



COURT OF APPEAL FOR ONTARIO

CITATION: Ahmadzai (Re), 2020 ONCA 819

DATE: 20201216

DOCKET: C68455

Fairburn A.C.J.O., Watt and
    Zarnett JJ.A.

IN THE MATTER OF:  Meladul Ahmadzai

AN APPEAL UNDER PART XX.1 OF THE
CODE

Meaghan Shea Thomas, for the appellant

Emily Marrocco, for the respondent, Attorney
    General of Ontario

Marie-Pierre Pilon, for the respondent,
    the Person in Charge for Royal Ottawa Mental Health Centre

Heard: December 8, 2020 by
    videoconference

On appeal against the disposition of the
    Ontario Review Board, dated May 22, 2020, with reasons dated June 10, 2020.

REASONS FOR DECISION


[1]

On
April 11, 2018, the appellant was found
    NCRMD on charges of assault with a weapon, robbery, and possession of a weapon
    for a purpose dangerous to the public peace.

[2]

The charges arose out of a single event.
    Sometime after 8 oclock one evening, the appellant entered a Money Mart. He
    approached the counter. A female cashier was working alone in the store. The
    appellant brandished a paring knife with a four-inch blade. He demanded cash.
    The cashier retreated to the rear of the store. There, she activated a distress
    alarm. The appellant remained at the counter.

[3]

Shortly after the alarm had been activated, the
    police arrived. The appellant remained standing at the counter, the knife in
    front of him on the surface of the counter. He had made no effort to leave the
    store during the five minutes that elapsed between the sounding of the distress
    alarm and the arrival of the police. He did not obtain any cash despite his
    demand.

[4]

The appellant was 27 years old when he was found
    NCRMD on the predicate offences. He had previous convictions, both as a youth
    and as an adult. None were offences of violence. Some were for failures to
    comply with the terms of release orders.

[5]

During his tenure under the supervision of the
    Ontario Review Board, the appellant has generally been bound by detention
    orders subject to various conditions. However, for the most part, he has
    resided with his parents at their home in accordance with the terms of those
    dispositions.

[6]

The appellants current diagnoses are
    Schizophrenia, First Episode, currently in partial remission, and probable
    Major Depressive Disorder (moderate). He is presently subject to a conditional
    discharge that, among other things, permits him to reside with his parents.

The Grounds of Appeal

[7]

In this court, the appellant seeks a new hearing
    before the Board on two grounds. He says that in reaching its conclusion that
    he should be conditionally discharged, the Board made two errors:

i.

it failed to recognize and fulfill its
    inquisitorial role; and

ii.

it shifted the burden of proof to the appellant.

[8]

In our view, whether the grounds of appeal are
    considered individually or cumulatively, they fail.

Ground  #1: The Inquisitorial Function

[9]

The inquisitorial function of the Board and its
    related powers and responsibilities are beyond dispute. The Board is tasked with
    the responsibility of gathering and reviewing all available evidence about the
    four factors listed in s. 672.54 of the
Criminal Code
. But this duty
    only arises when, in the Boards expert view, additional information is
    necessary for the Board to discharge its mandate:
Kassa (Re)
, 2020
    ONCA 543, at paras. 33-34.

[10]

As a general rule, this court defers to a Board
    decision about whether it had sufficient evidence before it to make a decision
    about significant threat, thus disposition. It is all the more so, where, as
    here, the Board applies its collective and experienced mind to that decision.
    Deference will give way where the complaining party can demonstrate a
    realistic possibility that the missing material would have affected the
    Boards decision. Provided the Board has not acted unreasonably or proceeded on
    some improper principle, we do not interfere:
Baker (Re),
2001 CanLII
    4894, at para. 5.

[11]

In our assessment of this ground of appeal, a
    relevant factor of which to take account is whether any party suggested at the
    hearing that the material before the Board was inadequate and would not permit
    an informed assessment of the significant threshold:
Baker
, at para.
    3.

[12]

In our view, it simply cannot be said that the
    Board lacked evidence essential or necessary to an informed decision about
    significant threat. None of the parties suggested otherwise. Indeed, all agreed
    to an expedited hearing in full knowledge of the state of the evidentiary
    record. Some of the factors were unknown and would only materialize in the
    fullness of time.

[13]

It is also worthy of mention that the appellant
    does not challenge as unreasonable the significant threat finding. That
    decision was firmly rooted in a substantial evidentiary predicate not seriously
    challenged here. A serious mental illness of an ongoing nature. Limited
    insight. A predicate offence of threatened violence. A prior history of
    assaultive behaviour with family members. Guarded symptom disclosure to
    treating physicians. And a deficit of information about current or future
    residential arrangements.

Ground #2: Shift in the Burden of Proof

[14]

The appellant also alleges that the Board erred
    in shifting the burden of proof to the appellant. In effect, the appellant
    says, the Board required
him
to show that he was
not
a
    significant threat, rather than requiring the parties opposite to demonstrate
    that he was such a threat. In our view, reading the reasons of the Board, as a
    whole, as we must, nothing said, left unsaid or implied from either of these
    sources can sustain the conclusion the appellant asks us to draw.

[15]

That the Board had concerns about the
    appellants stability and potential decompensation in light of his proposed
    life changes does not amount to a shift in the burden of proof. Their concerns
    were amply supported by the evidence of the appellants treating psychiatrist. There
    was a robust history of involvement with mental health professionals. The
    predicate offence was committed while the appellant was on medication and
    compliant with it. There was a history of violence against close family
    members, of suicidal thoughts, of homicidal thoughts, and of paranoia. This
    amply supported the finding of significant threat and the disposition made.

Conclusion

[16]

For these reasons the appeal was dismissed.

Fairburn A.C.J.O.

David Watt J.A.

B. Zarnett J.A.


