





CITATION:
Hassan
          (Re) , 2011 ONCA 561



DATE: 20110824



DOCKET: C52663



COURT OF APPEAL FOR ONTARIO



Laskin, Feldman and Armstrong JJ.A.



IN THE MATTER OF:
Abdi
Hassan



Abdi
Hassan, appearing in person



Anita Szigeti, as
amicus
          curiae



Amy
Alyea
, for the Attorney General



Heard: February 15, 2011



On appeal against the disposition
          of the Ontario Review Board, dated August 26, 2010.



Laskin J.A.:



A.

OVERVIEW

[1]

The appellant,
Abdi
Hassan,
    suffers from schizophrenia.  Eleven years
    ago he was charged with threatening to kill a police officer and related
    offences.  He was found not criminally
    responsible on account of mental disorder.  For most of the past nine years he has been at the Centre for Addiction
    and Mental Health (CAMH) in Toronto.  Successive dispositions of the Ontario Review Board ordered his
    detention in the minimum secure unit at CAMH.

[2]

However, the situation changed last year.  The frequency and degree of Mr. Hassans
    aggressive behaviour escalated.  The
    hospital sought an early review of his disposition.  After a hearing in August 2010, the Board
    ordered that Mr. Hassan be detained in the medium secure unit of CAMH.  Mr. Hassan appeals that disposition.  To ensure that his appeal was fully argued,
    the court appointed
amicus curiae
.

[3]

Mr. Hassan, with the assistance of
amicus
, raises four grounds of appeal:

(1)

The Boards
    disposition was unreasonable;

(2)

The Board failed to consider the four factors in s.
    672.54 of the
Criminal Code
;

(3)

The Boards
    reasons are inadequate; and

(4)

Alternatively, a treatment impasse had been reached,
    requiring an independent assessment of Mr. Hassans treatment and risk.

[4]

Mr. Hassan and
amicus
ask that this court substitute a minimum secure detention order, or a hybrid
    order allowing Mr. Hassan to be transferred to a lower level of security at the
    discretion of the person in charge of the hospital.  Alternatively, Mr. Hassan asks for a new
    hearing or an independent assessment of his treatment and risk.

B.

RELEVANT BACKGROUND

(a)
Mr. Hassans personal circumstances

[5]

Mr.
    Hassan was born in Somalia in 1979.  He
    is now 32 years old.  When he was eight
    years old, his parents divorced.  When he
    was ten, his father brought him and his sister to Canada.  He has lived in Canada since then, mostly
    with his mother.  His father returned to
    Somalia.  Mr. Hassan has little contact
    with him.

[6]

Mr.
    Hassan has no formal education beyond grade 10; he has no history of
    employment; and he has had few friends and no romantic relationships.  He is, however, close to all members of his
    family living in Canada.

[7]

Before
    the index offences (in 2000), Mr. Hassan was charged with a criminal offence
    only once.  It occurred in 1997, when he
    was charged with assaulting his cousin with a knife, threatening her death and
    possessing a weapon.  The charges were
    withdrawn and Mr. Hassan entered into a peace bond.

(b)
Mr. Hassans
    schizophrenia

[8]

After
    Mr. Hassan entered into a peace bond, his mother arranged for his admission to
    Wellesley Hospital in Toronto.  He was
    hospitalized for two weeks and diagnosed as suffering from schizophrenia.  His family doctor noted that Mr. Hassan
    experienced chronic, unremitting psychotic symptoms.

(c)       The index
    offences and NCR finding

[9]

On February 14,
    2000, Mr. Hassan called the police five times to complain about neighbours he
    said were bothering him.  He then walked
    into the main lobby of a police station in Toronto, brandishing a steak
    knife.  He walked to the front counter
    and said to the police officer there: I kill you, I kill you.  Mr. Hassan then lunged at the officer with
    his knife.  Shortly after doing so, Mr.
    Hassan ran from the station.  He was
    eventually caught after a lengthy foot chase.

[10]

Mr. Hassan was charged with threatening death,
    possession of a weapon dangerous to the public, and assault with a weapon.  On October 30, 2001, he was found not
    criminally responsible on account of mental disorder.

