Decisions of the Court of Appeal

[1]              This is an appeal from the June 2010 disposition of the Ontario Review Board’s finding that the appellant presents a significant risk to the public and that a detention order is the least onerous and least restrictive disposition available.

[2]              The amicus curiae submitted that the Board’s finding of a significant risk to public safety was unreasonable and speculative given the fact that the appellant had lived in the community under bail conditions for over three years without breaching the conditions or committing any criminal offence and he has no history of physical aggression. Further, the appellant submitted that the index trials were a miscarriage of justice, there was no evidence about the seriousness of the harm to the victims of the index offences, and the witnesses were not credible.

[3]              The test under s. 672.54 of the Criminal Code is not whether the victims of the index offences had suffered serious psychological harm, but whether the appellant’s conduct and future conduct is likely to pose a real risk of such harm to a member of the public. There is ample evidence that appellant's mental illness has caused him to harass individuals with whom he has had no prior contact and to cause them to fear for their safety. We do not accept the appellant’s submission that the doctor’s testimony was not credible. The Board was entitled to rely on the expert evidence that, absent treatment and legal restrictions, the appellant would likely re-engage in criminal harassment and pose a significant threat of serious psychological harm to members of the public within the meaning of Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625. The Board noted that the risk he posed to the safety of the public would likely increase the longer he was left unmedicated. The Board’s conclusion was reasonable on the record before it.

[4]              We do not give effect to this ground of appeal.

[5]              The second ground of appeal raised by amicus is that the Board’s decision to order detention was unreasonable because the least onerous, least restrictive disposition available was a conditional discharge. Given the lack of any assaultive or physical violence and the appellant’s success at living in the community untreated for over three years, amicus argued that there was no reason to think the situation would change over the following year, and that any risk could be managed by a conditional discharge.

[6]              Further, amicus submitted that the Board’s decision to issue a detention order rested on an error of law because the primary reason given by the Board for issuing a detention order was to enable the Hospital to treat the appellant. Amicus submitted that the Board disregarded the liberty interests of the appellant in ordering detention.

[7]              The Board has no legislative jurisdiction to detain an NCR accused solely or primarily for treatment. The primary purpose of Part XX.1 of the Criminal Code is to protect the public, while minimizing the impact on the accused’s liberty interests.  Section 672.54 of the Criminal Code provides that where an individual represents a significant threat to public safety, the Board shall impose the disposition that is the least onerous and least restrictive to the accused, taking into account the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused. While the primary purpose is to protect the public, liberty should be compromised with the least onerous restrictions, consistent with the level of risk (rather than the treatment needs). Further, s. 672.55 prohibits the Board from directing or compelling treatment.

[8]              The appellant’s history of complying with the conditions for three years in the community without treatment weighs in favour of a conditional release, particularly in light of the annual review and the ability to impose conditions. However, we are unable to conclude that a detention order was unreasonable, given the nature of the appellant’s illness, his refusal to accept that he suffers from an illness, the medical evidence that treatment was not practicable if the appellant were not detained in hospital subject to appropriate conditions, and the Board’s finding that the risk of serious harm to the public would increase absent medical treatment.

[9]              As Binnie J. noted in R, v, Owen, [2003] 1 S.C.R. 779, at para 69, appellate restraint is appropriate: “The respondent’s case is not an easy one, but once we affirm as reasonable the Board’s finding that the respondent represents a ‘significant threat to the safety of the public’…, we should not be too quick to overturn the Board’s expert opinion about how that risk is to be managed.”

[10]         Furthermore, we are not persuaded that the Board’s focus on treatment reflected an error in law. The Board’s focus on the need to make treatment available was directly related to the Board’s finding that a conditional discharge was not realistic because, absent treatment, the risk to public safety would likely increase. The Board found that the hospital’s ability to provide adequate treatment if the appellant were released in the community would be impractical and handicapped, if not rendered futile. The Board also found that treatment was the best option for re-integration of the appellant into the community.

[11]         The Board is entitled to provide the appellant with opportunities to receive treatment, regardless of whether he is willing to accept or comply with treatment. The Board did not purport to order that the appellant receive treatment against his will. The Board was entitled to take into account the appellant’s need for treatment as an important factor when fashioning the least onerous and least restrictive disposition. Thus, the Board’s concern to make treatment available was directly linked to its primary function to protect public safety, as well as the re-integration of the appellant into the community.  The flexibility in the detention order, in the discretion granted to permit increasing privileges in the community, tempers the severity of the restrictions.

[12]         Accordingly, the appeal is dismissed.

“Robert J. Sharpe J.A.”

“David Watt J.A.”

“Karakatsanis J.A.”