Court of Appeal for Ontario

Date: 2018-03-28 Docket: C63919

Judges: Feldman, Watt and Paciocco JJ.A.

In the Matter of: Iman Hammoud

An Appeal Under Part XX.1 of the Code

Counsel:

• Michael Davies, for the appellant
• Jacquie Dagher, for Royal Ottawa Mental Health Centre
• Molly Flanagan, for the Attorney General

Heard: March 16, 2018

On appeal from the disposition of the Ontario Review Board dated May 2, 2017.

Reasons for Decision

On July 12, 2001 the appellant was found NCRMD on several charges arising out of harassing and threatening conduct. She is presently subject to a disposition of the Ontario Review Board issued on May 2, 2017 detaining her in the Secure Forensic Unit of the Royal Ottawa Mental Health Centre with conditions including community living in accommodation approved by the person in charge of the hospital.

Background

[1] The appellant, who is 59 years of age, meets the diagnostic criteria for Schizoaffective Disorder. She continues to lack insight into her illness and lacks the capacity to consent to treatment for her illness.

Issue on Appeal

[2] On appeal, the appellant advances a single claim of error. She submits that the Board failed to conduct its analysis of the "significant threat" threshold in accordance with the requirements of Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625.

Appellant's Submissions

[3] The appellant says that the "significant threat" threshold is onerous. The Board must be satisfied on the basis of the evidence adduced at the hearing that threat posed is significant, not only in the sense that there must be a real risk of physical or psychological harm occurring to individuals in the community, but also in the sense that this potential harm must itself be serious. The conduct or activity creating the harm must also be criminal in nature.

[4] In this case, according to the appellant, there is no basis upon which an inference or conclusion that the appellant presented a significant threat of physical harm to others. And as for a significant threat of psychological harm, the appellant argues, the evidentiary cupboard is equally bare. The appellant acknowledges that her behaviour is bothersome, but it is neither criminal nor seriously harmful.

Board's Reasoning

[5] The Board expressed its conclusion on the significant threat "issue" in these terms:

That finding is based on the fact that Ms. Hammoud has suffered from Schizoaffective Disorder for more than 30 years and that she has engaged in behaviour over the years that is both harassing and threatening, clearly causing psychological harm to those persons who have been subject of her harassment. This is not simply trivial or bothersome behaviour, and it has been of a criminal nature in the past. Ms. Hammoud has no insight into her mental illness and has been consistently resistant to accepting medication for the treatment of that illness. It is clear that she would discontinue treatment if given the opportunity to do so.

Legal Framework

[6] Section 672.5401 defines what constitutes "a significant threat to the safety of the public" as "a risk of serious physical or psychological harm to members of the public – including any victim of or witness to the offence… - resulting from conduct that is criminal in nature but not necessarily violent".

[7] The "significant threat" threshold involves an onerous standard. To find "a significant threat to the safety of the public", the Board must be satisfied both as to the existence and gravity of physical or psychological harm posed by an NCR accused. Said in another way, there must be a serious risk of serious harm from criminal conduct: Carrick, Re, 2015 ONCA 866, at para. 17; Wall, Re, 2017 ONCA 713, at para. 26.

Court's Analysis

[8] A careful review of the entirety of the Reasons for Disposition delivered by the Board fails to persuade us that the Board conducted the required analysis either of the risk of psychological harm or of the potential gravity of that risk.

[9] There was no doubt that for three decades the appellant has suffered, as she continues to suffer, from a serious mental disorder. Equally, there was no doubt that, presented with the opportunity to do so, the appellant would discontinue her medication. But these are not the risks at which the "significant threat" threshold in s. 672.5401 is directed. In our view, read as a whole, the reasons of the Board reveal legal error – the failure to apply the proper test for "significant threat to the safety of the public" to the evidence adduced at the hearing.

Decision

[10] For these reasons, the appeal is allowed. The disposition set aside, and a new hearing directed before a differently constituted Board.

K. Feldman J.A. David Watt J.A. David M. Paciocco J.A.