts with what this court said in R. v. Ferguson, 2010 ONCA 810, at para. 11:This court does not decide whether the appellant poses a significant threat to the safety of the public. That is the Review Board’s function and one for which it has special expertise. This court’s responsibility is to decide whether the Review Board’s determination that the appellant poses such a substantial risk to the safety of the public is a reasonable one. In performing that function, the court must recognize the Review Board’s expertise and afford deference to its risk assessments. [Citations omitted.] . Wheeler (Re)
In Wheeler (Re) (Ont CA, 2024) the Ontario Court of Appeal allowed an NCR appeal - here where the issues were those of "significant threat to the safety of the public", and the legal adequacy of the ORB's reasons for decision:[6] Under s. 672.54(a) of the Criminal Code, R.S.C. 1985, c. C-46, the Board was obliged to consider whether discharging the appellant absolutely would present a “significant threat to the safety of the public”. As Doherty J.A. explained in R. v. Ferguson, 2010 ONCA 810, 264 C.C.C. (3d) 451, at para. 8:The meaning of the phrase “significant threat to the safety of the public” has been authoritatively set down in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at paras. 49-62, 69. The phrase refers to a foreseeable and substantial risk of physical or psychological harm to members of the public that is serious and beyond the trivial or annoying. A very small risk of even grave harm will not suffice. A high risk of relatively trivial harm will also not meet the substantial harm standard. While the conduct must be criminal in nature, not all criminal conduct will suffice to establish a substantial risk. There must be a risk that the NCR accused will commit a “serious criminal offence”. Doherty J.A. explained further, at para. 3, that:Unless the Review Board could be satisfied that the appellant’s conduct would pose that threat, the Review Board was obliged to absolutely discharge the appellant regardless of the negative effect that order might have on both the appellant’s ability to function in society and health care professionals’ ability to treat the appellant. [7] The foreseeable risk of harm to the public cannot be based upon mere speculation, but must be rooted in evidence that satisfies the Board that the appellant is not an appropriate candidate for an absolute discharge: Carrick (Re), 2015 ONCA 866, 128 O.R. (3d) 209, at paras. 16-17.
....
[12] What the Board’s reasons do not adequately explain is how it concluded that the legal test for continuing the appellant’s detention was met. We are unable to discern from the Board’s reasons how it concluded, on the evidence as a whole, that the appellant’s continued use of cannabis would create a substantial risk of serious harm to the public.
[13] The Board recognized that the evidence showed that the appellant has been using cannabis regularly for years, including for much of the eight years he has been in the ORB system, and that his consumption appears to be increasing. However, the Board also recognized that the appellant “has good insight into his mental illness and the need for medication”, and that the evidence was that for the past eight years he “has always been adherent to his medication.” Apart from the index offences, which were committed over a few weeks in the summer of 2016, the appellant has no history of violence other than a dated conviction for common assault in 2006, when he was 20 years old. Members of the appellant’s treatment team have observed “mental status changes” that they attribute to his cannabis use, and which Dr. Naidoo interpreted “as potential signs of [his] schizoaffective disorder flaring up”. However, the appellant has not made any threats or exhibited any violent behaviour, other than a single incident in the summer of 2021 when he threatened his older brother during an argument about his increased substance use. His treatment team noted that the appellant had “experienced significant stress during the summer months” due to the unexpected death of his younger brother, followed by the death of his mother, and he was voluntarily readmitted to hospital shortly after this incident.
[14] The Board recognized that the appellant “has not engaged in any violence or deteriorated to the point of actually threatening the safety of the public in the past years”, but concluded that this was only “because of the intervention of the treatment team when he has been using cannabis.” The Board appears to have concluded further that the appellant’s detention will remain necessary until he “gain[s] insight into the negative impacts of cannabis use on him to the point that he will be able to remain abstinent once returned to the community.” However, the Board’s reasons do not show that it properly considered whether the final step in Dr. Naidoo’s cascading risk scenario was supportable on the evidence as a whole.
[15] Dr. Naidoo initially testified that he believed the appellant’s cannabis use would have caused his mental condition to worsen to the point of his acting violently but for the treatment team’s intervention. However, he later explained that his concern about the appellant being granted an absolute discharge was that the appellant would “fall through the cracks” and become “unable to get medication.” Dr. Naidoo does not seem to have squarely addressed what would happen if the appellant continued to use cannabis but also kept taking his prescribed medication, as he had done despite his regular cannabis use since 2020, and which he had not been doing when he committed the index offences.