(d)       Mr. Hassans detention at CAMH

[11]

In
    January 2002, Mr. Hassan was admitted to CAMH.  He has remained at CAMH for the past nine years, except for brief
    periods beginning in 2008 when he lived in the community.  During his entire stay at CAMH  until the
    Boards disposition now under appeal  Mr. Hassan has been maintained in a
    minimum secure unit.

[12]

Annual
    Board dispositions have ordered Mr. Hassans detention in a minimum secure unit
    even though, on several occasions, he has failed to take his medications and
    left the hospital without leave.  Indeed,
    although Mr. Hassans treatment team has given him a broad range of
    psychotropic medications, he has continued to exhibit psychotic symptoms.

(e)       The Boards April 15, 2010 disposition

[13]

The
    Boards last disposition before the disposition under appeal was issued on
    April 15, 2010.  Mr. Hassan was ordered
    to be detained in the minimum secure unit of CAMH with privileges that included
    being able to live in the community in approved accommodation approved by the
    person in charge of the Centre.

[14]

In
    its reasons for this disposition, the Board referred to the evidence of Dr.
Pallandi
, who had been Mr. Hassans treating psychiatrist
    for a decade.  In Dr.
Pallandis
opinion, Mr. Hassan suffers from treatment resistant schizophrenia.  Nonetheless, Dr.
Pallandi
testified that Mr. Hassan had had a reasonably good year and that Mr.
    Hassans mother is a reliable overseer of his mental state and conduct while
    living in the community.

[15]

In
    the concluding section of its reasons, the Board noted that Mr. Hassan 
decompensates
rapidly and unpredictably, has required
    locked seclusion for agitated and threatening
behaviour
when readmitted to hospital, and requires
    very close supervision of both his medication administration and his prevailing
    mental state.  The Board concluded that
    the least onerous and least restrictive disposition was to maintain Mr. Hassan
    in a minimum secure unit.

C.

THE DISPOSITION UNDER APPEAL

(a)

Incidents between April and August 2010, leading to an early disposition
    review

[16]

An
    early review of Mr. Hassans disposition came about for two reasons.  First, in May 2010, he was transferred to and
    detained in the Secure Observation and Treatment Unit of CAMH for more than
    seven days, thus requiring the Boards review of this restriction on his
    liberty.  Second, Mr. Hassans conduct in
    the period from April to July sufficiently concerned the hospital that it
    sought an early review and transfer to the medium secure unit.  A brief summary of this conduct is as
    follows:

·

On
    April 11, Mr. Hassan expressed paranoid delusions about the nursing staff and
    threatened to kill one nurse.

·

On
    May 1, he suddenly began running around opening co-patients doors, banging
    doors loudly, and attempting to open the rear exit door.  When Mr. Hassan refused to stop, he was
    placed in a seclusion room under constant observation.

·

On
    May 4, he assaulted a co-patient and was again placed in locked seclusion for
    12 hours.

·

On
    May 5, he was transferred to the Secure Observation and Treatment Unit, where
    he remained for over one week.

·

On
    May 16, Mr. Hassan began harassing co-patients and aggressively invading their
    space.  He was placed in locked seclusion
    with security present.  He had episodes
    where he appeared delusional, moved around without purpose, and did not respond
    to staff.

·

In
    early June, he remained psychotic and disorganized.  He made sexual gestures to female staff,
    became increasingly disruptive, and refused to take direction or his medication.

·

On
    June 16, he was found damaging property and himself.  He had become acutely psychotic and was
    locked in seclusion for two weeks.

·

In
    July, Mr. Hassan erratically confronted other patients and had a physical
    confrontation with one of them.  He continued
    to require short stays in seclusion because of his behavior.

(b)

The hearing before the Board on August 10

[17]

Both
    the hospital and the Crown recommended a hybrid disposition:  Mr. Hassan would be detained in the medium secure
    unit with hospital grounds privileges when accompanied by staff; and, if the
    person in charge determined that Mr. Hassans mental illness was clinically
    stable, he could be transferred to the general unit (formerly the minimum
    secure unit) with hospital grounds privileges up to indirect supervision.

[18]

Mr.
    Hassan sought the continuation of his then current disposition.

