Court of Appeal for Ontario

Date: 2018-04-18 Docket: C64273

Judges: Watt, Brown and Huscroft JJ.A.

In the Matter of: Ali Amini

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

Anita Szigeti, for the appellant Ali Amini
Susan Magotiaux, for the respondent the Attorney General of Ontario
Gavin S. MacKenzie, for the respondent Person-in-Charge, Centre for Addiction and Mental Health

Heard: February 23, 2018

On appeal against the disposition of the Ontario Review Board, dated August 11, 2017.

Reasons for Decision

Overview

[1] The appellant, Ali Amini, appeals the disposition of the Ontario Review Board (the "Board") dated August 11, 2017 (the "Order") that continued his conditional discharge on terms.

[2] The appellant submits the Board erred in holding that the appellant was a significant threat to the safety of the public.

[3] In 2006, the appellant was found not criminally responsible on account of mental disorder on charges of assault causing bodily harm and mischief. The incident involved the appellant attacking and injuring a hospital psychiatrist.

[4] The appellant's current diagnosis is schizoaffective disorder, substance use disorder, and antisocial personality traits. The appellant has been found incapable with respect to treatment.

[5] The appellant was discharged to live in the community in October 2007. However, between that time and 2016 he was readmitted six times to various hospitals.

[6] In August 2016, the Board granted the appellant a conditional discharge. There were no readmissions to a hospital prior to the Board hearing on August 3, 2017.

The 2017 Review Hearing

[7] At the appellant's 2017 review hearing, the Centre for Addiction and Mental Health (the "Hospital") recommended the continuation of the appellant's conditional discharge, although that was not the unanimous view of his treatment team. Some recommended a detention order. The appellant sought an absolute discharge.

[8] The Board continued the appellant's conditional discharge. It found that the appellant remained a significant threat to the safety of the public for two main reasons. First, the Board concluded that a combination of factors resulted in the appellant presenting with a risk profile that placed public safety in jeopardy. Those factors were: (i) the appellant lacked insight into his mental illness and the need for treatment; (ii) the Board accepted the psychiatrist's evidence that the appellant would not take medication in the absence of a Board order; (iii) even with his current medication, the appellant continued to experience residual symptoms of his illness and to hold beliefs and delusions as a result of his illness; and (iv) although there had not been any decompensation of the appellant's condition during the review year as a result of his continued marijuana use, in the past such use had led to clinical worsening and readmissions to hospital.

[9] Second, the Board accepted the evidence of the psychiatrist that "were the appellant to discontinue medication, his symptoms could worsen and lead to the potential for violence" of a kind seen in the 2006 index offence and in 2015. The Board accepted that "that risk can and may well be exacerbated by marijuana use, and there is every indication at present that [the appellant] will continue to use marijuana in contravention of his Disposition."

[10] The 2015 incidents referred to by the Board took place in March and May of that year. In March 2015, the appellant began leaving voicemail messages with one of his supervising treatment teams espousing his delusional beliefs, which led his then treating psychiatrist to refuse to meet alone with him. On two occasions in May 2015, the appellant made threatening statements to his treatment team and Hospital staff. On the first occasion, he said "knowing how…if I had to kill someone" and then expressed aggressive thoughts towards his psychiatrist. On the second, he told a staff member that medications were causing him to experience command hallucinations to kill his psychiatrist.

[11] The Board also accepted the psychiatrist's evidence that the appellant's risk on a conditional discharge could be managed under the Mental Health Act, R.S.O. 1990, c. M.7.

Analysis

[12] The appellant submits the Board's conclusion that he was a significant threat to the safety of the public was unreasonable. He submits that he has not committed any offence involving violence since 2006 and the 2015 incidents relied on by the Board "did not disclose real potential for harm." The appellant argues that the possibility that his symptoms could worsen and lead to the potential for violence in the event he was granted an absolute discharge did not establish that he remained a significant threat to the safety of the public. He contends that in the absence of evidence to support the likelihood of serious criminality in the event of his discharge, he was entitled to an absolute discharge.

[13] We are not persuaded by these submissions.

[14] To find that an NCR accused is a significant threat to the safety of the public requires that "there must be a foreseeable and substantial risk that the NCR accused would commit a serious criminal offence if discharged absolutely": Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 69.

[15] Making such a risk assessment is "difficult yet critically important": Winko, at para. 61. The assessment "concerns probabilities, not facts, and involves estimations based on moral, interpersonal, political and sometimes arbitrary criteria": Winko, at para. 56. It may be "extremely difficult even for experts to predict whether a person will offend in the future", although the "tendency to over-estimate dangerousness must also be acknowledged and resisted": Winko, at para. 58.

[16] The assessment requires the Board to examine a range of evidence, including the circumstances of the index offence, the past and expected course of the NCR accused's treatment, the present state of his medical condition, his own plans for the future, the support services available to him in the community, and "perhaps most importantly, the recommendations provided by experts who have examined the NCR accused": Winko, at para. 61.

[17] The Board's reasons disclose it examined a broad range of relevant evidence concerning the appellant in order to ascertain whether there existed a foreseeable and substantial risk that he would commit a serious criminal offence if discharged absolutely. Its conclusion that such a risk existed was a reasonable one on the evidence before it. The conclusion was supported by the four factors the Board identified as making up the appellant's risk profile, as well as by the evidence of the serious, threatening statements he made in 2015 to psychiatrists and hospital staff.

[18] Given that evidence, we are not persuaded that it was unreasonable for the Board to find that the appellant was a significant threat to the safety of the public.