Court of Appeal for Ontario

Citation: Hassan (Re), 2013 ONCA 236 Date: 2013-04-15 Docket: C56229

Before: Doherty, MacPherson and Cronk JJ.A.

In the Matter of: Omar Hassan

An appeal under Part XX.1 of the Code

Counsel: Omar Hassan, appearing in person Joseph Di Luca, amicus curiae Michael Medeiros, for the respondent

Heard: April 11, 2013

On appeal against the disposition of the Ontario Review Board dated July 4, 2012.

Endorsement

[1] On May 24, 2011, the appellant was found not criminally responsible ("NCR") on account of mental disorder in respect of three counts of disarming a police officer and one count each of assault causing bodily harm, aggravated assault, and failure to comply with probation. As a result, the appellant came under the jurisdiction of the Ontario Review Board ("the ORB").

[2] The appellant was the subject of a disposition hearing before the ORB on June 20, 2012. The appellant and the Centre for Addiction and Mental Health ("the hospital") sought a hybrid disposition that would detain the appellant in the secure unit but grant discretion to the hospital to transfer him to the general forensic unit if appropriate. The Crown sought a disposition detaining the appellant in the secure forensic unit.

[3] In a disposition dated July 4, 2012, with written reasons released on August 21, 2012, the ORB found that the appellant was a significant threat to public safety and ordered him detained on the secure unit. The appellant was granted the following privileges – attend within or outside the hospital for necessary medical, dental, legal or compassionate purposes; hospital and grounds privileges, escorted by staff or a person approved by the person in charge of the hospital; hospital and grounds privileges, indirectly supervised; and to enter the community, accompanied by staff or a person approved by the person in charge of the hospital.

[4] The appellant appeals this disposition. He now seeks a transfer to the general unit.

[5] Amicus curiae has been appointed to assist. Amicus submits that the ORB erred in refusing to grant the hybrid order sought by the appellant and the hospital. This error, asserts amicus, flowed from findings not supported by the evidence and from a failure to properly apply the least onerous and least restrictive test.

[6] Amicus contends that the ORB refused to make a hybrid disposition primarily based on its findings that the appellant does not respond to incentive-based motivation because of his personality issues and that the hybrid order would create a false expectation on the part of the appellant. Amicus submits that neither of these findings is supported by the record.

[7] We do not accept this submission. In our view, these components of the ORB's reasons had a solid evidentiary foundation anchored in the hospital's report and Dr. Woodside's testimony. Some of the appellant's antisocial personality traits, which the ORB described as an "ingrained pattern" of continuing to engage in "very concerning behaviours with little or no regard to consequences of his behaviour" strongly suggested that the appellant would not make sufficient progress to justify a transfer to the general forensic unit prior to the next annual review.

[8] Nor do we think that the ORB failed to apply the least onerous and least restrictive test in crafting its disposition. There was no issue before the ORB, and there is none before this court, about the appellant's continuing risk to public safety. The appellant's three attacks on police officers, the injuries (some quite serious) to those officers, and his continuing behaviour problems in the hospital combine to make the ORB's disposition of detention in the secure unit eminently reasonable.

[9] We note that the specialized expertise of the ORB attracts considerable deference to their dispositions when they are reviewed for reasonableness: see Winko v. British Columbia (Forensic Psychiatric Institute), 1999 694 (SCC), [1999] 2 S.C.R. 625 at para. 61. In our view, this deference is particularly appropriate in a context, as here, where there is very little difference between the actual disposition (detention in a secure unit) and the competing disposition considered by the ORB (detention in a secure unit with discretion granted to the hospital to transfer the patient to the general unit if appropriate). It is for this reason that it is not surprising that in some recent cases this court has declined to interfere with ORB decisions that rejected so-called hybrid orders: see, for example, Re Hassan, 2011 ONCA 561, at para. 29; and Re Kelly, 2012 ONCA 265, at para. 3.

[10] The appeal is dismissed.

"Doherty J.A."

"J.C. MacPherson J.A."

"E.A. Cronk J.A."