COURT OF APPEAL FOR ONTARIO

CITATION: Afifi (Re), 2021 ONCA 608

DATE: 20210913

DOCKET: C68824

Paciocco, Nordheimer and Coroza JJ.A.

IN THE MATTER OF: Shehab Afifi

AN APPEAL UNDER PART XX.1 OF THE CODE

Anita Szigeti and Maya Kotob, for the appellant

Deborah Krick, for the respondent, Attorney General of Ontario

Leisha Senko, for the respondent, Person in Charge of the Centre for Addiction and Mental Health

Heard: August 30, 2021 by video conference

On appeal from the disposition of the Ontario Review Board dated October 15, 2020, with reasons dated November 2, 2020 and reported at Afifi (Re), [2020] O.R.B.D. No. 2245.

REASONS FOR DECISION

[1] The appellant, Shehab Afifi, appeals the disposition of the Ontario Review Board (“Board”) dated October 15, 2020, detaining him at the Centre for Addiction and Mental Health (“CAMH” or “the hospital”) on a general unit with privileges up to community living in approved accommodation. At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide our reasons.

[2] In November 2006, the appellant was found not criminally responsible on account of mental disorder on charges of mischief under $5,000 (x2), assault, and uttering threats. He has been diagnosed with schizophrenia, cannabis use disorder (in partial remission), alcohol use disorder (in sustained remission), and antisocial personality disorder.

[3] He was subject to a detention order and is placed at CAMH. In 2008, he moved back into the community into an independent apartment. Over the years, he has been readmitted back into CAMH and then discharged back into his apartment. However, the appellant has acted violently on several occasions since his 2006 arrest. In March 2019, the appellant was alleged to have assaulted an elderly man by punching him in the stomach. After the alleged incident, he was admitted to the hospital and tested positive for cannabis shortly after. He was eventually discharged on April 8, 2019 but readmitted to CAMH only a few days later on April 16, 2019. This was after he arrived late for an appointment with his treatment team and appeared to be disheveled, irritable, and disorganized. After readmission, he was reported to be clearly suffering from symptoms of psychosis. Although he denied any recent cannabis use, the appellant’s urine drug screens were positive for cannabis on April 16 and 17, 2019.

[4] At his latest review hearing, held September 25, 2020, the Board unanimously held that the appellant “continues to pose a significant threat to the safety of the public and that a conditional discharge would not be sufficient to ameliorate that risk given the difficulty to quickly bring him back into hospital when he decompensates.” The Board issued a continuation of the current detention order at CAMH with privileges up to community living in approved housing. The effect of the detention order is that the appellant will lose his apartment where he has lived for the last 11 years, subject to many readmissions to the hospital. CAMH has taken steps to inform the appellant’s housing provider that it no longer approves of the appellant’s apartment as a suitable housing option because of the lack of sufficient supervision.

[5] The appellant advances several arguments.

[6] First, the appellant contends that the Board’s disposition is not the least onerous, least restrictive disposition and submits that the evidence before the Board demonstrated that any risk factors could be safely managed under the rubric of a properly crafted conditional discharge that would allow him to return to his independent apartment.

[7] We do not accept the appellant’s argument.

[8] Considerable deference is owed to the Board’s decision. In our view, the Board’s reasoning process and outcome in this case reflects an internally coherent and rational chain of analysis and is justified in relation to the facts and the law.

[9] The evidence before the Board included the lengthy history of the appellant’s decompensation and his assaultive behaviour. Dr. Kung testified before the Board on behalf of the appellant’s treatment team. She opined that the appellant’s history of hospitalization, recent record of violent activity, and substance abuse issues demonstrate the need for close and continued 24-hour supervision. It was open to the Board to accept her evidence and conclude that this could only be accomplished by way of a detention order.

[10] Second, the appellant argues that, at para. 60 of its reasons, the Board recognized that the staff at the appellant’s independent apartment could have managed his risk when it stated, “[T]he Board questions whether or not the treatment team has explored utilizing [the independent apartment] community workers to monitor [the appellant] in his current apartment.” The appellant submits that, in light of these comments, the decision to impose a detention order is not the least onerous and least restrictive disposition because the Board identified a potential alternative to the supervision offered by CAMH and was required to explore this further.

[11] In our view, the Board’s comments at para. 60 were not findings by the Board that the independent apartment could provide adequate supervision in the community. The Board permitted a social worker at CAMH to testify at the hearing and provide information about what support community workers can offer for independent living in the apartment. That social worker testified that the present arrangement is for community workers to do weekly property checks to ensure that there is no destruction to the apartment. We view the comments at para. 60 as merely the Board’s observations that, moving forward, if supervised housing approved by CAMH was not available within a reasonable time, then CAMH should potentially consider independent living in an apartment with the assistance of the community workers. We see no breach of the Board’s inquisitorial duties. The issue was explored by the Board through the testimony of the social worker but, ultimately, the Board accepted Dr. Kung’s evidence that a high degree of supervision is required at this time.

[12] Finally, the appellant contends that the Board erred when it held that if “left to his own devices” he would “not recognize his own decompensation, and would not voluntarily return to hospital which renders the Mental Health Act ineffective to treating his psychotic episodes.” The appellant argues that a conditional discharge would still subject him to his treatment team and that it is simply wrong to suggest that the Mental Health Act (“MHA”) is rendered ineffective if the appellant is discharged to the community because the committal provisions under the MHA are available to effect the return of the appellant to the hospital for assessment and admission.

[13] We do not accept this argument. We acknowledge that the ease of returning an individual to the hospital will not always justify a detention order and cannot be imposed as a matter of convenience: Valdez (Re), 2018 ONCA 657, at paras. 22-23. However, in our view, it was open to the Board to find that the MHA was inadequate to manage the appellant’s risk. Contrary to the appellant’s submissions, the Board did assess the evidentiary record and did not rely solely on the ease of returning an individual to a hospital to justify the detention order. The Board also noted that the appellant does not recognize his decompensation, would not voluntarily return to the hospital, and demonstrates a high risk of physical violence when he decompensates. The Board’s finding, that a conditional discharge would not ameliorate this risk given the difficulty to quickly bringing the appellant back into hospital under the MHA, must be read in this context.

[14] For these reasons, the appeal was dismissed.

“David M. Paciocco J.A.”

“I.V.B. Nordheimer J.A.”

“S. Coroza J.A.”