COURT OF APPEAL FOR ONTARIO
Winkler C.J.O., Laskin and Rosenberg JJ.A
BETWEEN
Her Majesty the Queen
Respondent
and
Salar Aghdasi and the Penetanguishene Mental Health Centre
Appellant
Salar Aghdasi, in person
Jill R. Presser, amicus curiae
Gavin MacDonald, for the respondent
Heard: December 10, 2010
On appeal against the disposition order of the Ontario Review Board under s. 672.54 of the Criminal Code, dated April 23, 2010.
Rosenberg J.A.:
1The appellant appeals from the decision of the Ontario Review Board that continued his detention in maximum security at the Oak Ridge Division of the Mental Health Centre, Penetanguishene. The appellant and amicus curiae counsel, Ms. Presser, both made submissions on the appeal. The appellant argued that he is not a significant threat to the safety of the public and should either be transferred to a minimum secure facility or be allowed to live at home. He also argued that he should be sentenced for the offences for which he was found not criminally responsible. Ms. Presser submits that although the Board did not err in finding that the appellant was a significant threat, it did err in failing to consider the least onerous and least restrictive disposition and failed to consider the factors mandated by s. 672.54 of the Criminal Code. I would not give effect to the appellant’s submissions. I would give effect to the submissions made by amicus counsel, set aside the order of the Board and order a new hearing.
THE FACTS
The NCR Findings
2The appellant was found not criminally responsible on account of mental disorder in respect of two assault charges. On June 11, 2007, he was found not criminally responsible in relation to a charge of aggravated assault of his uncle. As a result of that finding, he was admitted to the Oak Ridge facility until the Board transferred him to a medium security unit at the Centre for Addiction and Mental Health (CAMH) in September 2007. The appellant performed poorly at CAMH, threatening other patients and eloping on one occasion. On March 18, 2008, he assaulted another patient by stabbing him several times in the face with a pen. This assault led to a second NCR finding on November 12, 2008 in respect of a charge of assault causing bodily harm. The appellant was returned to Oak Ridge.
The Appellant’s Background
3The appellant is 29 years old. He was born in Iran and his native language is Farsi, although he can communicate in English. He and his family came to Canada in 1995 to escape persecution. The appellant’s parents are divorced. His parents and siblings live in the Toronto area. His parents do not speak English. The appellant’s mental health issues appear to have first emerged in the late 1990’s when he was 18 years of age. He was first admitted to hospital under the Mental Health Act in 2004 and had several admissions thereafter. The diagnosis at that time was Schizoaffective Disorder, and later changed to Chronic Paranoid Schizophrenia. His condition improved with medication.
4The appellant has a youth and criminal record, including a conviction for assault in 2000. In 2003, the appellant was injured in a motor vehicle accident and may have suffered from a back and head injury. There were no extensive investigations done at the time as the accident occurred during the SARS outbreak. A 2007 psychological report indicated that the appellant functions in the low-average to average range and that there is no clear evidence of cognitive impairment due to head injury.
The Appellant’s History at Oak Ridge
(a) The 2009 Board Hearing
5After he attacked the fellow patient at CAMH, the appellant was returned to Oak Ridge where he has been detained since March 2008. The first Board hearing following the second NCR finding took place in March 2009. The evidence led at that time indicated that the appellant was compliant with his medication but had limited insight into his illness or the benefit or reasons for his treatment. He was not involved in the day-to-day activities of the Unit. The appellant was involved in several assaults, had been found with contraband (razors and a lighter) and was trying to obtain drugs. His treating physician did not find him forthcoming and observed that the appellant chose to keep to himself. He was not open about talking about his thinking or voices that he may be hearing. This was a concern because he suffers from command hallucinations on which he has acted in the past. This made him highly unpredictable.
6The Board concluded that the appellant remained a significant threat to the safety of the public and that it was premature to transfer him from maximum security to medium security. The risk to other patients and staff at that point was simply unacceptable. As well, escorted walks on the hospital grounds would not be appropriate given the appellant’s history of elopement and assaults on other patients. Accordingly, the least onerous and least restrictive disposition was to remain in detention at the maximum security Oak Ridge facility with no change.
(b) The 2010 Board Hearing
7The evidence adduced at the March 2010 Board hearing presented a somewhat different picture. The appellant remained compliant with his medication and importantly did not pose a management problem on the ward. He did not assault any co-patients or staff. He did not experience any symptoms of his mental illness except in January 2010, when he experienced a two-week period of decompensation; he had started to hear voices. However, the appellant reported that he was hearing voices to staff and they adjusted his medication to good effect. The appellant’s treating physician suspected that the appellant may have abused illicit drugs and that this may have been the cause of the decompensation. However, there was no evidence of illicit drug use.
