R v Ozipko, 2024 SKCA 9

Court of Appeal for Saskatchewan Docket: CACR3633 Citation: R v Ozipko , 2024 SKCA 9 Date: 2024-02-07 Between: His Majesty the King Appellant And Ronald Ozipko Respondent Before: Leurer C.J.S., McCreary and Drennan JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Drennan In concurrence: The Honourable Chief Justice Leurer The Honourable Madam Justice McCreary On appeal from: Saskatchewan Review Board decision dated November 4, 2022 Appeal heard: December 6, 2023 Counsel: Erin Bartsch for the Appellant Andrew Hitchcock and Thomas Hynes for the Respondent Drennan J.A. I.

INTRODUCTION [ 1 ] On June 10, 2016, a Court of Queen’s Bench judge found Mr. Ozipko to be not criminally responsible by reason of mental disorder for the offences of murder and attempted murder ( R v Ozipko , 2016 SKQB 203 ). He was subsequently detained and treated in hospital until 2021. [ 2 ] Thereafter, following a series of annual reviews of his detention pursuant to s. 672.81 of the Criminal Code , Mr. Ozipko was transitioned into the community on certain conditions by the Saskatchewan Review Board [Board]. After conducting a further detention review in October of 2022, the Board granted Mr.

Ozipko an absolute discharge on November 4, 2022. It is from this decision that the Crown appeals. [ 3 ] The Crown asserts that the Board erred in applying the wrong legal test to determine whether Mr. Ozipko was a significant threat to public safety. Relatedly, to the extent that this alleged legal error undermined its reasoning, the Crown contends that the Board’s decision is unreasonable. The Crown requests that this Court allow its appeal, set aside the Board’s decision, and either impose a conditional discharge on Mr.

Ozipko, or remit the matter to the Board for a new hearing. [ 4 ] I see no merit to the arguments advanced by the Crown and would dismiss its appeal. My reasons for this conclusion follow. II. BACKGROUND [ 5 ] On March 10, 2013, Mr. Ozipko attacked three individuals with a knife in a multi-resident home where he was living at the time. These individuals were known to Mr. Ozipko. There was no animus between Mr. Ozipko and the victims, nor any provocation leading to the attack. [ 6 ] The first victim died as a result of his injuries.

The second victim sustained non-life-threatening injuries, while the third escaped uninjured. [ 7 ] Mr. Ozipko was subsequently charged with second-degree murder and two counts of attempted murder. He sought a verdict that he was not criminally responsible for his acts. [ 8 ] At the trial, defence and Crown counsel placed the evidence of forensic psychiatrist Dr Lohrasbe before the Court, and jointly submitted to the trial judge that, at the time he committed the offences, Mr. Ozipko was suffering from a “disease of the mind” within the meaning of s. 2 of the Criminal Code . [ 9 ] Dr. Lohrasbe testified that Mr.

Ozipko was in a psychotic state at the time of the offences, due to a combination of schizotypal personality disorder (likely a precursor to a diagnosis of schizophrenia), sleeplessness, as well as the onset of acute psychotic symptoms. He opined that at the time of the offences, Mr. Ozipko suffered from a disease of the mind and did not appreciate the nature and consequences of his actions. [ 10 ] The trial judge accepted the evidence of Dr. Lohrasbe and went on, pursuant to s. 672.34 of the Criminal Code , to find Mr. Ozipko not criminally responsible. Mr.

Ozipko was subsequently detained at the Saskatchewan Hospital for approximately five years, where he was ultimately diagnosed with schizophrenia, treated, and medicated. [ 11 ] Mr. Ozipko’s detention was thereafter reviewed by the Board on an annual basis. In a decision dated August 9, 2021, the Board discharged Mr. Ozipko into the community on conditions. Notably, counsel for both the Crown and Mr. Ozipko jointly recommended this

disposition, on the condition that Mr. Ozipko reside in an approved home, maintain his sobriety, and attend psychiatric appointments andprogramming. The Board scheduled a further review of Mr. Ozipko’s detention to permit victim participation. [12] That further review occurred on November 19, 2021. At that time, Mr. Ozipko continued to reside in an approved communityresidence and was attending psychiatric treatment and taking his medication. In a decision dated December 8, 2021, the Board maintainedthe community discharge of Mr.

