



COURT OF APPEAL FOR ONTARIO

CITATION: Hassan (Re), 2020 ONCA 696

DATE: 20201104

DOCKET: C68012

Doherty, Hourigan and Pardu
    JJ.A.

IN THE MATTER OF:  Abdirasak Hassan

AN APPEAL UNDER PART XX.1 OF THE
CODE

Michael Davies, for the appellant

Dena Bonnet, for the Crown

Michele Warner, for CAMH

Heard: October 30, 2020, by
    videoconference

On appeal against the disposition of the
    Ontario Review Board dated November 26, 2019, with reasons dated January 28,
    2020.

REASONS FOR DECISION

Introduction

[1]

The primary issue on this appeal is narrow:
    should the appellant, Mr. Hassan, be granted indirectly supervised
    (unaccompanied) passes without first participating in structured programming,
    contrary to hospital policy?

Facts

[2]

On May 20, 2009, Mr. Hassan stabbed and killed
    his sister while suffering from paranoid delusions. On November 10, 2010, Mr.
    Hassan was found NCR on account of a mental disorder.

[3]

Mr. Hassan has suffered from schizophrenia since
    late 2008. Around that time, he began to hear voices telling him that his
    friends and family were devils and trying to kill him. He refused to seek
    psychiatric care before his sisters death. Mr. Hassan is currently diagnosed
    with schizophrenia, substance dependence disorder (alcohol and cannabis, but in
    remission) and antisocial personality disorder.

[4]

During his first few years detained at the
    secure forensic unit at CAMH, Mr. Hassan responded well to treatment. In 2013,
    he transferred to a general forensic unit. In 2014, he was discharged to a bachelor
    apartment in a 24-hour-supported transitional residence.

[5]

In the past few years, Mr. Hassan has regressed,
    and he has demonstrated a tendency to go AWOL. In August 2015, he went AWOL
    from his bachelor residence. He turned up nine days later in front of his
    family home in a catatonic state. In June 2016, he went AWOL while on an indirect
    pass. He returned three days later, claiming that he was on the hospital
    grounds the whole time, which was highly improbable. On December 12, 2018, Mr.
    Hassan went AWOL while on an indirect pass on hospital grounds. He left around
    6 p.m. and returned at 5 a.m. the next day. He claimed he sat on a park bench
    for the night.

[6]

Mr. Hassans passes were withheld completely for
    two weeks following his AWOL incident in December 2018. They were reinstated
    slowly. He was only increased back to an indirect pass on July 4, 2019.

[7]

Due to a change in hospital policy, Mr. Hassen's
    indirect passes were revoked again on July 24, 2019. According to the new
    policy, Mr. Hassen could only get indirectly supervised passes if he engaged in
    structured programs for two weeks. Mr. Hassen refuses to participate in these
    programs.

[8]

At his annual review, the Board concluded that
    Mr. Hassan continues to pose a significant threat to the public. It held that a
    detention order at a general forensic unit was appropriate. The disposition
    included the possibility of community living in approved accommodation. The
    Board did not direct the hospital to reinstate Mr. Hassan's indirect passes. It
    observed that he might choose to participate in the hospital's structured
    programming in the future and thereby reobtain access to indirect passes.
    However, if Mr. Hassan continues to refuse to participate in structured
    programs, the Board encouraged the hospital to consider and assess other
    options.

Analysis

[9]

Mr. Hassan raises only one ground of appeal. He
    submits that the Board failed to consider whether the pass restrictions were
    appropriate or necessary based on his individual circumstances. Therefore, he
    argues that the Board did not order the least onerous and least restrictive
    disposition. He requests an order from this court directing CAMH to: (a)
    determine his privilege level based solely on his individualized risk
    assessment (
i.e
. rather than through a blanket hospital policy), and (b)
    exempt him from any policy requiring attendance in structured programming to
    gain access to indirect passes.

[10]

The Crown submits that, while it was open to the Board to challenge
    the hospital's position that structured programming was a pre-requisite for Mr.
    Hassan to exercise his passes, the fact that they did not was reasonable. In
    the Crown's submission, Mr. Hassan is required to attend structured programming
    to minimize his risk to the public.

[11]

The hospital argues that Mr. Hassan is making a single, incorrect
    argument: that there is a treatment impasse between himself and CAMH. It
    submits that this is an erroneous assertion because the Boards reasons show
    that it did not find any treatment impasse. Rather, the Board concluded that Mr.
    Hassan made some progress over the preceding year and may make progress next
    year. CAMH submits that this does not meet the legal definition of a treatment
    impasse, which only occurs when no progress has been made or is likely to be
    made.

[12]

We have concluded that the appeal must be dismissed.

[13]

The Board
accepted that CAMH could not assess Mr. Hassan's risk to the
    community and chances of going AWOL without his participation in a structured
    program. It summarized the testimony of Dr. Liu, Mr. Hassans attending
    psychiatrist for most of 2019, as concluding that it is "vitally important
    for the team to have an understanding of Mr. Hassan's risk, and his engagement
    in structured programs addresses this."
We also note that CAMH has not rigidly applied its new
    policy regarding structured programs. Instead, it has developed a one on one
    structured program to respond to the appellants needs.

[14]

In our view, the Board
properly considered what was the least onerous and least restrictive
    disposition in the appellants circumstances
. Its disposition,
    which had the effect of requiring participation in a structured program before indirectly
    supervised passes would be granted, was reasonable and open to it on the
    record.

[15]

Finally, we agree with the submission of CAMH that there is no
    treatment impasse between it and the appellant. The Board was alive to this
    issue and it is clear from their reasons that they reasonably concluded that
    there is no impasse.

Disposition

[16]

The appeal is dismissed.

Doherty J.A.

C.W. Hourigan J.A.

G. Pardu J.A.


