



COURT OF APPEAL FOR ONTARIO

CITATION: Sheikh (Re), 2019 ONCA 692

DATE: 20190904

DOCKET: C66548

Sharpe, van Rensburg and Thorburn JJ.A.

IN THE MATTER OF:  Andrew Sheikh

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti for the Appellant, Andrew Sheikh

Andrew Cappell for the Respondent, Her Majesty the Queen

Janice Blackburn for the Respondent, St. Josephs
    Healthcare Hamilton

Heard: September 3, 2019

On appeal from the disposition of the Ontario Review
    Board dated, September 13, 2018, with reasons dated January 28, 2019.

REASONS FOR DECISION

[1]

Andrew Sheikh was found not criminally responsible on account of mental
    disorder (NCR) on charges that included criminal harassment. He has been under
    the jurisdiction of the Ontario Review Board (the Board) since July 2013. He
    appeals from the disposition of the Board dated September 13, 2018 (reasons
    released January 28, 2019). The disposition provided for his conditional
    discharge on terms which included taking his psychiatric medication, reporting
    to the hospital once a month, abstaining absolutely from non-medical use of drugs
    or alcohol, and providing breath/urine samples.

[2]

The appellant also appeals the decision of the same date that his
    readmission to hospital on July 5, 2018 (the Restriction of Liberties) was
    warranted or represented the least restrictive measure in the circumstances.

[3]

The appellant asserts that he is not a significant threat to the safety
    of the public and that the Board should have granted him an absolute
    discharge.

[4]

The respondents, Her Majesty the Queen and St. Josephs Healthcare
    Hamilton (the Hospital) oppose the request for an absolute discharge. The respondents
    submit that the Boards decision to grant a conditional discharge was
    reasonable as, on the evidence before the Board, the appellant posed a
    significant threat to public safety.

[5]

The Respondent Hospital also seeks to introduce as fresh evidence, an
    affidavit of the appellants attending psychiatrist attaching the Hospitals
    report, prepared for his upcoming annual Board hearing which is scheduled for
    September 12, 2019. The fresh evidence speaks to the appellants conduct since
    the time of the Hearing.

[6]

The court may admit fresh evidence where:

a)

the evidence could not by due diligence have been adduced at first
    instance;

b)

the evidence is relevant in that it bears upon a decisive or potentially
    decisive issue in the trial,

c)

the evidence is credible, and

d)

the evidence, if believed, could reasonably when taken with the other
    evidence adduced, affect the outcome.

[7]

New evidence that was not available at the time of the first proceeding
    may be introduced on appeal if the evidence is necessary to deal fairly with
    the issues on appeal and to decline to admit the evidence could lead to a
    substantial injustice in the result:
R. v. Palmer
, [1980] 1 S.C.R. 759
    at p. 13;
Monteiro v Toronto Dominion Bank
, 20 E.T.R. (3d) 305 (Ont. S.C.)
    at para. 3; and
Visagie v. TVX Gold Inc
, (2000), 49 O.R. (3d) 198 (Ont.
    C.A.), at para, 53.

[8]

In this case,

a)

the new evidence could not have been brought at the Ontario Review Board
    hearing as the incidents at issue arose after the hearing on September 13,
    2018;

b)

the evidence is relevant as it relates to his risk to the public;

c)

the evidence is credible as it is evidence that emanates from his
    treating psychiatrist; and

d)

the evidence, if believed, could, when taken with the other evidence
    adduced on this appeal, affect the outcome.

[9]

The Respondents submit that this new evidence that has become available
    since the hearing, strengthens their assertion that the appellant is a
    significant threat to public safety. The appellant asserts that the new
    evidence does nothing to change the risks associated with the appellant or the justification
    of his Appeal seeking an absolute discharge.

[10]

For
    reasons that follow, we find that the Board applied the wrong test in finding
    that the appellant continues to pose a significant risk to public safety. The
    test is not whether the appellants behaviour
could
lead to
    decompensation and therefore the risk of serious harm, but whether there is
    evidence to support a positive finding that there
is
a significant
    threat to public safety.

[11]

However,
    the respondents have satisfied the test for the introduction of new evidence on
    Appeal. That new evidence raises a concern about the appellants possible
    decompensation and renewed focus on the victim of the index offence since the
    Boards decision was rendered.  We therefore allow the appeal and remit the
    matter back to the Board for reassessment of this and other evidence now
    available.

[12]

Lastly,
    we agree with the appellant that although the Board explained why the
    appellants continued detention in the Hospital was no longer necessary or
    appropriate, the Board offered no reasons to support its conclusion that the Restriction
    of Liberties was initially warranted. It is unclear why the appellant was told
    he was re-hospitalized because he was a suicide risk. Dr. Chauhan stated that
    he was not brought in on that basis. However, that issue is now moot as the appellant
    was released for community living.

