Ahmadzai (Re), 2020 ONCA 169

COURT OF APPEAL FOR ONTARIO

DATE: 20200305 DOCKET: C67229

Benotto, Huscroft and Jamal JJ.A.

IN THE MATTER OF: Meladul Ahmadzai

AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel: Michelle O’Doherty, for the appellant Emily Marrocco, for the respondent, Attorney General of Ontario Marie-Pierre T. Pilon, for the respondent, Person in Charge of Royal Ottawa Mental Health Centre

Heard: February 21, 2020

On appeal from the disposition of the Ontario Review Board, dated June 11, 2019, with reasons dated July 10, 2019.

Jamal J.A.:

Introduction

1The appellant was found not criminally responsible on account of mental disorder (“NCR”) on April 11, 2018, on charges of robbery, assault with a weapon, and possession of a weapon for a purpose dangerous to the public peace. The appellant had entered a Money Mart store on October 17, 2016, approached a female clerk, and demanded cash while brandishing a paring knife with a four-inch blade. The clerk activated the store’s distress alarm and the police arrived within five minutes to arrest the appellant. While the police were en route the appellant made no effort to leave to store. He later explained that “a shadow” had told him to go to the store as “the right place to feel better” and he had demanded cash even though he did not need any money.

2The appellant’s current diagnoses are schizophrenia, first episode (currently in partial remission) and probable major depressive disorder (moderate). His two hearings before the Ontario Review Board (“Board”) since the NCR verdict, including the one that is the subject of this appeal, both resulted in orders for detention at the Royal Ottawa Mental Health Centre (“Hospital”), with privileges including living in the community in approved accommodation.

3The appellant, who was 24 years old at the time of the index offences, has been and is currently living with his parents. He was last admitted to the Hospital in October 2018. Following that, for the six months before the Board hearing, he received monthly antipsychotic injections. No concerns regarding his mental health or functioning were raised during this period. The attending psychiatrist, Dr. Wood, estimated that the appellant would decompensate within two weeks of not receiving his monthly long-acting injection. The Board noted, however, that the appellant would be facing additional stressors soon as he would be finishing school, looking for employment, and starting to live with his spouse.

4Before the Board, the appellant had sought an absolute discharge because he no longer posed a significant threat to the safety of the public. In the alternative, he sought a conditional discharge. Although at the first hearing the Hospital had recommended a detention order, it now recommended a conditional discharge as the least onerous and least restrictive disposition. This reflected a change in the views of the appellant’s treatment team, including his attending psychiatrist, Dr. Wood, who had previously recommended a detention order. Even so, the Board rejected the Hospital’s recommendation and maintained the detention order in its disposition dated June 11, 2019.

5The appellant now appeals the Board’s disposition. For the reasons that follow, I conclude that the Board’s disposition was unreasonable because it failed to adequately explain why the appellant’s risk could not be adequately managed under a conditional discharge as had been recommended by the Hospital.

Discussion

(a) The statutory scheme

6The Board is tasked with determining whether an NCR accused poses a “significant threat to the safety of the public”: Criminal Code, R.S.C. 1985, c. C-46, s. 672.54(a). A “significant threat to the safety of the public” means “a real risk of physical or psychological harm to members of the public that is serious in the sense of going beyond the merely trivial or annoying” and “must be criminal in nature”: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 62. The Board must consider both the likelihood of a risk materializing and the seriousness of the harm that might occur: Kassa (Re), 2019 ONCA 313, at para. 33.

7If the Board concludes that the NCR accused does not pose a significant threat to the safety of the public, then he or she must be discharged absolutely: s. 672.54(a).

8However, if the Board finds that the significant threat threshold is met, it must order the NCR accused to be either discharged or detained in custody in a hospital, in either case subject to conditions as it considers appropriate: ss. 672.54(b) and (c); R. v. Lamanna, 2009 ONCA 612, 252 O.A.C. 280, at para. 7. The Board must make a disposition that is “necessary and appropriate in the circumstances” (s. 672.54), which has been interpreted as meaning the “least onerous and least restrictive” disposition regarding the NCR accused’s liberty interests that is consistent with public safety and the NCR accused’s mental condition, other needs, and eventual reintegration into society: Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326, at para. 19; Lamanna, at paras. 8-10; McAnuff (Re), 2016 ONCA 280, at para. 22; and Esgin (Re), 2019 ONCA 155, at paras. 15-17.

