COURT OF APPEAL FOR ONTARIO

CITATION: Abdikarim (Re), 2016 ONCA 823

DATE: 20161104

DOCKET: C61668

Laskin, Sharpe and Huscroft JJ.A.

IN THE MATTER OF: MOHAMED ABDIKARIM

AN APPEAL UNDER PART XX.1 OF THE CODE

Ken J. Berger, for the appellant

Michele Warner, for the respondent the Person in Charge of the Centre for Addiction and Mental Health

Alison Wheeler, for the respondent the Attorney General of Ontario

Heard: October 25, 2016

On appeal against the disposition of the Ontario Review Board, dated December 15, 2015.

ENDORSEMENT

[1] Mr. Abdikarim appeals the December 15, 2015 disposition of the Ontario Review Board. The Board ordered that he be detained in the general forensic unit at the Centre for Addiction and Mental Health (CAMH) and restricted his permission to live in the community by requiring him to live in “supervised” accommodation.

[2] Mr. Abdikarim makes two submissions on his appeal:

i. The Board erred by failing to consider whether Mr. Abdikarim ought to be conditionally discharged on the term that he consent to take any medication prescribed for him; and

ii. Alternatively, the Board erred in attaching to its condition imposed in 2014 – that he be permitted to live in the community in accommodation approved by the person in charge – the word “supervised”.

A. Background

[3] Mr. Abdikarim is 32 years old. He has a high school education. The index offences of theft and robbery took place over 12 years ago. Mr. Abdikarim did not physically harm any member of the public in either offence.

[4] Mr. Abdikarim was found not criminally responsible in October 2005. He has been diagnosed as suffering from bipolar disorder and personality disorder. He takes medication for his bipolar disorder.

[5] Mr. Abdikarim has been in the minimum secure unit of the hospital for ten years. Attempts at community living have been tried but have been unsuccessful. His 2014 disposition, which was the product of a joint submission, continued his detention in the hospital with delegated authority to allow Mr. Abdikarim to live in the community.

[6] At his 2015 hearing, Mr. Abdikarim did not dispute that he remained a significant threat to the safety of the public and thus he did not seek an absolute discharge. The principal issue before the Board was whether Mr. Abdikarim should be maintained on a hospital detention order, or conditionally discharged to live with his mother. The Board ordered that he be maintained in the hospital.

[7] The secondary issue was whether the Board ought to accede to the hospital’s request to modify the condition delegating authority to live in the community to specify “supervised” accommodation. The Board agreed with the hospital’s request.

B. The Issues

(1) Did the Board err by failing to consider a conditional discharge?

[8] At the 2015 hearing, Mr. Abdikarim requested a conditional discharge. His counsel told the Board that Mr. Abdikarim was amenable to taking any medication recommended for him as a term of a conditional discharge.

[9] Although the Board’s reasons and disposition implicitly rejected a conditional discharge, the Board did not expressly address Mr. Abdikarim’s request. It would have been better had the Board done so. Indeed, but for the fresh evidence filed on this appeal, we would have been concerned by the Board’s failure to address why a conditional discharge was not appropriate.

[10] However, the fresh evidence filed by the hospital, which we admitted at the outset of the appeal, shows that Mr. Abdikarim is not yet ready to be conditionally discharged. During the past year, he was twice discharged from CAMH to live in a supervised residence in the community. On both occasions he had to be readmitted to CAMH. We are told that as of August of this year he has again been discharged to live in supervised housing in the community.

[11] The fresh evidence shows that before being considered for a conditional discharge, Mr. Abdikarim must demonstrate that he is able to live in supervised accommodation in the community. At his next review this November, the Board will be able to assess whether Mr. Abdikarim’s recent attempt at community living has been successful.

[12] However, we are satisfied that in its 2015 disposition, the Board did not err in refusing to order a conditional discharge.

(2) Did the Board err in specifying that the accommodation must be “supervised”?

[13] The hospital asked that the term allowing Mr. Abdikarim to live in the community specify “supervised” accommodation. It did so for two reasons: to ensure any community living was structured; and to eliminate any conflict with Mr. Abdikarim, who thought that he could live anywhere.

[14] These reasons seem sensible to us. And the Board’s decision to insist on supervised accommodation was reasonable. It was supported by the opinion evidence of Dr. Chatterjee, and the Board was entitled to rely on her opinion.

C. Conclusion

[15] Accordingly, the appeal is dismissed.

“John Laskin J.A.”

“Robert J. Sharpe J.A.”

“Grant Huscroft J.A.”

APPENDIX A

ENDORSEMENT ON FRESH EVIDENCE APPLICATION

[1] In our view the test in Owen is met. It is in the interest of justice, and not more of the same, to have evidence of what occurred when the appellant was discharged to reside in supervised housing. The Board’s reasons make the evidence trustworthy, and we can take account of the Board’s findings. The fresh evidence is admitted.