



COURT OF APPEAL FOR ONTARIO

CITATION: Ahmadzai (Re), 2020 ONCA 169

DATE: 20200305

DOCKET: C67229

Benotto, Huscroft
    and Jamal JJ.A.

IN THE MATTER OF: Meladul Ahmadzai

AN APPEAL
    UNDER PART XX.1 OF THE
CODE

Michelle ODoherty, for the appellant

Emily Marrocco, for the respondent,
    Attorney General of Ontario

Marie-Pierre T. Pilon, for the
    respondent, Person in Charge of Royal Ottawa Mental Health Centre

Heard: February 21, 2020

On appeal from
    the disposition of the Ontario Review Board, dated June 11, 2019, with reasons
    dated July 10, 2019.

Jamal J.A.:

Introduction

[1]

The appellant was found not criminally
    responsible on account of mental disorder (NCR) on April 11, 2018, on charges
    of robbery, assault with a weapon, and possession of a weapon for a purpose
    dangerous to the public peace. The appellant had entered a Money Mart store on
    October 17, 2016, approached a female clerk, and demanded cash while
    brandishing a paring knife with a four-inch blade. The clerk activated the
    stores distress alarm and the police arrived within five minutes to arrest the
    appellant. While the police were
en route
the appellant made no effort
    to leave to store. He later explained that a shadow had told him to go to the
    store as the right place to feel better and he had demanded cash even though
    he did not need any money.

[2]

The appellants current diagnoses are
    schizophrenia, first episode (currently in partial remission) and probable
    major depressive disorder (moderate). His two hearings before the Ontario
    Review Board (Board) since the NCR verdict, including the one that is the
    subject of this appeal, both resulted in orders for detention at the Royal
    Ottawa Mental Health Centre (Hospital), with privileges including living in
    the community in approved accommodation.

[3]

The appellant, who was 24 years old at the time
    of the index offences, has been and is currently living with his parents. He was
    last admitted to the Hospital in October 2018. Following that, for the six
    months before the Board hearing, he received monthly antipsychotic injections.
    No concerns regarding his mental health or functioning were raised during this
    period. The attending psychiatrist, Dr. Wood, estimated that the appellant
    would decompensate within two weeks of not receiving his monthly long-acting
    injection. The Board noted, however, that the appellant would be facing
    additional stressors soon as he would be finishing school, looking for
    employment, and starting to live with his spouse.

[4]

Before the Board, the appellant had sought an
    absolute discharge because he no longer posed a significant threat to the
    safety of the public. In the alternative, he sought a conditional discharge. Although
    at the first hearing the Hospital had recommended a detention order, it now recommended
    a conditional discharge as the least onerous and least restrictive disposition.
    This reflected a change in the views of the appellants treatment team,
    including his attending psychiatrist, Dr. Wood, who had previously
    recommended a detention order. Even so, the Board rejected the Hospitals
    recommendation and maintained the detention order in its disposition dated June
    11, 2019.

[5]

The appellant now appeals the Boards
    disposition. For the reasons that follow, I conclude that the Boards
    disposition was unreasonable because it failed to adequately explain why the
    appellants risk could not be adequately managed under a conditional discharge
    as had been recommended by the Hospital.

Discussion

(a)

The statutory scheme

[6]

The Board is tasked with determining whether an
    NCR accused poses a significant threat to the safety of the public:
Criminal
    Code
, R.S.C. 1985, c. C-46, s. 672.54(a). A significant threat to the
    safety of the public means a real risk of physical or psychological harm to
    members of the public that is serious in the sense of going beyond the merely
    trivial or annoying and must be criminal in nature:
Winko v. British
    Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625, at para.
    62. The Board must consider both the likelihood of a risk materializing and the
    seriousness of the harm that might occur:
Kassa (Re)
,
    2019 ONCA 313, at para. 33.

[7]

If the Board concludes that the NCR accused does
    not pose a significant threat to the safety of the public, then he or she must be
    discharged absolutely: s. 672.54(a).

[8]

However, if the Board finds that the significant
    threat threshold is met, it must order the NCR accused to be either discharged
    or detained in custody in a hospital, in either case subject to conditions as
    it considers appropriate: ss. 672.54(b) and (c);
R. v. Lamanna
, 2009
    ONCA 612, 252 O.A.C. 280, at para. 7. The Board must make a disposition that is
    necessary and appropriate in the circumstances (s. 672.54), which has
    been interpreted as meaning the least onerous and least restrictive
    disposition regarding the NCR accuseds liberty interests that is consistent
    with public safety and the NCR accuseds mental condition, other needs, and
    eventual reintegration into society:
Mazzei v. British Columbia (Director
    of Adult Forensic Psychiatric Services)
, 2006 SCC 7, [2006] 1 S.C.R. 326,
    at para. 19;
Lamanna
, at paras. 8-10;
McAnuff (Re)
, 2016 ONCA
    280, at para. 22; and
Esgin (Re)
, 2019 ONCA 155, at paras. 15-17.

