



COURT OF APPEAL FOR ONTARIO

CITATION: Abdikarim (Re), 2017 ONCA 793

DATE: 20171017

DOCKET: C63197

Pepall, Benotto and Nordheimer JJ.A.

IN THE MATTER OF:  Mohamed Abdikarim

AN APPEAL UNDER PART XX.1 OF THE
CODE

Ken J. Berger, for Mohamed Abdikarim

Erica Whitford, for the Attorney General of Ontario

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

Heard:  October 10, 2017

On appeal against the disposition of the Ontario Review
    Board dated December 14, 2016.

REASONS FOR DECISION


[1]

Mohamed Abdikarim appeals from the December 14, 2016 disposition of the
    Ontario Review Board (the Board), ordering his detention at the General
    Forensic Unit of the Centre for Addiction and Mental Health (CAMH). The
    hearing before the Board was held on December 9, 2016.

[2]

The appellant is a 33 year-old man born in Mogadishu, Somalia. His
    family lived in Saudi Arabia during his early years. He moved to Canada at age
    four with his mother and siblings. The appellant currently resides in Toronto,
    Ontario. He is single and does not have any children.

[3]

The appellant is diagnosed with bipolar disorder  not otherwise
    specified; substance-use disorder, in partial remission; and
    personality-disorder  not otherwise specified.

[4]

The index offences occurred in 2004. On March 26, 2004, the appellant
    was charged with robbery and possession of property obtained by crime, for grabbing
    the purse of a woman on the sidewalk. Though there was a brief struggle, there
    was no serious harm reported as a result of the incident. Days later, on March
    30, 2004, the appellant was charged with theft over $5,000, theft under $5,000,
    robbery and possession of property obtained by crime for stealing a motor
    vehicle, and later, entering a bank with a threatening note and fleeing the
    scene with $2,600 given to him by the bank teller. A few months later, on July
    14, 2004, the appellant was charged with robbery and failure to comply for
    attempting to rob another bank using a threatening note. He had no weapons on
    him and there was no reported serious harm from this incident.

[5]

The appellant was eventually found to be not criminally responsible
    (NCR) in respect of these offences.  The appellant was admitted to the Medium
    Secure Forensic Unit at CAMH on November 18, 2005. Since his initial admission,
    the appellant has been in and out of CAMH on numerous occasions.

[6]

It is unnecessary to review in extensive detail the last twelve years of
    the appellants interaction with CAMH.  It is sufficient to note that he has
    consistently had to return to CAMH because of problems that he has experienced
    living in the community.  Frequently these problems are caused by substance
    abuse involving alcohol, marijuana or both.  These problems, when they arise,
    often involve concerns about the potential for physical violence that the
    appellant, himself, admits to.  That said, there are very few instances of any
    actual physical violence being inflicted by the appellant.

[7]

The appellant continued to pose these same problems in the year leading
    up to the Boards decision that is the subject of this appeal.  The appellant
    would not follow rules, he would abuse privileges extended to him and, when
    outside of CAMH, he would continue his substance abuse.

[8]

On December 9, 2016, a hearing was held to review the decision of CAMH
    to significantly increase the restrictions of liberty of the appellant, and to
    review the appellants most recent disposition, to determine whether he
    remained a significant threat to the safety of the public. The evidence before
    the Board consisted of various hospital reports, the expert evidence of Dr.
    Walton, the appellants treating psychiatrist, and the evidence of the
    appellants mother, his cousin, and a local mental health worker.

[9]

The Board essentially accepted the evidence of Dr. Walton that the
    appellant remained a significant risk to public safety due to his continued
    substance use and manic symptoms. Dr. Waltons opinion was that a detention
    order was necessary.  Dr. Walton also noted that the appellant required
    supervised housing and that a conditional discharge to the family home was not
    viable since the appellant had consistently struggled there, resulting in
    several readmissions to hospital.

[10]

On
    appeal, the respondent, Person in Charge of CAMH, sought to introduce fresh
    evidence. The fresh evidence relates to conduct of the appellant since the
    Boards decision.  More specifically, it reveals that the appellant had to be
    transferred to a Secure Forensic Unit at CAMH as a result of his disruptive
    conduct.  Included in that conduct was an attempt to smuggle cigarettes into
    CAMH, aggressive and threatening behaviour, shoving or punching another patient,
    and verbal altercations.  Security staff had to intervene with the appellant on
    more than one occasion.

[11]

We
    would admit the fresh evidence as it is trustworthy and touches on the issue of
    risk to public safety. It goes directly to the concerns regarding the
    appellants likely future conduct. It is also necessary to receive and consider
    that evidence in the interests of justice:
R. v. Owen
, [2003] 1
    S.C.R. 779, at para. 71.

