Court File and Parties

Court of Appeal for Ontario Date: 2022-01-19 Docket: C69200

Before: Fairburn A.C.J.O., Feldman and Harvison Young JJ.A.

In the Matter of: Tiun Hui (Jeff) Zhan

An Appeal Under Part XX.1 of the Code

Counsel: Anita Szigeti and Maya Kotob, for the appellant Michael Dineen, for the respondent

Heard and delivered orally: December 3, 2021

On appeal against the disposition of the Ontario Review Board, dated February 4, 2021.

Reasons for Decision

[1] In January 2021, the ORB concluded that a conditional discharge order was not appropriate for the appellant at this time. Although there was no dispute as to his risk to safety, the appellant submits that this order was incorrect and unreasonable because his risk factors could be safely managed under the rubric of a properly crafted conditional discharge. We do not agree and would dismiss the appeal for the following reasons.

[2] In 2010, while on probation, the appellant attacked and fatally stabbed a stranger on the street in Glasgow, Scotland, responding to voices telling him the man was a zombie who would kill him. He was subsequently diagnosed with schizophrenia and treated with anti-psychotic medication. He was detained in a hospital in Scotland until February 2019, when he was repatriated to Canada and came under the jurisdiction of the Ontario Review Board.

[3] In January 2021, in accepting the hospital’s recommendation, the ORB found that, although the issue of significant threat was not contested at the hearing, there was ample evidence to support such a finding. The appellant suffered from a major mental illness and had significant history of failing to comply with treatment and failing to comply with supervisory orders prior to confinement. The Board noted that although the appellant had a very positive reporting year, he had only been discharged into the community a few days before the hearing and after many years of confinement, and it was unknown how he would react to the new stressors of life in the community.

[4] The Board specifically considered and rejected the appellant’s submission that a conditional discharge was the least onerous and restrictive disposition available. It thoroughly considered the evidence before it. The Board stressed that the appellant had a tendency to minimize negatives and overemphasize positives, which supported the view that he might not fully grasp the impact of negative stressors as he adjusted to life in the community, which could result in decompensation.

[5] Put another way, his treatment team was concerned that he could be slow to detect or acknowledge any problems arising from the additional stresses of his new independence. Given the demonstrated risk that the appellant could pose to the public if his symptoms returned and his documented history of minimizing negatives and overemphasizing positives, the ability to return him quickly to the hospital during the period of adjustment was important. In our view, the Board’s reasons met the reasonableness standard. We do not agree with the appellant that the Board discounted or did not meaningfully consider or analyze much of the evidence that is favourable to him. Both the treatment team and the Board seriously considered this.

[6] We do not agree that the concerns expressed by the hospital and accepted by the Board were speculative. They were well documented in the record. The Board accepted and reiterated the significant and enormous progress the appellant has made. In the context of the risks to public safety, however, it was within the range of reasonable outcomes to continue the detention order to offer a window of opportunity to test him in the community. The fact that he had been living in the community for only a few days at the time of his Board hearing was critical to its determination. The Board’s refusal to order a conditional discharge in January 2021 was reasonable and the appeal is therefore dismissed.

“Fairburn A.C.J.O.”

“K. Feldman J.A.”

“A. Harvison Young J.A.”