





CITATION:
Abdikarim
(RE), 2011 ONCA 103



DATE: 20110207



DOCKET: C52401



COURT OF APPEAL FOR ONTARIO



Moldaver, Cronk and Lang JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Mohamed Abdikarim



Appellant



Mohamed Abdikarim, in person



Paul Burstein,
Amicus
          Curiae



James P. Thomson, for the Centre for Addiction and Mental
          Health



Alison Wheeler, for the Crown



Heard: February 1, 2011



On appeal from the disposition of the
          Ontario Review Board, dated May 4, 2010.



ENDORSEMENT



[1]

The appellant, Mohamed Adbikarim, appeals from
    the disposition of the Ontario Review Board dated May 4, 2010, requiring that
    he remain detained in the minimum secure unit of the Centre for Addiction and
    Mental Health (the Hospital) subject to various conditions, including the possibility
    of living in the community in accommodation approved by the Hospital.  The disposition at issue resulted from the
    appellants annual review hearing, coupled with a hearing into restrictions on his
    liberty resulting from his readmission to the Hospital in March 2010.

[2]

The appellant seeks an absolute or conditional
    discharge from the Hospital.  In the
    alternative, he seeks an order remitting his case back to the Board with
    directions for a new hearing.

[3]

The Crown and the Hospital support the continued
    detention of the appellant on the terms ordered by the Board.  The Hospital, supported by the Crown, seeks
    to file fresh evidence concerning the appellants condition and progress in the
    Hospital since the date of the Board hearing.

[4]

The appellant is self-represented.  Mr. Paul Burstein was appointed as
amicus curiae
for the purpose of this
    appeal.  Like the appellant, Mr. Burstein
    argues that the disposition should be set aside and a new hearing ordered.  As advanced in oral argument, he submits that
    the Board erred by finding that there was no treatment impasse in this case
    and, further, by failing to impose terms of disposition that require the
    Hospital to do more to explore new housing options for the appellants
    re-integration into the community.  In
    light of the fresh evidence sought to be filed, Mr. Burstein did not pursue the
    other grounds of appeal set out in his factum.

[5]

We conclude that the appeal must be dismissed.

[6]

The Board held that the appellant continues to
    pose a significant threat to the safety of the public.  This finding is not directly challenged on
    this appeal, although we note that the appellant argued that he is fine and
    simply wants to move forward.  In our
    opinion, on the record before the Board, this finding was reasonable.

[7]

The Boards decision to deny a conditional
    discharge was also reasonable and the least onerous and least restrictive
    disposition in all the circumstances.  There
    was unchallenged evidence before the Board that the balancing of the
    appellants liberty interests with containment of risk to public safety requires
    that the appellant function in a structured and controlled environment to
    maintain his mental stability.  It was
    open to the Board to accept this evidence, including the evidence of the
    appellants treating psychiatrist that ongoing structure is important to
    ensure [the appellants] successful transition back into the community.

[8]

We also regard the Boards rejection of the
    notion that a treatment impasse has been reached in this case as reasonable,
    based on the evidence before the Board.

[9]

The record indicates that while suitable
    accommodation in the community has yet to be found for the appellant, the
    Hospital has made repeated efforts to arrange such a placement.  On four separate occasions, after
    consultation with the appellant, the Hospital approved the appellants
    discharge to live with his parents or his mother.  On each occasion difficulties arose
    culminating, on the appellants fourth discharge, with a demonstration by the
    appellant that he was unable to comply with the terms of his at-home release
    plan.  Ultimately, this led to his
    readmission to the Hospital.

[10]

In addition, the appellant has been ambivalent
    regarding his willingness to agree to a supervised community housing
    placement.  On at least two occasions in
    the recent past, he declined to agree to specific supervised community housing
    placements proposed by the Hospital.  More generally, at various times during his hospitalization  including in
    the months prior to the Board hearing  the appellant opposed living in a
    non-familial supervised setting in the community.  The record confirms that several possible
    placements have proved impossible due either to long waiting lists or the
    appellants lack of co-operation or ambivalence.  However, the Hospital remains committed to
    finding appropriate supervised housing in the community for the appellant.

[11]

In these circumstances, while progress in
    finding suitable accommodation for the appellant has been difficult, it cannot
    be said that an impasse where no progress and no prospect of it has been
    reached.

[12]

In any event, based on the fresh evidence
    tendered by the Hospital, which we conclude meets the requirements for
    admission before this court, the appellants condition has deteriorated
    significantly since his March 2010 readmission to the Hospital.  For example, the appellant appears to have
    suffered at least one manic-like episode following his readmission that
    necessitated his transfer, for a period of time, from a minimum to a medium
    secure unit in the Hospital.  In light of
    the fresh evidence, the appellants continued detention in accordance with the
    Boards disposition remains the least onerous and least restrictive disposition
    for him at the present time.

[13]

We conclude with these observations.  Although, as we have said, the record reveals
    efforts by the Hospital to identify suitable supervised community housing for
    the appellant, it is important that these efforts continue, including those
    that may realistically be undertaken while the appellant is recovering from his
    recent setback, in order to avoid a cycle of continuing detention and
    deterioration in the appellants condition.

[14]

The fresh evidence reveals that treatment and
    counselling of the appellant has continued since his readmission in an effort
    to stabilize his mental condition with a view to reintegrating him into the
    community.  This, too, should
    continue.

[15]

We would expect that at the appellants next
    annual review hearing, which is likely to be held in the spring of this year,
    evidence of the continuing treatment of the appellant and of counselling to
    equip him for living safely in the community, as well as evidence of his then
    current condition, mental health status and accommodation preferences, will be
    filed with and considered by the Board.

[16]

For the reasons given, the appeal is dismissed.

M.J.
    Moldaver J.A.

E.A.
    Cronk J.A.

S.E.
    Lang J.A.


