Court of Appeal for Ontario
Date: 2019-07-15 Docket: C65759
Judges: Feldman, Paciocco and Zarnett JJ.A.
In the Matter of: Ayanle Hassan Ali
An Appeal Under Part XX.1 of the Code
Counsel
For the Appellant (Crown): Amy Alyea
For the Respondent, Ayanle Hassan Ali: Nader Hasan and Maureen Addie
For the Respondent, Person in Charge of St. Joseph's Healthcare Hamilton: Janice Blackburn
Heard: February 15, 2019
On appeal against the disposition of the Ontario Review Board, dated July 18, 2018.
Feldman J.A.
Introduction
[1] The Crown appeals from the disposition of the Ontario Review Board (the "ORB" or the "Board"), dated July 18, 2018. Before the Board, all parties agreed that the respondent, Mr. Ali ("Mr. Ali"), remained a significant threat, and that he should be detained on the secure forensic unit at St. Joseph's Healthcare Hamilton ("St. Joseph's"). Also before the Board, the respondents, Mr. Ali and the hospital, proposed that Mr. Ali should be permitted to enter the community of Hamilton, within a two-kilometre radius of St. Joseph's, indirectly supervised, for educational purposes. The Board granted this privilege. The Board's reasons state that the indirectly supervised passes contemplated in the privilege would only be granted by the hospital "when and if" Mr. Ali was ready to exercise them. The Board also prohibited Mr. Ali from attending at any military installation or recruitment centre.
[2] On appeal, the Crown takes issue with two aspects of the Board's disposition. First, the Crown contends that the Board erred in law and made an unreasonable decision by providing for the potential of indirect supervision in the community. As it did before the Board, the Crown takes the position that this condition does not adequately account for public safety. Second, the Crown submits that the Board made an unreasonable decision by failing to prohibit Mr. Ali from communicating with all uniformed military personnel.
[3] For the reasons that follow, I would dismiss the appeal.
Background Facts
[4] Mr. Ali was found not criminally responsible on account of mental disorder ("NCR") on May 14, 2018, for index offences that occurred on March 14, 2016. He walked into a Canadian Forces recruiting centre in Toronto and immediately attacked the corporal responsible for screening entry to the centre. He punched the corporal multiple times in the head and slashed his arm with a kitchen knife. After an officer intervened, Mr. Ali ran further into the centre, where he swung his knife at one sergeant, barely missing the back of her neck, and attempted to stab another sergeant. Mr. Ali was eventually subdued by a group of officers. One of the officers noticed Mr. Ali was wearing an iPod that displayed a chapter of the Quran, and another overheard him muttering a prayer as he was being subdued. When the paramedics arrived, Mr. Ali was arching his back, making incomprehensible noises, retching, and laughing. He told one of the paramedics that Allah had sent him to kill people.
[5] The police found no evidence of a connection between Mr. Ali and any other person or group. At trial, psychiatric evidence was proffered by Drs. Klassen and Chaimowitz, who conducted separate assessments under s. 672.11 of the Criminal Code, R.S.C. 1985, c. C-46. Both doctors diagnosed Mr. Ali with schizophrenia and concluded an NCR defence was available to him. The trial judge considered the doctors' evidence and determined that Mr. Ali was incapable of knowing that his conduct was morally wrong. He found Mr. Ali NCR in respect of: (i) three counts of attempted murder; (ii) two counts of assault causing bodily harm; (iii) three counts of assault with a weapon; and (iv) one count of carrying a weapon for the purpose of committing an offence.[1] On consent, the trial judge endorsed a warrant of committal detaining Mr. Ali at St. Joseph's until the ORB could render a disposition.
[6] The disposition hearing took place on July 13, 2018. All parties agreed that the significant threat threshold was met and that Mr. Ali should be subject to a detention order on the secure forensic unit at St. Joseph's.
[7] At the disposition hearing, the respondents (Mr. Ali and the hospital) submitted that Mr. Ali should enjoy the following privileges: (i) hospital and grounds privileges, to enter the community of Southern Ontario accompanied by staff and/or a person approved by the person in charge; and (ii) to enter the community of Hamilton, within a two-kilometre radius of St. Joseph's, indirectly supervised, for educational purposes. The Crown submitted that no indirectly supervised privileges should be granted.
