



COURT OF APPEAL FOR ONTARIO

CITATION: Negash (Re), 2021 ONCA 280

DATE: 20210430

DOCKET: C68592

Rouleau, Pepall and Roberts
    JJ.A.

IN THE
    MATTER OF: Robiel Negash

AN APPEAL
    UNDER PART XX.1 OF THE
CODE

Anita Szigeti and Maya Kotob, for the
    appellant

Gerald Brienza, for the respondent,
    Attorney General of Ontario

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

Heard: March 19, 2021 by video conference

On appeal from
    the disposition of the Ontario Review Board dated May 12, 2020, with reasons
    dated August 12, 2020, reported at [2020] O.R.B.D. No. 1561.

REASONS
    FOR DECISION

Background

[1]

Robiel Negash has been under the supervision of the Ontario Review Board
    since February 9, 2010 when he was found not criminally responsible for
    robbery. He entered a bank and, in a note, threatened to kill the teller and
    everyone else in the bank if funds were not given to him. He was transferred to
    the Centre for Addiction and Mental Health (CAMH) in May 2010. Since 2015, he
    has been living in the community and followed by his CAMH treatment team. He
    has been under a conditional discharge since April 29, 2019. He appeals the
    Boards most recent disposition of a conditional discharge dated May 12, 2020.
    He seeks an absolute discharge.

[2]

Mr. Negash has a significant substance abuse history, starting at 14
    years old, which exacerbates his psychiatric issues. His criminal record
    spanning 2002 to 2008 features convictions for assaults, robbery, threats, and
    failures to comply with probation orders. His psychiatric issues led to his
    admission into hospital in January 2009. A week after his discharge, he
    committed the index offence. His current psychiatric diagnosis includes
    schizophrenia, substance abuse disorder, and personality disorder.

[3]

While he has had his ups and downs over the years, Mr. Negash has
    demonstrated significant improvement. He has not been physically violent since
    September 2016 and has not exhibited threatening ehavior since 2018. He has not
    tested positive for illegal substances since 2018. He has been stable and
    compliant with his medication since 2019. Over the past reporting year, Mr. Negash
    has shown partial insight into his illness and is cooperative with and
    committed to his treatment team. He is treatment capable. He has been
    successfully living in a subsidized apartment in the community without
    incident. He has no plans to move. He has close family support and worked at
    his mothers restaurant before the advent of COVID-19.

May 12, 2020 ORB Disposition

[4]

The Board was divided on its May 12, 2020 disposition. The majority
    concluded that Mr. Negash still represented a significant risk to public
    safety. While the majority recognized that he was on the road to an absolute
    discharge, they concluded Mr. Negash needed more time to consolidate the gains
    he had made, to transition to a non-forensic team, and to manage a change in his
    medication that he had expressed an interest in making. As a result, they
    continued the conditional discharge order, although they removed the conditions
    related to testing and abstinence and consent to treatment in recognition of Mr.
    Negashs abstinence since 2018 and treatment compliance.

[5]

The minority of the Board would have granted an absolute discharge
    because, in their view, the evidence did not establish that Mr. Negash still
    represented a significant risk to public safety. The risk that Mr. Negash would
    destabilize was no more than a possibility, speculative, and not reasonably
    foreseeable.

Issues

[6]

Mr. Negash submits that the majority of the Board erred in their
    analysis of whether he represented a significant risk to the public and that
    the majoritys decision was unreasonable. The evidence did not support their
    conclusion that Mr. Negash posed a significant risk to public safety.

[7]

The Attorney General and CAMH submit the majoritys decision is
    reasonable and firmly supported by the evidence. The appeal should be
    dismissed.

Analysis

[8]

We agree with Mr. Negash that the majority of the Board erred in their
    analysis of significant risk and in their assessment of the evidence.

[9]

An appellate court may allow an appeal from a Boards disposition under
    s. 672.78(1) of the
Criminal Code
where the Boards disposition
    is unreasonable or cannot be supported by the evidence; it is based on a wrong
    decision on a question of law; or there was a miscarriage of justice.