EVIDENCE BEFORE THE BOARD

A.

NCR FINDING

[13]

In
    2013, the appellant, was found NCR on charges of criminal harassment, uttering
    a threat to cause bodily harm, failure to comply with a recognizance, and two
    counts of failing to comply with probation. He had been diagnosed with
    schizophrenia compounded by cannabis use and cocaine dependency.

B.

The Index Offences

[14]

The
    appellants index offences arose out of his fixation with a former high school
    classmate (RG), with whom he otherwise had little contact. The communications
    began in 2011 and continued into 2013, escalating to sexually explicit comments
    that were vulgar and threatened sexual assault on RG, and including an
    attendance at RGs home, where he left a gift for her, in breach of the terms
    of his recognizance prohibiting contact with RG. After he was declared NCR, the
    appellants disposition provided for detention in the General Forensic Unit at
    the Hospital. One of the terms provided for community living, which was
    implemented in May 2015.

C.

The Hospitals ReasonS FOR THE APPELLANTs  Readmission

[15]

In
    July 2018, the appellant was readmitted to the Hospital. This was precipitated
    by concerns about a Facebook post, which his attending psychiatrist, Dr.
    Rebecca Chauhan, interpreted as an indication of elevated risk to the
    community. The post reads as follows:

If I die tomorrow, will you guys blow this shit up for me? No
    cause st. joes will threaten you to keep your mouth shut by not even doing
    anything to you cause youre a sheep..so I to live in a dying world with no one
    giving a fucking shit.

[16]

When
    asked what he meant, the appellant responded, If I die, who would care.

D.

The Hospital Report and the Testimony at the Hearing

[17]

The
    Hospital prepared a report dated August 8, 2018 for both the annual review and
    the Restriction of Liberties hearing. Dr. Chauhan and the appellant testified
    before the Board.

[18]

Dr.
    Chauhan had diagnosed the appellant with schizophrenia and cannabis use
    disorder. She noted that when he was admitted to the Hospital in July 2018,
    there were concerns around his psychomotor agitation, not sleeping, extreme
    irritability, and argumentativeness. For the first week, he stayed up all night
    about once a week and on July 19, 2018, when he drank eight espressos, he began
    pacing the halls and loudly reciting profane lyrics.

[19]

Dr.
    Chauhan described the appellants insight into his mental illness as being
    variable. She noted that on July 10, 2018, two days after putting up the
    Facebook post, he wrote:

If I wanted to kill myself I would sign out my razor and break
    it open and   But I didnt. Ive done over 50 push ups a day hundreds of laps
    and 2 ab work outs a day  HOW AM I UNFIT FOR SOCIETY???

[20]

On
    July 28, 2018, the appellant tested positive for THC.

[21]

Dr.
    Chauhan was concerned that the 2018 posts were a re-emergence of psychosis that
    was linked to the index offence. She noted that:

[The appellant] Mr. Sheikh has struggled to remain abstinent
    from illicit substances [marijuana] and has recently tested positive while
    admitted to hospitalMr. Sheikh has poor insight into his need to take
    medication in the short-term to help him get out of hospital and move toward an
    absolute discharge.

[22]

The
    Hospital report concluded that,

Absent a disposition mandating him to report for treatment and
    abstain from illicit substances, there is little doubt, that Mr. Sheikh would
    stop taking his anti-psychotic medications and would return to regular use of
    cannabis.  In turn, Mr. Sheikhs psychotic symptoms would return and it is
    within the context of a relapse of his psychotic symptoms that Mr. Sheikh would
    most probably become verbally or physically threatening toward others.  Mr.
    Sheikh is likely to first demonstrate threatening behaviour through social
    media or his music and progress to more direct forms of verbal or physical
    aggression as he becomes increasingly unwell and disorganized.

[23]

When
    asked if a conditional discharge would be appropriate Dr. Chauhan said that:

My greatest concern with the conditional discharge is he is
    just recovering from a mild episode of psychosis.  It was caught early, hes
    back on track.  This will be a vulnerable period for himHis period of becoming
    unwell was quite rapid.

[24]

Dr.
    Chauhan testified that, although the appellant was not physically violent since
    he was declared NCR in 2013, the Hospital treatment team was of the unanimous
    opinion that, if released on an absolute discharge, he continued to pose a
    significant threat to the safety of the public.

THE BOARD DECISION

[25]

Four
    of the five Board members found that readmission in July 2018 was warranted,
    but that the continued restrictions on the appellants liberties through his
    detention in the Hospital were no longer warranted. They found that the appellant
    continues to be a significant threat to the safety of the public. They rejected
    the respondents request for a continuation of the existing disposition and
    ordered a conditional discharge with terms including compliance with
    psychiatric medication, reporting to the hospital once a month, and providing
    breath/urine samples.

