Court of Appeal for Ontario

Date: 2017-03-07 Docket: C62210 Judges: MacFarland, Pardu and Trotter JJ.A.

In the Matter of: Mwafak Hannora

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• Diana Lumba for the appellant
• Christine Laviolette for the respondent, Ontario Shores
• Brett Cohen for the respondent, Ministry of Attorney General

Heard: March 1, 2017

On appeal against the disposition of the Ontario Review Board dated April 29, 2016.

Endorsement

[1] At its hearing on April 16, 2016, the Board was required to determine whether or not Mr. Hannora remained a significant threat to the safety of the public, and if so, what was the necessary and appropriate disposition having regard to s. 672.54 of the Criminal Code of Canada (R.S.C., 1985, c. C-46).

[2] The Board determined that Mr. Hannora remained a significant threat to the safety of the public and that the necessary and appropriate disposition was to continue the current detention order, which required that he be detained in the Secure Forensic Unit.

[3] At the outset of the hearing, counsel for Mr. Hannora conceded that her client remained a significant threat to the safety of the public and that a detention order was the necessary and appropriate disposition.

[4] In this court, she submits that the submission to the Board was that Mr. Hannora should be placed in a general forensic unit and not in a secure forensic unit or continue to be detained in the secure unit with discretion to the hospital to transfer the appellant to the general unit, if appropriate. This latter remedy was referred to as "the hybrid option".

[5] Both the hospital and the Crown recommended that there be no change to Mr. Hannora's disposition.

[6] The appellant submits that the Board erred in three ways:

(1) It failed to provide reasons for rejecting a hybrid order;

(2) Misapprehended evidence that the appellant's risk for coercive sexual contact was low;

(3) Failed to apply "least onerous, least restrictive" disposition test.

Background

[7] The appellant was found NCRMD for a sexual assault committed in 2008. He has an extensive psychiatric history and suffers from a treatment-resistant Schizoaffective Disorder (bipolar type) and Polysubstance Abuse Disorder. The manic symptoms of his illness manifest themselves principally through inappropriate sexual behaviour. While he showed some improvement within the months leading up to the hearing which is the subject of this appeal – there were still a number of notable incidents of sexually inappropriate behaviour.

First Ground of Appeal: Hybrid Order

[8] As to the first ground, counsel for the appellant was asked at the outset of the hearing before the Board whether she took issue with either that the appellant remained a significant threat to the public or that a detention order was appropriate. She told the Board that she did not. The following exchange took place:

The chairperson of the Board said:

…and you agree that a detention order is appropriate, but what you're asking for is placement on a general forensic unit, is that right?

Ms. Hennebury:

Yes

The chairperson:

and in terms of privileges and conditions, do you have a position on that or is it your most important thing to have a general forensic unit?

Ms. Hennebury:

That would be what we're mainly focusing on today.

The chairperson:

Right. Okay. So that appears to be the issue, Ms. Lindo, a secure forensic unit or general forensic unit….

[9] The remedy of a hybrid order was not discussed at the hearing. Only at the very end of her cross examination of Dr. Krishnan – the last question – did counsel ask about the possibility with "a structured plan in place….when it is done slowly over time with a target in mind and a behavioural plan, perhaps even with, not necessarily the Board deciding, but the person in charge, is it possible that if he were given a plan like that, that may assist him in getting to a lower unit?"

[10] The doctor responded that while such a plan might assist "the primary driving force of his inappropriate behaviours appear to be his symptoms of mental illness and so appropriate treatment and optimization of his medication regime would be a big factor in helping him move on toward a general forensic unit".

[11] In our view, there was no need on this record to address the possibility of a hybrid order; such a disposition was simply not the focus of this hearing. Neither was there any air of reality to such a disposition on the evidence before the Board.

[12] The evidence before the Board was clear, that although Mr. Hannora had had a good year and there had been some improvement:

…it appeared unlikely that Mr. Hannora would be ready for a transfer to a general forensic unit. He continues to suffer from acute psychotic symptoms, which appear to be driving his sexually inappropriate behaviour.

