Waite (Re)

Waite (Re) Collection Decisions of the Court of Appeal Date 2017-01-23 Neutral citation 2017 ONCA 56 Docket numbers C62524 Judges Doherty, David H.; Blair, Robert Ashley; Lauwers, Peter D. Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: Waite (Re), 2017 ONCA 56 DATE: 20170123 DOCKET: C62524 Doherty, Blair and Lauwers JJ.A. IN THE MATTER OF: Andrew B. Waite AN APPEAL UNDER PART XX.1 OF THE CODE Erin Dann, for the appellant Kevin Rawluk, for the Attorney General Janice Blackburn, for the North Bay Regional Health Center Heard: January 19, 2017 On appeal form the order of the Ontario Review Board dated, April 28, 2016. ENDORSEMENT [1] The appellant challenges the disposition of the Ontario Review Board by which his previous disposition was continued. Under that disposition he continues to be discharged from the North Bay Regional Health Center – North Bay site, subject to a number of conditions. [2] The appellant makes two arguments in this appeal. First, he argues that the Board failed to focus on whether he poses a significant risk of serious harm to the public, as it is required to do under s. 672.54 of the Criminal Code. Instead it wrongly focussed on the evidence of Dr. Rachel Henry who testified that if the appellant were no longer under the jurisdiction of the Review Board, he would discontinue his medication. [3] We do not accept this argument. The appellant suffers from a schizoaffective disorder – bipolar type that is control by medication. The evidence is clear that the appellant would discontinue his medication if he could. If he did so, Dr. Henry testified that he would discontinue his medication, decompensate and revert to his previous aggressive behaviour in the community. This raises the risk that he would revert to his previous criminal behaviour. In this case the index offences were one charge each of assault and criminal harassment, and two charges of breach of probation, on July 7, 2005. His criminal record involving violence is more extensive. Moreover, we observe that the Assertive Community Treatment team sees Mr. Waite 12 times per week and that an earlier effort to reduce the frequency of visits was unsuccessful. [4] It was entirely within the Board’s expertise to conclude that if the appellant were given an absolute discharge, he would discontinue medication and would inevitably progress to the behaviour that led to the index offences. The decision was entirely reasonable. [5] The appellant’s second ground of appeal is that the Board erred in failing to consider whether a community treatment order under the Mental Health Act could serve to mitigate any residual risk to the public that would be posed by the appellant if he were absolutely discharged. [6] We reject this argument, because it was not advanced before the Board and there is no supporting evidence for it: see Re Petroniuk, 2016 ONCA 186. We add that the Board itself has no authority to make a community treatment order. That is the task of a medical doctor under s. 33.1 of the Mental Health Act. Nor is there evidence that the conditions precedent to such an order as set out in s. 33.1(4) of the Mental Health Act have been met. [7] The appeal is dismissed. “Doherty J.A.” “R.A. Blair J.A.” “P. Lauwers J.A.”