(b) The issues

9The appellant raises two grounds of appeal. He submits that the Board’s disposition is unreasonable and should be set aside under s. 672.78(1)(a) of the Criminal Code because: (1) the Board erred in finding that he posed a “significant threat to the safety of the public” under s. 672.54(a); and (2) in the alternative, the Board erred in imposing a detention order rather than a conditional discharge.

(1) Did the Board err in concluding that the appellant posed a “significant threat to the safety of the public”?

10The appellant asserts that the Board’s finding that he posed a significant threat to the safety of the public was unreasonable. He notes that he has committed no violent acts since the index offence in October 2016, he has been compliant with his medication, and his treatment team has confirmed his continuing improvement. While he had one episode of decompensation in October 2018, no violence ensued, and certainly no risk to the public. He asserts that the Board failed to weigh the evidence of his attending psychiatrist, Dr. Wood, that the likelihood of him becoming non-compliant with his medication was minimal, even if he were discharged absolutely. He claims that, properly considered, the evidence did not support a finding that he is a significant threat to public safety.

11I do not agree with the appellant’s submission.

12Parliament has set out in legislation the standard of appellate review of the Board’s dispositions. Absent a wrong decision on a question of law or a miscarriage of justice, this court may allow an appeal against a disposition of the Board only where it is of the opinion that the disposition is “unreasonable or cannot be supported by the evidence”: Criminal Code, s. 672.78(1); R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at paras. 31-32; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 34.

13I conclude that the Board’s finding that the appellant was a “significant threat to the safety of the public” was reasonable. The Board’s “reasoning process and the outcome” reflected “an internally coherent and rational chain of analysis” that was “justified in relation to the facts and law”: Vavilov, at paras. 83, 85.

14In making its finding, the Board relied on the following factors: (i) the index offences are offences of violence; (ii) the appellant has a history of violent conduct in the family home, including hitting his mother and choking his younger brother; (iii) he is likely to again experience psychosis if he becomes non-compliant with his treatment; (iv) he has a prior criminal record that shows disregard for court orders; and (v) he does not take responsibility for his past misconduct and relies on his inability to recollect events that resulted in criminal charges, thereby impeding his treatment team’s ability to deal with his antisocial conduct. All these findings were supported by the evidence before the Board.

15Moreover, while the Hospital Report acknowledged that the appellant’s risk for future violence was “low to moderate” relative to other individuals assessed for violence using the Historical Clinical Risk Management-20, Version 3 (an actuarial assessment for assessing and managing violence risk), it concluded he posed a significant threat to public safety because of his “history of not being entirely forthcoming about his symptoms and the team’s inability to get a better sense of his home environment and his day-to-day activities.”

16These were all proper factors for the Board to consider in reaching its reasoned and internally coherent determination of significant threat. These factors included, most importantly, the recommendations of the experts who had examined the appellant: see Winko, at para. 61. Although the appellant’s condition has improved since the index offence, both the Board and his treating psychiatrist remained concerned about the lack of transparency regarding his home environment and symptoms, and thus the risk factors supporting the significant threat finding continued to weigh more heavily in the balance.

17Thus, the Board was not merely uncertain about or unable to decide whether the appellant posed a significant threat to the safety of the public: see Winko, at para. 62. Nor did the Board simply rely on historical risk factors relating to the index offence and the appellant’s prior criminal history. Rather, the Board and the treatment team continued to have significant concerns that were not assuaged by the other evidence before the Board.

18This judgment call, which drew on the Board’s expertise and required it to weigh the evidence, was one that the Board was especially well placed to make, given “the inherent difficulty of the subject matter and the expertise of the medical reviewers”: Owen, at paras. 40, 47. As stated in Winko, at para. 61:

Appellate courts reviewing the dispositions made by a court or Review Board should bear in mind the broad range of these inquiries, the familiarity with the situation of the specific NCR accused that the lower tribunals possess, and the difficulty of assessing whether a given individual poses a “significant threat” to public safety.

19In sum, I have concluded that both the Board’s reasoning process and its conclusion that the appellant continued to pose a significant threat to the safety of the public were reasonable and are therefore entitled to deference.

(2) Did the Board err in imposing a detention order rather than a conditional discharge?

20The appellant’s alternative ground of appeal asserts that the Board erred in imposing a detention order rather than a conditional discharge.

