COURT OF APPEAL FOR ONTARIO

CITATION: Hassan (Re), 2020 ONCA 696

DATE: 2020-11-04

DOCKET: C68012

Doherty, Hourigan and Pardu JJ.A.

IN THE MATTER OF: Abdirasak Hassan

AN APPEAL UNDER PART XX.1 OF THE CODE

Michael Davies, for the appellant

Dena Bonnet, for the Crown

Michele Warner, for CAMH

Heard: October 30, 2020, by videoconference

On appeal against the disposition of the Ontario Review Board dated November 26, 2019, with reasons dated January 28, 2020.

REASONS FOR DECISION

Introduction

[1] The primary issue on this appeal is narrow: should the appellant, Mr. Hassan, be granted indirectly supervised (unaccompanied) passes without first participating in structured programming, contrary to hospital policy?

Facts

[2] On May 20, 2009, Mr. Hassan stabbed and killed his sister while suffering from paranoid delusions. On November 10, 2010, Mr. Hassan was found NCR on account of a mental disorder.

[3] Mr. Hassan has suffered from schizophrenia since late 2008. Around that time, he began to hear voices telling him that his friends and family were devils and trying to kill him. He refused to seek psychiatric care before his sister’s death. Mr. Hassan is currently diagnosed with schizophrenia, substance dependence disorder (alcohol and cannabis, but in remission) and antisocial personality disorder.

[4] During his first few years detained at the secure forensic unit at CAMH, Mr. Hassan responded well to treatment. In 2013, he transferred to a general forensic unit. In 2014, he was discharged to a bachelor apartment in a 24-hour-supported transitional residence.

[5] In the past few years, Mr. Hassan has regressed, and he has demonstrated a tendency to go AWOL. In August 2015, he went AWOL from his bachelor residence. He turned up nine days later in front of his family home in a catatonic state. In June 2016, he went AWOL while on an indirect pass. He returned three days later, claiming that he was on the hospital grounds the whole time, which was highly improbable. On December 12, 2018, Mr. Hassan went AWOL while on an indirect pass on hospital grounds. He left around 6 p.m. and returned at 5 a.m. the next day. He claimed he sat on a park bench for the night.

[6] Mr. Hassan’s passes were withheld completely for two weeks following his AWOL incident in December 2018. They were reinstated slowly. He was only increased back to an indirect pass on July 4, 2019.

[7] Due to a change in hospital policy, Mr. Hassen's indirect passes were revoked again on July 24, 2019. According to the new policy, Mr. Hassen could only get indirectly supervised passes if he engaged in structured programs for two weeks. Mr. Hassen refuses to participate in these programs.

[8] At his annual review, the Board concluded that Mr. Hassan continues to pose a significant threat to the public. It held that a detention order at a general forensic unit was appropriate. The disposition included the possibility of community living in approved accommodation. The Board did not direct the hospital to reinstate Mr. Hassan's indirect passes. It observed that he might choose to participate in the hospital's structured programming in the future and thereby reobtain access to indirect passes. However, if Mr. Hassan continues to refuse to participate in structured programs, the Board encouraged the hospital to consider and assess other options.

Analysis

[9] Mr. Hassan raises only one ground of appeal. He submits that the Board failed to consider whether the pass restrictions were appropriate or necessary based on his individual circumstances. Therefore, he argues that the Board did not order the least onerous and least restrictive disposition. He requests an order from this court directing CAMH to: (a) determine his privilege level based solely on his individualized risk assessment (i.e. rather than through a blanket hospital policy), and (b) exempt him from any policy requiring attendance in structured programming to gain access to indirect passes.

[10] The Crown submits that, while it was open to the Board to challenge the hospital's position that structured programming was a pre-requisite for Mr. Hassan to exercise his passes, the fact that they did not was reasonable. In the Crown's submission, Mr. Hassan is required to attend structured programming to minimize his risk to the public.

[11] The hospital argues that Mr. Hassan is making a single, incorrect argument: that there is a treatment impasse between himself and CAMH. It submits that this is an erroneous assertion because the Board’s reasons show that it did not find any treatment impasse. Rather, the Board concluded that Mr. Hassan made some progress over the preceding year and may make progress next year. CAMH submits that this does not meet the legal definition of a treatment impasse, which only occurs when no progress has been made or is likely to be made.

[12] We have concluded that the appeal must be dismissed.

[13] The Board accepted that CAMH could not assess Mr. Hassan's risk to the community and chances of going AWOL without his participation in a structured program. It summarized the testimony of Dr. Liu, Mr. Hassan’s attending psychiatrist for most of 2019, as concluding that it is "vitally important for the team to have an understanding of Mr. Hassan's risk, and his engagement in structured programs addresses this." We also note that CAMH has not rigidly applied its new policy regarding structured programs. Instead, it has developed a one on one structured program to respond to the appellant’s needs.

[14] In our view, the Board properly considered what was the least onerous and least restrictive disposition in the appellant’s circumstances. Its disposition, which had the effect of requiring participation in a structured program before indirectly supervised passes would be granted, was reasonable and open to it on the record.

[15] Finally, we agree with the submission of CAMH that there is no treatment impasse between it and the appellant. The Board was alive to this issue and it is clear from their reasons that they reasonably concluded that there is no impasse.

Disposition

[16] The appeal is dismissed.

“Doherty J.A.”

“C.W. Hourigan J.A.”

“G. Pardu J.A.”