A very important decision argued by my associate Maya Kotob, clarifying the test for ‘significant threat’ in relation to the Ontario Review Board.

https://www.ontariocourts.ca/decisions/2021/2021ONCA0130.htm

The passages on substantive test for significant risk are reproduced below:

[39]       The evidence pertaining to significant threat, as summarized by the Board’s reasons at paras. 18-19, included the following general conclusions: (1) the appellant has limited insight into the nature of his illness; (2) when he is unwell, he is capable of physical and psychological harm; (3) he would decompensate if he went off his medication; and (4) the risk of decompensation is heightened due to the deterioration of his therapeutic relationship with his clinical team and his history of substance use: Marmolejo (Re), [2019] O.R.B.D. No. 2378, at paras. 18-19.

[40]       None of these factors, taken alone or together, support the Board’s finding that the appellant presented a significant threat to the safety of the public. More specifically, the general conclusions relied upon by the Board address neither the degree of the risk nor the gravity of the apprehended harm. An appropriate significant threat finding cannot be made without considering these questions. A finding of significant threat based on the aforementioned factors without such evidence would have been an error in law because it would amount to a failure to apply the proper test to the evidence adduced at the hearing: Hammoud, at para. 9. It would also have been an unreasonable disposition. I will examine each of the factors identified in evidence before the Board, in turn.

[41]       The fact that an accused lacks insight into their condition is but one factor for consideration, and it must be used with care. In Kalra (Re), 2018 ONCA 833, at para. 52, this court examined the role of insight in relation to significant risk and found that a lack of insight must be evaluated in its proper context:

Whether an NCR accused has insight into his or her mental illness, and the extent of that insight, is only part of the analysis in determining if there is a significant threat to the safety of the public. While insight is a treatment goal, it is one some persons living with mental illness may be unable to fully achieve. In some instances, particularly where the contemplated harm falls at the lower end of the spectrum, it may be unreasonable to require, as the Board did here, that an NCR accused’s insight into his or her illness be “entrenched on his consciousness” in order to obtain an absolute discharge. [Emphasis added.]

[42]       This analysis is equally applicable to the circumstances at hand. A lack of insight alone cannot form the basis of a significant threat finding without analysis of how that lack of insight factors into the risk the NCR accused will pose. Due to the brevity of the Board’s reasons, the extent to which this factor contributed to the finding of significant risk is unclear. Yet the appellant’s lack of insight has been a running and dominant theme throughout the appellant’s dispositions over the years. It also figured prominently in the Hospital’s report and Dr. Choptiany’s testimony. Needless to say, the Board must be cautious in inferring that an NCR accused comprises a significant risk without consideration of how that lack of insight poses a risk in the circumstances of the case at hand.

[43]       Furthermore, the fact that the appellant may be capable of physical and psychological harm when he is unwell is likewise insufficient to ground a finding of significant risk. That is not the threshold. There needs to be a foreseeable and substantial risk of significant physical or psychological harm; that is, the NCR accused must pose a risk of serious criminal conduct. Anything less is an insufficient basis to deny entitlement to an absolute discharge.

[44]       Additionally, a finding that a person might discontinue their medication must be supported by evidence and be linked in a reasoned way to the finding that the NCR accused poses a significant threat to the public. In Pellett, at para. 32, this court noted that the onerous substantial threat standard was not met by the risk that an NCR accused could cease taking her medication, which would result in a worsening of her condition. This is so even where there is considerable likelihood that the NCR accused would discontinue their medication: Hammoud, at para. 9; Ferguson, at paras. 1-3. As this court noted in Hammoud:

There was no doubt that for three decades the appellant has suffered, as she continues to suffer, from a serious mental disorder. Equally, there was no doubt that, presented with the opportunity to do so, the appellant would discontinue her medication. But these are not the risks at which the “significant threat” threshold in s. 672.5401 is directed. In our view, read as a whole, the reasons of the Board reveal legal error — the failure to apply the proper test for “significant threat to the safety of the public” to the evidence adduced at the hearing. [Emphasis added.]

[45]       In the present case, the appellant has complied with his medication regimen for years and has repeatedly indicated that he would continue taking his medication upon his absolute discharge. Although he stopped taking his medication after he received his 2008 absolute discharge, there is no evidence that this would happen again. His liberty cannot be beholden to a mistake made over a decade ago.

[46]       Nor can one equate the deterioration in the appellant’s relationship with his psychiatric team with significant threat. The team did not observe any overt psychiatric symptoms. Admittedly, the change in temperament remains unexplained. However, uncertainty does not ground a finding of significant threat, even when considered along with the other conclusions that emerge from the evidence that was before the Board.

[47]       Finally, it is well recognized that a risk of substance abuse does not justify the denial of an absolute discharge unless that substance abuse would pose a significant threat to the public: Carrick (Re), (2015), at para. 39; Wall (Re), 2017 ONCA 713, 417 D.L.R. (4th) 124,at paras. 25, 29-30; Sokal,at para. 25. An NCR accused cannot be under the Board’s jurisdiction indefinitely because of substance use. The evidence before the Board failed to offer insight into the degree of the risk that substance abuse posed to the appellant’s behavior and was therefore of marginal utility.

[48]       In sum, the Board erred in law by not engaging the appropriate legal standards required for a significant risk finding. If the Board’s finding was, in fact, based on the conclusions put before it in evidence, viewing these factors in light of the concerns raised above the finding was also unreasonable. The evidence before the board leads me to a different outcome than the Board: I am satisfied that the totality of this record does not permit a finding that the appellant posed a significant threat to the public. The appellant was entitled to an absolute discharge.