Court of Appeal for Ontario

Date: September 4, 2019

Docket: C66548

Justices: Sharpe, van Rensburg and Thorburn JJ.A.

In the Matter of: Andrew Sheikh

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• Anita Szigeti for the Appellant, Andrew Sheikh
• Andrew Cappell for the Respondent, Her Majesty the Queen
• Janice Blackburn for the Respondent, St. Joseph's Healthcare Hamilton

Heard: September 3, 2019

On appeal from: The disposition of the Ontario Review Board dated September 13, 2018, with reasons dated January 28, 2019.

Reasons for Decision

[1] Andrew Sheikh was found not criminally responsible on account of mental disorder (NCR) on charges that included criminal harassment. He has been under the jurisdiction of the Ontario Review Board (the "Board") since July 2013. He appeals from the disposition of the Board dated September 13, 2018 (reasons released January 28, 2019). The disposition provided for his conditional discharge on terms which included taking his psychiatric medication, reporting to the hospital once a month, abstaining absolutely from non-medical use of drugs or alcohol, and providing breath/urine samples.

[2] The appellant also appeals the decision of the same date that his readmission to hospital on July 5, 2018 (the "Restriction of Liberties") was warranted or represented the least restrictive measure in the circumstances.

[3] The appellant asserts that he is not a significant threat to the safety of the public and that the Board should have granted him an absolute discharge.

[4] The respondents, Her Majesty the Queen and St. Joseph's Healthcare Hamilton ("the Hospital") oppose the request for an absolute discharge. The respondents submit that the Board's decision to grant a conditional discharge was reasonable as, on the evidence before the Board, the appellant posed a significant threat to public safety.

[5] The Respondent Hospital also seeks to introduce as fresh evidence, an affidavit of the appellant's attending psychiatrist attaching the Hospital's report, prepared for his upcoming annual Board hearing which is scheduled for September 12, 2019. The fresh evidence speaks to the appellant's conduct since the time of the Hearing.

[6] The court may admit fresh evidence where:

a) the evidence could not by due diligence have been adduced at first instance;

b) the evidence is relevant in that it bears upon a decisive or potentially decisive issue in the trial;

c) the evidence is credible; and

d) the evidence, if believed, could reasonably when taken with the other evidence adduced, affect the outcome.

[7] New evidence that was not available at the time of the first proceeding may be introduced on appeal if the evidence is necessary to deal fairly with the issues on appeal and to decline to admit the evidence could lead to a substantial injustice in the result: R. v. Palmer, [1980] 1 S.C.R. 759 at p. 13; Monteiro v Toronto Dominion Bank, 20 E.T.R. (3d) 305 (Ont. S.C.) at para. 3; and Visagie v. TVX Gold Inc, (2000), 49 O.R. (3d) 198 (Ont. C.A.) at para. 53.

[8] In this case:

a) the new evidence could not have been brought at the Ontario Review Board hearing as the incidents at issue arose after the hearing on September 13, 2018;

b) the evidence is relevant as it relates to his risk to the public;

c) the evidence is credible as it is evidence that emanates from his treating psychiatrist; and

d) the evidence, if believed, could, when taken with the other evidence adduced on this appeal, affect the outcome.

[9] The Respondents submit that this new evidence that has become available since the hearing, strengthens their assertion that the appellant is a significant threat to public safety. The appellant asserts that the new evidence does nothing to change the risks associated with the appellant or the justification of his Appeal seeking an absolute discharge.

[10] For reasons that follow, we find that the Board applied the wrong test in finding that the appellant continues to pose a significant risk to public safety. The test is not whether the appellant's behaviour could lead to decompensation and therefore the risk of serious harm, but whether there is evidence to support a positive finding that there is a significant threat to public safety.

[11] However, the respondents have satisfied the test for the introduction of new evidence on Appeal. That new evidence raises a concern about the appellant's possible decompensation and renewed focus on the victim of the index offence since the Board's decision was rendered. We therefore allow the appeal and remit the matter back to the Board for reassessment of this and other evidence now available.

[12] Lastly, we agree with the appellant that although the Board explained why the appellant's continued detention in the Hospital was no longer necessary or appropriate, the Board offered no reasons to support its conclusion that the Restriction of Liberties was initially warranted. It is unclear why the appellant was told he was re-hospitalized because he was a suicide risk. Dr. Chauhan stated that he was not brought in on that basis. However, that issue is now moot as the appellant was released for community living.

