Case: Caruso (Re), 2023 ONCA 782 (CanLii)

Keywords: Ontario Review Board; disposition hearings; violent offences; not criminally responsible

Synopsis:

The Appellant suffers from schizophrenia and substance use disorders. (See para. 1). His drug addiction is linked to two violent offences: “pulling an Uber driver from his vehicle, throwing him to the ground, and taking his car in order to obtain money to purchase drugs”; and “lunging at a security guard with a hypodermic needle”. (See para. 1). The substantive charges in relation to these offences are withdrawn. (See para. 1).

The Appellant is later found guilty of “other offences that would become index offences”, including “the attempted theft of two bicycles” and “violation of an order not to possess syringes”. These “index offences” result in a “not criminally responsible verdict” and a “disposition order requiring his detention”. (See para. 1). The Appellant’s offences are attributed to “drug-seeking behaviour and a chronic failure to comply with terms of his release.” (See para. 1).

Pursuant to the “NCR disposition order”, the Appellant is first admitted and detained at the Centre for Addiction and Mental Health, and then transferred to the Ontario Shores Centre for Mental Health Services. (See para. 1).

The Ontario Review Board later holds a disposition hearing, and determines the Appellant continues to pose a “significant threat to the safety of the public”. (See para. 2). For the Board, if the Appellant were to leave the Ontario Shores Centre for Mental Health Services, “[h]e would almost certainly discontinue medication, consume drugs, decompensate, and act violently”. (See para. 5).

The Appellant appeals, arguing the Board erred by finding he continues to pose a threat to public safety based on its consideration of his “pre-offence history of violent conduct”, and by failing to impose the “least onerous, least restrictive disposition.” (See para. 6). The Court of Appeal (Miller, Paciocco, and Coroza JJ.A.) finds no error in the Board’s decision.

Importance:

The Appellant’s primary argument is that evidence of his “pre-offence history of violent conduct” should not have been accepted without the Board doing more to “assess the quality of the evidence informing the police reports”. (See para. 8).

This raises an important practical question for the Board. Specifically, to what extent should the Board be permitted to consider evidence of the Appellant’s “pre-offence history of violent conduct” (i.e., the “carjacking” and “syringe incident”)? After all, there was no adjudication of either case – the charges were subsequently withdrawn.

Similarly, the Board considered reports that the Appellant had been restrained in hospital and that his mother advised police she was fearful of him. (See para. 9). Are those reports salient in the absence of some explanation as to why he was restrained and why his mother reported being fearful?

The Court of Appeal found “some merit” to the argument that the Board ought not to have relied on “the sheer fact of other peoples’ reactions” to find the Appellant posed a significant threat; that more inquiries into the circumstances were necessary. (See para. 10).

However, with respect to the carjacking and syringe incidents, the Court of Appeal found there was “sufficient context”; the Board was entitled to rely on the Appellant’s pre-offence conduct as “some evidence” that, “when untreated”, the Appellant poses a substantial risk. (See para. 11).

Importantly, the Court of Appeal found that, for the Board’s purposes, allegations do not need to be proven beyond a reasonable doubt. (See para. 11).

Regarding the Board’s disposition, the Court of Appeal noted that, despite being a “very amiable patient”, the Appellant had absconded or attempted to abscond on more than one occasion and that, “the risk of him absconding when outside the hospital is currently unmanageable”. (See paras. 12-13).

For the Court of Appeal there was also “ample evidence in the record” to show the Appellant would likely engage in “aggressive crime” if “untreated and at large”. (See para. 15). Therefore, the Court found no basis to conclude that the Board’s order should be set aside. (See para. 16).

Counsel for the Appellant: Anita Szigeti (Anita Szigeti Advocates, Toronto)

Counsel for the Respondent: Dena Bonnet (Ministry of the Attorney General, Toronto)

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