[8] The Crown also sought a prohibition against communication with any military personnel. Counsel for Mr. Ali argued that such a communication condition would be too vague, since Mr. Ali would have no way of knowing whether his plainclothes classmates were military personnel. Instead, counsel for Mr. Ali suggested that the prohibition should read that he not attend any known military installations or recruitment centres.
[9] Dr. Chaimowitz, Mr. Ali's attending psychiatrist, gave evidence at the hearing. He stated that Mr. Ali's condition had gradually improved, his core delusions had dissipated (though he still exhibited residual delusions), he was taking medication on consent, and his insight into his condition was good. Mr. Ali had also demonstrated an interest in furthering his education. In Dr. Chaimowitz's view, this would benefit Mr. Ali. The hospital proposed that this could be accomplished by affording Mr. Ali privileges to attend a local college across the street from the hospital. Mr. Ali could start by attending with staff and, if things went well, he could attend while being indirectly supervised. Dr. Chaimowitz opined that the proposed privileges were critical to Mr. Ali's needs and reintegration into society.
[10] The Board determined that Mr. Ali would receive hospital and grounds privileges, up to and including indirectly supervised privileges. The Board further ordered that Mr. Ali would be permitted to enter the community of Southern Ontario escorted by staff or accompanied by staff or a person approved by the person in charge, or indirectly supervised only within a two-kilometre radius of St. Joseph's for educational purposes. Although it was not requested, the Board stated that Mr. Ali would not be permitted to have indirectly supervised passes into Southern Ontario more broadly. The Board explained in its reasons that the indirectly supervised passes for educational purposes were to be granted by the hospital on a gradual basis "when and if" Mr. Ali was ready to exercise them. The Board also prohibited Mr. Ali from attending any known military installation or recruitment centre.
Issues
[11] The Crown raises the following issues on appeal:
Did the Board err in law and make an unreasonable decision by granting Mr. Ali the privilege of indirect supervision while attending the local college?
Did the Board make an unreasonable decision by failing to include a condition requiring Mr. Ali to have no contact with uniformed military personnel?
[12] For the reasons that follow, I would dismiss the appeal. The Board did not err in law, and its disposition was reasonable.
Analysis
Issue 1: Did the Board err in law or make an unreasonable decision by granting Mr. Ali the privilege of indirect supervision for educational purposes?
[13] The Crown submits that the Board erred in law by failing to adequately consider all relevant factors under s. 672.54 of the Code in granting Mr. Ali the privilege of indirect supervision within a two-kilometre radius of the hospital for educational purposes. Further, the Crown submits that this part of the order was unreasonable.
[14] The Crown takes the same position on appeal that it did before the Board: that because the safety of the public is the paramount consideration under s. 672.54 of the Code, allowing the possibility of indirectly supervised attendance at the local college does not adequately protect the safety of the public. The Crown submits that paragraph 34 of the Board's reasons demonstrates that the Board only considered the issue of the safety of the public when it imposed the detention order in the secure forensic unit, and not when granting the privilege of attending the local college with indirect supervision. That was done, the Crown submits, to meet Mr. Ali's needs and not those of the public. Paragraph 34 reads as follows:
In addition to the issue of protection of the public, which is paramount, s. 672.54 of the Criminal Code of Canada requires the Ontario Review Board to consider the current mental condition of the patient, his reintegration into society and his other needs. The Detention Order on the secure forensic unit will address the issue of the protection of the public. The permission to use indirect passes into hospital and grounds and also for education purposes, will address Mr. Ali's other needs. These passes will only be granted by the hospital on a gradual basis and on a "when and if" basis Mr. Ali is ready to exercise them. Otherwise, they will not be granted.
[15] The Crown further argues that the Board did not consider the absence of any privilege history and was taking a leap of faith in granting the privilege for indirectly supervised attendance at the local college. It argues that this condition was inconsistent with the Board's decision to grant only escorted access to the community of Southern Ontario more broadly. The Crown submits that the Board failed in its inquisitorial role by failing to seek out further information about the proximity of an armed forces base, or whether reserve or other military personnel attend the college. Finally, the Crown argues that the Board should not have delegated to the hospital the decision for when Mr. Ali was ready for indirect supervision, but should instead have required the hospital to request an early review hearing so that the Board could make the decision.
[16] I would not give effect to any of these arguments.