Evidence Before the Board

A. NCR Finding

[13] In 2013, the appellant was found NCR on charges of criminal harassment, uttering a threat to cause bodily harm, failure to comply with a recognizance, and two counts of failing to comply with probation. He had been diagnosed with schizophrenia compounded by cannabis use and cocaine dependency.

B. The Index Offences

[14] The appellant's index offences arose out of his fixation with a former high school classmate ("RG"), with whom he otherwise had little contact. The communications began in 2011 and continued into 2013, escalating to sexually explicit comments that were vulgar and threatened sexual assault on RG, and including an attendance at RG's home, where he left a gift for her, in breach of the terms of his recognizance prohibiting contact with RG. After he was declared NCR, the appellant's disposition provided for detention in the General Forensic Unit at the Hospital. One of the terms provided for community living, which was implemented in May 2015.

C. The Hospital's Reasons for the Appellant's Readmission

[15] In July 2018, the appellant was readmitted to the Hospital. This was precipitated by concerns about a Facebook post, which his attending psychiatrist, Dr. Rebecca Chauhan, interpreted as an indication of elevated risk to the community. The post reads as follows:

If I die tomorrow, will you guys blow this shit up for me? No cause st. joes will threaten you to keep your mouth shut by not even doing anything to you cause you're a sheep..so I to live in a dying world with no one giving a fucking shit.

[16] When asked what he meant, the appellant responded, "If I die, who would care".

D. The Hospital Report and the Testimony at the Hearing

[17] The Hospital prepared a report dated August 8, 2018 for both the annual review and the Restriction of Liberties hearing. Dr. Chauhan and the appellant testified before the Board.

[18] Dr. Chauhan had diagnosed the appellant with schizophrenia and cannabis use disorder. She noted that when he was admitted to the Hospital in July 2018, there were concerns around his psychomotor agitation, not sleeping, extreme irritability, and argumentativeness. For the first week, he stayed up all night about once a week and on July 19, 2018, when he drank eight espressos, he began pacing the halls and loudly reciting profane lyrics.

[19] Dr. Chauhan described the appellant's insight into his mental illness as being "variable". She noted that on July 10, 2018, two days after putting up the Facebook post, he wrote:

If I wanted to kill myself I would sign out my razor and break it open and … But I didn't. I've done over 50 push ups a day hundreds of laps and 2 ab work outs a day … HOW AM I UNFIT FOR SOCIETY???

[20] On July 28, 2018, the appellant tested positive for THC.

[21] Dr. Chauhan was concerned that the 2018 posts were a re-emergence of psychosis that was linked to the index offence. She noted that:

[The appellant] Mr. Sheikh has struggled to remain abstinent from illicit substances [marijuana] and has recently tested positive while admitted to hospital…Mr. Sheikh has poor insight into his need to take medication in the short-term to help him get out of hospital and move toward an absolute discharge.

[22] The Hospital report concluded that:

Absent a disposition mandating him to report for treatment and abstain from illicit substances, there is little doubt, that Mr. Sheikh would stop taking his anti-psychotic medications and would return to regular use of cannabis. In turn, Mr. Sheikh's psychotic symptoms would return and it is within the context of a relapse of his psychotic symptoms that Mr. Sheikh would most probably become verbally or physically threatening toward others. Mr. Sheikh is likely to first demonstrate threatening behaviour through social media or his music and progress to more direct forms of verbal or physical aggression as he becomes increasingly unwell and disorganized.

[23] When asked if a conditional discharge would be appropriate Dr. Chauhan said that:

My greatest concern with the conditional discharge is he is just recovering from a mild episode of psychosis. It was caught early, he's back on track. This will be a vulnerable period for him…His period of becoming unwell was quite rapid.

[24] Dr. Chauhan testified that, although the appellant was not physically violent since he was declared NCR in 2013, the Hospital treatment team was of the unanimous opinion that, if released on an absolute discharge, he continued to pose a significant threat to the safety of the public.

The Board Decision

[25] Four of the five Board members found that readmission in July 2018 was warranted, but that the continued restrictions on the appellant's liberties through his detention in the Hospital were no longer warranted. They found that the appellant continues to be a significant threat to the safety of the public. They rejected the respondents' request for a continuation of the existing disposition and ordered a conditional discharge with terms including compliance with psychiatric medication, reporting to the hospital once a month, and providing breath/urine samples.

