



COURT OF APPEAL FOR ONTARIO

CITATION: Abdikarim (Re), 2022 ONCA 255

DATE: 20220329

DOCKET: C69749

Strathy C.J.O., Coroza and
    George JJ.A.

IN THE MATTER OF: Mohamed Abdikarim

AN APPEAL UNDER PART XX.1 OF THE
CODE

Joanna Weiss, for the appellant

Erica Whitford, for the respondent, the
    Attorney General of Ontario

Leisha Senko, for the respondent, the
    Person in Charge of the Centre for Addiction and Mental Health

Heard: March 18, 2022 by video
    conference

On appeal against the disposition of the
    Ontario Review Board dated May 12, 2021, with reasons dated June 8, 2021.

REASONS FOR DECISION

[1]

The appellant, Mohamed Abdikarim, appeals
    against the disposition of the Ontario Review Board (the Board), dated May
    12, 2021, ordering that he be detained at the Forensic Service of the Centre
    for Addiction and Mental Health (CAMH) in Toronto. He asserts that the Board
    erred in law in determining that the necessary and appropriate disposition was
    a continuation of his detention order and that the Boards decision was
    unreasonable. The appellant argues that the Board should have ordered a
    conditional discharge.

[2]

The appellant is diagnosed with bipolar disorder
    unspecified, personality disorder unspecified, and substance use disorders
    relating to alcohol and cannabis. In October 2005, he was found not criminally
    responsible on account of a mental disorder in relation to three charges of robbery,
    two charges of possession of property obtained by crime under $5,000, one
    charge of failing to comply with a recognizance, one charge of theft under
    $5,000 and one charge of theft over $5,000. The appellant has been subject to a
    detention order since November 2005.

[3]

The terms of the appellants detention order permit
    him to live in the community in accommodation approved by the person in charge
    of CAMH, requires him to abstain from the use of alcohol and drugs and requires
    him to report to CAMH at least once a week. During the reporting year, the
    appellant resided at his mothers house along with his sisters in a living
    environment that he described as supportive yet stressful.

[4]

The appellant sought readmission to hospital on
    nine separate occasions during the reporting year. Seven of these occasions
    were visitations to the CAMH emergency department and the other two occasions
    were to other emergency departments. The appellants reasons for seeking
    readmission varied, but often related to having consumed alcohol. He was
    readmitted to CAMH twice  from March 1 to 2, 2021 and from March 30 to April
    3, 2021  but consistently requested to leave prematurely. On at least two of
    the occasions that he was not readmitted, the appellant left the hospital
    before receiving a full assessment by his treatment team.

[5]

Unfortunately, the appellant tested positive for
    the consumption of alcohol on 12 days over the reporting year. The results of
    these tests were not always consistent with the appellants own reports of his alcohol
    consumption.

[6]

At the disposition hearing, the Board heard
    evidence from the appellants outpatient psychiatrist, Dr. Paul Benassi. In Dr.
    Benassis view, the appellants alcohol consumption and bipolar disorder leads
    to noncompliance with his medication and increases his risk for violence. In
    the Hospital Report that was provided to the Board, Dr. Benassi also noted that
    the appellant provided inconsistent and misleading information relating to
    his alcohol consumption over the reporting year.

[7]

The Board concluded that the appellant remained
    a significant threat to the safety of the public, and that the necessary and appropriate
    disposition was a continuation of his detention order.

[8]

The appellant advances two arguments on appeal.

[9]

First, the appellant argues that the board erred
    in law by relying on his alcohol consumption when determining that a
    continuation of his detention order was the necessary and appropriate
    disposition. We disagree. It was necessary for the Board to consider the
    appellants alcohol use in determining the necessary and appropriate
    disposition.

[10]

The Board quite properly considered this
    evidence along with the undisputed fact that the appellant tested positive for
    alcohol 12 times during the reporting year. Dr. Benassis evidence was that
    alcohol consumption increases the appellants risk of a mood episode, which is directly
    tied to his risk of violence. On two occasions, the appellants family phoned
    the hospital concerned about the appellants behaviour after coming home
    intoxicated, including one occasion where the appellant threatened to punch his
    sister. The appellants two readmissions to hospital were both triggered by
    concerns about his substance use. The Board did not err in considering all of
    this evidence because it was relevant to the issue of whether the appellants
    risk could be safely managed in the community.

[11]

Second, the appellant argues that the Boards
    decision to order the continuation of his detention is unreasonable. He asserts
    that the evidence before the Board did not establish that a detention order was
    required to manage his risk in the community and was not the least onerous and
    least restrictive disposition. We do not accept this submission.

[12]

Given its expertise, considerable deference is owed
    to the Boards decision in determining the necessary and appropriate
    disposition. In our view, the Boards reasoning process and outcome in this
    case reflects an internally coherent and rational chain of analysis and is
    justified in relation to the facts and the law:
Canada (Minister of
    Citizenship and Immigration) v. Vavilov
, 2019 SCC 65, 441 D.L.R.
    (4th) 1, at para. 85.

[13]

Dr. Benassi testified that a conditional discharge
    was not appropriate because it would not provide the safeguards necessary to
    manage the appellants risk. First, a conditional discharge would remove CAMHs
    authority to approve the appellants housing. Second, a detention order was the
    only mechanism that would allow the hospital to readmit the appellant using a
    warrant of committal if necessary. According to Dr. Benassi, if a conditional
    discharge was granted, it would be very difficult to admit the appellant under
    the
Mental Health Act
, R.S.O. 1990, c. M.7. because he would not
    necessarily satisfy the criteria for involuntary admission under the Act.

[14]

We do not view Dr. Benassis evidence as
    suggesting that a detention order should be imposed merely because it would be convenient
    to return the appellant to the hospital if necessary: see
Esgin (Re)
,
    2019 ONCA 155, at paras. 20 to 22. Dr. Benassi testified that the appellants treatment
    team has made consistent efforts to provide a level of risk management in a
    community setting, but has been challenged by the appellants fluctuating compliance
    with his treatment program and inconsistent self-reporting. Dr. Benassi
    confirmed that the goal of the appellants treatment team is to reduce
    reporting and monitoring requirements and to explore a conditional discharge
    going forward. It was open to the Board to order the appellants continued
    detention because the hospital needed to properly manage his risk and that the
    request for a conditional discharge was premature.

[15]

For these reasons, the Board did not err and we
    would not interfere with its disposition.

[16]

Before leaving this matter, we wish to comment on
    the Boards description of the appellant as a scofflaw. We do not accept that
    the appellant is a contemptuous person who regularly violates the law. We recognize
    that the appellant has not always complied with the terms of his detention
    order, which prohibits him from consuming alcohol. But as Dr. Benassi explained,
    there are several complex reasons why the appellant continues to consume alcohol
    and the appellant has shown that he is willing to work with his treatment team
    in addressing his substance use. Indeed, Ms. Weiss, on behalf of the appellant,
    advised this court that the appellant has been enrolled in CAMHs Concurrent
    Outpatient Medical & Psychosocial Addiction Support Services for substance
    use treatment since June 2021. We encourage the appellant to continue to work
    with his treatment team towards the goal of a conditional discharge.

[17]

The appeal is dismissed.

G.R.
    Strathy C.J.O.

S. Coroza
    J.A.

J.
    George J.A.


