CITATION: Hassan (Re) , 2011 ONCA 561
DATE: 20110824
DOCKET: C52663
COURT OF APPEAL FOR ONTARIO
Laskin, Feldman and Armstrong JJ.A.
IN THE MATTER OF: Abdi Hassan
Abdi Hassan, appearing in person
Anita Szigeti, as amicus curiae
Amy Alyea, for the Attorney General
Heard: February 15, 2011
On appeal against the disposition of the Ontario Review Board, dated August 26, 2010.
Laskin J.A.:
A. OVERVIEW
[1] The appellant, Abdi Hassan, suffers from schizophrenia. Eleven years ago he was charged with threatening to kill a police officer and related offences. He was found not criminally responsible on account of mental disorder. For most of the past nine years he has been at the Centre for Addiction and Mental Health (CAMH) in Toronto. Successive dispositions of the Ontario Review Board ordered his detention in the minimum secure unit at CAMH.
[2] However, the situation changed last year. The frequency and degree of Mr. Hassan’s aggressive behaviour escalated. The hospital sought an early review of his disposition. After a hearing in August 2010, the Board ordered that Mr. Hassan be detained in the medium secure unit of CAMH. Mr. Hassan appeals that disposition. To ensure that his appeal was fully argued, the court appointed amicus curiae.
[3] Mr. Hassan, with the assistance of amicus, raises four grounds of appeal:
(1) The Board’s disposition was unreasonable;
(2) The Board failed to consider the four factors in s. 672.54 of the Criminal Code;
(3) The Board’s reasons are inadequate; and
(4) Alternatively, a treatment impasse had been reached, requiring an independent assessment of Mr. Hassan’s treatment and risk.
[4] Mr. Hassan and amicus ask that this court substitute a minimum secure detention order, or a hybrid order allowing Mr. Hassan to be transferred to a lower level of security at the discretion of the person in charge of the hospital. Alternatively, Mr. Hassan asks for a new hearing or an independent assessment of his treatment and risk.
B. RELEVANT BACKGROUND
(a) Mr. Hassan’s personal circumstances
[5] Mr. Hassan was born in Somalia in 1979. He is now 32 years old. When he was eight years old, his parents divorced. When he was ten, his father brought him and his sister to Canada. He has lived in Canada since then, mostly with his mother. His father returned to Somalia. Mr. Hassan has little contact with him.
[6] Mr. Hassan has no formal education beyond grade 10; he has no history of employment; and he has had few friends and no romantic relationships. He is, however, close to all members of his family living in Canada.
[7] Before the index offences (in 2000), Mr. Hassan was charged with a criminal offence only once. It occurred in 1997, when he was charged with assaulting his cousin with a knife, threatening her death and possessing a weapon. The charges were withdrawn and Mr. Hassan entered into a peace bond.
(b) Mr. Hassan’s schizophrenia
[8] After Mr. Hassan entered into a peace bond, his mother arranged for his admission to Wellesley Hospital in Toronto. He was hospitalized for two weeks and diagnosed as suffering from schizophrenia. His family doctor noted that Mr. Hassan experienced chronic, unremitting psychotic symptoms.
(c) The index offences and NCR finding
[9] On February 14, 2000, Mr. Hassan called the police five times to complain about neighbours he said were bothering him. He then walked into the main lobby of a police station in Toronto, brandishing a steak knife. He walked to the front counter and said to the police officer there: “I kill you, I kill you.” Mr. Hassan then lunged at the officer with his knife. Shortly after doing so, Mr. Hassan ran from the station. He was eventually caught after a lengthy foot chase.
[10] Mr. Hassan was charged with threatening death, possession of a weapon dangerous to the public, and assault with a weapon. On October 30, 2001, he was found not criminally responsible on account of mental disorder.
(d) Mr. Hassan’s detention at CAMH
[11] In January 2002, Mr. Hassan was admitted to CAMH. He has remained at CAMH for the past nine years, except for brief periods beginning in 2008 when he lived in the community. During his entire stay at CAMH – until the Board’s disposition now under appeal – Mr. Hassan has been maintained in a minimum secure unit.
[12] Annual Board dispositions have ordered Mr. Hassan’s detention in a minimum secure unit even though, on several occasions, he has failed to take his medications and left the hospital without leave. Indeed, although Mr. Hassan’s treatment team has given him a broad range of psychotropic medications, he has continued to exhibit psychotic symptoms.
(e) The Board’s April 15, 2010 disposition
[13] The Board’s last disposition before the disposition under appeal was issued on April 15, 2010. Mr. Hassan was ordered to be detained in the minimum secure unit of CAMH with privileges that included being able to live in the community in approved accommodation approved by the person in charge of the Centre.
[14] In its reasons for this disposition, the Board referred to the evidence of Dr. Pallandi, who had been Mr. Hassan’s treating psychiatrist for a decade. In Dr. Pallandi’s opinion, Mr. Hassan suffers from treatment resistant schizophrenia. Nonetheless, Dr. Pallandi testified that Mr. Hassan had had a “reasonably good year” and that Mr. Hassan’s mother “is a reliable overseer of his mental state and conduct while living in the community.”
