



COURT OF APPEAL FOR ONTARIO

CITATION: Amini (Re), 2018 ONCA 373

DATE: 20180418

DOCKET: C64273

Watt, Brown and Huscroft JJ.A.

IN THE MATTER OF:  Ali Amini

AN APPEAL UNDER PART XX.1 OF THE
CRIMINAL CODE

Anita Szigeti, for the appellant Ali Amini

Susan Magotiaux, for the respondent the Attorney General of
    Ontario

Gavin S. MacKenzie, for the respondent Person-in-Charge, Centre
    for Addiction and Mental Health

Heard: February 23, 2018

On appeal against the disposition of the Ontario Review
    Board, dated August 11, 2017.

REASONS FOR DECISION

OVERVIEW

[1]

The appellant, Ali Amini, appeals the disposition of the Ontario Review
    Board (the Board) dated August 11, 2017 (the Order) that continued his
    conditional discharge on terms.

[2]

The appellant submits the Board erred in holding that the appellant was
    a significant threat to the safety of the public.

[3]

In 2006, the appellant was found not criminally responsible on account of
    mental disorder on charges of assault causing bodily harm and mischief. The incident
    involved the appellant attacking and injuring a hospital psychiatrist.

[4]

The appellants current diagnosis is schizoaffective disorder, substance
    use disorder, and antisocial personality traits. The appellant has been found
    incapable with respect to treatment.

[5]

The appellant was discharged to live in the community in October 2007.
    However, between that time and 2016 he was readmitted six times to various hospitals.

[6]

In August 2016, the Board granted the appellant a conditional discharge.
    There were no readmissions to a hospital prior to the Board hearing on August
    3, 2017.

THE 2017 REVIEW HEARING

[7]

At the appellants 2017 review hearing, the Centre for Addiction and
    Mental Health (the Hospital) recommended the continuation of the appellants
    conditional discharge, although that was not the unanimous view of his treatment
    team. Some recommended a detention order. The appellant sought an absolute
    discharge.

[8]

The Board continued the appellants conditional discharge. It found that
    the appellant remained a significant threat to the safety of the public for two
    main reasons. First, the Board concluded that a combination of factors resulted
    in the appellant presenting with a risk profile that placed public safety in
    jeopardy. Those factors were: (i) the appellant lacked insight into his mental
    illness and the need for treatment; (ii) the Board accepted the psychiatrists
    evidence that the appellant would not take medication in the absence of a Board
    order; (iii) even with his current medication, the appellant continued to
    experience residual symptoms of his illness and to hold beliefs and delusions
    as a result of his illness; and (iv) although there had not been any
    decompensation of the appellants condition during the review year as a result
    of his continued marijuana use, in the past such use had led to clinical
    worsening and readmissions to hospital.

[9]

Second, the Board accepted the evidence of the psychiatrist that were
    the appellant to discontinue medication, his symptoms could worsen and lead to
    the potential for violence of a kind seen in the 2006 index offence and in
    2015. The Board accepted that that risk can and may well be exacerbated by
    marijuana use, and there is every indication at present that [the appellant]
    will continue to use marijuana in contravention of his Disposition.

[10]

The
    2015 incidents referred to by the Board took place in March and May of that
    year. In March 2015, the appellant began leaving voicemail messages with one of
    his supervising treatment teams espousing his delusional beliefs, which led his
    then treating psychiatrist to refuse to meet alone with him. On two occasions
    in May 2015, the appellant made threatening statements to his treatment team
    and Hospital staff. On the first occasion, he said knowing howif I had to
    kill someone and then expressed aggressive thoughts towards his psychiatrist. On
    the second, he told a staff member that medications were causing him to
    experience command hallucinations to kill his psychiatrist.

[11]

The
    Board also accepted the psychiatrists evidence that the appellants risk on a
    conditional discharge could be managed under the
Mental Health Act
,
    R.S.O. 1990, c. M.7.

ANALYSIS

[12]

The
    appellant submits the Boards conclusion that he was a significant threat to
    the safety of the public was unreasonable. He submits that he has not committed
    any offence involving violence since 2006 and the 2015 incidents relied on by
    the Board did not disclose real potential for harm. The appellant argues that
    the possibility that his symptoms could worsen and lead to the potential for
    violence in the event he was granted an absolute discharge did not establish that
    he remained a significant threat to the safety of the public. He contends that
    in the absence of evidence to support the likelihood of serious criminality in
    the event of his discharge, he was entitled to an absolute discharge.

[13]

We
    are not persuaded by these submissions.

[14]

To
    find that an NCR accused is a significant threat to the safety of the public
    requires that there must be a foreseeable and substantial risk that the NCR
    accused would commit a serious criminal offence if discharged absolutely:
Winko
    v. British Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625,
    at para. 69.

[15]

Making
    such a risk assessment is difficult yet critically important:
Winko
,
    at para. 61. The assessment concerns probabilities, not facts, and involves
    estimations based on moral, interpersonal, political and sometimes arbitrary
    criteria:
Winko
, at para. 56. It may be extremely difficult even for
    experts to predict whether a person will offend in the future, although the tendency
    to over-estimate dangerousness must also be acknowledged and resisted:
Winko
,
    at para. 58.

[16]

The
    assessment requires the Board to examine a range of evidence, including the
    circumstances of the index offence, the past and expected course of the NCR
    accuseds treatment, the present state of his medical condition, his own plans
    for the future, the support services available to him in the community, and
    perhaps most importantly, the recommendations provided by experts who have
    examined the NCR accused:
Winko
, at para. 61.

[17]

The
    Boards reasons disclose it examined a broad range of relevant evidence
    concerning the appellant in order to ascertain whether there existed a foreseeable
    and substantial risk that he would commit a serious criminal offence if
    discharged absolutely. Its conclusion that such a risk existed was a reasonable
    one on the evidence before it. The conclusion was supported by the four factors
    the Board identified as making up the appellants risk profile, as well as by the
    evidence of the serious, threatening statements he made in 2015 to psychiatrists
    and hospital staff.

[18]

Given
    that evidence, we are not persuaded that it was unreasonable for the Board to
    find that the appellant was a significant threat to the safety of the public.

DISPOSITION

[19]

The
    appeal is dismissed.

David
    Watt J.A.
David Brown J.A.
Grant Huscroft J.A.


