
HTML PUBLIC "-//W3C//DTD HTML 4.0 Transitional//EN"





COURT OF APPEAL FOR ONTARIO

CITATION: Hassan
    (Re), 2013 ONCA 236

DATE: 20130415

DOCKET: C56229

Doherty, MacPherson and Cronk JJ.A.

IN THE MATTER OF:  OMAR HASSAN

AN APPEAL UNDER PART XX.1 OF THE
CODE

Omar Hassan, appearing in person

Joseph Di Luca,
amicus curiae


Michael Medeiros, for the respondent

Heard: April 11, 2013

On appeal against the disposition of the Ontario Review
    Board dated July 4, 2012.

ENDORSEMENT

[1]

On May 24, 2011, the appellant was found not criminally responsible
    (NCR) on account of mental disorder in respect of three counts of disarming a
    police officer and one count each of assault causing bodily harm, aggravated
    assault, and failure to comply with probation.  As a result, the appellant came
    under the jurisdiction of the Ontario Review Board (the ORB).

[2]

The appellant was the subject of a disposition hearing before the ORB on
    June 20, 2012.  The appellant and the Centre for Addiction and Mental Health
    (the hospital) sought a hybrid disposition that would detain the appellant in
    the secure unit but grant discretion to the hospital to transfer him to the
    general forensic unit if appropriate.  The Crown sought a disposition detaining
    the appellant in the secure forensic unit.

[3]

In a disposition dated July 4, 2012, with written reasons released on
    August 21, 2012, the ORB found that the appellant was a significant threat to
    public safety and ordered him detained on the secure unit.  The appellant was
    granted the following privileges  attend within or outside the hospital for
    necessary medical, dental, legal or compassionate purposes; hospital and
    grounds privileges, escorted by staff or a person approved by the person in
    charge of the hospital; hospital and grounds privileges, indirectly supervised;
    and to enter the community, accompanied by staff or a person approved by the
    person in charge of the hospital.

[4]

The appellant appeals this disposition.  He now seeks a transfer to the
    general unit.

[5]

Amicus curiae
has been appointed to assist.
Amicus
submits that the ORB erred in refusing to grant the hybrid order sought by the
    appellant and the hospital.  This error, asserts
amicus
, flowed from
    findings not supported by the evidence and from a failure to properly apply the
    least onerous and least restrictive test.

[6]

Amicus
contends that the ORB refused to make a hybrid
    disposition primarily based on its findings that the appellant does not respond
    to incentive-based motivation because of his personality issues and that the
    hybrid order would create a false expectation on the part of the appellant.
Amicus
submits that neither of these findings is supported by the record.

[7]

We do not accept this submission.  In our view, these components of the
    ORBs reasons had a solid evidentiary foundation anchored in the hospitals
    report and Dr. Woodsides testimony.  Some of the appellants antisocial
    personality traits, which the ORB described as an ingrained pattern of
    continuing to engage in very concerning behaviours with little or no regard to
    consequences of his behaviour strongly suggested that the appellant would not
    make sufficient progress to justify a transfer to the general forensic unit
    prior to the next annual review.

[8]

Nor do we think that the ORB failed to apply the least onerous and least
    restrictive test in crafting its disposition.  There was no issue before the
    ORB, and there is none before this court, about the appellants continuing risk
    to public safety.  The appellants three attacks on police officers, the
    injuries (some quite serious) to those officers, and his continuing behaviour
    problems in the hospital combine to make the ORBs disposition of detention in
    the secure unit eminently reasonable.

[9]

We note that the specialized expertise of the ORB attracts considerable
    deference to their dispositions when they are reviewed for reasonableness: see
Winko
    v. British Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625
    at para. 61.  In our view, this deference is particularly appropriate in a
    context, as here, where there is very little difference between the actual
    disposition (detention in a secure unit) and the competing disposition
    considered by the ORB (detention in a secure unit with discretion granted to
    the hospital to transfer the patient to the general unit if appropriate).  It
    is for this reason that it is not surprising that in some recent cases this
    court has declined to interfere with ORB decisions that rejected so-called
    hybrid orders: see, for example,
Re Hassan
, 2011 ONCA 561, at para.
    29; and
Re Kelly
, 2012 ONCA 265, at para. 3.

[10]

The
    appeal is dismissed.

Doherty
    J.A.

J.C.
    MacPherson J.A.

E.A.
    Cronk J.A.



