Court of Appeal for Ontario

Date: 20210430 Docket: C68592

Judges: Rouleau, Pepall and Roberts JJ.A.

In the Matter of: Robiel Negash

An Appeal Under Part XX.1 of the Code

Counsel: Anita Szigeti and Maya Kotob, for the appellant Gerald Brienza, for the respondent, Attorney General of Ontario Leisha Senko, for the respondent, Person in Charge of the Centre for Addiction and Mental Health

Heard: March 19, 2021 by video conference

On appeal from the disposition of the Ontario Review Board dated May 12, 2020, with reasons dated August 12, 2020, reported at [2020] O.R.B.D. No. 1561.

Reasons for Decision

Background

[1] Robiel Negash has been under the supervision of the Ontario Review Board since February 9, 2010 when he was found not criminally responsible for robbery. He entered a bank and, in a note, threatened to kill the teller and everyone else in the bank if funds were not given to him. He was transferred to the Centre for Addiction and Mental Health (“CAMH”) in May 2010. Since 2015, he has been living in the community and followed by his CAMH treatment team. He has been under a conditional discharge since April 29, 2019. He appeals the Board’s most recent disposition of a conditional discharge dated May 12, 2020. He seeks an absolute discharge.

[2] Mr. Negash has a significant substance abuse history, starting at 14 years old, which exacerbates his psychiatric issues. His criminal record spanning 2002 to 2008 features convictions for assaults, robbery, threats, and failures to comply with probation orders. His psychiatric issues led to his admission into hospital in January 2009. A week after his discharge, he committed the index offence. His current psychiatric diagnosis includes schizophrenia, substance abuse disorder, and personality disorder.

[3] While he has had his ups and downs over the years, Mr. Negash has demonstrated significant improvement. He has not been physically violent since September 2016 and has not exhibited threatening behavior since 2018. He has not tested positive for illegal substances since 2018. He has been stable and compliant with his medication since 2019. Over the past reporting year, Mr. Negash has shown partial insight into his illness and is cooperative with and committed to his treatment team. He is treatment capable. He has been successfully living in a subsidized apartment in the community without incident. He has no plans to move. He has close family support and worked at his mother’s restaurant before the advent of COVID-19.

May 12, 2020 ORB Disposition

[4] The Board was divided on its May 12, 2020 disposition. The majority concluded that Mr. Negash still represented a significant risk to public safety. While the majority recognized that he was on the road to an absolute discharge, they concluded Mr. Negash needed more time to consolidate the gains he had made, to transition to a non-forensic team, and to manage a change in his medication that he had expressed an interest in making. As a result, they continued the conditional discharge order, although they removed the conditions related to testing and abstinence and consent to treatment in recognition of Mr. Negash’s abstinence since 2018 and treatment compliance.

[5] The minority of the Board would have granted an absolute discharge because, in their view, the evidence did not establish that Mr. Negash still represented a significant risk to public safety. The risk that Mr. Negash would destabilize was no more than a possibility, speculative, and not reasonably “foreseeable”.

Issues

[6] Mr. Negash submits that the majority of the Board erred in their analysis of whether he represented a significant risk to the public and that the majority’s decision was unreasonable. The evidence did not support their conclusion that Mr. Negash posed a significant risk to public safety.

[7] The Attorney General and CAMH submit the majority’s decision is reasonable and firmly supported by the evidence. The appeal should be dismissed.

Analysis

[8] We agree with Mr. Negash that the majority of the Board erred in their analysis of significant risk and in their assessment of the evidence.

[9] An appellate court may allow an appeal from a Board’s disposition under s. 672.78(1) of the Criminal Code where the Board’s disposition is unreasonable or cannot be supported by the evidence; it is based on a wrong decision on a question of law; or there was a miscarriage of justice.

[10] In assessing whether Mr. Negash was a significant risk to public safety, the Board was required to analyze the likelihood of that risk and the seriousness of the harm that would result if the risk materialized: Winko v. British Columbia (Forensic Psychiatric Services), [1999] 2 S.C.R. 625, at paras. 57-60; Carrick (Re), 2015 ONCA 866, 128 O.R. (3d) 209, at para. 17. It is well established that there must be a real, foreseeable risk that is more than speculative and that the consequent physical or psychological harm must be serious and criminal in nature: R. v. Ferguson, 2010 ONCA 810, 264 C.C.C. (3d) 451, at para. 8. In our view, the majority’s reasons raise two difficulties.

[11] First, it is not clear from the majority’s reasons that they applied the correct test of real, foreseeable risk. Rather, they appear to have concluded that the possibility of a change in medications could cause instability and that there was an “elevated risk” associated with Mr. Negash’s transition to a non-forensic team. The majority’s reasoning relies heavily on Mr. Negash’s history of difficulty with changes in medications, non-compliance with medications and treatment recommendations, substance abuse, and transitioning to living in the community.

[12] By determining that Mr. Negash was a significant risk to public safety because of the possibility rather than the probability of harm, the majority descended into the realm of speculation and applied the wrong test: Kassa (Re), 2019 ONCA 313, at paras. 34-35. Moreover, the Board made no effort to weigh the seriousness of the potential harm against the likelihood that it would materialize.

[13] Second, the Board failed to grapple with the evidence of Mr. Negash’s treating psychiatrist, Dr. Choptiany, which contained a fundamental inconsistency on the key issue. Dr. Choptiany opined that Mr. Negash still posed a significant risk to public safety. However, when questioned pointedly by Mr. Negash’s counsel and members of the Board, Dr. Choptiany stated that he did not believe that the risk would cross the threshold and become “likely”.

[14] Dr. Choptiany was of the view that it was foreseeable that there would be problems and challenges as there had been in the past and that Mr. Negash’s history of significant periodic instability with impulsive and aggressive behavior, for which he was hospitalized as recently as 2017, stood in the way of an absolute discharge. Dr. Choptiany explained that Mr. Negash becomes impulsive when distressed, which affects his insight into the need for medication and treatment, and which puts him at greater risk of using substances and engaging in physical or psychological violence.

[15] In order to reach a reasonable decision, the majority of the Board had to address the key conflict in Dr. Choptiany’s evidence and explain why they were satisfied that Mr. Negash posed a significant risk to public safety by grappling with the real likelihood and seriousness of that risk: Carrick (Re), at paras. 38 and 43. They failed to do so.

[16] Importantly, the Board clearly accepted Dr. Choptiany’s evidence that Mr. Negash’s substance abuse risk was currently under control and he was treatment compliant given that they removed the conditions related to testing and abstinence and consent to treatment. However, the attenuation of these significant risk factors was not addressed by the majority in their risk assessment.

[17] In the face of reliance on speculation and the contradictory nature of Dr. Choptiany’s evidence on the issue of significant risk, the disposition must be set aside.

[18] It is not possible for us on this record to resolve the inconsistencies in Dr. Choptiany’s evidence nor determine the issue of significant risk. Rather, as this court stated in Carrick (Re), at para. 44, the risk posed by Mr. Negash “is a matter for the Board in the exercise of its expert judgment, not this court”.

[19] As a result, we return the matter to the Board for a fresh determination at Mr. Negash’s next annual review, which we understand is scheduled to take place in May.

Disposition

[20] Accordingly, we allow the appeal.

“Paul Rouleau J.A.”

“S.E. Pepall J.A.”

“L.B. Roberts J.A.”