



COURT OF APPEAL FOR ONTARIO

CITATION: Hammoud (Re), 2018 ONCA 317

DATE: 20180328

DOCKET: C63919

Feldman, Watt and Paciocco JJ.A.

IN THE MATTER OF:  Iman Hammoud

AN APPEAL UNDER PART XX.1 OF THE
CODE

Michael Davies, for the appellant

Jacquie Dagher, for Royal Ottawa Mental Health Centre

Molly Flanagan, for the Attorney General

Heard: March 16, 2018

On appeal from the disposition of the Ontario Review
    Board dated, May 2, 2017.

REASONS FOR DECISION

On July 12, 2001 the appellant was found NCRMD on several
    charges arising out of harassing and threatening conduct. She is presently
    subject to a disposition of the Ontario Review Board issued on May 2, 2017
    detaining her in the Secure Forensic Unit of the Royal Ottawa Mental Health
    Centre with conditions including community living in accommodation approved by
    the person in charge of the hospital.

[1]

The appellant, who is 59 years of age, meets the diagnostic criteria for
    Schizoaffective Disorder. She continues to lack insight into her illness and
    lacks the capacity to consent to treatment for her illness.

[2]

On appeal, the appellant advances a single claim of error. She submits
    that the Board failed to conduct its analysis of the significant threat
    threshold in accordance of the requirements of
Winko v. British Columbia
    (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625.

[3]

The appellant says that the significant threat threshold is onerous.
    The Board must be satisfied on the basis of the evidence adduced at the hearing
    that threat posed is significant, not only in the sense that there must be a
    real risk of physical or psychological harm occurring to individuals in the
    community, but also in the sense that this potential harm must itself be
    serious. The conduct or activity creating the harm must also be criminal in
    nature.

[4]

In this case, according the appellant, there is no basis upon which an
    inference or conclusion that the appellant presented a significant threat of
physical
harm

to others. And as for a significant threat of psychological
    harm, the appellant argues, the evidentiary cupboard is equally bare. The
    appellant acknowledges that her behaviour is bothersome, but it is neither
    criminal nor seriously harmful.

[5]

The Board expressed its conclusion on the significant threat issue in
    these terms:

That finding is based on the fact that Ms. Hammoud has suffered
    from Schizoaffective Disorder for more than 30 years and that she has engaged
    in behaviour over the years that is both harassing and threatening, clearing
    causing psychological harm to those persons who have been subject of her
    harassment. This is not simply trivial or bothersome behaviour, and it has been
    criminal nature in the past. Ms. Hammoud has no insight into her mental illness
    and has been consistently resistant to accepting medication for the treatment
    of that illness. It is clear that she would discontinue treatment if given the
    opportunity to do so.

[6]

Section 672.5401 defines what constitutes a significant threat to the
    safety of the public as a risk of serious physical or psychological harm to
    members of the public  including any victim of or witness to the offence - resulting
    from conduct that is criminal in nature but not necessarily violent.

[7]

The significant threat threshold involves an onerous standard. To find
    a significant threat to the safety of the public, the Board must be satisfied
    both as to the existence and gravity of physical or psychological harm posed by
    an NCR accused. Said in another way, there must be a serious risk of serious
    harm from criminal conduct:
Carrick, Re,
2015 ONCA 866, at para. 17;
Wall,
    Re,
2017 ONCA 713, at para. 26.

[8]

A careful review of the entirety of the Reasons for Disposition
    delivered by the Board fails to persuade us that the Board conducted the
    required analysis either of the risk of psychological harm or of the potential
    gravity of that risk.

[9]

There was no doubt that for three decades the appellant has suffered, as
    she continues to suffer, from a serious mental disorder. Equally, there was no
    doubt that, presented with the opportunity to do so, the appellant would
    discontinue her medication. But these are not the risks at which the
    significant threat threshold in s. 672.5401 is directed. In our view, read as
    a whole, the reasons of the Board reveal legal error  the failure to apply the
    proper test for significant threat to the safety of the public to the
    evidence adduced at the hearing.

[10]

For
    these reasons, the appeal is allowed. The disposition set aside, and a new
    hearing directed before a differently constituted Board.

K.
    Feldman J.A.
David Watt J.A.
David M. Paciocco J.A.


