Court of Appeal for Ontario

Date: 2018-02-26 Docket: C63908

Panel: Hoy A.C.J.O., Simmons and Pardu JJ.A.

In the Matter of: Robiel Negash

An Appeal Under Part XX.1 of the Criminal Code

Counsel

For the Appellant: Anita Szigeti

For the Person in Charge of the Centre for Addiction and Mental Health: Kathryn Hunt

For the Attorney General of Ontario: Jacob Sone

Hearing and Appeal

Heard: February 12, 2018

On appeal against: The disposition of the Ontario Review Board, dated May 24, 2017.

Reasons for Decision

[1] On February 9, 2010, the appellant, Robiel Negash, now aged 30 years, was found not criminally responsible on account of mental disorder on a charge of robbery, contrary to the Criminal Code of Canada. He has been subject to the jurisdiction of the Ontario Review Board since that time. He is diagnosed as suffering from schizophrenia and substance use disorder.

[2] In 2017, the appellant's treatment team asked the Centre for Addiction and Mental Health (the "Hospital") to request an early Board hearing under s. 681(2) of the Criminal Code, to obtain a new disposition that would improve their ability to manage the appellant in the community.

[3] In its Reasons for Disposition dated June 15, 2017, the Board found that the appellant remains a significant threat to the safety of the public. The appellant had not contested the evidence that he remained a significant threat to the safety of the public and he does not challenge that finding on appeal.

[4] The Board also accepted the submissions of the Hospital and the Crown that, having regard to the appellant's recent deterioration, the appellant's risk could only be managed on a detention disposition, with privileges up to and including the ability to live in the community, and that a conditional discharge was no longer appropriate.

[5] On appeal, the appellant argues that: (1) despite articulating the correct legal test in its analysis, the Board failed to apply the correct test when it ordered that the appellant be detained, and (2) the Board unreasonably concluded that a conditional discharge was not appropriate.

[6] In particular, the appellant argues that the Board's conclusion that a detention order was necessary and appropriate was unreasonable because, in his view, a conditional discharge, with a term, on his consent, requiring that he comply with treatment, could manage his risk as well as or better than a detention order. He notes that the Board did not propose to immediately change his existing residence in the community. He submits that if he failed to follow the conditions of a conditional discharge he could be returned to the Hospital expeditiously for breaching his conditions pursuant to the provisions of the Criminal Code. He argues that the Hospital's assertion that a detention order is required to manage the risk he presents is not reasonable given its failure to rely on his breaches of his conditional discharge, in the period leading up to his 2017 hearing before the Board, to return him to Hospital.

[7] We are not persuaded that there is any basis to interfere with the Board's disposition.

[8] In our view, the appellant seeks to characterize his disagreement with the result of the Board's application of the correct test as a legal error in the application of that test. Nothing in the Board's Reasons for Disposition suggest that it failed to apply the correct legal test.

[9] Nor is the Board's disposition unreasonable.

[10] The Board accepted the evidence of the appellant's treating psychiatrist that the appellant had become increasingly more impulsive, his insight into his illness was unstable, he had not been compliant with the terms of his conditional discharge, and there was a strong likelihood that he would become non-adherent with medication again. It was entitled to do so. The Board also noted that the Mental Health Act, R.S.O. 1990, c. M.7 ("MHA") had not addressed the appellant's needs. Even when it was possible to admit him to Hospital on a Form 1, it was not always possible to keep him in Hospital for the time needed to adequately stabilize him.

[11] The Board concluded that a detention order, which would have the benefit of quick readmission should the appellant's presentation warrant it, was necessary and appropriate, given his current presentation.

[12] The Criminal Code provisions on which the appellant relies would require that he be arrested for breach of the terms of his conditional discharge and held in custody to be brought before a justice, who – assuming that the terms of the conditional discharge required it – could then order that the appellant be returned to the Hospital. But a return to the Hospital would not necessarily effect a readmission of the appellant to the Hospital. Readmissions could only be effected on either a voluntary basis, or if the appellant met the criteria for involuntary admission under the MHA. Further, the threshold for the continued detention of the appellant at the Hospital under the MHA is high. In January 2017, the appellant did not agree to hospitalization and, in February 2017, the appellant discharged himself against medical advice. As indicated above, the Board noted that the MHA had not addressed the appellant's needs.

[13] Having regard to the evidence of the appellant's recent deterioration, the strong likelihood of non-adherence with medication, and the ineffectiveness of the MHA in managing the appellant's risk, the need to ensure his quick readmission to and detention at the Hospital in the event of decompensation provided a reasonable basis for finding that a detention order is the least restrictive, least onerous disposition and is necessary and appropriate. In so concluding, we note the Hospital's acknowledgement that s. 672.56(2) of the Criminal Code would require it to notify the Board if it detained the appellant in Hospital for more than seven days. The Board would then have to hold a hearing regarding his detention in hospital as soon as practicable.

[14] Accordingly, the appeal is dismissed.

"Alexandra Hoy A.C.J.O."

"Janet Simmons J.A."

"G. Pardu J.A."