Court of Appeal for Ontario

Date: 2018-12-11 Docket: C65353

Panel: Hoy A.C.J.O., Feldman and Fairburn JJ.A.

In the Matter of: Muneeb Ghawar

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• Janani Shanmuganathan and Erin Dann, for the appellant
• Dominic Bell, for the Attorney General of Ontario

Heard: December 5, 2018

On appeal from: The disposition of the Ontario Review Board, dated February 20, 2018.

Reasons for Decision

[1] The appellant has been under the jurisdiction of the Ontario Review Board ("the Board") since 2014. His index offences involve the near lethal knife attack on an acquaintance who the appellant believed was going to hurt him. He was found not criminally responsible of aggravated assault, fail to stop for the police and breach of a probation order.

[2] In March 2017, the appellant received a conditional discharge with various conditions, including that he live at his parents' home. At his yearly review in February of this year, the Board concluded that the appellant remains a significant threat to the safety of the community. While the Board continued the conditional discharge, it removed a number of the conditions that had previously bound the appellant's conduct.

[3] The appellant maintains that the Board erred in failing to grant him an absolute discharge. He argues that the Board made three errors, all of which we see as intertwined. The appellant contends that at the hearing: (a) the evidence demonstrated that he no longer presents a significant threat to public safety; (b) there was no positive evidence that he remains a significant threat to public safety; and (c) the Board reversed the burden of proof, requiring the appellant to prove that he was not a significant threat to the safety of the public.

[4] We disagree.

[5] Although the appellant's long-time psychiatrist testified in a way that supported an absolute discharge, the appellant fairly acknowledges that his psychiatrist's opinion was not binding on the Board.

[6] In our view, the Board's conclusion that the appellant continued to pose a significant threat to public safety fell within a range of reasonable outcomes based on the positive evidence before it. For instance, in coming to the conclusion that the appellant remains a significant threat, the Board relied upon the appellant's established insufficient concern about his threat to public safety when psychotic, the fact that he showed initial reluctance to accept case management, and his refusal to switch to long-acting injectable antipsychotic medication. These are only some examples of the kinds of positive evidence relied upon by the Board in determining that the appellant remains a significant threat to the public. These were legitimate concerns, especially in light of the particularly serious nature of the index offences.

[7] As the Board found, the appellant is "dangerous when ill, and extremely dangerous when psychotic." In light of the whole of the evidence, it was open to the Board to conclude that the appellant's threat of future serious violence was foreseeable and real, particularly in light of the increased stress that may result from the appellant's commendable desire to return to university. The Board had particular regard to this court's jurisprudence regarding what constitutes a "significant threat to public safety", citing Sokal (Re), 2018 ONCA 113 and Wall (Re), 2017 ONCA 713, 417 D.L.R. (4th) 124.

[8] We see no error in their approach.

[9] Having decided that the appellant remained a significant threat to public safety, the Board considered the necessary and appropriate disposition, concluding that a conditional discharge was appropriate, while removing some of the earlier conditions, including that the appellant live with his family. This allowed for continued monitoring of the appellant while simultaneously respecting the need to ensure the least onerous and restrictive disposition possible.

[10] Read contextually, the Board relied upon positive evidence in arriving at the conclusion that the appellant remains a significant threat to the safety of the public. There was no reversal of the burden of proof.

[11] Accordingly, the appeal is dismissed. Like the Board, we acknowledge the appellant's progress and encourage him to continue on this path to success.

"Alexandra Hoy A.C.J.O." "K. Feldman J.A." "Fairburn J.A."