



COURT OF APPEAL FOR ONTARIO

CITATION: Abdikarim (Re), 2016 ONCA 823

DATE: 20161104

DOCKET: C61668

Laskin, Sharpe and Huscroft JJ.A.

IN THE MATTER OF:  MOHAMED ABDIKARIM

AN APPEAL UNDER PART XX.1 OF THE
CODE

Ken J. Berger, for the appellant

Michele Warner, for the respondent the Person in Charge
    of the Centre for Addiction and Mental Health

Alison Wheeler, for the respondent the Attorney General
    of Ontario

Heard: October 25, 2016

On appeal against the disposition of the Ontario Review
    Board, dated December 15, 2015.

ENDORSEMENT

[1]

Mr. Abdikarim appeals the December 15, 2015 disposition of the Ontario
    Review Board. The Board ordered that he be detained in the general forensic
    unit at the Centre for Addiction and Mental Health (CAMH) and restricted his
    permission to live in the community by requiring him to live in 
supervised
 accommodation.

[2]

Mr. Abdikarim makes two submissions on his appeal:


i.

The Board erred by failing to consider whether Mr. Abdikarim ought to be
    conditionally discharged on the term that he consent to take any medication
    prescribed for him; and


ii.

Alternatively, the Board erred in attaching to its condition imposed in
    2014  that he be permitted to live in the community in accommodation approved
    by the person in charge  the word supervised.

A.

Background

[3]

Mr. Abdikarim is 32 years old. He has a high school education. The index
    offences of theft and robbery took place over 12 years ago. Mr. Abdikarim did
    not physically harm any member of the public in either offence.

[4]

Mr. Abdikarim was found not criminally responsible in October 2005. He
    has been diagnosed as suffering from bipolar disorder and personality disorder.
    He takes medication for his bipolar disorder.

[5]

Mr. Abdikarim has been in the minimum secure unit of the hospital for
    ten years. Attempts at community living have been tried but have been
    unsuccessful. His 2014 disposition, which was the product of a joint
    submission, continued his detention in the hospital with delegated authority to
    allow Mr. Abdikarim to live in the community.

[6]

At his 2015 hearing, Mr. Abdikarim did not dispute that he remained a
    significant threat to the safety of the public and thus he did not seek an absolute
    discharge. The principal issue before the Board was whether Mr. Abdikarim should
    be maintained on a hospital detention order, or conditionally discharged to
    live with his mother. The Board ordered that he be maintained in the hospital.

[7]

The secondary issue was whether the Board ought to accede to the
    hospitals request to modify the condition delegating authority to live in the
    community to specify supervised accommodation. The Board agreed with the
    hospitals request.

B.

The Issues

(1)

Did the Board err by
    failing to consider a conditional discharge?

[8]

At the 2015 hearing, Mr. Abdikarim requested a conditional discharge.
    His counsel told the Board that Mr. Abdikarim was amenable to taking any
    medication recommended for him as a term of a conditional discharge.

[9]

Although the Boards reasons and disposition implicitly rejected a
    conditional discharge, the Board did not expressly address Mr. Abdikarims
    request. It would have been better had the Board done so. Indeed, but for the
    fresh evidence filed on this appeal, we would have been concerned by the
    Boards failure to address why a conditional discharge was not appropriate.

[10]

However,
    the fresh evidence filed by the hospital, which we admitted at the outset of
    the appeal, shows that Mr. Abdikarim is not yet ready to be conditionally
    discharged. During the past year, he was twice discharged from CAMH to live in
    a supervised residence in the community. On both occasions he had to be
    readmitted to CAMH. We are told that as of August of this year he has again
    been discharged to live in supervised housing in the community.

[11]

The
    fresh evidence shows that before being considered for a conditional discharge,
    Mr. Abdikarim must demonstrate that he is able to live in supervised
    accommodation in the community. At his next review this November, the Board
    will be able to assess whether Mr. Abdikarims recent attempt at community
    living has been successful.

[12]

However,
    we are satisfied that in its 2015 disposition, the Board did not err in
    refusing to order a conditional discharge.

(2)

Did
    the Board err in specifying that the accommodation must be supervised?

[13]

The
    hospital asked that the term allowing Mr. Abdikarim to live in the community
    specify supervised accommodation. It did so for two reasons: to ensure any
    community living was structured; and to eliminate any conflict with Mr.
    Abdikarim, who thought that he could live anywhere.

[14]

These
    reasons seem sensible to us. And the Boards decision to insist on supervised
    accommodation was reasonable. It was supported by the opinion evidence of Dr.
    Chatterjee, and the Board was entitled to rely on her opinion.

C.

Conclusion

[15]

Accordingly,
    the appeal is dismissed.

John
    Laskin J.A.

Robert
    J. Sharpe J.A.

Grant Huscroft
    J.A.


APPENDIX A

ENDORSEMENT ON FRESH EVIDENCE APPLICATION

[1]      In our view the test in
Owen
is met. It
    is in the interest of justice, and not more of the same, to have evidence of
    what occurred when the appellant was discharged to reside in supervised
    housing. The Boards reasons make the evidence trustworthy, and we can take
    account of the Boards findings. The fresh evidence is admitted.