[15] In the concluding section of its reasons, the Board noted that Mr. Hassan “decompensates rapidly and unpredictably,” has “required locked seclusion for agitated and threatening behaviour when readmitted to hospital,” and “requires very close supervision of both his medication administration and his prevailing mental state.” The Board concluded that the least onerous and least restrictive disposition was to maintain Mr. Hassan in a minimum secure unit.
C. THE DISPOSITION UNDER APPEAL
(a) Incidents between April and August 2010, leading to an early disposition review
[16] An early review of Mr. Hassan’s disposition came about for two reasons. First, in May 2010, he was transferred to and detained in the Secure Observation and Treatment Unit of CAMH for more than seven days, thus requiring the Board’s review of this restriction on his liberty. Second, Mr. Hassan’s conduct in the period from April to July sufficiently concerned the hospital that it sought an early review and transfer to the medium secure unit. A brief summary of this conduct is as follows:
• On April 11, Mr. Hassan expressed paranoid delusions about the nursing staff and threatened to kill one nurse.
• On May 1, he suddenly began running around opening co-patients’ doors, banging doors loudly, and attempting to open the rear exit door. When Mr. Hassan refused to stop, he was placed in a seclusion room under constant observation.
• On May 4, he assaulted a co-patient and was again placed in locked seclusion for 12 hours.
• On May 5, he was transferred to the Secure Observation and Treatment Unit, where he remained for over one week.
• On May 16, Mr. Hassan began harassing co-patients and aggressively invading their space. He was placed in locked seclusion with security present. He had episodes where he appeared delusional, moved around without purpose, and did not respond to staff.
• In early June, he remained psychotic and disorganized. He made sexual gestures to female staff, became increasingly disruptive, and refused to take direction or his medication.
• On June 16, he was found damaging property and himself. He had become acutely psychotic and was locked in seclusion for two weeks.
• In July, Mr. Hassan erratically confronted other patients and had a physical confrontation with one of them. He continued to require short stays in seclusion because of his behavior.
(b) The hearing before the Board on August 10
[17] Both the hospital and the Crown recommended a hybrid disposition: Mr. Hassan would be detained in the medium secure unit with hospital grounds privileges when accompanied by staff; and, if the person in charge determined that Mr. Hassan’s mental illness was clinically stable, he could be transferred to the general unit (formerly the minimum secure unit) with hospital grounds privileges up to indirect supervision.
[18] Mr. Hassan sought the continuation of his then current disposition.
[19] Only one witness testified at the Board’s hearing – Dr. Alina Iosif, who had treated Mr. Hassan for the previous three months. In her opinion, Mr. Hassan continued to pose a significant threat to the safety of the public, and his risk could only be safely managed in a “secure forensic unit.” Dr. Iosif did not believe that Mr. Hassan could be managed in a minimum secure unit because of his “mental instability, aggressive and inappropriate behavior.” Also, she thought it “not likely” that he could be discharged in the community over the course of the year. She testified that he was very ill at the time and that, though he could conceivably be transferred to a minimum secure unit if his condition improved, that would take some considerable time – in her words, “All of that would probably take up most of a year”.
(c) The Board’s disposition
[20] In brief reasons, the Board concluded that the least onerous and least restrictive disposition was to detain Mr. Hassan in the medium secure unit of CAMH with hospital and grounds privileges accompanied by staff. The Board rejected the hybrid disposition recommended by the hospital and Crown. It found that “there was a significant escalation in the frequency and degree of aggressive, assaultive and threatening behaviour since the last ORB review”. The Board, however, left open the possibility of a request for an early review if Mr. Hassan’s clinical status improved.
D. THE ISSUES
First issue: Was the Board’s disposition unreasonable?
[21] All parties accepted that Mr. Hassan continued to pose a significant threat to the safety of the public. Therefore, the Board’s task was to fashion the least onerous and least restrictive disposition for Mr. Hassan, taking into account the four factors in s. 672.54 of the Criminal Code: the need to protect the public; Mr. Hassan’s mental condition; his reintegration into society; and his other needs.
[22] Mr. Hassan and amicus submit that the Board’s disposition was not the least onerous and restrictive. Rather, it was unreasonable, justifying this court’s intervention.
[23] In support of this submission, amicus makes these points: the Board’s disposition restricts Mr. Hassan’s liberty even more than the hospital and the Crown had recommended; its disposition was inconsistent with the evidence of Dr. Iosif, the only expert to testify before the Board; historically, Mr. Hassan has exhibited unpredictable ups and downs in his behavior, yet the Board has consistently ordered his detention in a minimum secure unit; and even the privileges accorded by the Board were unreasonably limited. In my judgment these points – taken either individually or collectively – do not justify interfering with the Board’s disposition.
[24] I accept that the Board ought to tread cautiously before making an order that restricts an accused’s liberty beyond that which the hospital and the Crown think necessary. That is especially so in Mr. Hassan’s case because, under the Board’s disposition, his security level is higher than it had been for all of his previous eight years at CAMH.
