



COURT OF APPEAL FOR ONTARIO

CITATION: Yunus-Ali (Re), 2020 ONCA 669

DATE: 20201023

DOCKET: C68237

Feldman, Gillese and Miller
    JJ.A.

IN THE MATTER OF:  Altayyib Yunus-Ali

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti and Maya Kotob, for the
    appellant

Madeline Lisus, for the respondent,
    Attorney General of Ontario

Michele Warner, for the
    respondent, Person in Charge of the Centre for Addiction and Mental Health

Heard: October 9, 2020 by
    video conference

On appeal from the disposition of the
    Ontario Review Board, dated November 6, 2019, with reasons dated November 26,
    2019.

REASONS FOR DECISION

Background

[1]

After a series of unprovoked assaults against
    multiple strangers on June 10, 2015, the appellant, Mr. Yunus-Ali, was charged
    with assault, assault with a weapon, and uttering threats. At that time, he was
    homeless and suffered from an untreated mental illness. On May 4, 2017, he was
    found not criminally responsible on account of mental disorder and admitted to
    the Centre for Addiction and Mental Health.

[2]

The appellant has since been diagnosed with
    schizophrenia and is currently treated with a long acting injectable
    antipsychotic every two weeks. He has been compliant with his medication
    regime, although he has been found to lack insight into his illness, the link
    between his illness and aggressive behaviour, his need for medication, and the
    risk that cannabis use poses to the efficacy of his medication. His progress in
    the General Forensic Unit at CAMH has been such that he was discharged to the
    community on January 21, 2018. He has resided in independent accommodation
    since that time without need for rehospitalization. He initially reported to
    the outpatient clinic at CAMH on a daily basis, however, the Board reduced his
    reporting requirements to three times per week in May 2018, and once every two
    weeks in the most recent disposition. He has not suffered any psychotic
    symptoms over the past year and his behaviour has been stable. He secured
    employment and has been working in construction since June 2018.

The November 26, 2019 Disposition

[3]

In its most recent disposition dated November
    26, 2019, the Board found that the appellant continues to pose a significant
    threat to the safety of the public and ordered his continued detention. It
    modified its previous detention order by adding a clause allowing the appellant
    indirectly supervised passes within 350 km of the GTA for up to 96 hours per
    trip. The passes were intended to facilitate the appellants work on
    construction jobs outside of Toronto with the construction crew with which he
    is employed. The Board also added a substance use prohibition clause in
    response to the appellants use of cannabis and alcohol and the Boards
    concerns that substance use could contribute to mental deterioration and
    psychosis. The Board found this disposition was necessary and appropriate in
    the circumstances, as required under s. 672.54 of the
Criminal Code
,
    taking into account the safety of the public, the mental condition of the
    appellant, and the need to facilitate his reintegration into society.

[4]

In rejecting the appellants request for a
    conditional discharge, the Board held that despite the appellants progress
    over the previous year, a conditional discharge would be premature. The Board
    noted that although the appellant has been stable, he has poor insight into his
    illness. The continuing oversight of the Board is necessary. Without it, the
    appellant would fall away from care, discontinue medical treatment, use
    cannabis and alcohol, suffer mental deterioration with the emergence of
    psychotic symptoms, and likely become violent in the context of psychosis and
    substance abuse.

[5]

The Board explained its denial of a conditional
    discharge on the basis that detention was necessary in order to return the
    appellant swiftly to hospital, should there be a deterioration in his condition
    with a resulting elevated risk of violence. Critical to the Boards decision
    was the appellants absence of insight into his condition.