8The appellant had recently shown a greater interest in getting involved in groups. Thus, he had been attending a communications group and was contributing appropriately. However, he was still reluctant to engage in programming, was isolative in hospital and still lacked insight into his psychiatric condition. Without insight into his illness and the need for treatment, the appellant remained at risk of not complying with medication and decompensating as a result.
9Counsel for the appellant had written to CAMH and to Ontario Shores Centre for Mental Health Sciences inquiring about whether the appellant was a suitable candidate for transfer to their facilities. Neither facility believed that the appellant was ready for transfer to their institution. CAMH noted that if the appellant were to be transferred to their facility, privileges outside the medium secure unit would be limited given his elopement risk, lack of insight and history of aggression.
10Ontario Shores gave a similar response to that of CAMH. It suggested, however, that if the appellant were to be transferred to a medium secure facility, CAMH would be more appropriate since he would have greater access to Farsi language and culture-specific services, and he would be geographically closer to his family. A problem identified by the appellant’s counsel was that while the appellant’s father was able to drive to Oak Ridge, his mother did not drive and therefore found it difficult to visit the appellant. As well, she did not speak English and therefore was not able to advocate on his behalf. The Oak Ridge staff did indicate that they could always obtain a Farsi interpreter if members of the appellant’s family wish to speak to them.
11The appellant’s treating physician was of the opinion that the appellant’s lack of insight, combined with any potentially destabilizing factors, such as non-compliance with medication or use of illicit drugs, could threaten his mental stability and the safety of those around him. As a result of his elopement risk and history of assaults, if the appellant was transferred to a medium security facility, his liberties would be even more restricted than at Oak Ridge.
(c) The appellant’s position at the Board Hearing
12The appellant was represented by counsel before the Board. She submitted that the appellant had made significant progress since the last Board hearing and that he should be transferred to a medium security facility, either CAMH or Ontario Shores. Such a disposition would be the least onerous and least restrictive disposition as it would contain the risk while enabling the appellant to be closer to his family and have more access to Farsi language speakers and interpreters. He would thus be less culturally and linguistically isolated. There was no argument by counsel that the appellant was not a significant threat to the safety of the public.
THE REASONS OF THE BOARD
13After reviewing the offences leading to the NCR findings, the appellant’s history of mental illness, and the evidence adduced at the hearing, the Board concluded as follows:
We are satisfied the accused continues to suffer from a mental disorder – the diagnosis is not questioned. We accept the evidence that the index offences were in response to his illness and symptoms. The return of symptoms in January is, to us, very significant, particularly if this occurred despite compliance. In the circumstances, considering his history and course in hospital, the index offences and his very limited insight, the accused continues to be at present a significant risk to the safety of the public and in our view should continue to be detained here with no change as to privileges. That said, we recognize as important the improvement in the accused’s behaviour in the hospital over the last period. We also recognize the importance of the support of his parents.
ANALYSIS
The Appellant’s Grounds of Appeal
14I would not give effect to any of the grounds of appeal raised by the appellant. The uncontradicted evidence adduced at the hearing established that the appellant remains a significant threat to the safety of the public. While he had made progress over the last year, there was substantial evidence of threat to the public. The appellant had a history of committing serious assaults. Further, as the Board noted, even while compliant with his medication, his symptoms had returned. Finally, since he lacked insight into his illness and the need for treatment, there was a significant risk that the appellant, if discharged absolutely or released into the community, would either abandon the treatment regime or engage in conduct, such as using illicit drugs, which would interfere with the efficacy of the treatment. The finding that the appellant remained a significant threat to public safety was not unreasonable.
15Also, on an appeal under s. 672.78 of the Criminal Code, this court has no power to reverse the NCR findings, and instead find the appellant guilty and impose a sentence.
Issues Raised by Amicus Counsel
16In my view, the Board erred in law in failing to consider the factors mandated by s. 672.54 of the Criminal Code and also erred in failing to seek out and consider evidence. As a result, the Board failed to consider whether the appellant’s continued detention in the maximum security facility was the least onerous and least restrictive disposition.
17This appeal turns on the opening words of s. 672.54, which sets out the obligations of the Board when making a disposition detaining an accused in custody in a hospital:
672.54 Where a court or Review Board makes a disposition under subsection 672.45(2) or section 672.47 or 672.83, it shall, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is the least onerous and least restrictive to the accused
18The principles governing the Board’s obligations under s. 672.54 of the Criminal Code are now well-established. The appellant is entitled to conditions that, “viewed in their entirety, are the least onerous and least restrictive of his liberty consistent with public safety, his mental condition and ‘other needs’ and his eventual reintegration into society”: Penetanguishene Mental Health Centre v. Ontario (AG), 2004 SCC 20, [2004] 1 S.C.R. 498 at para. 3. The least onerous and least restrictive conditions are not always to be found in a less secure facility: Penetanguishene Mental Health Centre at para. 34. Thus, in this case, it was not self-evident that the appellant’s transfer to a medium security facility would be the least onerous and least restrictive. Whether that was so depended on the evidence.
