



COURT OF APPEAL FOR ONTARIO

CITATION: Ali (Re),
    2019 ONCA 602

DATE: 20190715

DOCKET: C65759

Feldman, Paciocco and
    Zarnett JJ.A.

IN THE MATTER OF:
    Ayanle Hassan Ali

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Amy Alyea, for the appellant

Nader Hasan and Maureen Addie, for the respondent,
    Ayanle Hassan Ali

Janice Blackburn, for the respondent, Person in Charge of
    St. Josephs Healthcare Hamilton

Heard: February 15, 2019

On appeal against the disposition of the Ontario Review
    Board, dated July 18, 2018.

Feldman J.A.:

Introduction

[1]

The Crown appeals from the disposition of the Ontario Review Board (the ORB
    or the Board), dated July 18, 2018. Before the Board, all parties agreed that
    the respondent, Mr. Ali (Mr. Ali), remained a significant threat, and that he
    should be detained on the secure forensic unit at St. Josephs Healthcare
    Hamilton (St. Josephs). Also before the Board, the respondents, Mr. Ali and
    the hospital, proposed that Mr. Ali should be permitted to enter the community
    of Hamilton, within a two-kilometer radius of St. Josephs, indirectly
    supervised, for educational purposes. The Board granted this privilege. The
    Boards reasons state that the indirectly supervised passes contemplated in the
    privilege would only be granted by the hospital when and if Mr. Ali was ready
    to exercise them. The Board also prohibited Mr. Ali from attending at any military
    installation or recruitment centre.

[2]

On appeal, the Crown takes issue with two aspects of the Boards
    disposition. First, the Crown contends that the Board erred in law and made an
    unreasonable decision by providing for the potential of indirect supervision in
    the community. As it did before the Board, the Crown takes the position that
    this condition does not adequately account for public safety. Second, the Crown
    submits that the Board made an unreasonable decision by failing to prohibit Mr.
    Ali from communicating with all uniformed military personnel.

[3]

For the reasons that follow, I would dismiss the appeal.

Background Facts

[4]

Mr. Ali was found not criminally responsible on account of mental
    disorder (NCR) on May 14, 2018, for index offences that occurred on March 14,
    2016. He walked into a Canadian Forces recruiting centre in Toronto and
    immediately attacked the corporal responsible for screening entry to the
    centre. He punched the corporal multiple times in the head and slashed his arm
    with a kitchen knife. After an officer intervened, Mr. Ali ran further into the
    centre, where he swung his knife at one sergeant, barely missing the back of
    her neck, and attempted to stab another sergeant. Mr. Ali was eventually
    subdued by a group of officers. One of the officers noticed Mr. Ali was wearing
    an iPod that displayed a chapter of the Quran, and another overheard him
    muttering a prayer as he was being subdued. When the paramedics arrived, Mr.
    Ali was arching his back, making incomprehensible noises, retching, and
    laughing. He told one of the paramedics that Allah had sent him to kill people.

[5]

The police found no evidence of a connection between Mr. Ali and any
    other person or group. At trial, psychiatric evidence was proffered by Drs.
    Klassen and Chaimowitz, who conducted separate assessments under s. 672.11 of
    the
Criminal Code
, R.S.C. 1985, c.
    C-46
. Both doctors diagnosed Mr. Ali with schizophrenia and
    concluded an NCR defence was available to him. The trial judge considered the doctors
    evidence and determined that Mr. Ali was incapable of knowing that his conduct
    was morally wrong. He found Mr. Ali NCR in respect of: (i) three counts of
    attempted murder; (ii) two counts of assault causing bodily harm; (iii) three
    counts of assault with a weapon; and (iv) one count of carrying a weapon for
    the purpose of committing an offence.
[1]
On consent, the trial judge endorsed a warrant of committal detaining Mr. Ali
    at St. Josephs until the ORB could render a disposition.

[6]

The disposition hearing took place on July 13, 2018. All parties agreed
    that the significant threat threshold was met and that Mr. Ali should be
    subject to a detention order on the secure forensic unit at St. Josephs.

[7]

At the disposition hearing, the respondents (Mr. Ali and the hospital) submitted
    that Mr. Ali should enjoy the following privileges: (i) hospital and grounds
    privileges, to enter the community of Southern Ontario accompanied by staff
    and/or a person approved by the person in charge; and (ii) to enter the
    community of Hamilton, within a two-kilometre radius of St. Josephs,
    indirectly supervised, for educational purposes. The Crown submitted that no
    indirectly supervised privileges should be granted.

[8]

The Crown also sought a prohibition against communication with any
    military personnel. Counsel for Mr. Ali argued that such a communication
    condition would be too vague, since Mr. Ali would have no way of knowing
    whether his plainclothes classmates were military personnel. Instead, counsel
    for Mr. Ali suggested that the prohibition should read that he not attend any
    known military installations or recruitment centres.

