Court File and Parties

Court: COURT OF APPEAL FOR ONTARIO Date: 2022-03-29 Docket: C69749

Before: Strathy C.J.O., Coroza and George JJ.A.

In the Matter of: Mohamed Abdikarim

An Appeal Under: Part XX.1 of the Code

Counsel: Joanna Weiss, for the appellant Erica Whitford, 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: March 18, 2022 by video conference

On appeal against: the disposition of the Ontario Review Board dated May 12, 2021, with reasons dated June 8, 2021.

Reasons for Decision

[1] The appellant, Mohamed Abdikarim, appeals against the disposition of the Ontario Review Board (the “Board”), dated May 12, 2021, ordering that he be detained at the Forensic Service of the Centre for Addiction and Mental Health (“CAMH”) in Toronto. He asserts that the Board erred in law in determining that the necessary and appropriate disposition was a continuation of his detention order and that the Board’s decision was unreasonable. The appellant argues that the Board should have ordered a conditional discharge.

[2] The appellant is diagnosed with bipolar disorder unspecified, personality disorder unspecified, and substance use disorders relating to alcohol and cannabis. In October 2005, he was found not criminally responsible on account of a mental disorder in relation to three charges of robbery, two charges of possession of property obtained by crime under $5,000, one charge of failing to comply with a recognizance, one charge of theft under $5,000 and one charge of theft over $5,000. The appellant has been subject to a detention order since November 2005.

[3] The terms of the appellant’s detention order permit him to live in the community in accommodation approved by the person in charge of CAMH, requires him to abstain from the use of alcohol and drugs and requires him to report to CAMH at least once a week. During the reporting year, the appellant resided at his mother’s house along with his sisters in a living environment that he described as supportive yet stressful.

[4] The appellant sought readmission to hospital on nine separate occasions during the reporting year. Seven of these occasions were visitations to the CAMH emergency department and the other two occasions were to other emergency departments. The appellant’s reasons for seeking readmission varied, but often related to having consumed alcohol. He was readmitted to CAMH twice – from March 1 to 2, 2021 and from March 30 to April 3, 2021 – but “consistently requested to leave prematurely”. On at least two of the occasions that he was not readmitted, the appellant left the hospital before receiving a full assessment by his treatment team.

[5] Unfortunately, the appellant tested positive for the consumption of alcohol on 12 days over the reporting year. The results of these tests were not always consistent with the appellant’s own reports of his alcohol consumption.

[6] At the disposition hearing, the Board heard evidence from the appellant’s outpatient psychiatrist, Dr. Paul Benassi. In Dr. Benassi’s view, the appellant’s alcohol consumption and bipolar disorder leads to noncompliance with his medication and increases his risk for violence. In the Hospital Report that was provided to the Board, Dr. Benassi also noted that the appellant provided “inconsistent and misleading” information relating to his alcohol consumption over the reporting year.

[7] The Board concluded that the appellant remained a significant threat to the safety of the public, and that the necessary and appropriate disposition was a continuation of his detention order.

[8] The appellant advances two arguments on appeal.

[9] First, the appellant argues that the board erred in law by relying on his alcohol consumption when determining that a continuation of his detention order was the necessary and appropriate disposition. We disagree. It was necessary for the Board to consider the appellant’s alcohol use in determining the necessary and appropriate disposition.

[10] The Board quite properly considered this evidence along with the undisputed fact that the appellant tested positive for alcohol 12 times during the reporting year. Dr. Benassi’s evidence was that alcohol consumption increases the appellant’s risk of a mood episode, which is directly tied to his risk of violence. On two occasions, the appellant’s family phoned the hospital concerned about the appellant’s behaviour after coming home intoxicated, including one occasion where the appellant threatened to punch his sister. The appellant’s two readmissions to hospital were both triggered by concerns about his substance use. The Board did not err in considering all of this evidence because it was relevant to the issue of whether the appellant’s risk could be safely managed in the community.

[11] Second, the appellant argues that the Board’s decision to order the continuation of his detention is unreasonable. He asserts that the evidence before the Board did not establish that a detention order was required to manage his risk in the community and was not the least onerous and least restrictive disposition. We do not accept this submission.

[12] Given its expertise, considerable deference is owed to the Board’s decision in determining the necessary and appropriate disposition. 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: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 85.

[13] Dr. Benassi testified that a conditional discharge was not appropriate because it would not provide the safeguards necessary to manage the appellant’s risk. First, a conditional discharge would remove CAMH’s authority to approve the appellant’s housing. Second, a detention order was the only mechanism that would allow the hospital to readmit the appellant using a warrant of committal if necessary. According to Dr. Benassi, if a conditional discharge was granted, it would be very difficult to admit the appellant under the Mental Health Act, R.S.O. 1990, c. M.7. because he would not necessarily satisfy the criteria for involuntary admission under the Act.

[14] We do not view Dr. Benassi’s evidence as suggesting that a detention order should be imposed merely because it would be convenient to return the appellant to the hospital if necessary: see Esgin (Re), 2019 ONCA 155, at paras. 20 to 22. Dr. Benassi testified that the appellant’s treatment team has made consistent efforts to provide a level of risk management in a community setting, but has been challenged by the appellant’s fluctuating compliance with his treatment program and inconsistent self-reporting. Dr. Benassi confirmed that the goal of the appellant’s treatment team is to reduce reporting and monitoring requirements and to explore a conditional discharge going forward. It was open to the Board to order the appellant’s continued detention because the hospital needed to properly manage his risk and that the request for a conditional discharge was premature.

[15] For these reasons, the Board did not err and we would not interfere with its disposition.

[16] Before leaving this matter, we wish to comment on the Board’s description of the appellant as a “scofflaw”. We do not accept that the appellant is a contemptuous person who regularly violates the law. We recognize that the appellant has not always complied with the terms of his detention order, which prohibits him from consuming alcohol. But as Dr. Benassi explained, there are several complex reasons why the appellant continues to consume alcohol and the appellant has shown that he is willing to work with his treatment team in addressing his substance use. Indeed, Ms. Weiss, on behalf of the appellant, advised this court that the appellant has been enrolled in CAMH’s Concurrent Outpatient Medical & Psychosocial Addiction Support Services for substance use treatment since June 2021. We encourage the appellant to continue to work with his treatment team towards the goal of a conditional discharge.

[17] The appeal is dismissed.

“G.R. Strathy C.J.O.” “S. Coroza J.A.” “J. George J.A.”