[17] Because the Crown took the position before the Board that granting indirect supervision privileges would not adequately address public safety, the Board fully considered that issue. In his testimony in-chief, Dr. Chaimowitz explained why he was recommending indirect supervision at the local college as part of Mr. Ali's privileges, and the rigorous process the hospital would use to make the decision to extend that privilege. The safety issue was also thoroughly canvassed with him in cross-examination and in detailed questioning by the Board members.
[18] Leading up to this first ORB disposition hearing, Dr. Chaimowitz had been treating Mr. Ali for two years at the hospital, ever since he was first admitted for an assessment for fitness to stand trial. During that time, Mr. Ali had essentially no privileges. Dr. Chaimowitz was of the opinion that Mr. Ali would benefit from further higher education, something that interested him. The intention behind the privilege proposed by the respondents was that Mr. Ali would attend the local college across the street from the hospital to take a course. The doctor was of the view that without this type of privilege, Mr. Ali's reintegration into society and his other needs would not be properly addressed.
[19] It was contemplated that Mr. Ali would initially be accompanied to the college by staff or a person approved by the person in charge. If that went well, then the privilege would be expanded to indirect supervision, which would mean Mr. Ali would go by himself and be picked up afterward.
[20] The doctor described the hospital's process for evaluating graduation of Mr. Ali's privileges in the following answer, given in cross-examination:
Yes, so the privileges are assessed by -- in a team-based setting once a month. And there's a use of some analytics in looking at how the person has progressed and orders written by the most responsible physician. The physician signs off that a risk assessment has been done. The lawyer in the program will check to make sure the privileges correspond with the person's disposition. The physician will sign, I will sign or my delegate and I'm also the person in charge, but as I had said, the head of the service and Ms. Tagis Haywood (ph) as the clinical admin director, also signs, the delegate or person in charge and only then will the privileges be exercised.
[21] Dr. Chaimowitz also explained that because Mr. Ali's psychosis was being controlled, the other issue affecting his risk to the public was the potential for him to be influenced by radical, political ideas. One of the Board members asked Dr. Chaimowitz how that potential affected Mr. Ali's risk to the public. Dr. Chaimowitz responded:
[T]his is a psychotic individual whose delusions were caught up in this -- his ideas and acted out that way. That being said, delusions are pretty well controlled, pretty well controlled. And the part that I'm going to keep an eye on, because now I'm in a very different role because -- I mean, it's obviously it's on us, the person in charge and the, the most responsible physician to make sure that this man is not posing any risk to the public.
[22] In its reasons, the Board set out Dr. Chaimowitz's opinion regarding the risks Mr. Ali posed as follows, at para. 25:
(a) his Psychotic Disorder which is managed well, while he is on medication; and
(b) his potential to act out on political, or radical ideas. There is no treatment for this. Dr. Chaimowitz does not perceive Mr. Ali as a radical. Rather, he sees the index offences having occurred as a result of Mr. Ali experiencing psychosis and using the ideas in the psychotic event, in a very "bumbly fashion" to act out in a violent way. Mr. Ali does not preach his delusions. He is not part of a group. The doctor does not see him as a terrorist.
[23] In this case, the Board considered the evidence of Dr. Chaimowitz fully and in detail. While Mr. Ali did not have a track record of compliance with conditions since this was his first hearing, he had a two-year history at the hospital and with Dr. Chaimowitz. The Board imposed the disposition that Dr. Chaimowitz recommended.
[24] Dr. Chaimowitz made it very clear that he would give due consideration to any safety concerns before allowing any increment in Mr. Ali's privileges. While the decision to allow indirectly supervised attendance at a class at the college across the street from the hospital was potentially allowed, the hospital's process involves a team decision for privileges with a trial of each graduated step and approval from the treating psychiatrist and the legal adviser before any extension of the privilege is granted. Dr. Chaimowitz suggested that it would likely take several months before the clinical team would consider granting Mr. Ali the privilege of indirectly supervised attendance at the college.
[25] I reject the Crown's further submission on the appeal that because the Board refused to grant indirectly supervised access to the whole community of Southern Ontario, that was inconsistent with the limited privilege contemplated by the Board's disposition. In fact, neither Mr. Ali nor the hospital asked the Board to order indirectly supervised access to the whole community. Nevertheless, the Board stated that it would not make that extension. The limited extension of indirectly supervised access only to the local college shows that the Board was extending only a very limited privilege, both geographically and in terms of time away, that reflected its concern for public safety but balanced with the need to facilitate Mr. Ali's reintegration into society.
