COURT OF APPEAL FOR ONTARIO

CITATION: Yunus-Ali (Re), 2020 ONCA 669

DATE: 20201023

DOCKET: C68237

Feldman, Gillese and Miller JJ.A.

IN THE MATTER OF: Altayyib Yunus-Ali

AN APPEAL UNDER PART XX.1 OF THE CODE

Anita Szigeti and Maya Kotob, for the appellant

Madeline Lisus, for the respondent, Attorney General of Ontario

Michele Warner, for the respondent, Person in Charge of the Centre for Addiction and Mental Health

Heard: October 9, 2020 by video conference

On appeal from the disposition of the Ontario Review Board, dated November 6, 2019, with reasons dated November 26, 2019.

REASONS FOR DECISION

Background

[1] After a series of unprovoked assaults against multiple strangers on June 10, 2015, the appellant, Mr. Yunus-Ali, was charged with assault, assault with a weapon, and uttering threats. At that time, he was homeless and suffered from an untreated mental illness. On May 4, 2017, he was found not criminally responsible on account of mental disorder and admitted to the Centre for Addiction and Mental Health.

[2] The appellant has since been diagnosed with schizophrenia and is currently treated with a long acting injectable antipsychotic every two weeks. He has been compliant with his medication regime, although he has been found to lack insight into his illness, the link between his illness and aggressive behaviour, his need for medication, and the risk that cannabis use poses to the efficacy of his medication. His progress in the General Forensic Unit at CAMH has been such that he was discharged to the community on January 21, 2018. He has resided in independent accommodation since that time without need for rehospitalization. He initially reported to the outpatient clinic at CAMH on a daily basis, however, the Board reduced his reporting requirements to three times per week in May 2018, and once every two weeks in the most recent disposition. He has not suffered any psychotic symptoms over the past year and his behaviour has been stable. He secured employment and has been working in construction since June 2018.

The November 26, 2019 Disposition

[3] In its most recent disposition dated November 26, 2019, the Board found that the appellant continues to pose a significant threat to the safety of the public and ordered his continued detention. It modified its previous detention order by adding a clause allowing the appellant indirectly supervised passes within 350 km of the GTA for up to 96 hours per trip. The passes were intended to facilitate the appellant’s work on construction jobs outside of Toronto with the construction crew with which he is employed. The Board also added a substance use prohibition clause in response to the appellant’s use of cannabis and alcohol and the Board’s concerns that substance use could contribute to mental deterioration and psychosis. The Board found this disposition was necessary and appropriate in the circumstances, as required under s. 672.54 of the Criminal Code, taking into account the safety of the public, the mental condition of the appellant, and the need to facilitate his reintegration into society.

[4] In rejecting the appellant’s request for a conditional discharge, the Board held that despite the appellant’s progress over the previous year, a conditional discharge would be premature. The Board noted that although the appellant has been stable, he has poor insight into his illness. The continuing oversight of the Board is necessary. Without it, the appellant would fall away from care, discontinue medical treatment, use cannabis and alcohol, suffer mental deterioration with the emergence of psychotic symptoms, and “likely become violent in the context of psychosis and substance abuse”.

[5] The Board explained its denial of a conditional discharge on the basis that detention was necessary in order to return the appellant swiftly to hospital, should there be a deterioration in his condition with a resulting elevated risk of violence. Critical to the Board’s decision was the appellant’s absence of insight into his condition.

[6] The Board heard from the appellant’s outpatient psychiatrist, Dr. Choptiany, and noted his evidence that a conditional discharge could in fact be more restrictive to the appellant than a detention order with the current privileges. This is because of the reporting requirements that would need to be imposed: the reporting team, according to Dr. Choptiany, would need to see the appellant weekly and monitor for substance use, so as to be in a position to have recourse to admission under the Mental Health Act, R.S.O. 1990, c. M.7, should the appellant begin to decompensate. However, with the detention order, the treatment team would be able to screen proposed employment and temporary accommodation prospectively to “identify a destabilizer … and shore up risk management”. This was particularly important given the appellant’s lack of insight into his need for medication and the impact of substance use.

The appellant’s argument

[7] On appeal, the appellant does not dispute the finding that he remains a risk to the safety of the public, but he argues that the Board’s disposition was unreasonable on two grounds. First, the Board erred in finding that a detention order was the appropriate and necessary disposition, and that the risk the appellant poses could not be managed under a conditional discharge with the terms he proposed, which included a residence clause and a treatment clause. Second, the Board erred in finding that a conditional discharge was inadequate to manage the two risk factors it identified: (1) his lack of insight into his medical condition; and (2) his substance use.

[8] In his case, the appellant argues lack of insight does not correlate to noncompliance. Although he does not have the capacity to consent to treatment, he has always been compliant with receiving medication. He further argues that a conditional discharge, on the terms proposed, would provide sufficient structure to ensure that he maintains the regime of medication.

Analysis

[9] As the appellant argues, lack of insight into one’s mental illness is not itself a ground for detention: see Sim (Re), 2019 ONCA 719. Lack of insight is, however, relevant when it is linked to a risk of harm to the public. The Board made such a finding in this case. The Board found the appellant’s lack of insight into his mental illness, the relationship between his mental illness and his propensity for violence against others, his need for medication to control his mental illness, and the risk that substance use would provoke psychosis and risk of violence all created risk of physical harm to the public. These findings were thoroughly grounded in the evidence of Dr. Choptiany.

[10] The Board did not make the error of relying on generalities about the greater efficiency of detention compared with the mechanisms provided in the Mental Health Act. The Board’s reasoning was not driven by the concerns of convenience that would be present in any appeal (such as those criticized in Valdez (Re), 2018 ONCA 657, and Esgin (Re), 2019 ONCA 155). Instead, its reasoning was tailored to the specific case history of the appellant and his particular needs. In particular, the Board was concerned with the appellant’s cannabis use and history of failed urine tests, and the need to encourage and facilitate the appellant’s continued employment in construction. The Board noted the importance of work to the appellant’s general well-being. It grappled with how to facilitate opportunities for the appellant to participate in additional work out of town, while countering the increased opportunities for substance use – with its potential contribution to psychosis and violence – that such work might provide.

[11] The Board did not accept that the risk to the appellant’s mental condition posed by cannabis use – and the follow-on risk to the public – could be adequately managed at this point under a conditional discharge. When there was conflict between the treatment team and the appellant over cannabis use in the past, the treatment team had tools at its disposal to secure the appellant’s compliance. Should the appellant receive a conditional discharge in circumstances where he remained unaware of the link between his use of cannabis and his risk to the public, the Board was concerned that the treatment team would not be able to bring the appellant in and secure his compliance. The Mental Health Act would not provide assistance in this regard.

[12] The Board was mindful of the benefits of the appellant’s work to his mental health, and was concerned that the conditions under a conditional discharge that would have been necessary to facilitate work out of town would have been onerous. The Board found that without the structure of the current disposition the appellant will fall away from compliance, and that proactive intervention is required before decompensation or a psychotic episode occurs. The Board’s reasons are reasonable and entitled to deference. We would not interfere.

Disposition

[13] The appeal is dismissed.

“K. Feldman J.A.”

“E.E. Gillese J.A.”

“B.W. Miller J.A.”