Background
Robert Jakaj was found not criminally responsible on account of mental disorder (NCR) for arson committed in February 2015. During a psychotic episode — triggered by months of daily marijuana use and cessation of prescribed medication — he smashed the interior of his residence with a sledgehammer and set fire to his father’s car in the garage, destroying it and rendering the home uninhabitable. He fled without reporting the fire and was later arrested. He told investigators the voices in his head instructed him to start the fire and that he also acted to “get even” with his father over a perceived affair. Jakaj is diagnosed with schizophrenia, cannabis use disorder, and cocaine use disorder, and had a significant history of criminal convictions and psychiatric admissions prior to the index offence.
Since coming under the Ontario Review Board’s jurisdiction, Jakaj experienced a variable course marked by repeated relapses into cocaine and cannabis use, multiple readmissions to hospital, and several compliance failures. In July 2020 he was granted a conditional discharge, but escalating crack cocaine use prompted his father to raise concerns, and a detention order was reinstated in September 2020. In June 2021 he absconded during a supervised pass, was located at his apartment three days later, and was returned to hospital by police, resulting in a charge of escaping lawful custody. Further relapses to cocaine use occurred in 2022, 2023, and 2024.
At its October 2026 hearing, the Board found that Jakaj continued to pose a significant threat to public safety and ordered his continued detention at St. Joseph’s Healthcare Hamilton’s Forensic Psychiatry Program, with privileges up to and including community living in approved accommodation, subject to conditions requiring abstinence from substances and no possession of weapons. Jakaj appealed, seeking an absolute discharge on the basis that the evidence did not reasonably support a link between his incomplete abstinence from substances and a significant threat to public safety.
The Court’s Holding
The Court of Appeal dismissed the appeal, holding that the Board’s finding of significant threat to public safety was reasonable and disclosed no reviewable error. Applying the deferential standard of review from Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the court found that the Board’s reasons reflected an internally coherent and rational chain of analysis justified in relation to the facts and law. The court affirmed that its role is not to re-weigh the evidence or substitute its own judgment for that of the Board, a body particularly well-placed to assess such matters given its expertise and access to medical reviewers.
The court rejected the appellant’s argument that the Board unreasonably accepted Dr. Kolawole’s “cascading risk scenario.” The Board was entitled to rely on the opinion of the appellant’s attending psychiatrist of over ten years, who testified that cocaine use directly impaired Jakaj’s mental health and that, absent the structure of a detention order, there was a very high likelihood of rapid relapse into unfettered substance abuse, acute psychosis, discontinuation of medication, and violence comparable to the index offence. The court also rejected the challenge to the Board’s finding of poor insight, noting that Jakaj’s stated awareness of cocaine’s risks was insufficient to override the broader evidentiary record, including his repeated relapses and pattern of non-compliance.
The court acknowledged that if substance abuse were the only concern, the Board’s decision might not have withstood scrutiny. However, the record encompassed a significant pre-offence history of violence and criminal convictions, a pattern of escalating substance use, repeated psychiatric decompensation, evasion of oversight, and expert opinion that forensic supervision was the mechanism preventing further aggression and criminal conduct. The Board’s conclusion that continued detention — and not a conditional or absolute discharge — was the least onerous and least restrictive appropriate disposition was open to it on the record.
Key Takeaways
- An NCR accused must be absolutely discharged only if the Board finds they do not pose a significant threat to public safety; where such a threat exists, a detention or conditional discharge order is required under s. 672.54 of the Criminal Code.
- Appellate courts apply a deferential reasonableness standard to Review Board dispositions and do not re-weigh evidence or substitute their own assessment of the significant-threat question.
- A “cascading risk” expert opinion — that substance relapse will trigger psychiatric decompensation and reoffending — can support a significant-threat finding where it is grounded in a detailed history of the accused’s behaviour and accepted by the Board.
- Incomplete abstinence from substances alone may not suffice to sustain a detention order, but where it is embedded in a broader pattern of non-compliance, violence, and psychiatric instability, it can form part of a reasonable significant-threat finding.
Why It Matters
This decision reinforces the high degree of deference appellate courts afford the Ontario Review Board in NCR dispositions, emphasizing that the Board’s expertise in weighing complex psychiatric and risk evidence places it in a superior position to assess public safety. Counsel seeking to challenge detention orders on appeal face a demanding standard: it is not enough to argue that an absolute discharge was available on the evidence — they must demonstrate that the Board’s reasoning was unreasonable in process or outcome.
The case also illustrates how a history of substance-induced psychiatric decompensation, combined with repeated failures of community supervision, can sustain continued detention even years after the index offence. For practitioners advising NCR clients, the decision signals that robust evidence of sustained, verified abstinence and stable community functioning will be critical to displacing expert and Board findings of ongoing significant threat.