Koundakjian (Re), 2020 ONCA 191

Court and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 2020-03-10 DOCKET: C67408

Judges: Strathy C.J.O., Miller and Trotter JJ.A.

IN THE MATTER OF: Ara Koundakjian

AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel: Anita Szigeti, for the appellant Ara Koundakjian Andrew Cappell, for the respondent the Attorney General of Ontario Michele Warner, for the respondent the Person in Charge of the Centre for Addiction and Mental Health

Heard: March 5, 2020

On appeal against the disposition of the Ontario Review Board dated, July 24, 2019, with reasons dated August 26, 2019.

Reasons for Decision

1Ara Koundakjian appeals from the July 24, 2019 disposition of the Ontario Review Board, ordering him detained at the General Forensic Unit of the Centre for Addiction and Mental Health, Toronto. The appellant had sought a conditional discharge.

2The appellant advances two related grounds of appeal: the Board (1) misstated the governing legal test; and (2) failed to meaningfully consider whether the necessary and appropriate disposition would be a conditional discharge rather than a detention order. For the reasons that follow, we do not agree.

Background

3The appellant is in his early 60s and has a long history of mental health illness. His diagnosis at the time of the disposition included schizo-affective disorder and substance dependence. He has a long history of substance abuse, notably cocaine. In the opinion of his treating psychiatrist, his cocaine use exacerbates his mental illness and renders him unpredictable and aggressive.

4The hospital report documents “a longstanding pattern of threatening, argumentative and aggressive behaviour within the family, and aggressive and assaultive behaviour on the basis of irritability and grandiosity against persons in his immediate world, including other patients when he is unwell.”

5The index offence occurred on June 22, 1999. While the appellant was an inpatient on the psychiatric unit of St Joseph’s Health Care in Toronto, he assaulted another patient, a mentally disabled man, punching and kicking him in the face and body. He was found not criminally responsible and has been under a detention order ever since.

6The current disposition provides for the appellant to live in the community in supported housing, a privilege the appellant has exercised since 2008. Over that period, the appellant has been involuntarily readmitted to hospital between 16 and 18 times, although not in the year preceding the disposition under appeal.

7The hospital report states that the appellant has “little or no insight into his illness, need for medication and impact of illness on his behaviour.”

8The appellant’s treating psychiatrist stated that the risk of assaultive behaviour is addressed by “regular oversight, stability of accommodation, regular urine testing, depot medication regimen, and readmission when required because of decompensation.”

9The Board concluded that the appellant continued to represent a significant risk to the safety of the public, and that the appropriate disposition was a continuation of the detention order. It concluded that the appellant’s delusions appear fixed, including the belief that he needs to stay awake in order to prevent global catastrophe, and that he needs to consume cocaine to keep himself from sleeping. The Board accepted the evidence of the appellant’s treating psychiatrist, that the appellant’s cocaine use can lead to decompensation, during which time the appellant can be verbally and physically aggressive, particularly towards family members.

10The Board noted that the appellant is frequently in breach of the conditions of his disposition, particularly those related to cocaine use and drug testing, that decompensation can be rapid as a result of his cocaine use, and that a detention order continues to be necessary to return him rapidly to the hospital when warranted.

Analysis

11The first ground of appeal is that the Board erred in its articulation of the correct legal test governing detention. In five places in its reasons, the Board refers to the “appropriate” disposition, rather than the “necessary and appropriate” disposition. In other places, including the conclusion, it does not make this error.

12The appellant argues that this misarticulation was no mere slip, but evidence of a genuine misunderstanding of the standard the Board’s disposition needed to meet. That is, it is not sufficient for a proposed disposition to be appropriate, it must also be necessary for protecting the public from a risk of serious harm.

13We agree that the Board’s apparent misstatement of the standard is troubling. But in the context of the reasons as a whole, it is apparent that “appropriate” is used as shorthand to indicate “necessary and appropriate”. The Board fully stated the phrase in other places and, more importantly, evidenced an understanding of the standard in its reasoning.

14Second, the appellant argues that the Board erred by not finding that a conditional discharge would be the necessary and appropriate (or equivalently, the least onerous and restrictive) disposition. On conditions proposed by the appellant at the disposition hearing, the appellant would continue to reside at his housing which has been long approved by the Board, and continue to be subject to conditions regarding drug use, drug testing, and medications.

15The appellant argued that the Board’s primary concern - protecting the public against aggressive conduct consequent to rapid decompensation from cocaine use – could be met by utilizing the provision of the Mental Health Act, particularly under the Box B criteria for “substantial mental or physical deterioration.” This is said to be particularly the case given that he is now receiving his medication through weekly injections, rather than daily oral medication.

16In our view, the Board’s determination that continued detention is the necessary and appropriate disposition is reasonable and entitled to deference. There was no air of reality to a conditional discharge in the appellant’s circumstances, which included multiple readmissions (although none in the previous review period), and breaches of the prohibition against using cocaine – testing positive for cocaine 25 times in the months leading up to the review hearing – as well as taking steps to defeat the testing regime. The chronic cocaine use is not a mere technical breach. The appellant believes cocaine to be medically necessary for him, to enable him to stay awake and thereby influence world events. In reality, it exacerbates his mental illness and puts other people at risk of physical harm. He has not demonstrated insight into his illness, or a willingness to abide by terms of his disposition that are necessary for the protection of others. His failure to comply with the terms of the disposition has not infrequently generated a risk of serious harm that has necessitated a return to hospital. Although he had not been readmitted in the year prior to the disposition hearing, he was not without incidents of aggression and other breaches. The Board made no error in concluding that a conditional discharge would not be the necessary and appropriate disposition in these circumstances.

Disposition

17The appeal is dismissed.