



COURT OF APPEAL FOR ONTARIO

CITATION: Kamali (Re) 2016 ONCA 52

DATE: 20160118

DOCKET: C61073

Feldman, Cronk and Roberts JJ.A.

IN THE MATTER OF: Sinem Kamali

AN APPEAL UNDER PART XX.1 OF THE
CODE

Ian S. McCuaig, for the appellant

Kathryn Hunt, for the Centre for Addiction and Mental
    Health

Jessica Smith Joy, for the Attorney General of Ontario

Heard: January 15, 2016

On appeal against the disposition of the Ontario Review
    Board dated January 13, 2015.

By the Court:

[1]

The appellant appeals from the order of the Ontario Review Board (the
    Board) dated January 13, 2015 that she be detained on the General Forensic
    Unit at the Centre for Addiction and Mental Health (CAMH) in Toronto, subject
    to a number of conditions, including the privilege of living in the community
    in accommodation approved by the person in charge of CAMH.

Background

[2]

On June 14, 2012, the appellant was found not criminally responsible (NCR)
    on account of mental disorder on a charge of arson relating to an offence on
    October 23, 2010.  She has been subject to a treatment order since October 2010
    and a detention order under the Boards supervision since 2012.

[3]

The appellant is 35 years old.  Between July 2008 and October 2010, she
    was apprehended under the
Mental Health Act
, R.S.O. 1990, c. M.7 eight
    times.  She was admitted to hospital on numerous occasions commencing in 2009,
    for periods ranging from several days to several weeks.  Her medical records
    indicate that she exhibited psychosis, paranoia, delusions, self-harming
    behaviour and physical aggression during her admissions.

[4]

The appellant also has a history of substance abuse, with documented
    incidents of the use of marijuana, powdered cocaine, methadone, percocets and
    gasoline mixed with juice.

[5]

The appellants current diagnosis is schizophrenia.  She has no criminal
    record but was arrested and charged prior to October 2010 for assault and
    attempted murder.  All charges were ultimately withdrawn.

[6]

The appellant has resided at CAMH since December 10, 2010 except for the
    time period between February 25, 2014 and June 2014.  In February 2014, she was
    approved to live in the community, in supervised housing at St. George House,
    under the oversight of her CAMH out-patient team.  She was readmitted to CAMH
    on April 9, 2014 when she breached her disposition order by drinking alcohol.

[7]

Shortly thereafter, the appellant was again discharged to reside at St.
    George House.  However, concerns soon emerged regarding her failure to comply
    with her medication regime.  She also missed two appointments with her treating
    psychiatrist and, on June 9, 2014, absconded from St. George House for a period
    of approximately two weeks, during which she resided with strangers, failed to
    take her medication and consumed alcohol.

[8]

On June 18, 2014, the appellant was arrested and readmitted to the
    General Forensic Unit at CAMH.  She was later transferred to the Secure
    Forensic Unit.  The readmission and transfer were the subject of restriction of
    liberty hearings held before the Board on July 16 and October 7, 2014 at which
    the Board held that the restrictions were warranted.  In October 2014, following
    her restriction of liberty hearings, the appellant set a fire in her bedroom at
    CAMH.

[9]

At the time of her January 13, 2015 hearing, the appellant was subject
    to the terms and conditions of a Board disposition dated February 18, 2014,
    under which she was detained on the General Forensic Unit of CAMH, subject to
    conditions that afforded the privilege of living in approved community
    accommodation.  At her January 13, 2015 hearing, the appellant sought an
    absolute discharge.

Board Decision

[10]

The
    Board concluded, on all the evidence before it, that the appellant continued to
    pose a significant threat to the safety of the public.  It also accepted CAMHs
    submission that it was necessary and appropriate in the circumstances, taking
    into account the safety of the public, the appellants mental condition, her
    re-integration into society, and her other needs, that her detention on the
    General Forensic Unit at CAMH should continue, on essentially the same terms as
    set out in the Boards 2014 disposition.

[11]

The
    appellant appeals from both of these rulings.

Issues

[12]

The
    appellant submits that the Board erred in finding, in the absence of any
    positive evidence, that she continues to pose a significant risk to the public. 
    Further, the appellant says, the Board erred by ignoring or discounting the
    evidence before it of significant improvements in her mental status during the
    latter part of 2014.  As a result of these errors, the appellant submits, the
    Board failed to impose a disposition that was the least onerous and least
    restrictive in the circumstances and to properly consider her liberty
    interests.

Discussion

[13]

We do not accept these submissions.  In our view, the Board did not err
    in its assessment of the threat posed by the appellant to public safety or in
    its determination of the necessary and appropriate disposition in all the
    circumstances.  In both respects, the Boards disposition was reasonable and
    fully supported by the evidence.

