Court of Appeal for Ontario

Date: October 17, 2017 Docket: C63197 Judges: Pepall, Benotto and Nordheimer JJ.A.

In the Matter of: Mohamed Abdikarim

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• Ken J. Berger, for Mohamed Abdikarim
• Erica Whitford, for the Attorney General of Ontario
• Michele Warner, for the Person in Charge of the Centre for Addiction and Mental Health

Heard: October 10, 2017

On appeal against the disposition of the Ontario Review Board dated December 14, 2016.

Reasons for Decision

Background

[1] Mohamed Abdikarim appeals from the December 14, 2016 disposition of the Ontario Review Board ("the Board"), ordering his detention at the General Forensic Unit of the Centre for Addiction and Mental Health ("CAMH"). The hearing before the Board was held on December 9, 2016.

[2] The appellant is a 33 year-old man born in Mogadishu, Somalia. His family lived in Saudi Arabia during his early years. He moved to Canada at age four with his mother and siblings. The appellant currently resides in Toronto, Ontario. He is single and does not have any children.

[3] The appellant is diagnosed with bipolar disorder – not otherwise specified; substance-use disorder, in partial remission; and personality-disorder – not otherwise specified.

Index Offences

[4] The index offences occurred in 2004. On March 26, 2004, the appellant was charged with robbery and possession of property obtained by crime, for grabbing the purse of a woman on the sidewalk. Though there was a brief struggle, there was no serious harm reported as a result of the incident. Days later, on March 30, 2004, the appellant was charged with theft over $5,000, theft under $5,000, robbery and possession of property obtained by crime for stealing a motor vehicle, and later, entering a bank with a threatening note and fleeing the scene with $2,600 given to him by the bank teller. A few months later, on July 14, 2004, the appellant was charged with robbery and failure to comply for attempting to rob another bank using a threatening note. He had no weapons on him and there was no reported serious harm from this incident.

[5] The appellant was eventually found to be not criminally responsible ("NCR") in respect of these offences. The appellant was admitted to the Medium Secure Forensic Unit at CAMH on November 18, 2005. Since his initial admission, the appellant has been in and out of CAMH on numerous occasions.

History at CAMH

[6] It is unnecessary to review in extensive detail the last twelve years of the appellant's interaction with CAMH. It is sufficient to note that he has consistently had to return to CAMH because of problems that he has experienced living in the community. Frequently these problems are caused by substance abuse involving alcohol, marijuana or both. These problems, when they arise, often involve concerns about the potential for physical violence that the appellant, himself, admits to. That said, there are very few instances of any actual physical violence being inflicted by the appellant.

[7] The appellant continued to pose these same problems in the year leading up to the Board's decision that is the subject of this appeal. The appellant would not follow rules, he would abuse privileges extended to him and, when outside of CAMH, he would continue his substance abuse.

Board Hearing and Evidence

[8] On December 9, 2016, a hearing was held to review the decision of CAMH to significantly increase the restrictions of liberty of the appellant, and to review the appellant's most recent disposition, to determine whether he remained a significant threat to the safety of the public. The evidence before the Board consisted of various hospital reports, the expert evidence of Dr. Walton, the appellant's treating psychiatrist, and the evidence of the appellant's mother, his cousin, and a local mental health worker.

[9] The Board essentially accepted the evidence of Dr. Walton that the appellant remained a significant risk to public safety due to his continued substance use and manic symptoms. Dr. Walton's opinion was that a detention order was necessary. Dr. Walton also noted that the appellant required supervised housing and that a conditional discharge to the family home was not viable since the appellant had consistently struggled there, resulting in several readmissions to hospital.

Fresh Evidence

[10] On appeal, the respondent, Person in Charge of CAMH, sought to introduce fresh evidence. The fresh evidence relates to conduct of the appellant since the Board's decision. More specifically, it reveals that the appellant had to be transferred to a Secure Forensic Unit at CAMH as a result of his disruptive conduct. Included in that conduct was an attempt to smuggle cigarettes into CAMH, aggressive and threatening behaviour, shoving or punching another patient, and verbal altercations. Security staff had to intervene with the appellant on more than one occasion.

[11] We would admit the fresh evidence as it is trustworthy and touches on the issue of risk to public safety. It goes directly to the concerns regarding the appellant's likely future conduct. It is also necessary to receive and consider that evidence in the interests of justice: R. v. Owen, 2003 SCC 33.

