COURT OF APPEAL FOR ONTARIO

CITATION: Pasha (Re), 2014 ONCA 128

DATE: 20140218

DOCKET: C56984

Cronk, Watt and van Rensburg JJ.A.

IN THE MATTER OF: Muhammed Zabieh Pasha

AN APPEAL UNDER PART XX.1 OF THE CODE

Paul Burstein, amicus curiae

Christine Bartlett-Hughes, for the Attorney General of Ontario

Julie A. Zamprogna Balles, for the Regional Mental Health Care, St. Thomas

Heard and released orally: December 5, 2013

On appeal against the disposition of the Ontario Review Board dated January 17, 2013.

ENDORSEMENT

[1] On July 15, 2010, the appellant was found not criminally responsible on account of mental disorder on charges of robbery and mischief under $5,000. During the entire period within which he has been under the jurisdiction of the Ontario Review Board, the appellant has been detained in the forensic unit of the Regional Mental Health Centre at St. Thomas.

[2] Earlier this year, the Board reaffirmed an earlier hybrid detention order that detains the appellant in the medium secure forensic unit in the hospital but permits hospital officials to exercise their discretion to transfer the appellant to the minimum secure forensic unit, should they consider it appropriate to do so.

[3] The appellant contends that the Board erred in refusing to grant him an absolute discharge. He says that the underlying finding that eliminated an absolute discharge as a disposition option - that he remains a significant threat to the safety of the public - is unreasonable and cannot be supported by the evidence introduced at the hearing. He argues further that the Board failed to take into account his evidence that he initially malingered his condition on the advice of his counsel and that he did not at the time of the hearing, and does not now, suffer from a mental disorder.

[4] Mr. Burstein, who appears as amicus, cannot identify any arguable grounds beyond those that the appellant has chosen to advance himself. Mr. Burstein points out that there was evidence before the Board that, considered cumulatively, could support a finding that the appellant presented a significant threat to the safety of the public.

[5] We are satisfied that the Board, in reaching its conclusions, considered but rejected the appellant’s claim that his initial symptoms were malingered and that he is not in fact suffering from a mental disorder. The Board, as it was entitled to do, rejected the claim of malingering and found on the evidence of the treating psychiatrists that the appellant suffered, and continues to suffer, from a major mental illness. That finding is firmly rooted in the evidence and does not reflect error.

[6] We are further satisfied that the Board properly concluded on evidence well capable of sustaining their finding that the appellant represents a significant threat to the public. With this finding, anchored in the evidence adduced at the hearing, there was no basis upon which the appellant could be granted an absolute discharge. The disposition ordered by the Board was, in our view, the least onerous and least restrictive disposition available in the circumstances.

[7] Crown counsel acknowledges that the appellant appears to do well when he takes his prescribed medication and follows the directions of his treatment team. The disposition made by the Board will permit this to continue provided the appellant remains treatment compliant.

[8] For these reasons, the appeal is dismissed.

“E.A. Cronk J.A.”

“David Watt J.A.”

“K. van Rensburg J.A.”