[19]

Only
    one witness testified at the Boards hearing  Dr.
Alina

Iosif
, who had treated Mr. Hassan for the previous three
    months.  In her opinion, Mr. Hassan
    continued to pose a significant threat to the safety of the public, and his
    risk could only be safely managed in a secure forensic unit.  Dr.
Iosif
did not
    believe that Mr. Hassan could be managed in a minimum secure unit because of
    his mental instability, aggressive and inappropriate behavior.  Also, she thought it

not likely that he could be discharged in the community over the
    course of the year.  She testified that
    he was very ill at the time and that, though he could conceivably be
    transferred to a minimum secure unit if his condition improved, that would take
    some considerable time  in her words, All of that would probably take up most
    of a year.

(c)       The Boards disposition

[20]

In
    brief reasons, the Board concluded that the least onerous and least restrictive
    disposition was to detain Mr. Hassan in the medium secure unit of CAMH with
    hospital and grounds privileges accompanied by staff.  The Board rejected the hybrid disposition
    recommended by the hospital and Crown.  It found that there was a significant escalation in the frequency and
    degree of aggressive, assaultive and threatening
behaviour
since the last ORB review.  The Board,
    however, left open the possibility of a request for an early review if Mr.
    Hassans clinical status improved.

D.

THE ISSUES

First issue: Was the Boards disposition unreasonable?

[21]

All
    parties accepted that Mr. Hassan continued to pose a significant threat to the
    safety of the public.  Therefore, the
    Boards task was to fashion the least onerous and least restrictive disposition
    for Mr. Hassan, taking into account the four factors in s. 672.54 of the
Criminal Code
: the need to protect the public;
    Mr. Hassans mental condition; his reintegration into society; and his other
    needs.

[22]

Mr.
    Hassan and
amicus
submit that the
    Boards disposition was not the least onerous and restrictive.  Rather, it was unreasonable, justifying this
    courts intervention.

[23]

In
    support of this submission,
amicus
makes these points: the Boards disposition restricts Mr. Hassans liberty even
    more than the hospital and the Crown had recommended; its disposition was inconsistent
    with the evidence of Dr.
Iosif
, the only expert to
    testify before the Board; historically, Mr. Hassan has exhibited unpredictable
    ups and downs in his behavior, yet the Board has consistently ordered his
    detention in a minimum secure unit; and even the privileges accorded by the
    Board were unreasonably limited.  In my
    judgment these points  taken either individually or collectively  do not
    justify interfering with the Boards disposition.

[24]

I
    accept that the Board ought to tread cautiously before making an order that restricts
    an
accuseds
liberty beyond that which the hospital
    and the Crown think necessary.  That is
    especially so in Mr. Hassans case because, under the Boards disposition, his
    security level is higher than it had been for all of his previous eight years
    at CAMH.

[25]

However,
    the Board does not necessarily err because it declines to follow a hospitals
    or Crowns recommendation.  Automatically
    adhering to the position of a hospital or Crown would mean abdicating its own
    role.  A review board is composed of
    medical and legal experts with specialized knowledge and experience in mental
    health and in risk assessment and management.  Parliament has vested these boards with authority to make their own
    independent and often difficult determinations after weighing the package of
    factors in s. 672.54 of the
Code
.  For these reasons, appellate review of their
    determinations is limited.  On the first
    ground of appeal we can interfere only if, after a somewhat probing
    examination, we conclude that the Boards disposition is unreasonable.

[26]

I
    conclude that the Boards disposition ordering Mr. Hassans detention in the medium
    secure unit of CAMH is reasonable and supported by the evidence at the
    hearing.  That evidence, which I have
    summarized earlier in these reasons, shows that Mr. Hassans behavior and
    condition had worsened significantly since his last disposition.  As the Board found, his aggression, his
    threatening behavior and his assaultive conduct had increased both in frequency
    and degree.  This significant change went
    beyond the ups and downs present in previous years, and reasonably justified
    the Boards detention order.

[27]

Further,
    I do not think that Dr.
Iosifs
testimony assists Mr.
    Hassan.  Dr.
Iosif
treated Mr. Hassan during the period when his condition worsened, and was the
    only expert to testify before the Board.  Her evidence was therefore entitled to considerable weight.  In my view, her evidence supported the
    Boards order.

[28]

Dr.
Iosif
was unequivocal in her opinion that Mr.
    Hassans current disposition should not continue, and that instead he should be
    detained in a medium secure unit.  Detention in a medium secure unit was not only required; in her opinion,
    it would likely be necessary for most of the year.