Legal Framework

[12] The Board's obligation is set out in s. 672.54 of the Criminal Code which reads:

When a court or Review Board makes a disposition under subsection 672.45(2), section 672.47, subsection 672.64(3) or section 672.83 or 672.84, it shall, taking into account the safety of the public, which is the paramount consideration, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is necessary and appropriate in the circumstances:

(a) where a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused and, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely.

(b) by order, direct that the accused be discharged subject to such conditions as the court or Review Board considers appropriate; or

(c) by order, direct that the accused be detained in custody in a hospital, subject to such conditions as the court or Review Board considers appropriate

[13] A "significant threat to the safety of the public" is defined in s. 672.5401 as "a risk of serious physical or psychological harm to members of the public — including any victim of or witness to the offence, or any person under the age of 18 years — resulting from conduct that is criminal in nature but not necessarily violent."

Application of the "Significant Threat" Standard

[14] The application of this standard was recently considered by this court in Wall (Re), 2017 ONCA 713. That decision, in turn, referred to the earlier decision of the Supreme Court of Canada in Winko v. British Columbia (Forensic Psychiatric Institute), where McLachlin J. discussed what constitutes a significant threat to public safety at para. 57:

To engage these provisions of the Criminal Code, the threat posed must be more than speculative in nature; it must be supported by evidence: [citation omitted]. The threat must also be "significant", both in the sense that there must be a real risk of physical or psychological harm occurring to individuals in the community and in the sense that this potential harm must be serious. A minuscule risk of a grave harm will not suffice. Similarly, a high risk of trivial harm will not meet the threshold. Finally, the conduct or activity creating the harm must be criminal in nature: [citation omitted]. In short, Part XX.1 can only maintain its authority over an NCR accused where the court or Review Board concludes that the individual poses a significant risk of committing a serious criminal offence. If that finding of significant risk cannot be made, there is no power in Part XX.1 to maintain restraints on the NCR accused's liberty.

[15] In Wall, this court observed that the "significant threat" standard is an onerous one and that it was not met in that case. In Wall, however, the appellant had insight into his mental disorder and his need for medication; he had not been physically violent for a period of more than ten years, nor had he caused psychological harm; and the evidence before the Board established, at best, that the appellant's marijuana use was only potentially linked to problematic symptoms. Also, in Wall, the Board was divided over whether a detention order was justified.

[16] The appellant's situation here is different. The appellant has difficulty monitoring and recognizing his symptoms. There is clear evidence of continual substance abuse by the appellant that leads inevitably to problematic conduct including at least one instance that caused psychological harm. These factors distinguish this case from the situation in Wall.

[17] Relying on the evidence of Dr. Walton and the hospital records, the Board reasonably concluded that the appellant posed a significant risk to the safety of the public. That conclusion is bolstered by the fresh evidence.

Standard of Review

[18] The decision of the Board is entitled to deference from this court. In that regard, the standard of review applicable to the Board's decision is reasonableness, absent an error of law of which none is identified here. In conducting a review, this court must bear in mind the caution expressed by McLachlin J. in Winko at para. 61:

Appellate courts reviewing the dispositions made by a court or Review Board should bear in mind the broad range of these inquiries, the familiarity with the situation of the specific NCR accused that the lower tribunals possess, and the difficulty of assessing whether a given individual poses a "significant threat" to public safety.

Board's Disposition

[19] The Board applied the least onerous and restrictive disposition available in the circumstances. The Board determined that discharging the appellant to his family home was not viable. This conclusion was supported by his numerous readmissions to CAMH, his history of conflict, the lack of insight on the part of a key family member regarding the appellant's mental health issues, and his family's inability to provide the necessary structure and supervision. The Board considered all of the evidence before it and reached a reasonable conclusion based on that evidence.

[20] We appreciate the appellant's frustration with the time that he has been subject to the supervision of the Board. On that point, however, we would note the following summary from the March 29, 2017 CAMH report, at p. 5:

The treatment team acknowledges that Mr. Abdikarim's course under the jurisdiction of the ORB and as a patient at CAMH has been lengthy and tenuous. There has not been an ideal setting to facilitate his rehabilitation, either as an inpatient, or as an outpatient. His fluctuating mental state has impeded his progress. Historically, he has benefitted from a structured setting. Considering his struggles, the original goals for re-admission in November 2016 were to formulate a relapse prevention plan, to engage in structured activities, re-evaluate housing, and to optimize medication management. Unfortunately, these goals have not yet been achieved. It is the team's opinion these goals remain valid, and are necessary for his successful rehabilitation.

Decision

[21] The appeal is dismissed.

S.E. Pepall J.A. M.L. Benotto J.A. I.V.B. Nordheimer J.A.