



COURT OF APPEAL FOR ONTARIO

CITATION: Afifi (Re), 2019 ONCA 457

DATE: 20190605

DOCKET: C66163

Watt, Lauwers and
    Hourigan JJ.A.

IN THE MATTER OF:
    Sheab Afifi

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Deborah Krick, for the respondent, Her Majesty the Queen

Gavin MacKenzie, for the respondent, Person in Charge of
    the Centre for Addiction and Mental Health

Heard: May 22, 2019

On appeal against the disposition of the Ontario Review
    Board, dated October 10, 2018.

REASONS FOR DECISION

[1]

On November 22, 2006, Sheab Afifi was found not criminally responsible
    for mischief under $5,000 (x2), assault and uttering threats. Mr. Afifi has
    been diagnosed with schizophrenia, cannabis use disorder (partial remission),
    alcohol use disorder (sustained remission) and anti-social personality
    disorder. He is capable of consenting to his own treatment. He was subject to a
    detention order and is placed at the Centre for Addiction and Mental Health
    (CAMH or the hospital).

[2]

This appeal concerns two restrictions on liberty hearings and the annual
    hearing for the 2018 reporting year. The Ontario Review Board found that the
    two restrictions on liberty were warranted and represented the least onerous
    and least restrictive decisions in the circumstances. The Board imposed a
    detention order (General Forensic Unit).

[3]

Mr. Afifi appeals. He argues that the Board erred in failing to grant
    him a conditional discharge. He takes the position that his risk can be managed
    safely with a conditional discharge and resort to the provisions of the
Mental
    Health Act
, R.S.O. 1990, c. M.7
He also asserts that the hospitals threshold for admitting him to hospital is
    too low, overly restrictive and onerous. Counsel for the appellant submits that
    his aggressive behaviour is often not derivative of his mental illness, but of
    his personality.

Index offences and detention history

[4]

On August 20, 2006, Mr. Afifi arrived at the family home. He jumped on
    the hood of his fathers car, damaging it. When his father stepped out of the
    car, Mr. Afifi approached him and spat in his face. He then started punching
    his father in the chest with both hands, stating: I know you just had a heart
    attack before, now Im going to kill you. He then kicked his father in the
    groin. A neighbour called the police. They arrested Mr. Afifi and put him in
    the back of a marked police car. He kicked at the rear passenger window,
    causing it to shatter.

[5]

Mr. Afifi had behavioural problems in Egypt before coming to Canada,
    which escalated here. His parents advised that he was involved in truancy,
    bullying, fire-setting, stealing and fighting. He began seeing a psychiatrist
    in 2000, but has a history of being non-compliant with treatment. Mr. Afifi
    started using marijuana in 2002 or 2003 and reported experiencing increased
    paranoia when intoxicated with marijuana. Dr. Ulrich testified that, in Mr.
    Afifis fragile mental state, the use of substances makes him more psychotic
    and a greater risk to public safety when he becomes stressed.

[6]

According to the hospital record, Mr. Afifi lived in the community with
    his parents and was an outpatient in the forensic outpatient service of CAMH
    from January 10, 2007. However, his parents could not cope and Mr. Afifi was
    admitted to hospital briefly and then eventually discharged to his own
    apartment on December 3, 2008. He obtained a conditional discharge on July 31,
    2014, but his behaviour reportedly changed significantly. He missed
    appointments, provided fake urine samples and diluted urine samples and had 11
    positive cannabis tests after September 10, 2014. These resulted in an early Board
    hearing, a detention order and admission to the hospital. Mr. Afifi was not
    discharged to his apartment again until May 20, 2015. Since then, there has
    been a pattern of multiple admissions, as a hospital report notes, usually
    because of marijuana use, problematic urine samples and deterioration in Mr.
    Afifis mental condition.

[7]

In the 2018 reporting year, Mr. Afifi had three admissions to hospital,
    prompted by diluted urine samples and positive marijuana results, as well as
    deterioration in his behaviour and mental status. The first admission was from
    April 24 to April 30, 2018. The second admission was from July 10 to August 10,
    2018. The third admission started on August 31, 2018 and was still in place at
    the time of the Board hearing. The second and third admissions resulted in
    restrictions on liberty that the Board reviewed along with the annual hearing.

The decision under appeal

[8]

The Board unanimously found that Mr. Afifi is a significant threat and
    concludes that the current Disposition is necessary and appropriate. The Board
    added that the two restrictions on his liberty were necessary and warranted in
    the circumstances. The ongoing restriction on liberty is also warranted,
    pending the exercise of indirectly supervised community passes that must be
    completed before he can return to the community.

