Court File and Parties
Court of Appeal for Ontario Date: 20230217 Docket: COA-22-CR-0010
Simmons, Paciocco and Zarnett JJ.A.
In the Matter of: Ali Kiamarz - Milani An Appeal Under Part XX.1 of the Code
Counsel: Jeffrey Marshman, for the appellant Lilly Gates, for the respondent, His Majesty the King Leisha Senko, for the respondent, Person in Charge of Centre for Addiction and Mental Health
Heard: February 10, 2023
On appeal from the disposition of the Ontario Review Board dated July 13, 2022, with reasons dated August 4, 2022.
Reasons for Decision
[1] The appellant appeals from a disposition of the Ontario Review Board (the “Board”) ordering that he be transferred from the Centre for Addiction and Mental Health (“CAMH”) to the High Secure Forensic Program at Waypoint Centre for Mental Health Care (“Waypoint”).
[2] There was no issue before the Board, and there is no issue on appeal, about the conclusion that the appellant poses a significant threat to public safety and that a detention order is required. The appellant's diagnosis (schizoaffective disorder), his history of violent actions, and his current dysregulation and opposition to treatment with clozapine, a drug that helped him in the past, all support this conclusion.
[3] The appellant's primary submission on appeal is that the Board's disposition was not the “necessary and appropriate” disposition because it was neither the least onerous nor the least restrictive alternative.
[4] The appellant points to evidence that, while his condition had been on a downward spiral for some time, particularly following the death of his mother in 2019, in the months immediately preceding the July 2022 hearing, he had begun to make progress after being placed in the Structured Observation and Treatment Unit (“SOTU”) at CAMH. Further, the evidence indicated that his progress was “fragile”, that there were no immediate concerns requiring that he leave the SOTU before that progress could become entrenched, and that he would view the transfer to Waypoint as a backward and demoralizing step.
[5] In the circumstances, the appellant contends that his transfer to Waypoint was not “necessary and appropriate” because it was not necessary to protect public safety, it did not best serve his rehabilitative needs, and it was not, therefore, the least onerous or least restrictive alternative.
[6] We do not accept this submission. The Board accepted the appellant’s psychiatrist’s evidence that, while the appellant had made some gains in the SOTU, remaining in that unit was not a long-term solution for him. The appellant’s treatment team had been unable in the past to manage the risk that he presented on any of the secure forensic units at CAMH. The SOTU is not a forensic unit, but rather a mixed-use unit with a high degree of supervision intended for acute stabilization of a patient’s risk; it does not offer rehabilitation services and could not realistically prepare the appellant for a transfer back to a secure forensic unit at CAMH.
[7] Further, the Board also accepted that, because of its larger secure perimeter and overall high secure environment, Waypoint could offer the potential for the appellant to access rehabilitative activities and programming and achieve a better quality of life than was available to him at CAMH.
[8] In its reasons, the Board considered both the benefits and drawbacks of a transfer to Waypoint and concluded that the benefits outweighed the drawbacks such that a transfer was the “necessary and appropriate disposition” to manage the appellant’s risk to public safety and at the same time meet his needs. In all the circumstances, the Board agreed with the appellant’s psychiatrist’s conclusion that transferring him to the high secure unit at Waypoint would be “more humane”. We see no error in principle or palpable and overriding error in the Board's conclusion.
[9] In the alternative, the appellant submits that, having decided that a transfer to Waypoint was required, the Board erred by failing to exercise its inquisitorial powers and direct an assessment of the appellant’s circumstances to address the treatment impasse that had developed.
[10] In this regard, the appellant notes that he has been subject to the Board’s jurisdiction for almost 20 years since being found not criminally responsible (“NCR”) in April 2003. During that period, the appellant has experienced ups and downs, having progressed to community living and even a conditional discharge while being treated with clozapine, but regressing when his opposition to clozapine takes hold and he is no longer treated with that drug. By transferring him back to the high secure institution where he was placed when first adjudged NCR, the Board’s order reflects a return to square one with no concrete plan in place to assist him in moving forward.
[11] The appellant submits that his overall regression was due to two factors: cessation of treatment with clozapine and the death of his mother. While his regression was largely halted at CAMH, he submits that there was no concrete plan in place to address his issues, in particular his current aversion to clozapine, which was impeding his treatment and progress toward a discharge. He further submits that there is no such plan in place as part of his transfer to Waypoint.
[12] In the circumstances, the appellant contends that a treatment impasse has developed and that the Board erred in failing to recognize that impasse and order an assessment to address it. He asks that this matter be remitted to the Board for a new hearing to investigate and respond to the impasse.
[13] In support of his submission, the appellant applied to admit fresh evidence indicating he was placed in continuous seclusion at Waypoint for about 12 days in December 2022, with the result that a restriction of liberty hearing was scheduled for January 12, 2023. Further, at the appeal hearing, the appellant tendered a Restriction of Liberty Hearing Report from Waypoint outlining the circumstances leading to the lengthy December 2022 seclusion. The respondents did not oppose admission of the fresh evidence. We agree that it should be admitted.
[14] Nonetheless, we reject the appellant's alternative submission. In our view, the evidence and submissions that were before the Board do not lead to the conclusion that a treatment impasse had developed. Rather, as indicated above, there was evidence before the Board that the appellant had been making progress in the months leading up to the hearing. There was also evidence that, for a few months prior to the hearing, he was receiving an injectable medication that had a “risk mitigating effect”. Further, the appellant's psychiatrist believed that, given the opportunities at Waypoint to engage in more rehabilitative activities and programming and the opportunity for a “reset”, the appellant’s progress would likely continue once he became settled there. Significantly, none of the parties at the hearing before the Board claimed the appellant was at a treatment impasse.
[15] In these circumstances, we are not satisfied the Board erred in failing to direct an assessment of the appellant's circumstances as part of its transfer order. The fact of the appellant's subsequent seclusion at Waypoint in December 2022 does not undermine this conclusion.
[16] In reaching our conclusion, we acknowledge that the appellant’s psychiatrist testified that the appellant “definitely did best when he was on clozapine.” But the psychiatrist testified she could not say for sure “how much things are [going] to change at this point with clozapine.” While the appellant was much more stable when he was on clozapine, he also had about three years in the community without clozapine while his mother was still alive. The psychiatrist noted that the appellant expresses paranoid beliefs about clozapine being harmful to him and lacks insight into how much better he did when taking it. Even a brief mention of considering clozapine as an option within the last few months had dysregulated him. The psychiatrist confirmed that “it’s [a] very, very challenging situation to try and encourage [the appellant] to return to clozapine”.
[17] In our view, in making his alternative submission, the appellant is asking this court to conclude that, in order to progress towards a discharge, he must be treated with clozapine and further, that steps can be taken to mitigate his aversion to clozapine that are not being taken. In effect, the appellant claims that he is at a treatment impasse in relation to what he submits is the best available treatment option for him. However, in the absence of expert evidence or the issue having been litigated before the Board, we are not in a position to make those conclusions or to find that the Board erred in failing to exercise its inquisitorial function by failing to order an assessment of the appellant’s circumstances.
[18] That said, we observe that the Board has expertise that we do not possess, and that treatment impasse is an issue of which the Board should be mindful at the appellant's next annual review hearing.
[19] Based on the foregoing reasons, the appeal is dismissed.