Court of Appeal for Ontario
Date: 2017-02-15 Docket: C62345 Panel: Doherty, Laskin and Roberts JJ.A.
In the Matter of: Farooq Zazai
An Appeal Under Part XX.1 of the Code
Counsel:
- Meaghan McMahon, for the appellant
- Michelle O'Bonsawin, for the Royal Ottawa Health Care Group
- Kathleen Farrell, for the respondent
Heard: February 13, 2017
On appeal against the disposition of the Ontario Review Board, dated May 20, 2016.
Appeal Book Endorsement
[1] The hospital recommended a conditional discharge, but the Board imposed a detention order with conditions.
[2] We do not agree that the Board's failure to order a conditional discharge constitutes an error. The appellant would not consent to the drug treatment essential to maintain his ability to live safely in the community. In the face of that non-compliance and the potential consequences of non-compliance, we cannot say the Board erred in declining to grant a conditional discharge.
[3] Second, the appellant could live safely in the community only if he lived at a residence approved by the hospital. This court has repeatedly said that a conditional discharge order cannot include a requirement that the accused live in a residence approved by the hospital. That order is a de facto detention order. The accused would not consent. In that circumstance, the Board's finding that a conditional discharge was not appropriate cannot be criticized.
[4] The appellant also argues that the Board should have found that there was a treatment impasse and ordered a second opinion or an independent assessment.
[5] The Board was alive to the potential treatment impasse. The hospital acknowledged a lack of progress, particularly as it related to the appellant's compliance with his medication regime.
[6] The Board agreed that it "may be time for a second opinion", but declined to make an order to that effect.
[7] The Board made a reasonable judgment in declining to make a specific order. No doubt, the hospital will give very serious consideration to the Board's comment before the next hearing is held.
[8] The appeal is dismissed.