Ozipko on similar conditions, pending the completion of a risk assessment. [13] The matter was again reviewed by the Board on October 14, 2022. On this occasion, it had the benefit of a risk assessmentcompleted by forensic psychiatrist Dr. Adams and psychologist Ms. Buttinger. That assessment concluded that Mr. Ozipko’s risk ofcausing serious harm was “moderate”.

It linked this risk to the possibility of a further psychotic episode, “dependent on this risk of relapseinto mental illness”, a “modifiable risk factor if someone is to engage in available treatments”. [14] Before the Board, Crown counsel took the position that “moderate” risk was still substantial risk, and that Mr. Ozipko hadlimited insight into his mental health. Defence counsel argued that Mr. Ozipko was ready to be absolutely discharged, noting that he hadbeen compliant with all conditions and treatment while in the community.

In particular, he had completed addictions programming, andhis addictions worker no longer required that he attend for follow up. Further, Mr. Ozipko’s evidence was that he would continue to residein the same group residence and follow through with ongoing treatment and medication in the community. He was in receipt of incomesupport benefits and would continue to have those resources available to him. Mr. Ozipko further indicated that if he felt unwell, he wouldvoluntarily attend the hospital. [15] The Board considered Mr. Ozipko’s evidence, the risk assessment, the evidence of Mr.

Ozipko’s residential service provider,the victim impact statement from one victim’s daughter, and the submissions of counsel. It went on to determine that Mr. Ozipko nolonger posed a significant risk to public safety, stating its rationale in this way: [14] As noted, the index offences are very serious however, Mr. Ozipko has demonstrated by his time in the community that his risk topublic safety has diminished. Mr. Ozipko has a stable and supported home environment in the group home of […]. He has regularpsychiatric care. He has been medically compliant without issue.

He has been involved with an addictions worker in the past who hasadvised him he does not need to see him anymore. He has family support from his sister, and he is well connected to his children. Hereports zero craving for alcohol and on a scale of 0 to 10 with 0 being the lowest and 10 being the highest, he has a level 1 craving formarijuana. He is aware that if he is feeling unwell, he should attend at the hospital. [15] Mr. Ozipko reports to enjoying his life; taking long walks, watching hockey games, and watching comedy videos and movies.

Hehas made friends with the other residents in the home and his home operator finds him to be pleasant and enjoyable. He does not cause anyissues in the home. [16] Mr. Ozipko has made progress and things may well improve for him further. However, the Board is satisfied at the current timebased on the risk assessment completed by Dr. Adams and Ms. Buttinger and the observations of Mr. Ozipko in the community, Mr.Ozipko no longer poses a significant threat to the safety of the public. His risk is well managed and will continue to be well managed bythe supports that Mr. Ozipko has around him. As such, Mr.

Ozipko will be absolutely discharged. III. ANALYSIS [16] The Crown asserts that the conclusion found in paragraph 16 of the Board’s decision discloses a legal error in its approach tothe test used to determine whether Mr. Ozipko posed a significant threat to public safety. Specifically, it takes issue with the portion of thereasons where, after concluding that Mr.

Ozipko “no longer poses a significant threat to the safety of the public”, the Board stated that his“risk is well managed and will continue to be well managed by the supports that [he] has around him”. [17] The Crown suggests that this passage demonstrates that the Board (

a) erroneously conflated the question of whether a riskexisted with the question of whether risk can be adequately managed, (

b) improperly assessed Mr. Ozipko’s risk as though he wouldcontinue to be supervised and supported by the state, and (

c) in its use of the term “risk”, acknowledged that Mr. Ozipko posed asignificant risk absent state supports. The Crown contends that this is contrary to the approach outlined in R v Owen, 2003 SCC 33, [2003]1 SCR 779 [Owen], and R v Baker (2001), (ON CA), 155 CCC (3d) 202 (Ont CA) [Baker], constitutes an error in law,and renders the Board’s determination unreasonable. At its core, the Crown’s overarching submission is that, given the evidence thatMr.