(b)

The issues

[9]

The appellant raises two grounds of appeal. He submits
    that the Boards disposition is unreasonable and should be set aside under s.
    672.78(1)(a) of the
Criminal Code
because: (1) the Board erred in
    finding that he posed a significant threat to the safety of the public under
    s. 672.54(a); and (2) in the alternative, the Board erred in imposing a
    detention order rather than a conditional discharge.

(1)

Did the Board err in concluding that the
    appellant posed a significant threat to the safety of the public?

[10]

The appellant asserts that the Boards finding
    that he posed a significant threat to the safety of the public was
    unreasonable. He notes that he has committed no violent acts since the index
    offence in October 2016, he has been compliant with his medication, and his
    treatment team has confirmed his continuing improvement. While he had one
    episode of decompensation in October 2018, no violence ensued, and certainly no
    risk to the public. He asserts that the Board failed to weigh the evidence of
    his attending psychiatrist, Dr. Wood, that the likelihood of him becoming
    non-compliant with his medication was minimal, even if he were discharged
    absolutely. He claims that, properly considered, the evidence did not support a
    finding that he is a significant threat to public safety.

[11]

I do not agree with the appellants submission.

[12]

Parliament has set out in legislation the
    standard of appellate review of the Boards dispositions. Absent a wrong
    decision on a question of law or a miscarriage of justice, this court may allow
    an appeal against a disposition of the Board only where it is of the opinion
    that the disposition is unreasonable or cannot be supported by the evidence:
Criminal
    Code
, s. 672.78(1);
R. v. Owen
, 2003 SCC 33, [2003] 1 S.C.R. 779,
    at paras. 31-32;
Canada (Minister of Citizenship and Immigration) v.
    Vavilov
, 2019 SCC 65, at para. 34.

[13]

I conclude that the Boards finding that the
    appellant was a significant threat to the safety of the public was reasonable.
    The Boards reasoning process and the outcome reflected an internally
    coherent and rational chain of analysis that was justified in relation to the
    facts and law:
Vavilov
, at paras. 83, 85.

[14]

In making its finding, the Board relied on the
    following factors: (i) the index offences are offences of violence; (ii) the
    appellant has a history of violent conduct in the family home, including hitting
    his mother and choking his younger brother; (iii) he is likely to again experience
    psychosis if he becomes non-compliant with his treatment; (iv) he has a prior
    criminal record that shows disregard for court orders; and (v) he does not take
    responsibility for his past misconduct and relies on his inability to recollect
    events that resulted in criminal charges, thereby impeding his treatment teams
    ability to deal with his antisocial conduct. All these findings were supported
    by the evidence before the Board.

[15]

Moreover, while the Hospital Report acknowledged
    that the appellants risk for future violence was low to moderate relative to
    other individuals assessed for violence using the Historical Clinical Risk
    Management-20, Version 3 (an actuarial assessment for assessing and managing
    violence risk), it concluded he posed a significant threat to public safety because
    of his history of not being entirely forthcoming about his symptoms and the
    teams inability to get a better sense of his home environment and his
    day-to-day activities.

[16]

These were all proper factors for the Board to
    consider in reaching its reasoned and internally coherent determination of
    significant threat. These factors included, most importantly, the
    recommendations of the experts who had examined the appellant: see
Winko
,
    at para. 61. Although the appellants condition has improved since the index
    offence, both the Board and his treating psychiatrist remained concerned about
    the lack of transparency regarding his home environment and symptoms, and thus the
    risk factors supporting the significant threat finding continued to weigh more heavily
    in the balance.

[17]

Thus, the Board was not merely uncertain about or
    unable to decide whether the appellant posed a significant threat to the safety
    of the public: see
Winko
, at para. 62. Nor did the Board simply rely
    on historical risk factors relating to the index offence and the appellants
    prior criminal history. Rather, the Board and the treatment team continued to
    have significant concerns that were not assuaged by the other evidence before
    the Board.

[18]

This judgment call, which drew on the Boards expertise
    and required it to weigh the evidence, was one that the Board was especially well
    placed to make, given the inherent difficulty of the subject matter and the
    expertise of the medical reviewers:
Owen
, at paras. 40, 47. As stated
    in
Winko
, at para. 61:

Appellate courts reviewing the dispositions
    made by a court or Review Board should bear in mind the broad range of these
    inquiries, the familiarity with the situation of the specific NCR accused that
    the lower tribunals possess, and the difficulty of assessing whether a given
    individual poses a significant threat to public safety.

[19]

In sum, I have concluded that both the Boards
    reasoning process and its conclusion that the appellant continued to pose a
    significant threat to the safety of the public were reasonable and are therefore
    entitled to deference.

(2)

Did the Board err in imposing a detention order
    rather than a conditional discharge?

[20]

The appellants alternative ground of appeal
    asserts that the Board erred in imposing a detention order rather than a
    conditional discharge.

[21]

At the hearing before the Board, the Hospital
    recommended a conditional discharge as the least onerous and least restrictive
    measure. It conceded that recommending a detention order for the appellant would
    be difficult, as [n]o concerns have been raised over the past six months regarding
    his mental health and his functioning, and he has largely presented himself
    appropriately to the team. The Hospital concluded that [a] conditional
    discharge would allow the team to continue doing a longitudinal assessment of
    Mr. Ahmadzais condition and insight as well as his cooperativeness with the
    team in aiding the achievement of his identified goals. As noted, this recommendation
    reflected a change of opinion of the appellants treatment team from the
    earlier hearing before the Board.