[26] Nor did the Board neglect its inquisitorial function. While there might have been further information that could have been sought out about any potential exposure to uniformed military personnel attending Mr. Ali's class at the college, that information would be quickly learned upon Mr. Ali's escorted attendance. If that turned out to be the case, that would be an important factor for the hospital to consider before allowing Mr. Ali to attend the class at all or to determine the type of supervision that may be required.
[27] Finally, I reject the Crown's argument that the Board inappropriately delegated its responsibility by giving the hospital the ability to implement Mr. Ali's privilege on a gradual basis. Similar issues regarding the role of the hospital and the role of the Board arose in the case of Scott (Re), 2017 ONCA 94, 137 O.R. (3d) 71, referred to by the Crown. That case states, at paras. 19-20:
In setting out the parameters of the disposition, the Board must balance the twin goals of public safety and fairness to the detained person as described by the Supreme Court of Canada in Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528, at para. 19 as follows:
The objective is to reconcile the twin goals of public safety and treatment. In the process of reconciliation, public safety is paramount. However, within the outer boundaries defined by public safety, the liberty interest of an NCR accused should be a major preoccupation of the Review Board when, taking into consideration public safety, the mental condition and other needs of the individual concerned, and his or her potential reintegration into society, it makes its disposition order.
However, within those parameters, the hospital requires the flexibility to implement the disposition in accordance with the day-to-day needs of the detained person and the circumstances that may arise. In R. v. (C.) M.L., 2010 ONCA 843, 104 O.R. (3d) 450 (Ont. C.A.), this court discussed the relationship between the roles of the Board and the hospital in formulating and implementing the least onerous and least restrictive disposition at para. 28:
While the Board has the jurisdiction to review a patient's disposition at a particular hearing, it is not in a position to oversee the patient on a day-to-day basis and to refine the restrictions on his or her liberty. This is why the statutory framework gives the hospital the ability and flexibility to monitor patients who suffer from mental disorder. The responsibility for adjusting the restrictions for such a patient comes from s. 672.56(1), which allows the Board to delegate to the hospital certain decisions about the patient's liberty. Any restrictions the hospital places on the patient must fall within the envelope of the conditions enumerated by the Board in its disposition. As a safeguard, any decision by a hospital that significantly restricts a patient's liberty for more than seven days must be considered by the Board in a restrictions review.
[28] As discussed in Scott (Re), it is not the role of the Board to micromanage the details of the day-to-day needs of each person under the disposition. Instead, it is the hospital that assesses the progress of each person in order to most effectively implement the Board's disposition.
[29] In my view, it is clear from the reasons of the Board and the conduct of the hearing that the Board carefully considered all of the required factors in making its disposition regarding the limited indirect supervision privilege and made no error of law. Its decision was not unreasonable.
Issue 2: Did the Board make an unreasonable decision by failing to include a condition requiring Mr. Ali to have no contact with uniformed military personnel?
[30] The Board included as a condition that Mr. Ali be prohibited from attending at any military installation or recruitment centre. The Crown's position at the hearing was that there should be a prohibition requiring Mr. Ali not to communicate directly or indirectly with any military personnel. Dr. Chaimowitz indicated in his evidence that he had no objection to the no-contact provision proposed by the Crown being included in the Board's disposition.
[31] During closing submissions, counsel for Mr. Ali took the position that Mr. Ali would not know whether someone in plain clothes might be military personnel. Therefore, she stated, the provision was overly vague and could lead to compliance issues.
[32] On appeal, the Crown contends that the condition could have been revised to require Mr. Ali not to have contact with any uniformed military personnel. This, the Crown says, would have avoided the concerns raised by Mr. Ali.
[33] In light of how the possibility of this condition being included was discussed at the hearing, it was not unreasonable for the Board not to include the version proposed by the Crown on appeal. As the respondent's next hearing is scheduled for July 17, 2019, the Board may consider adding such a condition, if it deems it appropriate in the current circumstances.
Conclusion
[34] In the result, I would dismiss the appeal.
Released: "B.Z." July 15, 2019
"K. Feldman J.A."
"I agree. David M. Paciocco J.A."
"I agree. B. Zarnett J.A."
Footnote
[1] At trial, Mr. Ali was also acquitted of several terrorism charges: see R. v. Ayanle Hassan Ali, 2018 ONSC 2838, 361 C.C.C. (3d) 350. The Crown has appealed from those acquittals. The appeal was heard by this court and reserved on June 24, 2019: see C65466.