[6]

The Board heard from the appellants outpatient
    psychiatrist, Dr. Choptiany, and noted his evidence that a conditional
    discharge could in fact be more restrictive to the appellant than a detention
    order with the current privileges. This is because of the reporting
    requirements that would need to be imposed: the reporting team, according to
    Dr. Choptiany, would need to see the appellant weekly and monitor for substance
    use, so as to be in a position to have recourse to admission under the
Mental
    Health Act
, R.S.O. 1990, c. M.7,

should the appellant begin to
    decompensate. However, with the detention order, the treatment team would be
    able to screen proposed employment and temporary accommodation prospectively to
    identify a destabilizer  and shore up risk management. This was particularly
    important given the appellants lack of insight into his need for medication
    and the impact of substance use.

The appellants argument

[7]

On appeal, the appellant does not dispute the
    finding that he remains a risk to the safety of the public, but he argues that
    the Boards disposition was unreasonable on two grounds. First, the Board erred
    in finding that a detention order was the appropriate and necessary
    disposition, and that the risk the appellant poses could not be managed under a
    conditional discharge with the terms he proposed, which included a residence
    clause and a treatment clause. Second, the Board erred in finding that a
    conditional discharge was inadequate to manage the two risk factors it
    identified: (1) his lack of insight into his medical condition; and (2) his
    substance use.

[8]

In his case, the appellant argues lack of
    insight does not correlate to noncompliance. Although he does not have the
    capacity to consent to treatment, he has always been compliant with receiving
    medication. He further argues that a conditional discharge, on the terms
    proposed, would provide sufficient structure to ensure that he maintains the
    regime of medication.

Analysis

[9]

As the appellant argues, lack of insight into
    ones mental illness is not itself a ground for detention: see
Sim (Re)
,
    2019 ONCA 719. Lack of insight is, however, relevant when it is linked to a
    risk of harm to the public. The Board made such a finding in this case. The
    Board found the appellants lack of insight into his mental illness, the
    relationship between his mental illness and his propensity for violence against
    others, his need for medication to control his mental illness, and the risk
    that substance use would provoke psychosis and risk of violence all created risk
    of physical harm to the public. These findings were thoroughly grounded in the
    evidence of Dr. Choptiany.

[10]

The Board did not make the error of relying on
    generalities about the greater efficiency of detention compared with the
    mechanisms provided in the
Mental Health Act
. The Boards reasoning
    was not driven by the concerns of convenience that would be present in any
    appeal (such as those criticized in
Valdez (Re)
, 2018 ONCA 657, and
Esgin
    (Re)
, 2019 ONCA 155). Instead, its reasoning was tailored to the specific
    case history of the appellant and his particular needs. In particular, the
    Board was concerned with the appellants cannabis use and history of failed
    urine tests, and the need to encourage and facilitate the appellants continued
    employment in construction. The Board noted the importance of work to the
    appellants general well-being. It grappled with how to facilitate
    opportunities for the appellant to participate in additional work out of town,
    while countering the increased opportunities for substance use  with its
    potential contribution to psychosis and violence  that such work might
    provide.

[11]

The Board did not accept that the risk to the
    appellants mental condition posed by cannabis use  and the follow-on risk to
    the public  could be adequately managed at this point under a conditional
    discharge. When there was conflict between the treatment team and the appellant
    over cannabis use in the past, the treatment team had tools at its disposal to
    secure the appellants compliance. Should the appellant receive a conditional
    discharge in circumstances where he remained unaware of the link between his
    use of cannabis and his risk to the public, the Board was concerned that the
    treatment team would not be able to bring the appellant in and secure his
    compliance. The
Mental Health Act
would not provide assistance in this
    regard.

[12]

The Board was mindful of the benefits of the
    appellants work to his mental health, and was concerned that the conditions
    under a conditional discharge that would have been necessary to facilitate work
    out of town would have been onerous. The Board found that without the structure
    of the current disposition the appellant will fall away from compliance, and
    that proactive intervention is required before decompensation or a psychotic
    episode occurs. The Boards reasons are reasonable and entitled to deference. We
    would not interfere.

Disposition

[13]

The appeal is dismissed.

K.
    Feldman J.A.

E.E.
    Gillese J.A.

B.W.
    Miller J.A.