[26] The majority referred to Dr. Chauhan's interpretation of the appellant's 2018 Facebook Post as "a call to blow up the hospital" notwithstanding the appellant's assertions to the contrary and the plain meaning of the words.

[27] The majority of the Board held that the appellant should receive a conditional discharge to live in the community under conditions set by Hospital staff. The majority relied on the "uncontroverted expert evidence of Dr. Chauhan" and the Hospital Report to conclude that:

without close supervision, Mr. Sheikh would likely become non-compliant with prescribed medications, which could lead to decompensation, use of substances and the re-emergence of behaviours similar to those that preceded the index offence. As a result, there is no air of reality to an Absolute Discharge. [Emphasis added.]

[28] One member would have granted an absolute discharge on the basis that the appellant was no longer a threat to public safety. In her minority reasons, she accepted the appellant's explanation of why he made the Facebook post and she did not interpret the Facebook message as threatening or as an indication of a deteriorating mental state, but rather as a reflection of what would happen if he died. She also found that there was never evidence that the Appellant presented a risk of serious physical harm. She noted that "Dr. Chauhan failed to connect the appellant's use of cannabis as a contributing factor in the index offence, or quite frankly as to how his cannabis use impacts his mental state." She concluded that "there is an absence of a positive finding of significant threat, recognizing that there will always be some degree of risk."

[29] The minority Board member noted that the Appellant was reintegrated into the community and had been working and responsible for his portion of the rent, food and car insurance. He had lived:

three years without any contact with the victim of the index offence and had complied with his conditions, successfully reporting as directed. .…Mr. Sheikh has been managing his risk to the community…. Living in the community for a period of three years, without any incidents or evidence of unmanaged risk is a significant duration… which allowed him to advance his education and skill set. He made new friends and continued to work at the Colours Café located at the Hospital. His work performance was successful, and he remained connected to the Hospital by choosing to continue working at the café.

[30] She did not accept Dr. Chauhan's assertion that the appellant "engaged in physically threatening behaviour when admitted to Hospital" in 2018, and that it "required security personnel" because there was no evidence to support the assertion. Security personnel were not called to assist.

[31] The minority also noted that there was no evidentiary foundation for Dr. Chauhan's assertion that the appellant's Facebook post meant he was going to "blow up" the Hospital as there is no evidence his behaviour would amount to physical aggression. The minority further held that:

the subject Facebook post does not have any qualities of the Facebook post which predicated the index offence. There is no evidence of sexually aggressive threats. It was not intended for a specific recipient. It was not aimed at the victim in any way. Moreover, it does not speak to threat of suicide.

[32] For these reasons, the minority:

does not accept that Mr. Sheikh presently exhibits severe symptoms of his mental illness. The minority finds quite clearly that Mr. Sheikh no longer continues to pose a significant threat to the safety of the public to the degree of causing harm of a criminal nature to others should he be discharged at this point in his recovery.

[33] She therefore concluded that he was entitled to an absolute discharge.

Analysis and Conclusion

[34] An NCR accused is entitled to his liberty absent a reasonable finding that he constitutes a significant threat to the safety of the public: Wall (Re), 2017 ONCA 713, 417 D.L.R. (4th) 124. A significant threat is defined in s. 672.5401 of the Criminal Code as "a risk of serious physical or psychological harm to member of the public… resulting from conduct that is criminal in nature but not necessarily violent." There must be a risk that the NCR accused will commit a serious criminal offence, and a minuscule risk of grave harm is not sufficient: R. v. Winko, [1999] 2 S.C.R. 625, at paras. 57, 69. The significant threat must be more than speculative and supported by evidence: Winko, at para. 57. That is, there must be both a likelihood of a risk materializing and the likelihood that serious harm will occur: Re Carrick, 2015 ONCA 866, 128 O.R. (3d) 209, at para. 16.

[35] This court may interfere with the Board's disposition only where it concludes that (a) the disposition is unreasonable or cannot be supported by the evidence; (b) the order is based on a wrong decision on a question of law (unless no substantial wrong or miscarriage of justice has occurred); or (c) there was a miscarriage of justice: Re Kassa, 2019 ONCA 313, 154 W.C.B. (2d) 169 at para. 32, citing s. 672.78(1) of the Criminal Code; and R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 31.