[26]

The
    majority referred to Dr. Chauhans interpretation of the appellants 2018
    Facebook Post as a call to blow up the hospital notwithstanding the appellants
    assertions to the contrary and the plain meaning of the words.

[27]

The
    majority of the Board held that the appellant should receive a conditional
    discharge to live in the community under conditions set by Hospital staff. The
    majority relied on the uncontroverted expert evidence of Dr. Chauhan and the
    Hospital Report to conclude that:

without close supervision, Mr. Sheikh
    would likely become non-compliant with prescribed medications, which could lead
    to decompensation, use of substances and the re-emergence of behaviours similar
    to those that preceded the index offence
.  As a result, there is no air
    of reality to an Absolute Discharge. [Emphasis added.]

[28]

One
    member would have granted an absolute discharge on the basis that the appellant
    was no longer a threat to public safety. In her minority reasons, she accepted
    the appellants explanation of why he made the Facebook post and she did not
    interpret the Facebook message as threatening or as an indication of a
    deteriorating mental state, but rather as a reflection of what would happen if
    he died. She also found that there was never evidence that the Appellant
    presented a risk of serious physical harm. She noted that Dr. Chauhan failed
    to connect the appellants use of cannabis as a contributing factor in the
    index offence, or quite frankly as to how his cannabis use impacts his mental
    state. She concluded that there is an absence of a positive finding of
    significant threat, recognizing that there will always be some degree of risk.

[29]

The
    minority Board member noted that the Appellant was reintegrated into the
    community and had been working and responsible for his portion of the rent,
    food and car insurance.  He had lived,

three years without any contact with the victim of the index
    offence and had complied with his conditions, successfully reporting as
    directed. .Mr. Sheikh has been managing his risk to the community. Living in
    the community for a period of three years, without any incidents or evidence of
    unmanaged risk is a significant duration which allowed him to advance his
    education and skill set.  He made new friends and continued to work at the
    Colours Café located at the Hospital.  His work performance was successful, and
    he remained connected to the Hospital by choosing to continue working at the
    café.

[30]

She
    did not accept Dr. Chauhans assertion that the appellant engaged in
    physically threatening behaviour when admitted to Hospital in 2018, and that
    it required security personnel because there was no evidence to support the
    assertion.  Security personnel were not called to assist.

[31]

The
    minority also noted that there was no evidentiary foundation for Dr. Chauhans
    assertion that the appellants Facebook post meant he was going to blow up
    the Hospital as there is no evidence his behaviour would amount to physical
    aggression. The minority further held that,

the subject Facebook post does not have any qualities of the
    Facebook post which predicated the index offence. There is no evidence of
    sexually aggressive threats. It was not intended for a specific recipient. It
    was not aimed at the victim in any way.  Moreover, it does not speak to threat
    of suicide.

[32]

For
    these reasons, the minority,

does not accept that Mr. Sheikh presently exhibits severe
    symptoms of his mental illness.  The minority finds quite clearly that Mr.
    Sheikh no longer continues to pose a significant threat to the safety of the
    public to the degree of causing harm of a criminal nature to others should he
    be discharged at this point in his recovery.

[33]

She
    therefore concluded that he was entitled to an absolute discharge.

ANALYSIS AND CONCLUSION

[34]

An
    NCR accused is entitled to his liberty absent a reasonable finding that he
    constitutes a significant threat to the safety of the public:
Wall (Re)
,
    2017 ONCA 713, 417 D.L.R. (4th) 124. A significant threat is defined in s. 672.5401
    of the
Criminal Code
as a risk of serious physical or psychological
    harm to member of the public resulting from conduct that is criminal in nature
    but not necessarily violent. There must be a risk that the NCR accused will
    commit a
serious
criminal offence, and a minuscule
    risk of grave harm is not sufficient:
R. v. Winko
, [1999] 2 S.C.R. 625,
    at paras. 57, 69. The significant threat must be more than speculative and
    supported by evidence:
Winko
, at para. 57. That is, there must be both
    a likelihood of a risk materializing and the likelihood that serious harm will
    occur:
Re Carrick
, 2015 ONCA 866, 128 O.R. (3d) 209, at para. 16.

[35]

This
    court may interfere with the Boards disposition only where it concludes that
    (a) the disposition is unreasonable or cannot be supported by the evidence; (b)
    the order is based on a wrong decision on a question of law (unless no
    substantial wrong or miscarriage of justice has occurred); or (c) there was a
    miscarriage of justice:
Re Kassa
, 2019 ONCA 313, 154 W.C.B. (2d) 169 at
    para. 32, citing s. 672.78(1) of the
Criminal Code
;

and
R.
    v. Owen
, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 31.