[12]

The
    Boards obligation is set out in s. 672.54 of the
Criminal Code
which
    reads:

When a court or Review Board makes a disposition under
    subsection 672.45(2), section 672.47, subsection 672.64(3) or section 672.83 or
    672.84, it shall, taking into account the safety of the public, which is the
    paramount consideration, the mental condition of the accused, the reintegration
    of the accused into society and the other needs of the accused, make one of the
    following dispositions that is necessary and appropriate in the circumstances:

(a) where a verdict of not criminally
    responsible on account of mental disorder has been rendered in respect of the
    accused and, in the opinion of the court or Review Board, the accused is not a
    significant threat to the safety of the public, by order, direct that the
    accused be discharged absolutely.

(b) by order, direct that the accused be discharged subject to
    such conditions as the court or Review Board considers appropriate; or

(c) by order, direct that the accused be detained in custody in
    a hospital, subject to such conditions as the court or Review Board considers
    appropriate

[13]

A
    significant threat to the safety of the public is defined in s. 672.5401 as a
    risk of serious physical or psychological harm to members of the public

including any victim of or witness to
    the offence, or any person under the age of 18 years

resulting from conduct that is criminal in nature
    but not necessarily violent.

[14]

The
    application of this standard was recently considered by this court in
Wall
    (Re)
, 2017 ONCA 713. That decision, in turn, referred to the earlier
    decision of the Supreme Court of Canada in
Winko v. British Columbia
    (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625, where McLachlin J.
    discussed what constitutes a significant threat to public safety at para. 57:

To engage these provisions of the
Criminal Code
, the
    threat posed must be more than speculative in nature; it must be supported by
    evidence: [citation omitted]. The threat must also be significant, both in
    the sense that there must be a real risk of physical or psychological harm
    occurring to individuals in the community and in the sense that this potential
    harm must be serious. A minuscule risk of a grave harm will not suffice.
    Similarly, a high risk of trivial harm will not meet the threshold. Finally,
    the conduct or activity creating the harm must be criminal in nature: [citation
    omitted]. In short, Part XX.1 can only maintain its authority over an NCR
    accused where the court or Review Board concludes that the individual poses a
    significant risk of committing a serious criminal offence. If that finding of
    significant risk cannot be made, there is no power in Part XX.1 to maintain
    restraints on the NCR accused's liberty.

[15]

In
Wall
, this court observed that the significant threat standard is an
    onerous one and that it was not met in that case.  In
Wall
, however,
    the appellant had insight into his mental disorder and his need for medication;
    he had not been physically violent for a period of more than ten years, nor had
    he caused psychological harm; and the evidence before the Board established, at
    best, that the appellants marijuana use was only potentially linked to
    problematic symptoms.  Also, in
Wall
, the Board was divided over
    whether a detention order was justified.

[16]

The
    appellants situation here is different.  The appellant has difficulty
    monitoring and recognizing his symptoms.  There is clear evidence of continual
    substance abuse by the appellant that leads inevitably to problematic conduct
    including at least one instance that caused psychological harm.  These factors
    distinguish this case from the situation in
Wall
.

[17]

Relying
    on the evidence of Dr. Walton and the hospital records, the Board reasonably
    concluded that the appellant posed a significant risk to the safety of the
    public.  That conclusion is bolstered by the fresh evidence.

[18]

The
    decision of the Board is entitled to deference from this court.  In that
    regard, the standard of review applicable to the Boards decision is
    reasonableness, absent an error of law of which none is identified here.  In
    conducting a review, this court must bear in mind the caution expressed by
    McLachlin J. in
Winko
at para. 61:

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.

[19]

The
    Board applied the least onerous and restrictive disposition available in the
    circumstances.  The Board determined that discharging the appellant to his
    family home was not viable.  This conclusion was supported by his numerous readmissions
    to CAMH, his history of conflict, the lack of insight on the part of a key
    family member regarding the appellants mental health issues, and his familys
    inability to provide the necessary structure and supervision.  The Board
    considered all of the evidence before it and reached a reasonable conclusion
    based on that evidence.

[20]

We
    appreciate the appellants frustration with the time that he has been subject
    to the supervision of the Board.  On that point, however, we would note the
    following summary from the March 29, 2017 CAMH report, at p. 5:

The treatment team acknowledges that Mr. Abdikarim's course
    under the jurisdiction of the ORB and as a patient at CAMH has been lengthy and
    tenuous. There has not been an ideal setting to facilitate his rehabilitation,
    either as an inpatient, or as an outpatient. His fluctuating mental state has
    impeded his progress. Historically, he has benefitted from a structured
    setting. Considering his struggles, the original goals for re-admission in
    November 2016 were to formulate a relapse prevention plan, to engage in
    structured activities, re-evaluate housing, and to optimize medication
    management. Unfortunately, these goals have not yet been achieved. It is the
    team's opinion these goals remain valid, and are necessary for his successful
    rehabilitation.

[21]

The
    appeal is dismissed.

S.E. Pepall J.A.

M.L. Benotto J.A.

I.V.B. Nordheimer J.A.