[25] However, the Board does not necessarily err because it declines to follow a hospital’s or Crown’s recommendation. Automatically adhering to the position of a hospital or Crown would mean abdicating its own role. A review board is composed of medical and legal experts with specialized knowledge and experience in mental health and in risk assessment and management. Parliament has vested these boards with authority to make their own independent and often difficult determinations after weighing the package of factors in s. 672.54 of the Code. For these reasons, appellate review of their determinations is limited. On the first ground of appeal we can interfere only if, after a somewhat probing examination, we conclude that the Board’s disposition is unreasonable.
[26] I conclude that the Board’s disposition ordering Mr. Hassan’s detention in the medium secure unit of CAMH is reasonable and supported by the evidence at the hearing. That evidence, which I have summarized earlier in these reasons, shows that Mr. Hassan’s behavior and condition had worsened significantly since his last disposition. As the Board found, his aggression, his threatening behavior and his assaultive conduct had increased both in frequency and degree. This significant change went beyond the “ups and downs” present in previous years, and reasonably justified the Board’s detention order.
[27] Further, I do not think that Dr. Iosif’s testimony assists Mr. Hassan. Dr. Iosif treated Mr. Hassan during the period when his condition worsened, and was the only expert to testify before the Board. Her evidence was therefore entitled to considerable weight. In my view, her evidence supported the Board’s order.
[28] Dr. Iosif was unequivocal in her opinion that Mr. Hassan’s current disposition should not continue, and that instead he should be detained in a medium secure unit. Detention in a medium secure unit was not only required; in her opinion, it would likely be necessary for most of the year.
[29] Dr. Iosif’s evidence did provide modest support for the hybrid order recommended by the hospital, as she did not foreclose the possibility of a transfer to the minimum secure unit during the year. But she estimated that any such possibility would not arise until much later in the year. In substance, the Board itself contemplated this possibility by leaving open the opportunity for an early review if Mr. Hassan’s condition improved. Therefore, I am not persuaded the Board acted unreasonably in rejecting a hybrid order.
[30] Finally, the Board took into account the effect on Mr. Hassan’s liberty of the privileges it found appropriate. Although the Board did not allow for the potential for indirect supervision on hospital grounds or access to the community, it found: “the medium secure unit with the higher ratio of staff to patient will enable him to utilize more privileges that require staff to accompany the accused, than could be provided in the general minimum unit.” That finding, too, is supported by Dr. Iosif’s evidence. I cannot say that this finding is unreasonable.
[31] For these reasons, I would not give effect to the first and main ground of appeal advanced by Mr. Hassan and amicus.
Second Issue: Did the Board fail to consider the four factors in s. 672.54 of the Code?
[32] Amicus submits that the Board failed to analyze the four factors in s. 672.54 in any meaningful way. This submission is closely related to her submission on the unreasonableness of the disposition. In particular, she contends that the Board did not explain why Mr. Hassan’s decompensation in 2010 warranted his detention in a medium secure unit, when his decompensation in previous years was typically followed by sufficient improvement to maintain him in a minimum secure unit. I agree that the Board does not expressly address amicus’ contention. Ideally, it should have done so.
[33] Still, I think it implicit, if not explicit, that the Board considered Mr. Hassan’s behaviour in 2010 to be of a different order of dangerousness than his decompensating behaviour in previous years. Dr. Iosif’s evidence supports this assessment. I would not give effect to this ground of appeal.
Third Issue: Were the Board’s reasons inadequate?
[34] The Board’s reasons are perfunctory. Again, further elaboration or explanation for its findings and conclusion would have been desirable, especially as the Board was changing a disposition that had been in effect for eight years.
[35] However, the Board’s reasons do permit meaningful appellate review and, for that reason, are not inadequate as a matter of law. As I have already discussed, it is evident why the Board made the order it did: the significant escalation in the frequency and degree of Mr. Hassan’s aggressive, assaultive and threatening behaviour coupled with Dr. Iosif’s testimony. I would not give effect to this ground of appeal.
Fourth Issue: Was there a treatment impasse?
[36] In the alternative, amicus submits that the Board’s disposition implies a treatment impasse. Amicus argues that the Board effectively found little likelihood that Mr. Hassan would make any real progress over the coming twelve months. Thus, his treatment and risk ought to be independently assessed. I do not accept this submission.
[37] A treatment impasse occurs “where no progress has been made or is likely to be made.” See Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326. That is not the case with Mr. Hassan. His medication was being adjusted; other treatments were being considered. As counsel for the Crown said in her factum, “There remained hope that changes in medication would improve [Mr. Hassan’s] fluctuating condition.” Certainly in the past, changes to his medication had brought about improvement. So, a transfer to a less secure environment remained a possibility. If it were otherwise, one might have expected the issue of a treatment impasse to have been raised before the Board. Yet no party – not Mr. Hassan’s counsel or Dr. Iosif – adverted to it. I would not give effect to this last ground of appeal.
E. CONCLUSION
[38] I would dismiss Mr. Hassan’s appeal. As always, we are grateful to amicus for her assistance.
RELEASED: Aug 24, 2011 “John Laskin J.A.”
“JL” “I agree Kathryn Feldman J.A.”
“I agree Robert P. Armstrong J.A.”