Court of Appeal for Ontario

Date: 2019-06-05

Docket: C66163

Judges: Watt, Lauwers and Hourigan JJ.A.

In the Matter of: Sheab Afifi

An Appeal Under Part XX.1 of the Code

Counsel:

• Anita Szigeti, for the appellant
• Deborah Krick, for the respondent, Her Majesty the Queen
• Gavin MacKenzie, for the respondent, Person in Charge of the Centre for Addiction and Mental Health

Heard: May 22, 2019

On appeal against the disposition of the Ontario Review Board, dated October 10, 2018.

Reasons for Decision

[1] On November 22, 2006, Sheab Afifi was found not criminally responsible for mischief under $5,000 (x2), assault and uttering threats. Mr. Afifi has been diagnosed with schizophrenia, cannabis use disorder (partial remission), alcohol use disorder (sustained remission) and anti-social personality disorder. He is capable of consenting to his own treatment. He was subject to a detention order and is placed at the Centre for Addiction and Mental Health ("CAMH" or "the hospital").

[2] This appeal concerns two restrictions on liberty hearings and the annual hearing for the 2018 reporting year. The Ontario Review Board found that the two restrictions on liberty were warranted and represented the least onerous and least restrictive decisions in the circumstances. The Board imposed a detention order (General Forensic Unit).

[3] Mr. Afifi appeals. He argues that the Board erred in failing to grant him a conditional discharge. He takes the position that his risk can be managed safely with a conditional discharge and resort to the provisions of the Mental Health Act, R.S.O. 1990, c. M.7. He also asserts that the hospital's threshold for admitting him to hospital is too low, overly restrictive and onerous. Counsel for the appellant submits that his aggressive behaviour is often not derivative of his mental illness, but of his personality.

Index Offences and Detention History

[4] On August 20, 2006, Mr. Afifi arrived at the family home. He jumped on the hood of his father's car, damaging it. When his father stepped out of the car, Mr. Afifi approached him and spat in his face. He then started punching his father in the chest with both hands, stating: "I know you just had a heart attack before, now I'm going to kill you." He then kicked his father in the groin. A neighbour called the police. They arrested Mr. Afifi and put him in the back of a marked police car. He kicked at the rear passenger window, causing it to shatter.

[5] Mr. Afifi had behavioural problems in Egypt before coming to Canada, which escalated here. His parents advised that he was involved in truancy, bullying, fire-setting, stealing and fighting. He began seeing a psychiatrist in 2000, but has a history of being non-compliant with treatment. Mr. Afifi started using marijuana in 2002 or 2003 and reported experiencing increased paranoia when intoxicated with marijuana. Dr. Ulrich testified that, in Mr. Afifi's fragile mental state, the use of substances makes him more psychotic and a greater risk to public safety when he becomes stressed.

[6] According to the hospital record, Mr. Afifi lived in the community with his parents and was an outpatient in the forensic outpatient service of CAMH from January 10, 2007. However, his parents could not cope and Mr. Afifi was admitted to hospital briefly and then eventually discharged to his own apartment on December 3, 2008. He obtained a conditional discharge on July 31, 2014, but his behaviour reportedly changed significantly. He missed appointments, provided fake urine samples and diluted urine samples and had 11 positive cannabis tests after September 10, 2014. These resulted in an early Board hearing, a detention order and admission to the hospital. Mr. Afifi was not discharged to his apartment again until May 20, 2015. Since then, there has been a pattern of multiple admissions, as a hospital report notes, usually because of marijuana use, problematic urine samples and deterioration in Mr. Afifi's mental condition.

[7] In the 2018 reporting year, Mr. Afifi had three admissions to hospital, prompted by diluted urine samples and positive marijuana results, as well as deterioration in his behaviour and mental status. The first admission was from April 24 to April 30, 2018. The second admission was from July 10 to August 10, 2018. The third admission started on August 31, 2018 and was still in place at the time of the Board hearing. The second and third admissions resulted in restrictions on liberty that the Board reviewed along with the annual hearing.

The Decision Under Appeal

[8] The Board unanimously found that Mr. Afifi "is a significant threat and concludes that the current Disposition is necessary and appropriate". The Board added that the two restrictions on his liberty were "necessary and warranted in the circumstances". The ongoing restriction on liberty "is also warranted, pending the exercise of indirectly supervised community passes that must be completed before he can return to the community."

