



COURT OF APPEAL FOR ONTARIO

CITATION: Negash (Re), 2018 ONCA 179

DATE: 20180226

DOCKET: C63908

Hoy A.C.J.O., Simmons and Pardu JJ.A.

IN THE MATTER OF: ROBIEL
    NEGASH

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Kathryn Hunt, for the Person in Charge of the Centre for
    Addiction and Mental Health

Jacob Sone, for the Attorney General of Ontario

Heard:  February 12, 2018

On appeal against the disposition of the Ontario Review
    Board, dated May 24, 2017.

REASONS FOR DECISION

[1]

On February 9, 2010, the appellant, Robiel Negash, now aged 30 years,
    was found not criminally responsible on account of mental disorder on a charge
    of robbery, contrary to the
Criminal Code of Canada
. He has been
    subject to the jurisdiction of the Ontario Review Board since that time. He is
    diagnosed as suffering from schizophrenia and substance use disorder.

[2]

In 2017, the appellants treatment team asked the Centre for Addiction
    and Mental Health (the Hospital) to request an early Board hearing under s.
    681(2) of the
Criminal Code
, to obtain a new disposition that would improve
    their ability to manage the appellant in the community.

[3]

In its Reasons for Disposition dated June 15, 2017, the Board found that
    the appellant remains a significant threat to the safety of the public. The
    appellant had not contested the evidence that he remained a significant threat
    to the safety of the public and he does not challenge that finding on appeal.

[4]

The Board also accepted the submissions of the Hospital and the Crown
    that, having regard to the appellants recent deterioration, the appellants
    risk could only be managed on a detention disposition, with privileges up to
    and including the ability to live in the community, and that a conditional
    discharge was no longer appropriate.

[5]

On appeal, the appellant argues that: (1) despite articulating the
    correct legal test in its analysis, the Board failed to apply the correct test
    when it ordered that the appellant be detained, and (2) the Board unreasonably
    concluded that a conditional discharge was not appropriate.

[6]

In particular, the appellant argues that the Boards conclusion that a
    detention order was necessary and appropriate was unreasonable because, in his
    view, a conditional discharge, with a term, on his consent, requiring that he
    comply with treatment, could manage his risk as well as or better than a
    detention order. He notes that the Board did not propose to immediately change
    his existing residence in the community. He submits that if he failed to follow
    the conditions of a conditional discharge he could be returned to the Hospital
    expeditiously for breaching his conditions pursuant to the provisions of the
Criminal
    Code
. He argues that the Hospitals assertion that a detention order is
    required to manage the risk he presents is not reasonable given its failure to
    rely on his breaches of his conditional discharge, in the period leading up to
    his 2017 hearing before the Board, to return him to Hospital.

[7]

We are not persuaded that there is any basis to interfere with the
    Boards disposition.

[8]

In our view, the appellant seeks to characterize his disagreement with
    the result of the Boards application of the correct test as a legal error in
    the application of that test. Nothing in the Boards Reasons for Disposition
    suggest that it failed to apply the correct legal test.

[9]

Nor is the Boards disposition unreasonable.

[10]

The
    Board accepted the evidence of the appellants treating psychiatrist that the
    appellant had become increasingly more impulsive, his insight into his illness was
    unstable, he had not been compliant with the terms of his conditional
    discharge, and there was a strong likelihood that he would become non-adherent
    with medication again. It was entitled to do so. The Board also noted that the
Mental
    Health Act
, R.S.O. 1990, c. M.7
(MHA)
    had not addressed the appellants needs. Even when it was possible to admit him
    to Hospital on a Form 1, it was not always possible to keep him in Hospital for
    the time needed to adequately stabilize him.

[11]

The
    Board concluded that a detention order, which would have the benefit of quick
    readmission should the appellants presentation warrant it, was necessary and
    appropriate, given his current presentation.

[12]

The
Criminal Code
provisions on which the appellant relies would require
    that he be arrested for breach of the terms of his conditional discharge and
    held in custody to be brought before a justice, who  assuming that the terms
    of the conditional discharge required it  could then order that the appellant
    be returned to the Hospital. But a return to the Hospital would not necessarily
    effect a readmission of the appellant to the Hospital. Readmissions could only
    be effected on either a voluntary basis, or if the appellant met the criteria
    for involuntary admission under the MHA. Further, the threshold for the
    continued detention of the appellant at the Hospital under the MHA is high. In
    January 2017, the appellant did not agree to hospitalization and, in February
    2017, the appellant discharged himself against medical advice. As indicated
    above, the Board noted that the MHA had not addressed the appellants needs.

[13]

Having
    regard to the evidence of the appellants recent deterioration, the strong
    likelihood of non-adherence with medication, and the ineffectiveness of the MHA
    in managing the appellants risk, the need to ensure his quick readmission to
    and detention at the Hospital in the event of decompensation provided a
    reasonable basis for finding that a detention order is the least restrictive,
    least onerous disposition and is necessary and appropriate. In so concluding,
    we note the Hospitals acknowledgement that s. 672.56(2) of the
Criminal
    Code
would require it to notify the Board if it detained the appellant in
    Hospital for more than seven days. The Board would then have to hold a hearing
    regarding his detention in hospital as soon as practicable.

[14]

Accordingly,
    the appeal is dismissed.

Alexandra Hoy A.C.J.O.

Janet Simmons J.A.

G. Pardu J.A.