[29]

Dr.
Iosifs
evidence did provide modest support for the
    hybrid order recommended by the hospital, as she did not foreclose the
    possibility of a transfer to the minimum secure unit during the year.  But she estimated that any such possibility would
    not arise until much later in the year.  In substance, the Board itself contemplated this possibility by leaving
    open the opportunity for an early review if Mr. Hassans condition
    improved.  Therefore, I am not persuaded
    the Board acted unreasonably in rejecting a hybrid order.

[30]

Finally,
    the Board took into account the effect on Mr. Hassans liberty of the
    privileges it found appropriate.  Although the Board did not allow for the potential for indirect
    supervision on hospital grounds or access to the community, it found: the
    medium secure unit with the higher ratio of staff to patient will enable him to
    utilize more privileges that require staff to accompany the accused, than could
    be provided in the general minimum unit.  That finding, too, is supported by Dr.
Iosifs
evidence.  I cannot say that this finding
    is unreasonable.

[31]

For
    these reasons, I would not give effect to the first and main ground of appeal
    advanced by Mr. Hassan and
amicus
.

Second Issue: Did the Board fail to
    consider the four factors in s. 672.54 of the
Code
?

[32]

Amicus
submits that the Board failed to analyze the
    four factors in s. 672.54 in any meaningful way.  This submission is closely related to her
    submission on the unreasonableness of the disposition.  In particular, she contends that the Board
    did not explain why Mr. Hassans
decompensation
in
    2010 warranted his detention in a medium secure unit, when his
decompensation
in previous years was typically followed by
    sufficient improvement to maintain him in a minimum secure unit.  I agree that the Board does not expressly
    address
amicus
contention.  Ideally, it should have done so.

[33]

Still,
    I think it implicit, if not explicit, that the Board considered Mr. Hassans
behaviour
in 2010 to be of a different order of
    dangerousness than his
decompensating

behaviour
in previous years.  Dr.
Iosifs
evidence supports this assessment.  I
    would not give effect to this ground of appeal.

Third Issue: Were the Boards reasons inadequate?

[34]

The
    Boards reasons are perfunctory.  Again,
    further elaboration or explanation for its findings and conclusion would have
    been desirable, especially as the Board was changing a disposition that had
    been in effect for eight years.

[35]

However,
    the Boards reasons do permit meaningful appellate review and, for that reason,
    are not inadequate as a matter of law.  As I have already discussed, it is evident why the Board made the order
    it did: the significant escalation in the frequency and degree of Mr. Hassans
    aggressive, assaultive and threatening
behaviour
coupled with Dr.
Iosifs
testimony.  I would not give effect to this ground of
    appeal.

Fourth Issue: Was there a treatment impasse?

[36]

In
    the alternative,
amicus
submits that
    the Boards disposition implies a treatment impasse.
Amicus
argues that the Board effectively found little likelihood that Mr. Hassan would
    make any real progress over the coming twelve months.  Thus, his treatment and risk ought to be
    independently assessed.  I do not accept
    this submission.

[37]

A
    treatment impasse occurs where no progress has been made or is likely to be
    made.  See

Mazzei
v. British Columbia (Director of Adult Forensic Psychiatric
    Services)
, [2006] 1 S.C.R. 326.

That is not the case with Mr. Hassan.  His medication was being adjusted; other
    treatments were being considered.  As
    counsel for the Crown said in her factum, There remained hope that changes in
    medication would improve [Mr. Hassans] fluctuating condition.  Certainly in the past, changes to his
    medication had brought about improvement.  So, a transfer to a less secure environment remained a possibility. If
    it were otherwise, one might have expected the issue of a treatment impasse to
    have been raised before the Board.  Yet
    no party  not Mr. Hassans counsel or Dr.
Iosif

    adverted to it.  I would not give effect
    to this last ground of appeal.

E.

CONCLUSION

[38]

I would dismiss Mr. Hassans appeal.  As always, we are grateful to
amicus
for her assistance.

RELEASED:  Aug 24,
    2011                                    John
    Laskin J.A.

JL                                                                            I
    agree Kathryn Feldman J.A.

I
    agree Robert P. Armstrong J.A.