[16] It may be that the appellant’s continued use of cannabis will exacerbate the symptoms of his mental illness. However, the question the Board had to consider was whether this presented a foreseeable and substantial risk of physical or psychological harm to members of the public, based on a scenario in which the appellant committed serious criminal conduct resulting in harm that is “serious and beyond the trivial or annoying”: Ferguson, at para. 8. We are unable to discern from the Board’s reasons how the Board concluded that this test was met. . Manrique (Re)
In Manrique (Re) (Ont CA, 2024) the Ontario Court of Appeal allows an NCR appeal, here remitting the case back to the ORB before a new panel.
The court finds 'inadequate reasons' for the ORB's decision, here on the issue of the 'significant threat' standard:[9] However, while we recognize that the Board set out the proper test for establishing a significant threat to public safety, the Board’s reasons were insufficient to explain how it reached the conclusion that the appellant meets that standard. As noted by the Board, this court has emphasized that the significant threat standard is an onerous one. In our view, the Board’s assertion that there would be “a predictable decline in [the appellant’s] mental status leading to decompensation and a heightened risk to public safety” does not explain how the appellant meets the significant threat standard. Further, the Board’s statements about the treating psychiatrist not being able to guarantee post-discharge forensic support and its reference to the “ideal scenario” of non-forensic support being “adequately in place” suggest the Board may have been focused on minimizing any risk created through granting the appellant an absolute discharge rather than properly assessing whether he met the significant threat threshold. . Woods (Re)
In Woods (Re) (Ont CA, 2024) the Ontario Court of Appeal dismissed an NCR appeal, here citing the lead case of Winko:[5] .... the appellant contends that the evidence before the Board did not reasonably support a finding of significant threat under the test set out in the leading case Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625.
[6] We do not accept this submission. The Board cited and explicitly applied Winko. The Board noted that a “significant threat” means “a risk of serious physical or psychological harm to members of the public” which is “not minimal or a mere annoyance”. It further explained that, as held in Winko, in this context a risk “must be real and objectively supportable ... .” . Alfredson (Re)
In Alfredson (Re) (Ont CA, 2024) the Ontario Court of Appeal dismiises an appeal from an Ontario Review Board (ORB), that found the appellant to be a 'significant threat to the safety of the public':[1] The appellant was found not criminally responsible (“NCR”) on March 24, 2011 of one count each of aggravated assault and possession of a weapon for a purpose dangerous to the public peace. On September 14, 2023, following the appellant’s annual hearing, the Ontario Review Board (the “Board”) found that the appellant continued to pose a significant threat to the safety of the public. The Board continued the disposition from the previous year, a detention order at the Forensic Service of the Centre for Addiction and Mental Health (the “Hospital”), with privileges up to residing in a residence in the community approved by the person in charge of the Hospital.
....
Issue and analysis
[7] The appellant argues that the Board’s decision was unreasonable because of three factual errors in its reasons. He argues that the factual errors are material because they involved factors that bear on whether he continues to pose a significant threat to the safety of the public and, if he does, the appropriate disposition. He argues, as he did before the Board, that he should be granted an absolute discharge.
[8] The Crown concedes that the Board made the three errors identified by the appellant in its characterization of the record. However, the Crown argues that the errors of characterization had no impact because, when the Board’s reasons are read as a whole, it is clear the Board understood the correct factual context. The Crown argues that the Board’s risk assessment and disposition were reasonable on the record before it.
[9] A Board decision is reasonable if its risk assessment and disposition order are 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. The court must evaluate reasonableness by considering the reasons given by the Board and the context in which the decision was made to determine whether an acceptable and defensible outcome has been reached: Wall (Re), 2017 ONCA 713, 417 D.L.R. (4th) 124, at para. 22.
....
[22] The system of annual reviews of NCR accused is designed to strike an appropriate balance between the liberty interest of NCR accused and public safety. The Board is tasked to determine if the NCR accused continues to pose a significant threat to the safety of the public and, if so, to determine the least onerous and least restrictive disposition consistent with the factors in s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46. Decisions of the Board directly affect the liberty of the NCR accused. Given the important interests at stake for an NCR accused and the public, it is incumbent on the Board to take greater care in its characterization of the factual record than is displayed in the reasons under appeal.
[23] Further, as a practical matter, because some NCR accused remain in the system over a period of time and have successive annual reviews, there is a risk that factual errors by the Board in one annual review will carry forward into future reviews.
|