[9] The Board also commented on the "low threshold for admitting [Mr. Afifi] to hospital". The Board's understanding, from the evidence of Dr. Ulrich, is that:

Mr. Afifi would not be readmitted on the basis only of dilute or abnormal urine screens. Rather, [Dr. Ulrich] spoke of a constellation of factors related to increased, dynamic risk; these include changes in his mental status and what the doctor described as Mr. Afifi's high baseline risk.

[10] In its reasons, the Board quoted Dr. Ulrich:

Mr. Afifi does not want to take medication and would discontinue if not under the oversight of the ORB. … Were he to be released from the ORB, he would use substances and discontinue his medication, both of which would increase his risk of violence. When not on medication, Mr. Afifi is more labile, more prone to perceived threats, and at much higher risk of committing an act of violence. Dr. Ulrich described this likelihood as being quite high.

[11] The Board considered the proposed alternate disposition of a conditional discharge. Dr. Ulrich opposed a conditional discharge on the basis that "the hospital needs the authority to return Mr. Afifi to hospital." Dr. Ulrich took the position that "the Mental Health Act is not a satisfactory strategy for managing the risk", because "Mr. Afifi can be quite good at concealing his symptoms of psychosis and could fool emergency room personnel."

Fresh Evidence

[12] The hospital tenders fresh evidence in the form of the affidavit of its legal counsel. It sets out Mr. Afifi's history since the hearing that is the subject of this appeal. Mr. Afifi was discharged from CAMH on October 5, 2018, four days after the hearing. He remained in the community until March 17, 2019, when he was apprehended by police, after allegedly assaulting a stranger.

[13] The police report of the March 17, 2019 incident describes an assault on a stranger whom he punched in the stomach. The victim did not want to press charges and Mr. Afifi was apprehended under the Mental Health Act. Mr. Afifi was then transported to Michael Garron Hospital, where he was to be seen and assessed by a doctor. Due to the long wait at Michael Garron Hospital, police were advised to take Mr. Afifi to CAMH, where he was admitted. CAMH provided the Board with notice of a significant restriction of his liberty on March 25, 2019.

[14] Mr. Afifi was discharged to the community on April 9, 2019, but then readmitted to CAMH on April 16, 2019, under a warrant of committal. Notice of significant restriction of Mr. Afifi's liberty was again provided to the Board by CAMH on April 24, 2019.

[15] The Board has scheduled a hearing for June 21, 2019, to review both recent restrictions of Mr. Afifi's liberty. We were advised that the hearing will also serve as Mr. Afifi's annual review. The customary hospital report supplement has been prepared and describes the events leading to the restrictions on liberty. The urine drug screens in the hospital report also reveal considerable cannabis use by Mr. Afifi over the period.

Analysis

[16] The appellant's counsel raises several issues. Her overall position is that the hospital's approach to Mr. Afifi is misguided. The "low threshold for admitting Mr. Afifi to hospital" subjects him to unnecessary admissions and prevents the formation of a therapeutic alliance between Mr. Afifi and the treatment team, whom, she says, he now "hates". He considers the hospital to be obsessed with his urine.

[17] However, this submission confirms that Mr. Afifi has no insight into his mental illness and its connection with his abuse of cannabis; the urine tests are intended to detect such use and the use of other drugs. It also appears from the record that even though Mr. Afifi is on long-acting (3 week) injectable anti-psychotic medication, it is not sufficient to overcome his rapid decompensation when he smokes cannabis. He seems unable or unwilling to accept the connection.

[18] There is no merit in counsel's submissions that both of the restrictions on liberty were unwarranted. The decision relies on the evidence, which shows that Mr. Afifi was decompensating on both occasions.

[19] There is likewise no merit in counsel's argument that the Board erred in keeping Mr. Afifi on a detention order instead of moving him to a conditional discharge. The Board's decision was not unreasonable given the evidence before it. While the long-acting injectable medication can form a springboard to increased levels of liberty, as it has in other cases, this is not true for Mr. Afifi at this time, given his lack of insight; his continued if not escalating cannabis use; the limited protective effect of the anti-psychotic medication, which is not sufficient to overcome his rapid decompensation when he smokes cannabis; the risk factors including his status on the psychopathology index; and his occasional flashes of violence.

[20] Appellant's counsel raised several other arguments concerning the interplay between the Criminal Code, R.S.C. 1985, c. C-46, and the Mental Health Act that are best left for determination on a better record and more cogent evidence.

[21] The appeal is dismissed.

"David Watt J.A."

"P. Lauwers J.A."

"C.W. Hourigan J.A."