



COURT OF APPEAL FOR ONTARIO

CITATION: Ojaghi (Re), 2021 ONCA 867

DATE: 20211207

DOCKET: C69206

Strathy C.J.O., Hourigan and
    Paciocco JJ.A.

IN THE MATTER OF: Mirbabak Ojaghi

AN APPEAL UNDER PART XX.1 OF THE
CODE

Mirbabak Ojaghi, acting in person

Paul Socka and Erin Dann, appearing as
amicus
    curiae

Heather
    Fregeau, 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 : November 26, 2021

On appeal from the disposition of the
    Ontario Review Board, dated February 11, 2021, with reasons dated March 8,
    2021.

REASONS FOR DECISION

[1]

Mr. Ojaghi appeals against the disposition of
    the Ontario Review Board (the Board), dated February 11, 2021, ordering that
    he be detained at the General Forensic Unit of the Centre for Addiction and
    Mental Health (CAMH). He asserts that the detention order was unreasonable
    and that this court should set it aside and order a conditional discharge.

[2]

Through
amicus
, Mr. Ojaghi also submits
    that the Board erred in removing a provision from his previous disposition,
    which permitted him to obtain passes for accompanied travel out of Ontario for
    up to two months, with the itinerary and the person travelling with him being
    approved by the person in charge.

[3]

For the reasons that follow, we conclude that
    the Boards order was reasonable and dismiss the first ground. With respect to
    the second ground, we find that the Board breached its duty of procedural
    fairness to Mr. Ojaghi and reinstate the provision.

[4]

The facts can be briefly stated. Mr. Ojaghis
    current diagnosis is schizophrenia. He was found not criminally responsible on
    account of a mental disorder in relation to a charge of assault causing bodily
    harm in May 2019. He was released on bail and came under the jurisdiction of
    the Board in November 2019. He was subject to a detention order until being
    conditionally discharged on November 30, 2020.

[5]

Sometime in January 2021, Mr. Ojaghi stopped
    taking his medication and began to decompensate. He was readmitted to CAMH
    under the committal provisions of the
Mental Health Act
. An early
    review hearing was held, resulting in the detention order currently under
    appeal.

[6]

At the disposition hearing, the Board heard
    evidence from Mr. Ojaghis outpatient psychiatrist, Dr. Benassi. Dr. Benassi
    explained that in January 2021, while Mr. Ojaghi was under the conditional
    discharge, his sister called the hospital expressing concern that he had not
    been complying with medication requirements and noting some change in his
    behaviour. A member of the clinical team saw Mr. Ojaghi a few days later and
    noticed indicia of paranoia. Drug screens revealed that he had not been taking
    his medication. A caseworker who visited Mr. Ojaghi became fearful as he was
    quite irate. The hospital requested that police bring Mr. Ojaghi to the
    hospital and he was readmitted pursuant to the
Mental Health Act
. Once
    in the hospital, Mr. Ojaghi was started on an injectable medication.

[7]

Dr. Benassi was concerned about Mr. Ojaghis
    lack of insight into his condition and concluded that without a detention
    order, it was unlikely he would take his medication. He suggested Mr. Ojaghi be
    detained at the General Forensic Unit at CAMH which has more patient privileges
    and a lower staff-to-patient ratio than the more secure unit. No other evidence
    was called by the hospital. The Crown did not call any evidence. Mr. Ojaghis
    sister advised that he could continue to live with her and her family.

[8]

At the hearing that resulted in the disposition at
    issue, it was not contested that Mr. Ojaghi remained a significant threat to
    public safety and the hospital sought a detention order on that basis. The
    Crown supported the hospitals recommendation. Mr. Ojaghis counsel accepted
    that he was a threat to public safety, but argued for the continuation of a
    conditional discharge under the terms set out in the November 30, 2020
    disposition. The Board ultimately issued a detention order, requiring Mr.
    Ojaghi to remain at the General Forensic Unit at CAMH.

