Ontario Criminal

Mental Illness

Board’s decision entered into realm of speculation

Accused appealed disposition of Review Board, which ordered that he remain subject to conditional discharge. In 1985, accused was found not guilty by reason of insanity of one count of second degree murder. At time of offence accused was in transient psychotic state secondary to alcohol. Accused had spent some 15 years in various psychiatric facilities, and balance of time in community on conditional release. Accused’s current diagnoses were alcohol and substance abuse, in full and sustained remission, and personality disorder with narcissistic and antisocial traits. Accused’s outpatient forensic psychiatrist and treating hospital supported his request for absolute discharge. Influenced by accused’s lifestyle and assault conviction in 2008, Board concluded that, absent supervision, there was real likelihood that accused’s behaviour in community would escalate to level where he posed significant risk of physical and/or psychological harm to others. Accused argued he was entitled to absolute discharge. Appeal allowed, accused discharged absolutely. Board’s disposition was unreasonable and could not be supported by evidence. Board’s decision placed undue emphasis on relatively trivial conduct, ignored opinion of treating psychiatrist, and entered into realm of speculation. Legal threshold of significant threat to safety of public was not satisfied and decision could not stand. Assault was minor in nature, as altercation ensued between accused and neighbour over cat, and there was no indication of any physical or psychological harm. With exception of conviction for assaulting police officer in 1999, which occurred when accused was not yet drug and alcohol free, there had been no other convictions for assaultive behaviour since index offence. Accused’s accommodation reflected lack of financial resources, not choice to live in setting that exposed him to greater risk of conflict with law. Accused’s good behaviour was result of conducting himself appropriately, and not his father’s supervision. Board provided no basis for its rejection of psychiatrist’s unequivocal opinion that accused would not revert to drug or alcohol use. There had been no concerning incidents since accused’s 2010 hearing, and there was no evidence that he posed real risk of serious physical or psychological harm to individuals in community. Vancurenko (Re) (July 20, 2012, Ont. C.A., Laskin, Cronk and Hoy JJ.A., File No. C54732) 102 W.C.B. (2d) 498 (7 pp.).

cover image


Subscribers get early and easy access to Law Times.

Law Times Poll

Law Times reports that there is no explicit rule that lawyers in Ontario must be competent in the use of technology. Do you think there should be explicit rules spelling out the expectations of lawyers’ in terms of tech use in their practice?