Ozipko presented as being a “moderate” risk, the Board should have concluded that he posed a significant risk. [18] Respectfully, I disagree with the Crown’s contention that the Board’s reasoning respecting whether Mr. Ozipko posed asignificant threat to public safety reflects legal error. This is so for three reasons. [19] First, as acknowledged by the Crown, the Board was clearly alive to the correct legal test for determining what constitutes asignificant threat or risk in the context of an NCR individual.

The Board noted that a “significant threat to the safety of the public” is a“risk of serious or psychological harm to members of the public … resulting from conduct that is criminal in nature but not necessarilyviolent” (s. 672.5401 of the Criminal Code) (at para 10).

Where an NCR individual is found not to be a significant threat to public safety,he or she must be absolutely discharged (s. 672.54(a)). [20] The Board further noted that a significant risk is not speculative or miniscule and that it must be significant “both in the sensethat there must be real risk of physical or psychological harm occurring to individuals in the community and in the sense that this potentialharm must be serious” (at para 12, citing Winko v British Columbia (Forensic Psychiatric Institute), (SCC), [1999] 2SCR 625 at para 57 [Winko]; see also Kassa (Re), 2019 ONCA 313 at para 31 [Kassa]).

It also appropriately highlighted the point that thesignificant risk standard is an “onerous one”, and that an “accused is not to be detained on the basis of mere speculation” (at para 13, citingCarrick (Re), 2015 ONCA 866 at para 17, 128 OR (3d) 209). Thus, I am satisfied that the Board clearly understood and articulated thecorrect legal test. [21] Second, in my view, the Board properly applied the legal principles surrounding the question of significant risk to the evidence

before it. It noted that Mr. Ozipko had made progress in the community, and specifically that he (

a) had a supportive home environment, (

b) was compliant with and receiving regular psychiatric care, (

c) had a strong family connection and supports, (

d) had successfully completed addictions treatment, and (

e) enjoyed life and activities in the community. The Board further considered the psychiatric evidence before it, including the risk assessment completed by Dr. Adams and Ms. Buttinger. While that assessment concluded that Mr. Ozipko’s risk for “serious harm” was “moderate”, that risk was dependent on his relapse into symptoms of mental illness, by way of re- engaging with substance use, discontinuing treatment, and disengaging from positive community supports. [ 22 ] It was in light of this evidence that the Board concluded that “Mr.

Ozipko no longer poses a significant threat to the safety of the public” (at para 16). In subsequently commenting on his “risk” being “well managed” by ongoing community supports, I do not view the Board as conflating risk with risk management, or as presuming that state supervision would be required for Mr. Ozipko’s risk to be mitigated.

Rather, the Board was applying the approach approved in Winko , which permits a broad base of evidence to be considered in assessing significant risk – including an NCR individual’s voluntary risk management strategies and plans to engage with community supports and treatment in the future.

In Winko , the Supreme Court stated: [60] When making this difficult assessment of whether an NCR accused poses a significant threat to the safety of the public, a court or Review Board may be expected to be aware not only of the need for public protection, but of the fact that a past offence committed under the influence of mental illness may often bear little connection to the likelihood of reoffending, particularly when the NCR accused is successfully following a treatment program.

At the same time, the commission of an offence in the past may in some circumstances constitute a link in a chain of events that demonstrates a propensity to commit harm, albeit unintentionally. The specific situation of each NCR accused must always be examined carefully. [61] It follows that the inquiries conducted by the court or Review Board are necessarily broad.

They will closely examine a range of evidence, including but not limited to the circumstances of the original offence, the past and expected course of the NCR accused’s treatment if any, the present state of the NCR accused’s medical condition, the NCR accused’s own plans for the future, the support services existing for the NCR accused in the community and, perhaps most importantly, the recommendations provided by experts who have examined the NCR accused.

The broad range of evidence that the court or the Review Board may properly consider is aimed at ensuring that they are able to make the difficult yet critically important assessment of whether the NCR accused poses a significant threat to public safety. At all times, this process must take place in an environment respectful of the NCR accused’s constitutional rights, free from the negative stereotypes that have too often in the past prejudiced the mentally ill who come into contact with the justice system.