19The Board is required to gather and review all available evidence pertaining to the four factors set out in s. 672.54: Winko v. British Columbia (Forensic Psychiatric Institute), 1999 694 (SCC), [1999] 2 S.C.R. 625 at para. 55. If the parties do not present sufficient information, it is up to the Board to seek out the information it requires: Winko at para. 62.
20Finally, the Board was required to ensure that opportunities for effective medical treatment were provided to the appellant. Providing such opportunities not only furthers the public safety objective but “also furthers the objective of safeguarding the accused’s liberty interests by working towards community reintegration and the cessation of most if not all restrictions on the accused’s liberty”: Mazzei v. British Columbia (Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326 at para. 33.
21The evidence before the Board showed that the appellant had done very well since the 2009 hearing. He had not engaged in assaultive behaviour, he had been compliant with his medication regime and, most importantly, had reported hearing voices so that he could be properly treated. But, the appellant was still reluctant to engage in programming, was isolative in hospital and lacked insight into his psychiatric condition. The evidence appeared to show that the appellant was linguistically and culturally isolated at Oak Ridge. While he could communicate in English, his first language was Farsi. His parents essentially spoke no English and his mother, in particular, found it very difficult to come to Oak Ridge. There did not appear to be any other Farsi-speaking person at Oak Ridge. There was no evidence of any culturally appropriate programming at Oak Ridge. There was very little evidence before the Board concerning the appellant’s isolation problem and no inquiry as to whether it was a symptom of his illness or the product of his cultural and linguistic isolation at Oak Ridge.
22The brief letters from CAMH and Ontario Shores provided little information, except that Ontario Shores believed that if the appellant were transferred to a medium security facility, CAMH would be the more appropriate facility:
As you may appreciate, Farsi is a very uncommon language at Ontario Shores and in the Whitby community. It would appear that Mr. Aghdasi would benefit more from programs offered at the Centre for Addiction and Mental Health (CAMH) in Toronto where he is known and would be more likely to avail himself of programs in his native language both at the hospital and in the Toronto community. He would have more access to services in his native language and culture-specific services at CAMH.
23The letter from CAMH did not address this issue, simply taking the view that a transfer to that facility would not be the least onerous and restrictive:
Mr. Aghdasi has not yet had the opportunity for escorted privileges on the grounds at Oak Ridge. Should Mr. Aghdasi be transferred to our facility, privileges outside of the medium secure unit would be very limited given his elopement risk, lack of insight and history of significant aggression.
Based upon the above, residing at our medium secure unit would be more onerous and restrictive than remaining at Oak Ridge. Accordingly, we oppose a transfer to a medium secure unit at our facility at this time.
24Given the appellant’s significant progress since the previous hearing, the Board was obliged to investigate and consider whether his cultural and linguistic isolation was interfering with his successful reintegration into the community and whether Oak Ridge was meeting his other needs. The Board’s reasons do not address these issues in any real sense except for the passing comment that it “also [recognized] the importance of the support of his parents”. There was otherwise no indication of any appreciation of the impact of the appellant’s cultural and linguistic isolation and the role which it may be playing in preventing his successful reintegration and how this affects meeting his other needs, as required by s. 672.54 of the Criminal Code. In my view, this was an error in principle.
25Further, if the Board did not feel it had the necessary information about the appellant’s cultural and linguistic needs and the resources available to meet those needs it was required to seek out that information. Its apparent failure to do so in this case was also an error in principle. While the Board was well aware of its obligation to consider the protection of the public and had adequate information about the appellant’s mental condition, its reasons fail to demonstrate that it considered the appellant’s reintegration into society and his other needs. As was said in Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528, at para. 19:
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.
26This is not a case like Mental Health Centre Penetanguishene v. Mirzoyan, 2010 ONCA 659 where it is obvious that the Board gave appropriate consideration to the requirements of s. 672.54 and that it had all the relevant information it needed to make its disposition. It may well be that in the end a transfer to CAMH would not be the least onerous and least restrictive disposition, for the reasons identified by the appellant's treating psychiatrist and CAMH itself. Further, as the Crown rightly points out, proximity to family cannot dictate the level of security that is otherwise appropriate: Mirzoyan at para. 7. Thus, it cannot be said that the Board's decision is unreasonable. But, given the deficiency in the Board’s reasons and its apparent failure to investigate the matters necessary to make an appropriate disposition, in my view, there must be a new hearing.
DISPOSITION
27Accordingly, I would allow the appeal, set aside the Order of the Board and, pursuant to s. 672.78(3)(b) of the Criminal Code, refer the matter back to the Board for rehearing.
RELEASED:
“JAN 21 2011” “M. Rosenberg J.A.”
“JL” “I agree W. Winkler C.J.O.”
“I agree John Laskin J.A.”