[36]

At
    the time of the hearing, the appellant had been under the Boards jurisdiction
    without incident for more than five years. During that time, he made
    considerable progress in managing his illness, he was adhering to Hospital
    rules, attended medical appointments, and there was no evidence he had not been
    taking his prescribed medication. There is also no evidence that at that time,
    he was taking cocaine, which he linked to the commission of the index offences.
    While Dr. Chauhan noted the Appellants use of cannabis, she did not articulate
    how this contributed to the deterioration of his mental state. It is apparent
    that the most significant indicator for Dr. Chauhan of the appellants risk was
    his Facebook post on July 14, 2018. While the Facebook post may well have
    indicated disorganized thoughts as part of the appellants decompensation, we
    find it difficult to accept Dr. Chauhans conclusion that the appellant was
    threatening to blow up the Hospital.

[37]

It
    is clear that the appellant suffers from mental illness and exhibited some
    agitation, irritability, and other symptoms when admitted to the Hospital in
    2018. We are also aware that there will always be some degree of risk.

[38]

We
    are cognizant however, that there must be a real risk of physical or
    psychological harm arising from criminal conduct. That standard is an onerous
    one that requires a careful assessment of the level of risk. The Boards concluded
    that without close supervision, the appellant would likely become noncompliant
    with the prescribed medication, which
could
lead
    to decompensation, use of substances and the re-emergence of behaviours similar
    to those that preceded the index offence (emphasis added). This is not a
    determination of the real risk of physical or psychological harm occurring as a
    result of the appellant engaging in criminal conduct if granted an absolute
    discharge:
Kassa
, at paras. 35-37.

[39]

On
    the basis of the evidence available at the time of the hearing, we are unable
    to conclude that the Board would have reached the same decision if it had
    applied the test articulated in
Winko
.

NEW EVIDENCE AND THE PROPER DISPOSITION OF THIS APPEAL

[40]

The
    respondent Hospital has prepared a further annual report for the purpose of the
    appellants annual hearing which is scheduled to take place on September 12,
    2019.

[41]

The
    respondent Hospital adduced new evidence about the appellants behaviour since
    the September 2018 Board hearing. The respondents assert that the fresh
    evidence confirms that the appellant remains a significant threat to public
    safety such that an absolute discharge would not be an appropriate disposition
    at this time. The appellant argues that the fresh evidence underscores that an
    absolute discharge is warranted, because none of the events that were predicted
    by the Hospital in concluding that he remained a significant threat to public
    safety have come to pass. The new evidence, consisting of the Hospital report
    for the upcoming annual review discloses, among other things: that the
    appellant on occasion has tested positive for medication he was not prescribed
    and negative for medicine he was prescribed; he advised that for approximately half
    the time he had been taking only half doses of his prescribed medication; and
    that the appellant had tested positive for cocaine on many occasions. In April
    2019, he was admitted to the Hospital as a voluntary patient but was placed on
    involuntary admission on April 23, 2019 due to his decompensated mental status,
    physical health, irritability, and drug use. And in July 2019, the appellant
    explained that the stage name he chose while creating his rap music was related
    to RG, the victim of the index offence.

[42]

This
    new evidence is concerning. It suggests that the appellant has begun using
    cocaine, a drug that the treatment team considers a risk, and that even the
    appellant associates with his commission of the index offences. The appellant
    has not been taking all of his medication, notwithstanding the assertions at
    his September 2018 hearing that he would continue to take his medications even
    if granted an absolute discharge. Perhaps most importantly, the appellant has,
    apparently for the first time in six years, referred to the victim of the index
    offences.

[43]

In
    the circumstances, although we have concluded that the Board applied the wrong
    test in determining that the appellant continues to pose a significant risk of
    harm, we are unable to grant the remedy that he is seeking, an absolute
    discharge. We are obliged to consider not only the evidence that was before the
    Board at the time of the September 2018 review, but also any reliable and
    relevant information available on appellate review:
Owen
, at para. 59.
    The new evidence concerning the Appellants behaviour is clearly relevant to
    the assessment of the threshold issue: whether he continues to pose a
    significant risk of harm, and because it was only recently available, it has
    not been tested through cross-examination. The matter is therefore remitted to
    the Board for reconsideration, to determine whether there is sufficient
    evidence to satisfy the Board that the Appellant now poses a significant threat
    to the safety of the public and if so, the appropriate disposition.

[44]

For
    these reasons, the fresh evidence is admitted, the appeal is granted, and the
    matter is remitted to the Board for reassessment, to determine whether there is
    sufficient evidence to satisfy the Board that the Appellant poses a significant
    threat to public safety.

Robert
    J. Sharpe J.A.

K.
    van Rensburg J.A.

Thorburn
    J.A.


