Court of Appeal for Ontario

Date: 2021-12-07 Docket: C69206

Before: Strathy C.J.O., Hourigan and Paciocco JJ.A.

In the Matter of: Mirbabak Ojaghi An Appeal Under Part XX.1 of the Code

Counsel: Mirbabak Ojaghi, acting in person Paul Socka and Erin Dann, appearing as amicus curiae Heather Fregeau, for the respondent, the Attorney General of Ontario Leisha Senko, for the respondent, the Person in Charge of the Centre for Addiction and Mental Health

Heard: November 26, 2021

On appeal from the disposition of the Ontario Review Board, dated February 11, 2021, with reasons dated March 8, 2021.

Reasons for Decision

[1] Mr. Ojaghi appeals against the disposition of the Ontario Review Board (the “Board”), dated February 11, 2021, ordering that he be detained at the General Forensic Unit of the Centre for Addiction and Mental Health (“CAMH”). He asserts that the detention order was unreasonable and that this court should set it aside and order a conditional discharge.

[2] Through amicus, Mr. Ojaghi also submits that the Board erred in removing a provision from his previous disposition, which permitted him to obtain passes for accompanied travel out of Ontario for up to two months, with the itinerary and the person travelling with him being approved by the person in charge.

[3] For the reasons that follow, we conclude that the Board’s order was reasonable and dismiss the first ground. With respect to the second ground, we find that the Board breached its duty of procedural fairness to Mr. Ojaghi and reinstate the provision.

[4] The facts can be briefly stated. Mr. Ojaghi’s current diagnosis is schizophrenia. He was found not criminally responsible on account of a mental disorder in relation to a charge of assault causing bodily harm in May 2019. He was released on bail and came under the jurisdiction of the Board in November 2019. He was subject to a detention order until being conditionally discharged on November 30, 2020.

[5] Sometime in January 2021, Mr. Ojaghi stopped taking his medication and began to decompensate. He was readmitted to CAMH under the committal provisions of the Mental Health Act. An early review hearing was held, resulting in the detention order currently under appeal.

[6] At the disposition hearing, the Board heard evidence from Mr. Ojaghi’s outpatient psychiatrist, Dr. Benassi. Dr. Benassi explained that in January 2021, while Mr. Ojaghi was under the conditional discharge, his sister called the hospital expressing concern that he had not been complying with medication requirements and noting some change in his behaviour. A member of the clinical team saw Mr. Ojaghi a few days later and noticed indicia of paranoia. Drug screens revealed that he had not been taking his medication. A caseworker who visited Mr. Ojaghi became fearful as he was quite irate. The hospital requested that police bring Mr. Ojaghi to the hospital and he was readmitted pursuant to the Mental Health Act. Once in the hospital, Mr. Ojaghi was started on an injectable medication.

[7] Dr. Benassi was concerned about Mr. Ojaghi’s lack of insight into his condition and concluded that without a detention order, it was unlikely he would take his medication. He suggested Mr. Ojaghi be detained at the General Forensic Unit at CAMH which has more patient privileges and a lower staff-to-patient ratio than the more secure unit. No other evidence was called by the hospital. The Crown did not call any evidence. Mr. Ojaghi’s sister advised that he could continue to live with her and her family.

[8] At the hearing that resulted in the disposition at issue, it was not contested that Mr. Ojaghi remained a significant threat to public safety and the hospital sought a detention order on that basis. The Crown supported the hospital’s recommendation. Mr. Ojaghi’s counsel accepted that he was a threat to public safety, but argued for the continuation of a conditional discharge under the terms set out in the November 30, 2020 disposition. The Board ultimately issued a detention order, requiring Mr. Ojaghi to remain at the General Forensic Unit at CAMH.

[9] The Board accepted that Mr. Ojaghi remained a significant threat to public safety. It concluded that a detention order was both necessary and appropriate as public safety would be compromised with any other disposition. In this case, it was fortunate that the hospital was able to obtain the cooperation of the police in returning Mr. Ojaghi to the hospital, but the hospital should not have to rely on the police to do so when a patient becomes non-compliant with their medication and significantly destabilizes.

[10] The Board accepted Dr. Benassi’s evidence that public safety required that Mr. Ojaghi be returned to the hospital at the earliest sign of any destabilization. The necessary and appropriate way to do so was pursuant to a detention order, which includes a warrant of committal, ensuring his timely and efficient return to hospital. Dr. Benassi also testified that a detention order with a community living privilege would allow the hospital to approve appropriate housing in the community.

[11] Mr. Ojaghi submits, through amicus, that any risks could be effectively managed through a conditional discharge. The mechanisms of the Mental Health Act were part of the “ecosystem” of the Board. They were sufficient to manage the risk when Mr. Ojaghi was returned to the hospital in January 2021 and they are appropriate now. A conditional discharge was the least onerous and least restrictive disposition consistent with public safety and the detention order made by the Board was unreasonable.

[12] We do not accept this submission. The standard of review is set out in s. 672.78(1) of the Criminal Code, R.S.C., 1985, c. C-46. We can only allow an appeal and set aside an order where we are of the opinion that (a) it is unreasonable or cannot be supported by the evidence; (b) it is wrong on a question of law; or (c) there was a miscarriage of justice. Deference is owed to the Board as an expert and specialized tribunal and we should not interfere as long as the decision falls within a range of reasonable alternatives: R. v. Owen, 2003 SCC 33, 1 S.C.R. 779, at paras. 31-33, 37; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, at paras. 34, 37, 75, 81, 83-85, 92-93, 99.

[13] The Board’s decision was reasonable. There was no dispute on the issue of significant threat. Mr. Ojaghi had been returned to the hospital because he had decompensated after he stopped taking his medication. Dr. Benassi emphasized the need to promptly return him to hospital for treatment if he began to show signs of decompensation. Dr. Benassi testified that a detention order was necessary for this purpose and that the mechanisms of the Mental Health Act could not assure a timely return. The Board was entitled to accept this evidence. We therefore dismiss this ground of appeal.

[14] The issue of the travel provision was raised by a panel member following Dr. Benassi’s evidence, and the psychiatrist indicated that he was content that the condition remain in place. The issue was raised again during submissions and Dr. Benassi again stated that he was content with the condition and that he would not approve a travel itinerary unless he was satisfied that Mr. Ojaghi was stable on his medication and that there was a specific travel plan in place. Neither the Crown nor the hospital made any submissions on the issue.

[15] The Board’s reasons did not address the issue. The Board’s disposition did not include the travel provision, which had been part of the previous disposition.

[16] In our view, in the circumstances of this case, including Dr. Benassi’s support for the provision, if the Board was considering revoking the provision, it had a duty to put Mr. Ojaghi on notice that the travel provision was at issue and to invite submissions. This falls within the Board’s duty to provide a fair hearing because its decisions affect the accused’s rights, privileges, and liberties: Osawe (Re), 2015 ONCA 280, 125 O.R. (3d) 428, at para. 35.

[17] Given the state of the record, and the absence of reasons for the Board’s decision on the travel provision, we cannot conclude with any certainty whether the removal of the provision was intentional or an oversight. The reasons are therefore not susceptible to appellate review, and we set aside the decision on that issue.

[18] We therefore reinstate the travel provision and allow the appeal to that extent. In so doing, we acknowledge that the issue may be reconsidered at Mr. Ojaghi’s next review, scheduled for February 2, 2022.

“G.R. Strathy C.J.O.” “C.W. Hourigan J.A.” “David M. Paciocco J.A.”