



COURT OF APPEAL FOR ONTARIO

CITATION: Zhan (Re), 2022 ONCA 42

DATE: 20220119

DOCKET: C69200

Fairburn A.C.J.O., Feldman and
    Harvison Young JJ.A.

IN THE MATTER OF:
Tiun Hui (Jeff) Zhan


AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti and Maya Kotob, for the appellant

Michael Dineen, for the respondent

Heard and delivered orally:
    December 3, 2021

On appeal against the disposition of the
    Ontario Review Board, dated February 4, 2021.

REASONS
    FOR DECISION

[1]

In January 2021, the ORB concluded that a
    conditional discharge order was not appropriate for the appellant at this time.
    Although there was no dispute as to his risk to safety, the appellant submits
    that this order was incorrect and unreasonable because his risk factors could
    be safely managed under the rubric of a properly crafted conditional discharge.
    We do not agree and would dismiss the appeal for the following reasons.

[2]

In 2010, while on probation, the appellant attacked
    and fatally stabbed a stranger on the street in Glasgow, Scotland, responding
    to voices telling him the man was a zombie who would kill him. He was
    subsequently diagnosed with schizophrenia and treated with anti-psychotic
    medication. He was detained in a hospital in Scotland until February 2019, when
    he was repatriated to Canada and came under the jurisdiction of the Ontario
    Review Board.

[3]

In January 2021, in accepting the
    hospitals recommendation, the ORB found that, although the issue of
    significant threat was not contested at the hearing, there was ample evidence
    to support such a finding. The appellant suffered from a major mental illness and
    had significant history of failing to comply with treatment and failing to
    comply with supervisory orders prior to confinement. The Board noted that
    although the appellant had a very positive reporting year, he had only been
    discharged into the community a few days before the hearing and after many
    years of confinement, and it was unknown how he would react to the new
    stressors of life in the community.

[4]

The Board specifically considered and
    rejected the appellants submission that a conditional discharge was the least
    onerous and restrictive disposition available. It thoroughly considered the
    evidence before it. The Board stressed that the appellant had a tendency to
    minimize negatives and overemphasize positives, which supported the view that
    he might not fully grasp the impact of negative stressors as he adjusted to
    life in the community, which could result in decompensation.

[5]

Put another way, his treatment team was
    concerned that he could be slow to detect or acknowledge any problems arising
    from the additional stresses of his new independence. Given the demonstrated
    risk that the appellant could pose to the public if his symptoms returned and
    his documented history of minimizing negatives and overemphasizing positives,
    the ability to return him quickly to the hospital during the period of
    adjustment was important. In our view, the Boards reasons met the
    reasonableness standard. We do not agree with the appellant that the Board
    discounted or did not meaningfully consider or analyze much of the evidence that
    is favourable to him. Both the treatment team and the Board seriously
    considered this.

[6]

We do not agree that the concerns expressed by
    the hospital and accepted by the Board were speculative. They were well
    documented in the record. The Board accepted and reiterated the significant and
    enormous progress the appellant has made. In the context of the risks to public
    safety, however, it was within the range of reasonable outcomes to continue the
    detention order to offer a window of opportunity to test him in the community.
    The fact that he had been living in the community for only a few days at the
    time of his Board hearing was critical to its determination. The Boards
    refusal to order a conditional discharge in January 2021 was reasonable and the
    appeal is therefore dismissed.

Fairburn
    A.C.J.O.

K.
    Feldman J.A.

A.
    Harvison Young J.A.