[36] At the time of the hearing, the appellant had been under the Board's jurisdiction without incident for more than five years. During that time, he made considerable progress in managing his illness, he was adhering to Hospital rules, attended medical appointments, and there was no evidence he had not been taking his prescribed medication. There is also no evidence that at that time, he was taking cocaine, which he linked to the commission of the index offences. While Dr. Chauhan noted the Appellant's use of cannabis, she did not articulate how this contributed to the deterioration of his mental state. It is apparent that the most significant indicator for Dr. Chauhan of the appellant's risk was his Facebook post on July 14, 2018. While the Facebook post may well have indicated disorganized thoughts as part of the appellant's decompensation, we find it difficult to accept Dr. Chauhan's conclusion that the appellant was threatening to "blow up" the Hospital.

[37] It is clear that the appellant suffers from mental illness and exhibited some agitation, irritability, and other symptoms when admitted to the Hospital in 2018. We are also aware that there will always be some degree of risk.

[38] We are cognizant however, that there must be a "real risk of physical or psychological harm arising from criminal conduct." That standard is an onerous one that requires a careful assessment of the level of risk. The Board's concluded that "without close supervision, the appellant would likely become noncompliant with the prescribed medication, which could lead to decompensation, use of substances and the re-emergence of behaviours similar to those that preceded the index offence" (emphasis added). This is not a determination of the real risk of physical or psychological harm occurring as a result of the appellant engaging in criminal conduct if granted an absolute discharge: Kassa, at paras. 35-37.

[39] On the basis of the evidence available at the time of the hearing, we are unable to conclude that the Board would have reached the same decision if it had applied the test articulated in Winko.

New Evidence and the Proper Disposition of This Appeal

[40] The respondent Hospital has prepared a further annual report for the purpose of the appellant's annual hearing which is scheduled to take place on September 12, 2019.

[41] The respondent Hospital adduced new evidence about the appellant's behaviour since the September 2018 Board hearing. The respondents assert that the fresh evidence confirms that the appellant remains a significant threat to public safety such that an absolute discharge would not be an appropriate disposition at this time. The appellant argues that the fresh evidence underscores that an absolute discharge is warranted, because none of the events that were predicted by the Hospital in concluding that he remained a significant threat to public safety have come to pass. The new evidence, consisting of the Hospital report for the upcoming annual review discloses, among other things: that the appellant on occasion has tested positive for medication he was not prescribed and negative for medicine he was prescribed; he advised that for approximately half the time he had been taking only half doses of his prescribed medication; and that the appellant had tested positive for cocaine on many occasions. In April 2019, he was admitted to the Hospital as a voluntary patient but was placed on involuntary admission on April 23, 2019 due to his decompensated mental status, physical health, irritability, and drug use. And in July 2019, the appellant explained that the stage name he chose while creating his rap music was related to RG, the victim of the index offence.

[42] This new evidence is concerning. It suggests that the appellant has begun using cocaine, a drug that the treatment team considers a risk, and that even the appellant associates with his commission of the index offences. The appellant has not been taking all of his medication, notwithstanding the assertions at his September 2018 hearing that he would continue to take his medications even if granted an absolute discharge. Perhaps most importantly, the appellant has, apparently for the first time in six years, referred to the victim of the index offences.

[43] In the circumstances, although we have concluded that the Board applied the wrong test in determining that the appellant continues to pose a significant risk of harm, we are unable to grant the remedy that he is seeking, an absolute discharge. We are obliged to consider not only the evidence that was before the Board at the time of the September 2018 review, but also any reliable and relevant information available on appellate review: Owen, at para. 59. The new evidence concerning the Appellant's behaviour is clearly relevant to the assessment of the threshold issue: whether he continues to pose a significant risk of harm, and because it was only recently available, it has not been tested through cross-examination. The matter is therefore remitted to the Board for reconsideration, to determine whether there is sufficient evidence to satisfy the Board that the Appellant now poses a significant threat to the safety of the public and if so, the appropriate disposition.

[44] For these reasons, the fresh evidence is admitted, the appeal is granted, and the matter is remitted to the Board for reassessment, to determine whether there is sufficient evidence to satisfy the Board that the Appellant poses a significant threat to public safety.

Robert J. Sharpe J.A.

K. van Rensburg J.A.

Thorburn J.A.