[10]

In
    assessing whether Mr. Negash was a significant risk to public safety, the Board
    was required to analyze the likelihood of that risk and the seriousness of the
    harm that would result if the risk materialized:
Winko v. British Columbia
    (Forensic Psychiatric Services)
, [1999] 2 S.C.R. 625, at paras. 57-60;
Carrick
    (Re)
,
2015 ONCA 866, 128 O.R. (3d) 209, at para. 17. It is well
    established that there must be a real, foreseeable risk that is more than
    speculative and that the consequent physical or psychological harm must be serious
    and criminal in nature:
R. v. Ferguson
, 2010 ONCA 810, 264 C.C.C. (3d)
    451, at para. 8. In our view, the majoritys reasons raise two difficulties.

[11]

First,
    it is not clear from the majoritys reasons that they applied the correct test
    of real, foreseeable risk. Rather, they appear to have concluded that the
    possibility of a change in medications
could
cause instability and that
    there was an elevated risk associated with Mr. Negashs transition to a
    non-forensic team. The majoritys reasoning relies heavily on Mr. Negashs
    history of difficulty with changes in medications, non-compliance with
    medications and treatment recommendations, substance abuse, and transitioning
    to living in the community.

[12]

By
    determining that Mr. Negash was a significant risk to public safety because of
    the
possibility
rather than the
probability
of harm, the majority
    descended into the realm of speculation and applied the wrong test:
Kassa
    (Re)
, 2019 ONCA 313, at paras. 34-35. Moreover, the Board made no effort to
    weigh the seriousness of the potential harm against the likelihood that it
    would materialize.

[13]

Second,
    the Board failed to grapple with the evidence of Mr. Negashs treating
    psychiatrist, Dr. Choptiany, which contained a fundamental inconsistency on the
    key issue. Dr. Choptiany opined that Mr. Negash still posed a significant risk
    to public safety. However, when questioned pointedly by Mr. Negashs counsel
    and members of the Board, Dr. Choptiany stated that he did not believe that the
    risk would cross the threshold and become likely.

[14]

Dr.
    Choptiany was of the view that it was foreseeable that there would be problems
    and challenges as there had been in the past and that Mr. Negashs history of
    significant periodic instability with impulsive and aggressive ehavior, for which
    he was hospitalized as recently as 2017, stood in the way of an absolute
    discharge. Dr. Choptiany explained that Mr. Negash becomes impulsive when
    distressed, which affects his insight into the need for medication and
    treatment, and which puts him at greater risk of using substances and engaging
    in physical or psychological violence.

[15]

In
    order to reach a reasonable decision, the majority of the Board had to address
    the key conflict in Dr. Choptianys evidence and explain why they were
    satisfied that Mr. Negash posed a significant risk to public safety by
    grappling with the real likelihood and seriousness of that risk:
Carrick
    (Re)
, at paras. 38 and 43. They failed to do so.

[16]

Importantly,
    the Board clearly accepted Dr. Choptianys evidence that Mr. Negashs
    substance abuse risk was currently under control and he was treatment compliant
    given that they removed the conditions related to testing and abstinence and
    consent to treatment. However, the attenuation of these significant risk
    factors was not addressed by the majority in their risk assessment.

[17]

In
    the face of reliance on speculation and the contradictory nature of Dr. Choptianys
    evidence on the issue of significant risk, the disposition must be set aside.

[18]

It
    is not possible for us on this record to resolve the inconsistencies in Dr. Choptianys
    evidence nor determine the issue of significant risk. Rather, as this court
    stated in
Carrick (Re)
, at para. 44, the risk posed by Mr. Negash is
    a matter for the Board in the exercise of its expert judgment, not this court.

[19]

As
    a result, we return the matter to the Board for a fresh determination at Mr.
    Negashs next annual review, which we understand is scheduled to take place in
    May.

Disposition

[20]

Accordingly,
    we allow the appeal.

Paul Rouleau J.A.

S.E.
    Pepall J.A.

L.B.
    Roberts J.A.


