



COURT OF APPEAL FOR ONTARIO

CITATION:  Pasha (Re), 2014 ONCA 128

DATE: 20140218

DOCKET: C56984

Cronk, Watt and van Rensburg JJ.A.

IN THE MATTER OF: Muhammed Zabieh Pasha

AN APPEAL UNDER PART XX.1 OF THE
CODE

Paul Burstein,
amicus curiae

Christine Bartlett-Hughes, for the Attorney General of
    Ontario

Julie A. Zamprogna Balles, for the Regional Mental
    Health Care, St. Thomas

Heard and released orally:  December 5, 2013

On appeal against the disposition of the Ontario Review
    Board dated January 17, 2013.

ENDORSEMENT

[1]

On July 15, 2010, the appellant was found not criminally responsible on
    account of mental disorder on charges of robbery and mischief under $5,000. 
    During the entire period within which he has been under the jurisdiction of the
    Ontario Review Board, the appellant has been detained in the forensic unit of
    the Regional Mental Health Centre at St. Thomas.

[2]

Earlier this year, the Board reaffirmed an earlier hybrid detention
    order that detains the appellant in the medium secure forensic unit in the
    hospital but permits hospital officials to exercise their discretion to
    transfer the appellant to the minimum secure forensic unit, should they
    consider it appropriate to do so.

[3]

The appellant contends that the Board erred in refusing to grant him an
    absolute discharge.  He says that the underlying finding that eliminated an
    absolute discharge as a disposition option - that he remains a significant
    threat to the safety of the public - is unreasonable and cannot be supported by
    the evidence introduced at the hearing.  He argues further that the Board
    failed to take into account his evidence that he initially malingered his
    condition on the advice of his counsel and that he did not at the time of the
    hearing, and does not now, suffer from a mental disorder.

[4]

Mr. Burstein, who appears as
amicus
, cannot identify any
    arguable grounds beyond those that the appellant has chosen to advance
    himself.  Mr. Burstein points out that there was evidence before the Board that,
    considered cumulatively, could support a finding that the appellant presented a
    significant threat to the safety of the public.

[5]

We are satisfied that the Board, in reaching its conclusions, considered
    but rejected the appellants claim that his initial symptoms were malingered
    and that he is not in fact suffering from a mental disorder.  The Board, as it
    was entitled to do, rejected the claim of malingering and found on the evidence
    of the treating psychiatrists that the appellant suffered, and continues to
    suffer, from a major mental illness.  That finding is firmly rooted in the
    evidence and does not reflect error.

[6]

We are further satisfied that the Board properly concluded on evidence
    well capable of sustaining their finding that the appellant represents a
    significant threat to the public.  With this finding, anchored in the evidence adduced
    at the hearing, there was no basis upon which the appellant could be granted an
    absolute discharge.  The disposition ordered by the Board was, in our view, the
    least onerous and least restrictive disposition available in the circumstances.

[7]

Crown counsel acknowledges that the appellant appears to do well when he
    takes his prescribed medication and follows the directions of his treatment
    team.  The disposition made by the Board will permit this to continue provided
    the appellant remains treatment compliant.

[8]

For these reasons, the appeal is dismissed.

E.A. Cronk J.A.

David Watt J.A.

K. van Rensburg J.A.