[22]

Nevertheless, the Board rejected the Hospitals
    recommendation and maintained the detention order. The Board reasoned that because
    the appellant was about to face new sources of stress in his life  completing his
    post-secondary studies, getting a job, and cohabitating with his new spouse  a
    detention order would permit him to be admitted to hospital more efficiently if
    he were to decompensate, especially because his parents would likely not seek to
    admit him to hospital under the
Mental Health Act
, R.S.O. 1990, c. M.7.

[23]

The appellant asserts that the Boards reasoning
    process was flawed, and therefore its disposition was unreasonable, because the
    Board failed to adequately address the treatment teams recommendation that a
    conditional discharge would be sufficient to ensure the safety of the public
    in the event that he does experience a deterioration in his mental illness. He
    also contends that the Boards decision unreasonably centred on the perceived
    lack of civil remedies sufficient to bring the appellant to the hospital should
    he refuse to attend on his own. As noted in
Vavilov
, at para. 126: [t]he
    reasonableness of a decision may be jeopardized where the decision maker has
    fundamentally misapprehended or failed to account for the evidence before it.

[24]

I agree with the appellant that the Boards
    reasoning process gave no meaningful consideration to whether his risk to the
    public could be managed under a conditional discharge as recommended by the
    Hospital. The Board therefore failed to evaluate the evidentiary record in
    context, which this court has found to be unreasonable: see
Valdez (Re)
,
    2018 ONCA 657, at paras. 23-24;
Esgin (Re)
, at para. 24. In the
    present case, the Board reasoned that it would be easier to return the
    appellant to hospital under a detention order. But that would always be true
    and could always be used to justify a detention order rather than a conditional
    discharge. The Boards duty to impose the least onerous and least restrictive
    disposition requires more than mere convenience to the hospital:
Valdez
    (Re)
, at para. 21;
Esgin (Re)
, at para. 20. As noted in
Valdez
    (Re)
,
the Board must determine whether the appellants risk could be
    managed under a conditional discharge by examining the evidentiary record in context,
    at paras. 22-23:

The ease of returning an individual to hospital will not always
    justify a detention order as a necessary and appropriate disposition. As
    discussed in
Young Re
, 2011 ONCA 432, 278 O.A.C. 274, at para. 26, there
    are multiple ways in which to secure someones attendance at the hospital when
    they fail to comply with a condition of their discharge. For instance, the
    person could be returned: (1) by convening a new hearing under s. 672.82(1) of
    the
Criminal Code
; (2) by resorting to the breach provisions of the
Criminal
    Code
; or (3) through the committal provisions under the
Mental Health
    Act
, R.S.O. 1990, c M.7.

The Board had a duty to assess the evidentiary record in context,
    including taking into consideration in this case: (1) the risk of
    non-attendance for medication; (2) the mechanisms for securing someones
    attendance at hospital under the conditional discharge framework; (3) the
    length of time that any such steps may take; (4) the effect of that delay on Mr.
    Valdezs mental health; and (5) the risk to public safety posed by any delay in
    treatment.

See also
Esgin (Re)
,
    at paras. 19-25.

[25]

These
    comments apply equally in this case. The Boards reasoning process failed to assess
    whether the appellants risk could be managed under a conditional discharge. The
    appellant has been regularly attending the Hospital as required by the
    conditions of this detention order and is injected with a long-acting
    antipsychotic medication every month. Dr. Wood disagreed with the suggestion
    that the appellant was compliant with his medication only because he was so ordered
    by the Board. He opined that its one of Mr. Ahmadzais strengths in that he
    wants the injection. He also noted that while he suspected that the appellants
    condition would deteriorate within a couple of weeks if he went off his
    medication, the Hospital would know this immediately because he must attend
    for his injection every month.

[26]

In
    summary, the expert evidence before the Board was that the risk of the
    appellants non-attendance for his injection was minimal, immediately
    detectable, and rapidly addressable. Decompensation would occur within a couple
    of weeks if the appellant ceased taking his medication, leaving enough time to
    admit the appellant to hospital if necessary. Apart from relying on administrative
    convenience, which the Hospital itself did not invoke, the Board failed to
    explain why it rejected Dr. Woods expert evidence that the appellants risk to
    the public could now be managed under a conditional discharge. The Boards
    disposition was therefore unreasonable.

Disposition

[27]

I would allow the appeal and refer the matter back
    to the Board for a rehearing on all issues pursuant to s. 672.78(3)(b) of the
Criminal
    Code
. At that time, the Board can consider whether the appellant continues
    to pose a significant threat to public safety, and if so, the appropriate
    disposition in light of the circumstances then prevailing.

Released: March 5, 2020 (M.L.B.)

M.
    Jamal J.A.

I
    agree. M.L. Benotto J.A.

I
    agree. Grant Huscroft J.A.


