



COURT OF APPEAL FOR ONTARIO

CITATION: Koundakjian (Re), 2020 ONCA 191

DATE: 20200310

DOCKET: C67408

Strathy C.J.O., Miller and Trotter JJ.A.

IN THE MATTER OF:  Ara Koundakjian

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant Ara Koundakjian

Andrew Cappell, for the respondent the Attorney General
    of Ontario

Michele Warner, for the respondent the Person in Charge
    of the Centre for Addiction and Mental Health

Heard: March 5, 2020

On appeal against the disposition of the Ontario Review
    Board dated, July 24, 2019, with reasons dated August 26, 2019.

REASONS FOR DECISION

[1]

Ara Koundakjian appeals from the July 24, 2019 disposition of the
    Ontario Review Board, ordering him detained at the General Forensic Unit of the
    Centre for Addiction and Mental Health, Toronto. The appellant had sought a
    conditional discharge.

[2]

The appellant advances two related grounds of appeal: the Board (1) misstated
    the governing legal test; and (2) failed to meaningfully consider whether the
    necessary and appropriate disposition would be a conditional discharge rather
    than a detention order. For the reasons that follow, we do not agree.

Background

[3]

The appellant is in his early 60s and has a long history of mental
    health illness. His diagnosis at the time of the disposition included
    schizo-affective disorder and substance dependence. He has a long history of
    substance abuse, notably cocaine. In the opinion of his treating psychiatrist,
    his cocaine use exacerbates his mental illness and renders him unpredictable
    and aggressive.

[4]

The hospital report documents a longstanding pattern of threatening,
    argumentative and aggressive behaviour within the family, and aggressive and
    assaultive behaviour on the basis of irritability and grandiosity against
    persons in his immediate world, including other patients when he is unwell.

[5]

The index offence occurred on June 22, 1999. While the appellant was an
    inpatient on the psychiatric unit of St Josephs Health Care in Toronto, he
    assaulted another patient, a mentally disabled man, punching and kicking him in
    the face and body. He was found not criminally responsible and has been under a
    detention order ever since.

[6]

The current disposition provides for the appellant to live in the community
    in supported housing, a privilege the appellant has exercised since 2008. Over
    that period, the appellant has been involuntarily readmitted to hospital between
    16 and 18 times, although not in the year preceding the disposition under
    appeal.

[7]

The hospital report states that the appellant has little or no insight
    into his illness, need for medication and impact of illness on his behaviour.

[8]

The appellants treating psychiatrist stated that the risk of assaultive
    behaviour is addressed by regular oversight, stability of accommodation,
    regular urine testing, depot medication regimen, and readmission when required
    because of decompensation.

[9]

The Board concluded that the appellant continued to represent a
    significant risk to the safety of the public, and that the appropriate
    disposition was a continuation of the detention order. It concluded that the
    appellants delusions appear fixed, including the belief that he needs to stay
    awake in order to prevent global catastrophe, and that he needs to consume
    cocaine to keep himself from sleeping. The Board accepted the evidence of the
    appellants treating psychiatrist,  that the appellants cocaine use can lead
    to decompensation, during which time the appellant can be verbally and
    physically aggressive, particularly towards family members.

[10]

The Board noted that the appellant is frequently in breach of the
    conditions of his disposition, particularly those related to cocaine use and drug
    testing, that decompensation can be rapid as a result of his cocaine use, and that
    a detention order continues to be necessary to return him rapidly to the
    hospital when warranted.

Analysis

[11]

The first ground of appeal is that the Board erred in its articulation
    of the correct legal test governing detention. In five places in its reasons,
    the Board refers to the appropriate disposition, rather than the necessary
    and appropriate disposition. In other places, including the conclusion, it
    does not make this error.

[12]

The appellant argues that this misarticulation was no mere slip, but
    evidence of a genuine misunderstanding of the standard the Boards disposition
    needed to meet. That is, it is not sufficient for a proposed disposition to be
    appropriate, it must also be
necessary
for protecting the public from
    a risk of serious harm.

[13]

We agree that the Boards apparent misstatement of the standard is troubling.
    But in the context of the reasons as a whole, it is apparent that appropriate
    is used as shorthand to indicate necessary and appropriate. The Board fully stated
    the phrase in other places and, more importantly, evidenced an understanding of
    the standard in its reasoning.

[14]

Second, the appellant argues that the Board erred by not finding that a
    conditional discharge would be the necessary and appropriate (or equivalently,
    the least onerous and restrictive) disposition. On conditions proposed by the
    appellant at the disposition hearing, the appellant would continue to reside at
    his housing which has been long approved by the Board, and continue to be
    subject to conditions regarding drug use, drug testing, and medications.

[15]

The appellant argued that the Boards primary concern - protecting the public
    against aggressive conduct consequent to rapid decompensation from cocaine use
     could be met by utilizing the provision of the
Mental Health Act
,
    particularly under the Box B criteria for substantial mental or physical
    deterioration. This is said to be particularly the case given that he is now
    receiving his medication through weekly injections, rather than daily oral
    medication.

[16]

In our view, the Boards determination that continued detention is the
    necessary and appropriate disposition is reasonable and entitled to deference. There
    was no air of reality to a conditional discharge in the appellants
    circumstances, which included multiple readmissions (although none in the
    previous review period), and breaches of the prohibition against using cocaine 
    testing positive for cocaine 25 times in the months leading up to the review
    hearing  as well as taking steps to defeat the testing regime. The chronic
    cocaine use is not a mere technical breach. The appellant believes cocaine to
    be medically necessary for him, to enable him to stay awake and thereby
    influence world events. In reality, it exacerbates his mental illness and puts
    other people at risk of physical harm. He has not demonstrated insight into his
    illness, or a willingness to abide by terms of his disposition that are
    necessary for the protection of others. His failure to comply with the terms of
    the disposition has not infrequently generated a risk of serious harm that has
    necessitated a return to hospital. Although he had not been readmitted in the
    year prior to the disposition hearing, he was not without incidents of
    aggression and other breaches. The Board made no error in concluding that a
    conditional discharge would not be the necessary and appropriate disposition in
    these circumstances.

DISPOSITION

[17]

The appeal is dismissed.

G.R. Strathy C.J.O.

B.W. Miller J.A.

Gary Trotter J.A.