[9]

Dr. Chaimowitz, Mr. Alis attending psychiatrist, gave evidence at the
    hearing. He stated that Mr. Alis condition had gradually improved, his core
    delusions had dissipated (though he still exhibited residual delusions), he was
    taking medication on consent, and his insight into his condition was good. Mr.
    Ali had also demonstrated an interest in furthering his education. In Dr.
    Chaimowitzs view, this would benefit Mr. Ali. The hospital proposed that this
    could be accomplished by affording Mr. Ali privileges to attend a local college
    across the street from the hospital. Mr. Ali could start by attending with
    staff and, if things went well, he could attend while being indirectly supervised.
    Dr. Chaimowitz opined that the proposed privileges were critical to Mr. Alis
    needs and reintegration into society.

[10]

The
    Board determined that Mr. Ali would receive hospital and grounds privileges, up
    to and including indirectly supervised privileges. The Board further ordered
    that Mr. Ali would be permitted to enter the community of Southern Ontario
    escorted by staff or accompanied by staff or a person approved by the person in
    charge, or indirectly supervised only within a two-kilometre radius of St.
    Josephs for educational purposes. Although it was not requested, the Board
    stated that Mr. Ali would not be permitted to have indirectly supervised passes
    into Southern Ontario more broadly. The Board explained in its reasons that the
    indirectly supervised passes for educational purposes were to be granted by the
    hospital on a gradual basis when and if Mr. Ali was ready to exercise them.
    The Board also prohibited Mr. Ali from attending any known military
    installation or recruitment centre.

Issues

[11]

The
    Crown raises the following issues on appeal:

1)

Did the Board err in law and make an unreasonable decision by granting Mr.
    Ali the privilege of indirect supervision while attending the local college?

2)

Did the Board make an unreasonable decision by failing to include a
    condition requiring Mr. Ali to have no contact with uniformed military
    personnel?

[12]

For
    the reasons that follow, I would dismiss the appeal. The Board did not err in
    law, and its disposition was reasonable.

Analysis

Issue 1: Did
    the Board err in law or make an unreasonable decision by granting Mr. Ali the
    privilege of indirect supervision for educational purposes?

[13]

The
    Crown submits that the Board erred in law by failing to adequately consider all
    relevant factors under s. 672.54 of the
Code
in granting Mr. Ali the
    privilege of indirect supervision within a two-kilometre radius of the hospital
    for educational purposes. Further, the Crown submits that this part of the order
    was unreasonable.

[14]

The
    Crown takes the same position on appeal that it did before the Board: that
    because the safety of the public is the paramount consideration under s. 672.54
    of the
Code
, allowing the possibility of indirectly supervised
    attendance at the local college does not adequately protect the safety of the
    public. The Crown submits that paragraph 34 of the Boards reasons demonstrates
    that the Board only considered the issue of the safety of the public when it
    imposed the detention order in the secure forensic unit, and not when granting
    the privilege of attending the local college with indirect supervision. That
    was done, the Crown submits, to meet Mr. Alis needs and not those of the
    public. Paragraph 34 reads as follows:

In addition to the issue of protection of the public, which is
    paramount, s. 672.54 of the
Criminal Code of Canada
requires the Ontario
    Review Board to consider the current mental condition of the patient, his
    reintegration into society and his other needs. The Detention Order on the
    secure forensic unit will address the issue of the protection of the public.
    The permission to use indirect passes into hospital and grounds and also for
    education purposes, will address Mr. Alis other needs. These passes will only
    be granted by the hospital on a gradual basis and on a when and if basis Mr.
    Ali is ready to exercise them. Otherwise, they will not be granted.

[15]

The
    Crown further argues that the Board did not consider the absence of any
    privilege history and was taking a leap of faith in granting the privilege for
    indirectly supervised attendance at the local college. It argues that this
    condition was inconsistent with the Boards decision to grant only escorted
    access to the community of Southern Ontario more broadly. The Crown submits
    that the Board failed in its inquisitorial role by failing to seek out further
    information about the proximity of an armed forces base, or whether reserve or
    other military personnel attend the college. Finally, the Crown argues that the
    Board should not have delegated to the hospital the decision for when Mr. Ali
    was ready for indirect supervision, but should instead have required the
    hospital to request an early review hearing so that the Board could make the
    decision.

[16]

I
    would not give effect to any of these arguments.

[17]

Because
    the Crown took the position before the Board that granting indirect supervision
    privileges would not adequately address public safety, the Board fully
    considered that issue. In his testimony in-chief, Dr. Chaimowitz explained why
    he was recommending indirect supervision at the local college as part of Mr.
    Alis privileges, and the rigorous process the hospital would use to make the
    decision to extend that privilege. The safety issue was also thoroughly canvassed
    with him in cross-examination and in detailed questioning by the Board members.