Appellate courts reviewing the dispositions made by a court or Review Board should bear in mind the broad range of these inquiries, the familiarity with the situation of the specific NCR accused that the lower tribunals possess, and the difficulty of assessing whether a given individual poses a “significant threat” to public safety. (Emphasis added) See also Gibson (Re) , 2022 ONCA 527 at para 20 . [ 23 ] Contrary to the assertion of the Crown, the approach taken by the Board is consistent with Owen , which directs review boards to consider risk through the lens of how an NCR individual “would behave if state supervision were removed by an absolute discharge” (at para 28).

The Board in this instance did exactly that. As I read the Board’s reasons, it considered Mr. Ozipko’s progress at the time of the hearing, as well as his future risk management strategies in the context of an absolute discharge. At law it was precluded from speculating on what theoretical risk Mr. Ozipko posed in the event that he ceased to voluntarily engage with risk management strategies. In any event, the record before the Board demonstrated Mr.

Ozipko’s willingness to continue to engage with all the supports he had in place (distinguishing this circumstance from that in Baker at paras 9–11 ; see also Winko at para 57 ). [ 24 ] Third and finally, the Crown submits that the Board’s comment on Mr. Ozipko’s “risk” being “well managed” in the community was an acknowledgment that he posed a significant risk absent state supports. This argument ties into its related assertion that the risk assessment’s determination that Mr.

Ozipko posed a “moderate” risk was sufficient to meet the legal threshold of significant risk. [ 25 ] Respectfully, I do not interpret the Board’s reasons in the same way. Properly understood, its use of the term “risk” in this context cannot be equated to, or considered an acknowledgement of, Mr. Ozipko posing a significant threat to public safety. To that end, I agree with Mr. Ozipko’s submission that a determination by the Board that he was not a significant threat did not require that he present zero risk.

To the contrary, in a fashion consistent with the direction in Winko , the Board was acknowledging that some risk existed, as the record before it demonstrated, but that this risk did not meet the onerous legal standard of a significant threat. [ 26 ] As previously noted, Winko and subsequent authorities caution against speculation in the assessment of significant risk. “The test is not whether [the accused’s] behaviour could lead to decompensation and therefore the risk of serious harm, but whether there is evidence to support a positive finding that there is a significant threat to public safety” ( Sheikh (Re) , 2019 ONCA 692 at para 10 , emphasis in original).

In other words, “[ a]s Winko instructs, there must be a ‘real’ risk of physical or psychological harm arising from criminal conduct: at paras. 51, 57. ‘Could’ does not suggest the ‘real’ risk that Winko requires” ( Kassa at para 35 ). Having regard to these authorities, I agree with Mr.

Ozipko’s submission that given the inherent and long-term nature of his mental health concerns, the prospect of risk associated with a relapse into psychotic symptoms – which may often, if not always, be a theoretical possibility dependant on several variables – cannot, in and of itself, be determinative of the legal question of significant risk. [ 27 ] In

summary, I see no legal error committed by the Board that would result in intervention pursuant to s. 672.78(1) (

b) of the Criminal Code . [ 28 ] As the Crown has relied on this same legal error to argue that the Board’s decision was unreasonable within the meaning of s. 672.78(1) (

a) of the Criminal Code , it follows that this argument also must fail. The question of reasonableness is to be assessed by applying the principles identified in Saskatchewan Hospital North Battleford v Isaac , 2022 SKCA 26 at paras 49 and 50 , 411 CCC (3d) 451 ; see also Owen . Having regard to the individualized risk assessment required by Winko and the evidence that Mr. Ozipko had stabilized in the community and was voluntarily engaging with risk management strategies – it was open to the Board to conclude that the high bar for significant risk had not been met.

Its reasons bear all the hallmarks of reasonableness, being logical, coherent, and reflective of the relevant factual and legal constraints bearing on its decision. There is therefore no basis, either by way of legal error or otherwise, to

intervene pursuant to s. 672.78(1) (a). IV. CONCLUSION [ 29 ] The Crown appeal from the decision of the Board must be accordingly dismissed. “Drennan J.A.” Drennan J.A. I concur. “Leurer C.J.S.” Leurer C.J.S. I concur. “McCreary J.A.” McCreary J.A.