[13] The current situation was described as follows:

In the community, as well as currently on his level of structure, even on the unit, he has engaged in sexually inappropriate behaviours, including exposing himself, propositioning others, engaging in inappropriate touching, engaging in self-pleasure behaviours while attending the pool. So it appears to be occurring, even with his current level of structure, although it has reduced, compared to the previous year.

[14] Mr. Hannora's illness has proven to be particularly resistant to antipsychotic medications. There was some improvement in 2013 when he was switched to Clozapine and more recently when the dosage of that drug was increased. At the time of the hearing before the Board, his team hoped to get permission to add Sulpiride to his treatment with the hope:

….that it would decrease his active psychotic symptoms, in particular his auditory hallucinations, as well as delusions and a corollary to that that it would hopefully decrease his sexual pre-occupation as well.

[15] Sulpiride is not a drug that was approved for treatment in Canada at that time. The hospital's permission was in process and thereafter an application to Health Canada would be required for approval to obtain this drug.

Second Ground of Appeal: Misapprehension of Evidence

[16] Next, the appellant argues that the Board misapprehended evidence before it that the appellant was low risk for coercive sexual contact in making the disposition that the appellant remain on the secure unit.

[17] The hospital report at page 36 begins a discussion of the appellants' result on the Risk for Sexual Violence Protocol (RSVP) and concludes:

Mr. Hannora's risk for sexual re-offending is considered to be moderate-high for sexually inappropriate behaviour including exposure and inappropriate physical contact and high for sexual comments. Coercive sexual contact risk is considered low.

[18] The Board in its reasons notes:

It is his motivation to move to the General Forensic Unit since there are more females. He believes he will be able to have sex with them. This places the general population of the hospital and others at a greater risk were he to be moved to the General Forensic Unit.

[19] While his score for coercive sexual contact was considered low, his risk was moderate-high for sexually inappropriate behaviour and high for sexual comments.

[20] We do not accept the submission that the Board misapprehended this evidence. To the contrary, the Board mainly noted that the appellant "believes he will be able" to have sex with the females on the general unit and there was ample support for that statement in the hospital report. He is described at page 38 of that report as being "preoccupied with sex, with this being his reported motivator to move to a minimum unit."

[21] We are not persuaded the Board misapprehended the evidence before it. There was ample evidence, that although the appellant had improved over the reporting year, he continued to engage in sexually inappropriate behaviours.

[22] On a general unit, there would not be the necessary staffing levels to appropriately re-direct the appellant when he engaged in such behaviour.

Third Ground of Appeal: Least Restrictive Disposition

[23] Lastly, the appellant submits that in failing to consider a hybrid order the Board failed to consider the least restrictive, least onerous disposition for the appellant.

[24] We do not agree. Whether or not a hybrid order would be appropriate for the appellant was not a live issue before the Board at the hearing which is the subject of this appeal and the Board did not err in failing to consider such a disposition.

Fresh Evidence

[25] The appellant seeks to file an affidavit of a legal assistant which reports on a conversation one of the appellant's lawyers had in February, 2017 with Dr. Cole, who is the appellant's treating psychiatrist.

[26] Leaving aside the hearsay issues with the affidavit, it states in part:

Subject to any recent developments Dr. Coleman will be recommending the applicant's transfer to a general unit in the hospital report she expects to complete around mid-March.

[27] This reference would be to the hospital report being prepared for the appellants' next hearing scheduled for April 26, 2017.

[28] In point form the affidavit sets out the appellant's progress over the year since the hearing which is the subject of this appeal.

[29] It is filed in the event we find the Board made legal errors in the disposition of April, 2016 and we are considering making an alternate order.

[30] We would admit the fresh evidence. We are not however, persuaded the Board made any error in its disposition.

[31] In the event Dr. Coleman does, in her updated report, make the recommendation she forecasts in her discussion with counsel, it will of course be a relevant consideration for the Board at the Appellant's hearing on April 26, 2017.

Decision

[32] The appeal is dismissed.

J. MacFarland J.A.

G. Pardu J.A.

G.T. Trotter J.A.