Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20200323 DOCKET: C67121

Strathy C.J.O., Miller and Trotter JJ.A.

IN THE MATTER OF: JOSEPH HADDAD AN APPEAL UNDER PART XX.1 OF THE CODE

Joseph Haddad, in person Dean F. Embry, appearing as amicus curiae Eric W. Taylor, for the respondent, The Attorney General of Ontario Julie Zamprogna Ballès, for the respondent, The Person in Charge of the Southwest Centre for Forensic Mental Health St. Joseph’s Health Care London

Heard: March 5, 2020

On appeal against the disposition of the Ontario Review Board, dated May 28, 2019.

Reasons for Decision

[1] Mr. Haddad appeals the disposition of the Ontario Review Board dated May 28, 2019, ordering that he be detained at the Southwest Centre for Forensic Mental Health Care, St. Joseph’s Health Care in London, Ontario, subject to conditions.

[2] The issue on his appeal is a narrow one: the appropriateness of a condition imposed by the Board that he not attend within 250 metres of his mother’s home in London, the location of the index offence.

The Index Offence

[3] On May 18, 2016, Mr. Haddad was found not criminally responsible (“NCR”) on account of a mental disorder of charges of mischief under $5,000, careless use of a firearm, possession of a weapon dangerous to the public peace, and discharging a firearm with intent, contrary to the Criminal Code, R.S.C., 1985, c. C-46.

[4] In the early morning of September 1, 2015, Mr. Haddad, who was then 32 years old, stood in the driveway of the family home in a quiet residential neighbourhood in London and discharged a shotgun into three automobiles parked in neighbouring driveways. Police attended, in force, along with negotiators and emergency response officers. By this time, Mr. Haddad and some members of his family were inside the residence, where they remained for several hours. Mr. Haddad ultimately emerged from the residence and was arrested. A search of the residence located a pump action shotgun, hundreds of rounds of ammunition (including hollow point bullets), and magazines for a rifle and handgun, although no other weapons were located.

Mr. Haddad’s Progress Under the Ontario Review Board

[5] Since the NCR finding, Mr. Haddad has been subject to orders detaining him in the Southwest Centre for Forensic Mental Health Care. He has been diagnosed with schizophrenia, which appears to have manifested itself about a year before the index offence. He had no previous record of mental health issues, nor was there evidence of alcohol or drug use.

[6] Mr. Haddad has made progress under the Review Board, gaining improved insight into his illness and an appreciation of the need to control his symptoms through medication. He has excellent family support, particularly from his brother, Peter, who he is permitted to visit in the community.

The Board Hearing

[7] At the Board hearing, the hospital, with the concurrence of the Crown, took the position that Mr. Haddad continued to present a significant threat to the safety of the public. This was based in part on the testimony of the attending psychiatrist, who expressed concerns about Mr. Haddad’s insight into the risk for violence should he discontinue his medications.

[8] The hospital recommended a continuation of the existing disposition, subject to conditions, which included a modest increase in privileges that would enable supervised visits in the community for up to one week, four times per year.

[9] Mr. Haddad’s counsel acknowledged that the significant threat threshold had been established and agreed with the hospital that his continued detention was necessary and appropriate. The only point of disagreement was in relation to the condition referred to above. The Board received a victim impact statement from a neighbour who expressed her fear that the appellant would experience a “relapse” if he were to return to the family home.

The Board’s Reasons

[10] Since only the condition is in issue, we do not find it necessary to address the other aspects of the disposition. The Board was satisfied that although Mr. Haddad has been doing well in the context of the support and structure provided by the hospital and the treatment team, he is still in “recovery mode”. The plan for the coming year is to transition him to a supervised group home, which would provide the necessary support while he adjusts to community living.

[11] The Board concluded that “on balance” it would be premature to permit Mr. Haddad to visit his mother’s home due to the “spectre of psychological harm to the neighbours as well as possible difficulties for Mr. Haddad in revisiting the scene of the index offences.”

[12] The Board referred to s. 672.542 (a) of the Criminal Code, which requires the Board to consider “whether it is desirable, in the interests of the safety and security of any person, particularly a victim of or witness to the offence … to include as a condition of the disposition that the accused abstain from communicating with any victim, witness or other identified person, or refrain from going to any place specified in the disposition.” Section 672.5(14) of the Criminal Code provides that a victim may file a victim impact statement.

[13] The Board expressed concern about the lack of evidence regarding why there were so many firearms and so much ammunition in the family home at the time of the offence, and whether firearms remained a risk. Counsel for the Attorney General of Ontario advised the court that his inquiries with the police did not disclose any present risk of firearms currently in the home. The Board also expressed concern about why several hours had elapsed between the arrival of the police at the home and the appellant’s surrender. As the Board noted, the reasons remain unclear.

[14] The Board noted that the hospital’s plan for the future was to have Mr. Haddad “develop a more independent and motivated lifestyle rather than return to the environment in which he was living at the time of the index offence.” Permitting visits to his mother’s home would not assist him in transitioning to living in the community.

Discussion

[15] Section 672.542 of the Criminal Code permits the Board to tailor conditions of the Disposition to address the safety and security of victims. This requires a balancing of the interests of the accused on the one hand, and the interests of the victim on the other. There is no evidence this condition serves as any real restraint on Mr. Haddad’s liberty. His attending physician has not recommended visits to the family home as part of Mr. Haddad’s therapeutic plan. He currently visits with his mother at his brother’s home. The Board said that he had “excellent support from his family and that will continue very likely whether he is visiting the family home or not.”

[16] Deference is owed to the Board’s crafting of appropriate terms of disposition. As the Supreme Court of Canada said in Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20, [2004] 1 S.C.R. 498, at para. 71:

The various conditions have to be viewed collectively, and ‘the least onerous and least restrictive’ requirement applied to the package as a whole. The court does not evaluate each condition in isolation from the package of provisions of which it forms a part.

[17] The Board’s decision is reasonable, and we defer to it. We would expect that if Mr. Haddad continues to make progress, the Board will re-assess this issue in light of the circumstances.

[18] We therefore dismiss the appeal.

“G.R. Strathy C.J.O.” “B.W. Miller J.A.” “Gary Trotter J.A.”