Court of Appeal for Ontario

Date: 2025-07-02
Docket: COA-24-CR-1235
Before: David M. Paciocco, J. George, D.A. Wilson JJ.A.

In the matter of: Shafaq Joya

An appeal under Part XX.1 of the Criminal Code

Appearances:
Anita Szigeti, for the appellant
Andrew Cappell, for the respondent the Attorney General of Ontario
Julia Lefebvre, for the respondent the Person in Charge of St. Joseph’s Healthcare Hamilton

Heard: 2025-05-13

On appeal from the disposition of the Ontario Review Board dated November 20, 2024, with reasons dated November 28, 2024.

Reasons for Decision

Introduction

1On March 23, 2018, the appellant was found not criminally responsible (“NCR”) of second-degree murder due to his mental illness. The charges arose out of the death of the appellant’s roommate on February 27, 2016. During a psychotic episode, the appellant stabbed him to death inflicting approximately 320 stab wounds. The appellant was initially subjected to detention orders, but after making significant progress he has been living in the community since 2021 pursuant to successive conditional discharge orders.

2The appellant had a disposition hearing on March 25, 2024, during which he sought an absolute discharge. He also brought a Charter application based on the lack of available psychiatric follow-up care. In reasons dated November 28, 2024, the Ontario Review Board (the “Board”) determined that the appellant continued to pose a significant threat to the safety of the public and that it was appropriate to continue the conditional discharge order that was in place. The Board also declined to grant the Charter relief the appellant was seeking. The appellant challenges both decisions before this court. He seeks an absolute discharge.

3At the conclusion of the hearing, we dismissed the appeal for reasons to follow. These are our reasons.

A. Background

4The appellant was born in 1986 and immigrated to Canada with his family in 1997. He suffered depression while a high school student. He attended university until 2009 when he withdrew, and he subsequently worked at a variety of jobs.

5In 2012, he appeared at his mother’s house and grabbed a knife while exhibiting symptoms of psychosis. The appellant was hospitalized on a Form 1. He was diagnosed with drug-induced psychotic disorder. After he was discharged, he did not adhere to his regimen of medication and did not follow up on treatment. He experienced depression, increased drug use, and erratic behaviour. He was unable to maintain employment or stable living conditions. His mental health deteriorated, and he refused to adhere to his treatment altogether. He experienced hallucinations and erratic behaviour, and he continued his drug use.

6On February 27, 2016, the appellant stabbed his roommate approximately 320 times. He was arrested the next day and was admitted to St. Joseph’s Healthcare Hamilton where he was diagnosed with schizophrenia. On March 23, 2018, he was found not criminally responsible of second-degree murder due to his mental disorder.

7The appellant has resided in the community since 2021, living in subsidized housing. He receives antipsychotic injections every 28 days and must report to the forensic outpatient team at the hospital. He was readmitted to the hospital in February 2023 due to concerns about his behaviour. He has not worked since January 2024 and is not seeking employment. In April 2023, he was granted a conditional discharge and has complied with his treatment regime, including a requirement to abstain from drugs.

8At the time of the hearing, the appellant was being seen by the forensic outpatient team while waiting for admission into the Schizophrenia Outpatient Program at St. Joseph’s as well as the Hamilton Program for Schizophrenia. He was not employed and was receiving ODSP, and he had been living in the community for approximately three years. He accessed the forensic outpatient treatment team at St. Joseph’s and did not have a treating psychiatrist.

B. Analysis

(1) The Board’s Decision

9The issues for determination are whether the Board’s decision was unreasonable and whether there was a breach of the appellant’s Charter rights.

10Section 672.78 of the Criminal Code states that a decision of the Board may be set aside only if it is unreasonable or unsupported by the evidence, if it is based on an error of law, or if there was a miscarriage of justice.

11Section 672.54(a) of the Criminal Code requires the Board to consider whether the accused presents a “significant threat to the safety of the public”. The Board must determine the least restrictive disposition that will protect the public, taking into account the accused’s mental condition. To deny an accused an absolute discharge, there must be evidence that they pose a foreseeable and substantial risk of serious harm to the public if discharged absolutely, and that risk cannot be speculative: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 57, 68; Carrick (Re), 2015 ONCA 866, 128 O.R. (3d) 209, at paras. 16-17.

12Given the Board’s expertise, an appellate court should not easily overturn its assessment of risk: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 37; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, at para. 95.

13The appellant argued before us that in concluding that he presented a significant risk to the safety of the public, the Board unreasonably discounted important evidence, including his insight into his mental illness, his recent history of flawless compliance with medication, his abstinence from non-prescribed drugs, the success he has experienced in the community, and his recent history of non-violence.

14We disagree. The Board did not disregard this evidence or fail to properly consider it. The Board noted this evidence and accepted the testimony of the appellant, whom the Board found to be credible. It accepted the opinion shared by Dr. Nagari and Dr. Chaimowitz that, despite his progress, the appellant lacked real insight into the potential risk he posed to the public and needed continued forensic outpatient support. It found that the appellant remained vulnerable to breakthrough symptoms and concluded that if the appellant decompensated, he would not recognize the symptoms and seek medical help on his own. Given his failure to adhere to his medication in the past and the nature of his psychiatric illness, he needed to be closely monitored, and this could not be achieved through outpatient services.

15The Board’s conclusion relating to the risk of breakthrough symptoms was not speculative, as the appellant submits. It was supported by the evidence. The Board accepted Dr. Nagari’s evidence that the appellant’s hospital admission in 2023 was necessitated by his insistence that he did not require sleep. Lack of sleep was one of the features the appellant displayed prior to the stabbing of his roommate. Furthermore, Dr. Nagari noted that the appellant requires a structured schedule to maintain long-term stability, but had decided not to seek employment, which leaves him with a great deal of unstructured time.

16The Board therefore accepted the evidence of two psychiatrists and the appellant’s case manager. It was entitled to do so.

17In this case, a unanimous Board concluded that there was a real risk that the appellant posed a significant threat to the safety of the public. We see no error in the analysis or in the conclusion.

(2) The Charter Argument

18The appellant argues that his ss. 7, 9, and 15 Charter rights were infringed because he was denied an absolute discharge due to waitlists and a lack of resources that made him unable to obtain acceptance into a non-forensic mental health treatment program. The Board declined to make this order for two reasons.

19First, the appellant’s complaint was about the adequacy of psychiatric services if he was given an absolute discharge, but the Board loses its jurisdiction once an absolute discharge is ordered. It was therefore doubtful whether it had jurisdiction to make the order requested.

20Second, and in any event, the Board concluded that an absolute discharge was inappropriate not because of the lack of non-forensic care, but because of its conclusion that the appellant continues to present a significant threat to public safety. The Board concluded that the appellant needed to remain under the jurisdiction of the hospital for his illness to be monitored, and we see no error in this conclusion. While there was no certainty that the appellant would be able to successfully access treatment outside of the forensic care he received in the hospital, there was evidence that the hospital would assist the appellant in finding non-forensic care and that he would not be left without treatment. The Charter issue that was raised therefore did not arise.

21The Board was therefore entitled to deny the Charter relief that the appellant sought.

C. Disposition

22The appeal is dismissed.

David M. Paciocco J.A.
J. George J.A.
D.A. Wilson J.A.