[14]

The
    central issue at the Board hearing was whether the appellant continued to pose
    a significant threat to the safety of the public.  The evidence before the
    Board on this issue consisted of the testimony of the appellants treating
    psychiatrist, Dr. Wilkie, and CAMHs hospital report, dated December 15, 2014.

[15]

Dr.
    Wilkie testified that, notwithstanding acknowledged improvements in the
    appellants mental status in late 2014: i) she continues to suffer from
    persecutory and somatic delusions due to her psychotic disorder, together with
    disorganized thinking and behaviour.  Her psychotic symptoms are sometimes
    accompanied by physical or verbal threats; ii) the appellant continues to
    exhibit paranoid delusions, although her more grandiose delusions have abated
    as her medication has been optimized; and iii) the appellant continues to have limited
    insight into the relationship between her mental illness, substance abuse and
    the risk of her engaging in violent behaviour and the need for medication.

[16]

Further,
    and importantly, it was Dr. Wilkies opinion that, absent supervision, the
    appellant would likely decrease or discontinue her medications, leading to her
    rapid decompensation, the overt manifestation of symptoms of psychosis and a
    significant risk to the public.  As a result, the appellants continued
    detention was necessary to permit CAMHs rapid and early intervention in the
    event of the appellants non-compliance with medication and resulting
    decompensation.

[17]

There
    was also evidence before the Board establishing that, during the 2014 review
    year:

1)

from
    July to October 2014, the appellant was involved in a number of episodes of
    agitation, altercation and verbal threats;

2)

when
    the appellant was absent without leave from St. George House in June 2014, she
    stole money, drank alcohol and lived with strangers;

3)

on
    readmission to CAMH in late June 2014, the appellant presented as
    significantly disorganized, whispering and incoherent;

4)

following
    her readmission, the appellant: refused clozapine medication; engaged in
    altercations with staff and co-patients; stole and drank hand sanitizer; set
    paper on fire in her bedroom; and, while on the Secure Forensic Unit at CAMH,
    continued to present as highly disorganized and confused, exhibiting both paranoid
    and grandiose delusions; and

5)

notwithstanding
    that the appellants symptoms had attenuated somewhat due to her medication
    compliance, to which the Board referred, she continued to lack insight into her
    illness and her need for medication.  In particular, on transfer back to the
    General Forensic Unit on December 9, 2014, the appellant continued to deny her
    mental illness and exhibited limited insight.

[18]

This
    evidence, together with Dr. Wilkies testimony, provided ample support for the
    Boards finding that the appellant continues to pose a significant threat to
    the safety of the public.  This finding is dispositive of the appellants
    contention on appeal that she should have been granted an absolute discharge at
    her January 2015 hearing.  On the evidence before the Board, outlined above, an
    absolute discharge would have been unreasonable.  It would also have failed to
    accord with s. 672.54(a) of the
Criminal Code
, R.S.C. 1985, c. C-46,
    which contemplates an absolute discharge for an NCR-accused where, in the
    opinion of the court or the Board, the accused is not a significant threat to
    the safety of the public.

[19]

Nor,
    in our view, can the Board otherwise be faulted for ordering the continued
    detention of the appellant.  In contrast to a conditional discharge (which, we
    note, the appellant did not request at the hearing), under a detention order,
    an NCR-accused can be returned to hospital, if necessary, by means of a
    Board-issued warrant of committal, without detention in jail or a court order:
    s. 672.57 of the
Criminal Code
.  This court has recognized the
    practical advantages and public safety dimensions of providing for the
    involuntary return of an NCR-accused to hospital by means of this approach: see
R. v. Breitwieser
, 2009 ONCA 784.

[20]

In
    this case, Dr. Wilkies testimony and the evidence of the appellants clinical
    course and behaviours during the 2014 review year supported the conclusion that
    a detention order, as a preventative and public safety measure, was both
    necessary and appropriate.  The Board accepted this evidence, as it was
    entitled to do, and found that it is essential that [CAMH] have the ability to
    respond quickly and intervene early in the event of [the appellants]
    non-compliance with medication and decompensation.  This conclusion was both
    reasonable and supported by the evidentiary record.

[21]

Accordingly,
    for the reasons given, the appeal is dismissed.  We note that the appellants
    next review hearing is scheduled for January 19, 2016, four days from the date
    of this appeal.  The appellants progress during the 2015 review year, and her
    suitability for discharge from CAMH, no doubt will be fully canvassed at that
    hearing.

K. Feldman J.A.

E.A. Cronk J.A.

L.B. Roberts J.A.


