Case: Munezero (Re), 2023 ONCA 82 (CanLII)
Keywords: Ontario Review Board; “significant threat” to public safety
In an “acute state of psychosis”, the Appellant sets fire to her apartment. Several people are injured. When firefighters attempt to remove the Appellant from her burning couch, she
- fights back; and
- attempts to light herself and the firefighters on fire. (See para. 6).
The Appellant is later found not criminally responsible on account of mental disorder (“NCRMD”) on the charge of “arson – disregard for human life” and discharged with conditions. (See para. 5). As summarized by the Court of Appeal (Tulloch, Benotto, and Trotter JJ.A.), the Appellant suffers from a schizoaffective disorder, for which “stress and suboptimal treatment are major destabilizing factors”. (See para. 4).
The Ontario Review Board determines that the Appellant remains a “significant threat” to public safety. (See para. 7). The Board notes the Appellant was hospitalized three times in the reporting year. The Appellant’s attending psychiatrist testifies that the third hospitalization is “the most unwell [he had] seen her”; symptoms are “similar to those present at the time of the index offence”. (See para. 8).
The Appellant appeals the disposition of the Ontario Review Board, which continued her conditional discharge but decreased her reporting requirements to “not less than once a month”; and granted the appellant the ability to “travel out of the province with an itinerary approved by the person in charge prior to her departure”. (See para. 1). The Court of Appeal is satisfied that the Board’s conclusion is reasonable, noting the Board will have another opportunity to consider whether granting an absolute discharge would be the “least onerous and least restrictive disposition” in February, 2023. (See para. 30).
When, in law, is someone a “significant threat” to public safety? Section 672.5401 of the Criminal Code provides that “a significant threat to the safety of the public means a risk of serious physical or psychological harm to members of the public … resulting from conduct that is criminal in nature but not necessarily violent.” (See para. 24).
The Court of Appeal observed that considerable deference is owed to the Board’s determination on whether an NCRMD person should be classified as a “significant threat” to public safety. (See para. 11; Wall (Re), 2017 ONCA 713, at para. 21; Abdulle (Re), 2020 ONCA 698, at para. 15). However, a Court of Appeal may interfere with a Board decision where it concludes “the Board’s risk assessment and disposition order was unreasonable in the sense of not being supported by reasons that can bear even a somewhat probing examination”. (See para. 11; R. v. Owen, 2003 SCC 33 at para. 33).
The application of this analysis required the Court of Appeal to consider the nature of reasonableness review. Citing Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 102, the Court of Appeal emphasized that reasonableness review is not a “line-by-line treasure hunt for error” and that the Board’s reasoning “must be read as a whole”. (See para. 15). Significantly, however, when one reads the balance of the Majority’s reasons at para. 102 of Vavilov, one notes that the Majority’s instructions are somewhat less permissive:
the reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that “there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”. Reasons that “simply repeat statutory language, summarize arguments made, and then state a peremptory conclusion” will rarely assist a reviewing court in understanding the rationale underlying a decision and “are no substitute for statements of fact, analysis, inference and judgment”. (See Vavilov at para. 102; citations removed).
In this case, the Court of Appeal determined that, even though the Board’s reasons did not directly address the attending psychiatrist’s “positive findings”, and failed to address the Appellant’s community support letters (e.g., from an Assertive Community Treatment Team and Good Shepherd Homes), neither of these was “fatal” to the reasonableness of the decision. (See paras. 16-17). The Court of Appeal sourced the Board’s consideration of this evidence from:
- the Board’s statement that it “accepts the evidence of [the attending psychiatrist]”;
- the Board’s acknowledgment in the reasons that it had received the Appellant’s community support letters; and
- that facts outlined in the Appellant’s community support letters were “also raised by [the attending psychiatrist] in the hearing”. (See paras. 16-17).
Ultimately, the Court of Appeal agreed with the Crown herein that the Appellant’s letters “did not add anything new to the analysis.” (See para. 17). However, for the Court of Appeal, the Appellant’s annual disposition hearing is scheduled for February 2023 – and this will provide “another opportunity for the Board to evaluate”. (See para. 30).
Counsel for the Appellant: Anita Szigeti (Anita Szigeti Advocates, Toronto) and Michael Schloss (Legal Aid Ontario, Toronto)
Counsel for the Respondent: Caitlin Sharawy (Attorney General of Ontario, Toronto)