[9]

The Board accepted that Mr. Ojaghi remained a
    significant threat to public safety. It concluded that a detention order was
    both necessary and appropriate as public safety would be compromised with any
    other disposition. In this case, it was fortunate that the hospital was able to
    obtain the cooperation of the police in returning Mr. Ojaghi to the hospital,
    but the hospital should not have to rely on the police to do so when a patient
    becomes non-compliant with their medication and significantly destabilizes.

[10]

The Board accepted Dr. Benassis evidence that
    public safety required that Mr. Ojaghi be returned to the hospital at the
    earliest sign of any destabilization. The necessary and appropriate way to do
    so was pursuant to a detention order, which includes a warrant of committal,
    ensuring his timely and efficient return to hospital. Dr. Benassi also
    testified that a detention order with a community living privilege would allow
    the hospital to approve appropriate housing in the community.

[11]

Mr. Ojaghi submits, through
amicus
,
    that any risks could be effectively managed through a conditional discharge.
    The mechanisms of the
Mental Health Act
were part of the ecosystem
    of the Board. They were sufficient to manage the risk when Mr. Ojaghi was
    returned to the hospital in January 2021 and they are appropriate now. A
    conditional discharge was the least onerous and least restrictive disposition
    consistent with public safety and the detention order made by the Board was
    unreasonable.

[12]

We do not accept this submission. The standard
    of review is set out in s. 672.78(1) of the
Criminal Code
, R.S.C.,
    1985, c. C-46. We can only allow an appeal and set aside an order where we are
    of the opinion that (a) it is unreasonable or cannot be supported by the
    evidence; (b) it is wrong on a question of law; or (c) there was a miscarriage
    of justice. Deference is owed to the Board as an expert and specialized
    tribunal and we should not interfere as long as the decision falls within a range
    of reasonable alternatives:
R. v. Owen
, 2003 SCC 33, 1 S.C.R. 779, at
    paras. 31-33, 37;
Canada (Minister of Citizenship and Immigration) v.
    Vavilov
, 2019 SCC 65, 441 D.L.R. (4th) 1, at paras. 34, 37, 75, 81, 83-85,
    92-93, 99.

[13]

The Boards decision was reasonable. There was
    no dispute on the issue of significant threat. Mr. Ojaghi had been returned to
    the hospital because he had decompensated after he stopped taking his
    medication. Dr. Benassi emphasized the need to promptly return him to hospital
    for treatment if he began to show signs of decompensation. Dr. Benassi
    testified that a detention order was necessary for this purpose and that the
    mechanisms of the
Mental Health Act
could not assure a timely return.
    The Board was entitled to accept this evidence. We therefore dismiss this
    ground of appeal.

[14]

The issue of the travel provision was raised by
    a panel member following Dr. Benassis evidence, and the psychiatrist indicated
    that he was content that the condition remain in place. The issue was raised
    again during submissions and Dr. Benassi again stated that he was content with
    the condition and that he would not approve a travel itinerary unless he was
    satisfied that Mr. Ojaghi was stable on his medication and that there was a
    specific travel plan in place. Neither the Crown nor the hospital made any
    submissions on the issue.

[15]

The Boards reasons did not address the issue.
    The Boards disposition did not include the travel provision, which had been
    part of the previous disposition.

[16]

In our view, in the circumstances of this case,
    including Dr. Benassis support for the provision, if the Board was considering
    revoking the provision, it had a duty to put Mr. Ojaghi on notice that the
    travel provision was at issue and to invite submissions. This falls within the
    Boards duty to provide a fair hearing because its decisions affect the
    accuseds rights, privileges, and liberties:
Osawe (Re)
, 2015 ONCA 280,
    125 O.R. (3d) 428, at para. 35.

[17]

Given the state of the record, and the absence
    of reasons for the Boards decision on the travel provision, we cannot conclude
    with any certainty whether the removal of the provision was intentional or an
    oversight. The reasons are therefore not susceptible to appellate review, and
    we set aside the decision on that issue.

[18]

We therefore reinstate the travel provision and
    allow the appeal to that extent. In so doing, we acknowledge that the issue may
    be reconsidered at Mr. Ojaghis next review, scheduled for February 2, 2022.

G.R.
    Strathy C.J.O.

C.W.
    Hourigan J.A.

David
    M. Paciocco J.A.