[18]

Leading
    up to this first ORB disposition hearing, Dr. Chaimowitz had been treating Mr.
    Ali for two years at the hospital, ever since he was first admitted for an
    assessment for fitness to stand trial. During that time, Mr. Ali had
    essentially no privileges. Dr. Chaimowitz was of the opinion that Mr. Ali would
    benefit from further higher education, something that interested him. The
    intention behind the privilege proposed by the respondents was that Mr. Ali would
    attend the local college across the street from the hospital to take a course. The
    doctor was of the view that without this type of privilege, Mr. Alis reintegration
    into society and his other needs would not be properly addressed.

[19]

It
    was contemplated that Mr. Ali would initially be accompanied to the college by
    staff or a person approved by the person in charge. If that went well, then the
    privilege would be expanded to indirect supervision, which would mean Mr. Ali
    would go by himself and be picked up afterward.

[20]

The
    doctor described the hospitals process for evaluating graduation of Mr. Alis
    privileges in the following answer, given in cross-examination:

Yes, so the privileges are assessed by -- in a team-based
    setting once a month. And theres a use of some analytics in looking at how the
    person has progressed and orders written by the most responsible physician. The
    physician signs off that a risk assessment has been done. The lawyer in the program
    will check to make sure the privileges correspond with the persons
    disposition. The physician will sign, I will sign or my delegate and Im also
    the person in charge, but as I had said, the head of the service and Ms. Tagis
    Haywood (ph) as the clinical admin director, also signs, the delegate or person
    in charge and only then will the privileges be exercised.

[21]

Dr.
    Chaimowitz also explained that because Mr. Alis psychosis was being
    controlled, the other issue affecting his risk to the public was the potential
    for him to be influenced by radical, political ideas. One of the Board members asked
    Dr. Chaimowitz how that potential affected Mr. Alis risk to the public. Dr. Chaimowitz
    responded:

[T]his is a psychotic individual whose delusions were caught up
    in this -- his ideas and acted out that way. That being said, delusions are
    pretty well controlled, pretty well controlled. And the part that Im going to
    keep an eye on, because now Im in a very different role because -- I mean,
    its obviously its on us, the person in charge and the, the most responsible
    physician to make sure that this man is not posing any risk to the public.

[22]

In
    its reasons, the Board set out Dr. Chaimowitzs opinion regarding the risks Mr.
    Ali posed as follows, at para. 25:

(a) his Psychotic Disorder which is managed well, while he is
    on medication; and

(b) his potential to act out on political, or radical ideas.
    There is no treatment for this. Dr. Chaimowitz does not perceive Mr. Ali as a
    radical. Rather, he sees the index offences having occurred as a result of Mr.
    Ali experiencing psychosis and using the ideas in the psychotic event, in a
    very bumbly fashion to act out in a violent way. Mr. Ali does not preach his
    delusions. He is not part of a group. The doctor does not see him as a
    terrorist.

[23]

In
    this case, the Board considered the evidence of Dr. Chaimowitz fully and in
    detail. While Mr. Ali did not have a track record of compliance with conditions
    since this was his first hearing, he had a two-year history at the hospital and
    with Dr. Chaimowitz. The Board imposed the disposition that Dr. Chaimowitz
    recommended.

[24]

Dr.
    Chaimowitz made it very clear that he would give due consideration to any
    safety concerns before allowing any increment in Mr. Alis privileges. While
    the decision to allow indirectly supervised attendance at a class at the
    college across the street from the hospital was potentially allowed, the
    hospitals process involves a team decision for privileges with a trial of each
    graduated step and approval from the treating psychiatrist and the legal
    adviser before any extension of the privilege is granted. Dr. Chaimowitz
    suggested that it would likely take several months before the clinical team
    would consider granting Mr. Ali the privilege of indirectly supervised attendance
    at the college.

[25]

I
    reject the Crowns further submission on the appeal that because the Board refused
    to grant indirectly supervised access to the whole community of Southern
    Ontario, that was inconsistent with the limited privilege contemplated by the
    Boards disposition. In fact, neither Mr. Ali nor the hospital asked the Board
    to order indirectly supervised access to the whole community. Nevertheless, the
    Board stated that it would not make that extension. The limited extension of
    indirectly supervised access only to the local college shows that the Board was
    extending only a very limited privilege, both geographically and in terms of
    time away, that reflected its concern for public safety but balanced with the
    need to facilitate Mr. Alis reintegration into society.

