



COURT OF APPEAL FOR ONTARIO

CITATION: Hannora (Re), 2017 ONCA 191

DATE: 20170307

DOCKET: C62210

MacFarland, Pardu and Trotter JJ.A.

IN THE MATTER OF:  Mwafak Hannora

AN APPEAL UNDER PART XX.1 OF THE
CODE

Diana Lumba for the appellant

Christine Laviolette for the respondent, Ontario Shores

Brett Cohen for the respondent, Ministry of Attorney
    General

Heard: March 1, 2017

On appeal against the disposition of the Ontario Review
    Board dated, April 29, 2016.

ENDORSEMENT

[1]

At its hearing on April 16, 2016, the Board was required to determine
    whether or not Mr. Hannora remained a significant threat to the safety of the
    public, and if so, what was the necessary and appropriate disposition having
    regard to s. 672.54 of the
Criminal Code

of Canada

(R.S.C., 1985, c. C-46)
.

[2]

The Board determined that Mr. Hannora remained a significant threat to
    the safety of the public and that the necessary and appropriate disposition was
    to continue the current detention order, which required that he be detained in
    the Secure Forensic Unit.

[3]

At the outset of the hearing, counsel for Mr. Hannora conceded that her
    client remained a significant threat to the safety of the public and that a
    detention order was the necessary and appropriate disposition.

[4]

In this court, she submits that the submission to the Board was that Mr.
    Hannora should be placed in a general forensic unit and not in a secure
    forensic unit or continue to be detained in the secure unit with discretion to
    the hospital to transfer the appellant to the general unit, if appropriate.
    This latter remedy was referred to as the hybrid option.

[5]

Both the hospital and the Crown recommended that there be no change to
    Mr. Hannoras disposition.

[6]

The appellant submits that the Board erred in three ways:

(1)

It failed to provide reasons
    for rejecting a hybrid order;

(2)

Misapprehended evidence that
    the appellants risk for coercive sexual contact was low;

(3)

Failed to apply least
    onerous, least restrictive disposition test.

[7]

The appellant was found NCRMD for a sexual assault committed in 2008. He
    has an extensive psychiatric history and suffers from a treatment-resistant Schizoaffective
    Disorder (bipolar type) and Polysubstance Abuse Disorder. The manic symptoms of
    his illness manifest themselves principally through inappropriate sexual
    behaviour. While he showed some improvement within the months leading up to the
    hearing which is the subject of this appeal  there were still a number of
    notable incidents of sexually inappropriate behaviour.

[8]

As to the first ground, counsel for the appellant was asked at the
    outset of the hearing before the Board whether she took issue with either that
    the appellant remained a significant threat to the public or that a detention
    order was appropriate. She told the Board that she did not. The following
    exchange took place:



The chairperson of the Board said:

and you agree that a detention order
          is appropriate, but what youre asking for is placement on a general forensic
          unit, is that right?



Ms. Hennebury:

Yes



The chairperson:

and in terms of privileges and
          conditions, do you have a position on that or is it your most important thing
          to have a general forensic unit?



Ms. Hennebury:

That would be what were mainly
          focusing on today.



The chairperson:

Right. Okay. So that appears to be
          the issue, Ms. Lindo, a secure forensic unit or general forensic unit.



[9]

The remedy of a hybrid order was not discussed at the hearing. Only at
    the very end of her cross examination of Dr. Krishnan  the last question  did
    counsel ask about the possibility with a structured plan in place.when it is
    done slowly over time with a target in mind and a behavioural plan, perhaps even
    with, not necessarily the Board deciding, but the person in charge, is it
    possible that if he were given a plan like that, that may assist him in getting
    to a lower unit?

[10]

The doctor responded that while such a plan might assist the primary
    driving force of his inappropriate behaviours appear to be his symptoms of
    mental illness and so appropriate treatment and optimization of his medication
    regime would be a big factor in helping him move on toward a general forensic
    unit.

[11]

In our view, there was no need on this record to address the possibility
    of a hybrid order; such a disposition was simply not the focus of this hearing.
    Neither was there any air of reality to such a disposition on the evidence
    before the Board.

[12]

The evidence before the Board was clear, that although Mr. Hannora had
    had a good year and there had been some improvement:

it appeared unlikely that Mr. Hannora would be ready for a
    transfer to a general forensic unit. He continues to suffer from acute
    psychotic symptoms, which appear to be driving his sexually inappropriate
    behaviour.