21At the hearing before the Board, the Hospital recommended a conditional discharge as the least onerous and least restrictive measure. It conceded that recommending a detention order for the appellant would be “difficult”, as “[n]o concerns have been raised over the past six months regarding his mental health and his functioning, and he has largely presented himself appropriately to the team”. The Hospital concluded that “[a] conditional discharge would allow the team to continue doing a longitudinal assessment of Mr. Ahmadzai’s condition and insight as well as his cooperativeness with the team in aiding the achievement of his identified goals.” As noted, this recommendation reflected a change of opinion of the appellant’s treatment team from the earlier hearing before the Board.

22Nevertheless, the Board rejected the Hospital’s recommendation and maintained the detention order. The Board reasoned that because the appellant was about to face new sources of stress in his life — completing his post-secondary studies, getting a job, and cohabitating with his new spouse — a detention order would permit him to be admitted to hospital more efficiently if he were to decompensate, especially because his parents would likely not seek to admit him to hospital under the Mental Health Act, R.S.O. 1990, c. M.7.

23The appellant asserts that the Board’s reasoning process was flawed, and therefore its disposition was unreasonable, because the Board failed to adequately address the treatment team’s recommendation that a conditional discharge “would be sufficient to ensure the safety of the public in the event that he does experience a deterioration in his mental illness”. He also contends that the Board’s decision unreasonably “centred on the perceived lack of civil remedies sufficient to bring the appellant to the hospital should he refuse to attend on his own.” As noted in Vavilov, at para. 126: “[t]he reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it.”

24I agree with the appellant that the Board’s reasoning process gave no meaningful consideration to whether his risk to the public could be managed under a conditional discharge as recommended by the Hospital. The Board therefore failed to evaluate the evidentiary record in context, which this court has found to be unreasonable: see Valdez (Re), 2018 ONCA 657, at paras. 23-24; Esgin (Re), at para. 24. In the present case, the Board reasoned that it would be easier to return the appellant to hospital under a detention order. But that would always be true and could always be used to justify a detention order rather than a conditional discharge. The Board’s duty to impose the least onerous and least restrictive disposition requires more than “mere convenience to the hospital”: Valdez (Re), at para. 21; Esgin (Re), at para. 20. As noted in Valdez (Re), the Board must determine whether the appellant’s risk could be managed under a conditional discharge by examining the evidentiary record in context, at paras. 22-23:

The ease of returning an individual to hospital will not always justify a detention order as a necessary and appropriate disposition. As discussed in Young Re, 2011 ONCA 432, 278 O.A.C. 274, at para. 26, there are multiple ways in which to secure someone’s attendance at the hospital when they fail to comply with a condition of their discharge. For instance, the person could be returned: (1) by convening a new hearing under s. 672.82(1) of the Criminal Code; (2) by resorting to the breach provisions of the Criminal Code; or (3) through the committal provisions under the Mental Health Act, R.S.O. 1990, c M.7.

The Board had a duty to assess the evidentiary record in context, including taking into consideration in this case: (1) the risk of non-attendance for medication; (2) the mechanisms for securing someone’s attendance at hospital under the conditional discharge framework; (3) the length of time that any such steps may take; (4) the effect of that delay on Mr. Valdez’s mental health; and (5) the risk to public safety posed by any delay in treatment.

See also Esgin (Re), at paras. 19-25.

25These comments apply equally in this case. The Board’s reasoning process failed to assess whether the appellant’s risk could be managed under a conditional discharge. The appellant has been regularly attending the Hospital as required by the conditions of this detention order and is injected with a long-acting antipsychotic medication every month. Dr. Wood disagreed with the suggestion that the appellant was compliant with his medication only because he was so ordered by the Board. He opined that “it’s one of Mr. Ahmadzai’s strengths in that he wants the injection”. He also noted that while he suspected that the appellant’s condition would deteriorate within a couple of weeks if he went off his medication, the Hospital would know this “immediately” because he must attend for his injection every month.

26In summary, the expert evidence before the Board was that the risk of the appellant’s non-attendance for his injection was minimal, immediately detectable, and rapidly addressable. Decompensation would occur within a couple of weeks if the appellant ceased taking his medication, leaving enough time to admit the appellant to hospital if necessary. Apart from relying on administrative convenience, which the Hospital itself did not invoke, the Board failed to explain why it rejected Dr. Wood’s expert evidence that the appellant’s risk to the public could now be managed under a conditional discharge. The Board’s disposition was therefore unreasonable.

Disposition

27I would allow the appeal and refer the matter back to the Board for a rehearing on all issues pursuant to s. 672.78(3)(b) of the Criminal Code. At that time, the Board can consider whether the appellant continues to pose a significant threat to public safety, and if so, the appropriate disposition in light of the circumstances then prevailing.