[9]

The Board also commented on the low threshold for admitting [Mr. Afifi]
    to hospital. The Boards understanding, from the evidence of Dr. Ulrich, is
    that:

Mr. Afifi would not be readmitted
    on the basis only of dilute or abnormal urine screens. Rather, [Dr. Ulrich] spoke
    of a constellation of factors related to increased, dynamic risk; these include
    changes in his mental status and what the doctor described as Mr. Afifis high
    baseline risk.

[10]

In
    its reasons, the Board quoted Dr. Ulrich:

Mr. Afifi does not want to take
    medication and would discontinue if not under the oversight of the ORB.  Were
    he to be released from the ORB, he would use substances and discontinue his medication,
    both of which would increase his risk of violence. When not on medication, Mr.
    Afifi is more labile, more prone to perceived threats, and at much higher risk
    of committing an act of violence. Dr. Ulrich described this likelihood as being
    quite high.

[11]

The
    Board considered the proposed alternate disposition of a conditional discharge.
    Dr. Ulrich opposed a conditional discharge on the basis that the hospital
    needs the authority to return Mr. Afifi to hospital. Dr. Ulrich took the
    position that the
Mental Health Act
is not a satisfactory strategy
    for managing the risk, because Mr. Afifi can be quite good at concealing his
    symptoms of psychosis and could fool emergency room personnel.

Fresh evidence

[12]

The
    hospital tenders fresh evidence in the form of the affidavit of its legal
    counsel. It sets out Mr. Afifis history since the hearing that is the subject
    of this appeal. Mr. Afifi was discharged from CAMH on October 5, 2018, four
    days after the hearing. He remained in the community until March 17, 2019, when
    he was apprehended by police, after allegedly assaulting a stranger.

[13]

The
    police report of the March 17, 2019 incident describes an assault on a stranger
    whom he punched in the stomach. The victim did not want to press charges and
    Mr. Afifi was apprehended under the
Mental Health Act
. Mr. Afifi was
    then transported to Michael Garron Hospital, where he was to be seen and
    assessed by a doctor. Due to the long wait at Michael Garron Hospital, police
    were advised to take Mr. Afifi to CAMH, where he was admitted. CAMH provided
    the Board with notice of a significant restriction of his liberty on March 25,
    2019.

[14]

Mr.
    Afifi was discharged to the community on April 9, 2019, but then readmitted to
    CAMH on April 16, 2019, under a warrant of committal. Notice of significant
    restriction of Mr. Afifis liberty was again provided to the Board by CAMH on
    April 24, 2019.

[15]

The
    Board has scheduled a hearing for June 21, 2019, to review both recent
    restrictions of Mr. Afifis liberty. We were advised that the hearing will also
    serve as Mr. Afifis annual review. The customary hospital report supplement has
    been prepared and describes the events leading to the restrictions on liberty. The
    urine drug screens in the hospital report also reveal considerable cannabis use
    by Mr. Afifi over the period.

Analysis

[16]

The
    appellants counsel raises several issues. Her overall position is that the
    hospitals approach to Mr. Afifi is misguided. The low threshold for admitting
    Mr. Afifi to hospital subjects him to unnecessary admissions and prevents the
    formation of a therapeutic alliance between Mr. Afifi and the treatment team,
    whom, she says, he now hates. He considers the hospital to be obsessed with
    his urine.

[17]

However,
    this submission confirms that Mr. Afifi has no insight into his mental illness
    and its connection with his abuse of cannabis; the urine tests are intended to
    detect such use and the use of other drugs. It also appears from the record
    that even though Mr. Afifi is on long-acting (3 week) injectable anti-psychotic
    medication, it is not sufficient to overcome his rapid decompensation when he
    smokes cannabis. He seems unable or unwilling to accept the connection.

[18]

There
    is no merit in counsels submissions that both of the restrictions on liberty
    were unwarranted. The decision relies on the evidence, which shows that Mr.
    Afifi was decompensating on both occasions.

[19]

There
    is likewise no merit in counsels argument that the Board erred in keeping Mr.
    Afifi on a detention order instead of moving him to a conditional discharge. The
    Boards decision was not unreasonable given the evidence before it. While the
    long-acting injectable medication can form a springboard to increased levels of
    liberty, as it has in other cases, this is not true for Mr. Afifi at this time,
    given his lack of insight; his continued if not escalating cannabis use;

the limited protective effect of the anti-psychotic
    medication, which is not sufficient to overcome his rapid decompensation when
    he smokes cannabis; the risk factors including his status on the
    psychopathology index; and his occasional flashes of violence.

[20]

Appellants
    counsel raised several other arguments concerning the interplay between the
Criminal
    Code
, R.S.C. 1985, c. C-46, and the
Mental Health Act
that are
    best left for determination on a better record and more cogent evidence.

[21]

The
    appeal is dismissed.

David
    Watt J.A.

P.
    Lauwers J.A.

C.W.
    Hourigan J.A.