[26]

Nor
    did the Board neglect its inquisitorial function. While there might have been
    further information that could have been sought out about any potential
    exposure to uniformed military personnel attending Mr. Alis class at the
    college, that information would be quickly learned upon Mr. Alis escorted
    attendance. If that turned out to be the case, that would be an important
    factor for the hospital to consider before allowing Mr. Ali to attend the class
    at all or to determine the type of supervision that may be required.

[27]

Finally,
    I reject the Crowns argument that the Board inappropriately delegated its
    responsibility by giving the hospital the ability to implement Mr. Alis
    privilege on a gradual basis. Similar issues regarding the role of the hospital
    and the role of the Board arose in the case of
Scott (Re)
, 2017 ONCA
    94, 137 O.R. (3d) 71, referred to by the Crown. That case states, at paras.
    19-20:

In setting out the parameters of the disposition, the Board
    must balance the twin goals of public safety and fairness to the detained
    person as described by the Supreme Court of Canada in
Pinet v. St. Thomas Psychiatric
    Hospital
, 2004 SCC 21, [2004] 1 S.C.R. 528, at para. 19 as follows:

The objective is to reconcile
    the twin goals of public safety and treatment. In the process of
    reconciliation, public safety is paramount. However, within the outer
    boundaries defined by public safety, the liberty interest of an NCR accused
    should be a major preoccupation of the Review Board when, taking into
    consideration public safety, the mental condition and other needs of the
    individual concerned, and his or her potential reintegration into society, it
    makes its disposition order.

However, within those parameters, the hospital requires the
    flexibility to implement the disposition in accordance with the day-to-day
    needs of the detained person and the circumstances that may arise. In
R. v. (C.)
    M.L.,
2010 ONCA 843, 104 O.R. (3d) 450 (Ont. C.A.), this court discussed
    the relationship between the roles of the Board and the hospital in formulating
    and implementing the least onerous and least restrictive disposition at para.
    28:

While the Board has the jurisdiction
    to review a patients disposition at a particular hearing, it is not in a
    position to oversee the patient on a day-to-day basis and to refine the
    restrictions on his or her liberty. This is why the statutory framework gives
    the hospital the ability and flexibility to monitor patients who suffer from
    mental disorder. The responsibility for adjusting the restrictions for such a
    patient comes from s. 672.56(1), which allows the Board to delegate to the
    hospital certain decisions about the patients liberty. Any restrictions the
    hospital places on the patient must fall within the envelope of the conditions
    enumerated by the Board in its disposition. As a safeguard, any decision by a
    hospital that significantly restricts a patients liberty for more than seven
    days must be considered by the Board in a restrictions review.

[28]

As
    discussed in
Scott (Re)
, it is not the role of the Board to
    micromanage the details of the day-to-day needs of each person under the
    disposition. Instead, it is the hospital that assesses the progress of each
    person in order to most effectively implement the Boards disposition.

[29]

In
    my view, it is clear from the reasons of the Board and the conduct of the
    hearing that the Board carefully considered all of the required factors in
    making its disposition regarding the limited indirect supervision privilege and
    made no error of law. Its decision was not unreasonable.

Issue 2: Did
    the Board make an unreasonable decision by failing to include a condition
    requiring Mr. Ali to have no contact with uniformed military personnel?

[30]

The
    Board included as a condition that Mr. Ali be prohibited from attending at any
    military installation or recruitment centre. The Crowns position at the
    hearing was that there should be a prohibition requiring Mr. Ali not to
    communicate directly or indirectly with any military personnel. Dr. Chaimowitz
    indicated in his evidence that he had no objection to the no-contact provision
    proposed by the Crown being included in the Boards disposition.

[31]

During
    closing submissions, counsel for Mr. Ali took the position that Mr. Ali would
    not know whether someone in plain clothes might be military personnel.
    Therefore, she stated, the provision was overly vague and could lead to
    compliance issues.

[32]

On
    appeal, the Crown contends that the condition could have been revised to
    require Mr. Ali not to have contact with any uniformed military personnel.
    This, the Crown says, would have avoided the concerns raised by Mr. Ali.

[33]

In
    light of how the possibility of this condition being included was discussed at
    the hearing, it was not unreasonable for the Board not to include the version
    proposed by the Crown on appeal. As the respondents next hearing is scheduled
    for July 17, 2019, the Board may consider adding such a condition, if it deems
    it appropriate in the current circumstances.

Conclusion

[34]

In
    the result, I would dismiss the appeal.

Released: B.Z. July 15, 2019

K.
    Feldman J.A.

I
    agree. David M. Paciocco J.A.

I
    agree. B. Zarnett J.A.





[1]

At trial, Mr. Ali was also acquitted of several terrorism
    charges: see
R. v. Ayanle Hassan Ali
, 2018 ONSC 2838, 361 C.C.C. (3d)
    350. The Crown has appealed from those acquittals. The appeal was heard by this
    court and reserved on June 24, 2019: see C65466.