[13]

The current situation was described as follows:

In the community, as well as currently on his level of
    structure, even on the unit, he has engaged in sexually inappropriate
    behaviours, including exposing himself, propositioning others, engaging in
    inappropriate touching, engaging in self-pleasure behaviours while attending
    the pool. So it appears to be occurring, even with his current level of
    structure, although it has reduced, compared to the previous year.

[14]

Mr. Hannoras illness has proven to be particularly resistant to
    antipsychotic medications. There was some improvement in 2013 when he was
    switched to Clozapine and more recently when the dosage of that drug was
    increased. At the time of the hearing before the Board, his team hoped to get
    permission to add Sulpiride to his treatment with the hope:

.that it would decrease his active psychotic symptoms, in
    particular his auditory hallucinations, as well as delusions and a corollary to
    that that it would hopefully decrease his sexual pre-occupation as well.

[15]

Sulpiride is not a drug that was approved for treatment in Canada at
    that time. The hospitals permission was in process and thereafter an
    application to Health Canada would be required for approval to obtain this
    drug.

[16]

Next, the appellant argues that the Board misapprehended evidence before
    it that the appellant was low risk for coercive sexual contact in making the
    disposition that the appellant remain on the secure unit.

[17]

The hospital report at page 36 begins a discussion of the appellants
    result on the Risk for Sexual Violence Protocol (RSVP) and concludes:

Mr. Hannoras risk for sexual re-offending is considered to be
    moderate-high for sexually inappropriate behaviour including exposure and
    inappropriate physical contact and high for sexual comments. Coercive sexual
    contact risk is considered low.

[18]

The Board in its reasons notes:

It is his motivation to move to the General Forensic Unit since
    there are more females. He believes he will be able to have sex with them. This
    places the general population of the hospital and others at a greater risk were
    he to be moved to the General Forensic Unit.

[19]

While his score for coercive sexual contact was considered low, his risk
    was moderate-high for sexually inappropriate behaviour and high for sexual
    comments.

[20]

We do not accept the submission that the Board misapprehended this
    evidence. To the contrary, the Board mainly noted that the appellant believes
    he will be able to have sex with the females on the general unit and there was
    ample support for that statement in the hospital report. He is described at
    page 38 of that report as being preoccupied with sex, with this being his
    reported motivator to move to a minimum unit.

[21]

We are not persuaded the Board misapprehended the evidence before it.
    There was ample evidence, that although the appellant had improved over the
    reporting year, he continued to engage in sexually inappropriate behaviours.

[22]

On a general unit, there would not be the necessary staffing levels to
    appropriately re-direct the appellant when he engaged in such behaviour.

[23]

Lastly, the appellant submits that in failing to consider a hybrid order
    the Board failed to consider the least restrictive, least onerous disposition
    for the appellant.

[24]

We do not agree. Whether or not a hybrid order would be appropriate for
    the appellant was not a live issue before the Board at the hearing which is the
    subject of this appeal and the Board did not err in failing to consider such a
    disposition.

[25]

The appellant seeks to file an affidavit of a legal assistant which
    reports on a conversation one of the appellants lawyers had in February, 2017
    with Dr. Cole, who is the appellants treating psychiatrist.

[26]

Leaving aside the hearsay issues with the affidavit, it states in part:

Subject to any recent developments Dr. Coleman will be
    recommending the applicants transfer to a general unit in the hospital report she
    expects to complete around mid-March.

[27]

This reference would be to the hospital report being prepared for the
    appellants next hearing scheduled for April 26, 2017.

[28]

In point form the affidavit sets out the appellants progress over the
    year since the hearing which is the subject of this appeal.

[29]

It is filed in the event we find the Board made legal errors in the
    disposition of April, 2016 and we are considering making an alternate order.

[30]

We would admit the fresh evidence. We are not however, persuaded the
    Board made any error in its disposition.

[31]

In the event Dr. Coleman does, in her updated report, make the
    recommendation she forecasts in her discussion with counsel, it will of course
    be a relevant consideration for the Board at the Appellants hearing on April
    26, 2017.

[32]

The appeal is dismissed.

J. MacFarland J.A.

G. Pardu J.A.

G.T.
    Trotter J.A.


