



COURT OF APPEAL FOR ONTARIO

CITATION: Afifi (Re),
    2021 ONCA 608

DATE: 20210913

DOCKET: C68824

Paciocco, Nordheimer
    and Coroza JJ.A.

IN THE MATTER OF:
    Shehab Afifi

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Anita Szigeti and Maya Kotob, for the appellant

Deborah Krick, for the respondent, Attorney General of
    Ontario

Leisha Senko, for the respondent, Person in Charge of the
    Centre for Addiction and Mental Health

Heard: August 30, 2021 by video conference

On appeal from the disposition of the Ontario Review
    Board dated October 15, 2020, with reasons dated November 2, 2020 and
    reported at
Afifi (Re)
, [2020] O.R.B.D. No. 2245.

REASONS FOR DECISION

[1]

The appellant, Shehab Afifi, appeals the disposition of the Ontario
    Review Board (Board) dated October 15, 2020, detaining him at the Centre for
    Addiction and Mental Health (CAMH or the hospital) on a general unit with
    privileges up to community living in approved accommodation. At the conclusion
    of the hearing, we dismissed the appeal with reasons to follow. We now provide
    our reasons.

[2]

In November 2006, the appellant was found not criminally responsible on
    account of mental disorder on charges of mischief under $5,000 (x2), assault,
    and uttering threats. He has been diagnosed with schizophrenia, cannabis use
    disorder (in partial remission), alcohol use disorder (in sustained remission),
    and antisocial personality disorder.

[3]

He was subject to a detention order and is placed at CAMH. In 2008, he
    moved back into the community into an independent apartment. Over the years, he
    has been readmitted back into CAMH and then discharged back into his apartment.
    However, the appellant has acted violently on several occasions since his 2006
    arrest. In March 2019, the appellant was alleged to have assaulted an elderly man
    by punching him in the stomach. After the alleged incident, he was admitted to
    the hospital and tested positive for cannabis shortly after. He was eventually
    discharged on April 8, 2019 but readmitted to CAMH only a few days later on
    April 16, 2019. This was after he arrived late for an appointment with his
    treatment team and appeared to be disheveled, irritable, and disorganized. After
    readmission, he was reported to be clearly suffering from symptoms of
    psychosis. Although he denied any recent cannabis use, the appellants urine
    drug screens were positive for cannabis on April 16 and 17, 2019.

[4]

At his latest review hearing, held September 25, 2020, the Board
    unanimously held that the appellant continues to pose a significant threat to
    the safety of the public and that a conditional discharge would not be
    sufficient to ameliorate that risk given the difficulty to quickly bring him
    back into hospital when he decompensates. The Board issued a continuation of
    the current detention order at CAMH with privileges up to community living in
    approved housing. The effect of the detention order is that the appellant will
    lose his apartment where he has lived for the last 11 years, subject to many
    readmissions to the hospital. CAMH has taken steps to inform the appellants housing
    provider that it no longer approves of the appellants apartment as a suitable
    housing option because of the lack of sufficient supervision.

[5]

The appellant advances several arguments.

[6]

First, the appellant contends that the Boards disposition is not the
    least onerous, least restrictive disposition and submits that the evidence
    before the Board demonstrated that any risk factors could be safely managed
    under the rubric of a properly crafted conditional discharge that would allow
    him to return to his independent apartment.

[7]

We do not accept the appellants argument.

[8]

Considerable deference is owed to the Boards decision. In our view, the
    Boards reasoning process and outcome in this case reflects an internally
    coherent and rational chain of analysis and is justified in relation to the
    facts and the law.

[9]

The evidence before the Board included the lengthy history of the appellants
    decompensation and his assaultive behaviour. Dr. Kung testified before the
    Board on behalf of the appellants treatment team. She opined that the
    appellants history of hospitalization, recent record of violent activity, and
    substance abuse issues demonstrate the need for close and continued 24-hour supervision.
    It was open to the Board to accept her evidence and conclude that this could
    only be accomplished by way of a detention order.

[10]

Second, the appellant argues that, at para. 60 of its reasons, the Board
    recognized that the staff at the appellants independent apartment could have
    managed his risk when it stated, [T]he Board questions whether or not the
    treatment team has explored utilizing [the independent apartment] community
    workers to monitor [the appellant] in his current apartment. The appellant
    submits that, in light of these comments, the decision to impose a detention
    order is not the least onerous and least restrictive disposition because the
    Board identified a potential alternative to the supervision offered by CAMH and
    was required to explore this further.

[11]

In our view, the Boards comments at para. 60 were not findings by the Board
    that the independent apartment could provide adequate supervision in the
    community. The Board permitted a social worker at CAMH to testify at the
    hearing and provide information about what support community workers can offer
    for independent living in the apartment. That social worker testified that the
    present arrangement is for community workers to do weekly property checks to
    ensure that there is no destruction to the apartment. We view the comments at para.
    60 as merely the Boards observations that, moving forward, if supervised
    housing approved by CAMH was not available within a reasonable time, then CAMH
    should potentially consider independent living in an apartment with the
    assistance of the community workers. We see no breach of the Boards
    inquisitorial duties. The issue was explored by the Board through the testimony
    of the social worker but, ultimately, the Board accepted Dr. Kungs evidence
    that a high degree of supervision is required at this time.

[12]

Finally, the appellant contends that the Board erred when it held that
    if left to his own devices he would not recognize his own decompensation,
    and would not voluntarily return to hospital which renders the
Mental
    Health Act
ineffective to treating his psychotic episodes. The appellant
    argues that a conditional discharge would still subject him to his treatment
    team and that it is simply wrong to suggest that the
Mental Health Act
(
MHA
)
    is rendered ineffective if the appellant is discharged to the community because
    the committal provisions under the
MHA
are available to effect the
    return of the appellant to the hospital for assessment and admission.

[13]

We do not accept this argument. We acknowledge that the ease of
    returning an individual to the hospital will not always justify a detention
    order and cannot be imposed as a matter of convenience:
Valdez (Re)
,
    2018 ONCA 657, at paras. 22-23. However, in our view, it was open to the Board to
    find that the
MHA
was inadequate to manage the appellants risk.
    Contrary to the appellants submissions, the Board did assess the evidentiary
    record and did not rely solely on the ease of returning an individual to a
    hospital to justify the detention order. The Board also noted that the
    appellant does not recognize his decompensation, would not voluntarily return
    to the hospital, and demonstrates a high risk of physical violence when he decompensates.
    The Boards finding, that a conditional discharge would not ameliorate this
    risk given the difficulty to quickly bringing the appellant back into hospital
    under the
MHA
, must be read in this context.

[14]

For these reasons, the appeal was dismissed.

David M. Paciocco
    J.A.

I.V.B. Nordheimer
    J.A.

S. Coroza J.A.


