Court of Appeal for Ontario

Date: 20240111 Docket: COA-23-CR-0734

van Rensburg, George and Favreau JJ.A.

In the Matter of: Mohamed Abdikarim

An Appeal Under Part XX.1 of the Code

Counsel: Anita Szigeti, for the appellant Eunwoo Lee, for the respondent Attorney General of Ontario Leisha Senko, for the respondent Person in Charge of the Centre for Addiction and Mental Health

Heard: December 20, 2023

On appeal against the disposition of the Ontario Review Board dated June 8, 2023.

Reasons for Decision

[1] This is an appeal of a disposition of the Ontario Review Board (the “Board”). In October 2005, the appellant Mohamed Abdikarim was found not criminally responsible on account of mental disorder (“NCR”) on charges including robbery. Since that time, he has been under the jurisdiction of the Board.

[2] The appeal arises from an annual review hearing held by the Board in May 2023. The parties agreed that Mr. Abdikarim represented a significant threat and that he should be detained. The issues before the Board were whether Mr. Abdikarim should be transferred from the Centre for Addiction and Mental Health (“CAMH” or “the Hospital”) to St. Joseph’s Healthcare, Hamilton (“St. Joseph’s”) as he requested, and what housing conditions should be in place when he begins living in the community.

[3] The Board received the Hospital’s report and heard evidence from staff psychiatrist Dr. Candice Kung, who had been involved in Mr. Abdikarim’s treatment and was the co-author of the Hospital report. She indicated that there could be therapeutic benefits to the proposed transfer. Mr. Abdikarim also testified, explaining that he was seeking a transfer to St. Joseph’s because he believed that his treatment at CAMH was at an impasse. St. Joseph’s had been given a copy of the Hospital report and provided a letter indicating that Mr. Abdikarim could be accommodated at St. Joseph’s but cautioning that he might be in a more restrictive setting for some time after the transfer.

[4] In its reasons the Board set out a summary of the index offences and Mr. Abdikarim’s history before and after the NCR finding. The Board provided a very brief summary of the evidence at the hearing, including the reasons for the proposed transfer and the fact that the Hospital did not oppose the transfer. After setting out the applicable law, the Board concluded that Mr. Abdikarim continued to pose a significant threat and that his continued detention was warranted. Although the Board did not accept that there had been a treatment impasse at CAMH, it accepted that it was in the interests of the patient and the public to order such a transfer.

[5] The Board accordingly ordered Mr. Abdikarim’s detention at St. Joseph’s, and that he would remain at CAMH until such time as a transfer could be implemented. The Board provided that Mr. Abdikarim’s detention would be subject to community privileges that were in the existing order, as amended. The Board stated that the word “community” would be replaced with the term “Greater Toronto Area” to allow for more housing options and include housing options in Hamilton and its environs. The Board also amended the housing condition, adding a requirement for supervised accommodation to the community living condition of “accommodation approved by the person in charge”. According to the Board, supervised accommodation would allow the person in charge to find a placement with more controls, which was an important factor in protecting the public and necessary to respond to Mr. Abdikarim’s history of non-compliance with abstinence conditions and unauthorized absences.

[6] We were advised that Mr. Abdikarim continues to be detained at CAMH, and that the transfer to St. Joseph’s has not yet taken place. His next annual review is scheduled for May 8, 2024.

[7] In this appeal from the Board’s disposition there are two arguments, both having to do with the conditions for approved accommodation that appear in the disposition issued by the Board.

[8] First, the appellant submits that the Board erred by unilaterally and unreasonably adding a requirement for “supervised accommodation”. He acknowledges that the inclusion of a condition for supervised accommodation is not in itself unreasonable. In this case however, this was an issue that was raised by one of the Board members which had not been requested by the Hospital or the Attorney General. The Board added the condition without any evidence of its meaning or its impact on Mr. Abdikarim’s liberty. The concern is that there is no common understanding as to what is meant by “supervised accommodation”, and that this was not fully explored in the context of the Board hearing. Mr. Abdikarim relies on Elster (Re), 2011 ONCA 701, where this court allowed an appeal from a disposition providing for “supervised accommodation” and varied the order to provide that the appellant could not be permitted to live in the community with his father, but could otherwise be permitted to live in the community in accommodation to be approved by the person in charge of CAMH. Mr. Abdikarim contends that, similarly, this court should overturn the provision for “supervised accommodation” in his case, and provide for accommodation approved by the person in charge.

[9] We do not give effect to this ground of appeal. In Elster, there was a denial of procedural fairness when the Board unilaterally included a term for supervised accommodation without hearing counsel on the issue. In this case, by contrast, while a Board member raised the question of supervised accommodation during the testimony of Dr. Kung, counsel were invited to ask Dr. Kung questions on this subject, and they addressed the issue in their closing submissions.

[10] We also see no error in the inclusion of the supervised accommodation requirement here, which was appropriate. The appellant acknowledges that the previous condition that he seeks to continue would give the Hospital broad discretion in approving accommodation, including ensuring that it be supervised. In the same way, the condition for supervised accommodation, without defining a specific meaning for supervision, would ensure that the Hospital would be able to consider the relevant circumstances at the time Mr. Abdikarim is being considered for accommodation in the community and decide on the appropriate supervision depending on the circumstances. Although “supervised accommodation” may capture various degrees or levels of supervision, the condition of the Board in this case reflects the need for Mr. Abdikarim to live in supervised – that is, not unsupervised – accommodation in the community.

[11] The second ground of appeal is that the geographical scope of the disposition’s accommodation provisions is inconsistent with the Board’s reasons. Paragraph 2(h) of the disposition, which speaks to the period during which Mr. Abdikarim will continue to be detained at CAMH pending his transfer to St. Joseph’s, provides for community living as permitted by the person in charge at CAMH in the community of the GTA. Paragraph 5(h), which speaks to Mr. Abdikarim’s detention at St. Joseph’s after his transfer, provides for community living as permitted by the person in charge at St. Joseph’s in the community of Hamilton.

[12] The housing condition in the previous order provided for Mr. Abdikarim “to live in the community in accommodation approved by the person in charge”. The Board stated at para. 42 of its reasons that the word “community” should be replaced by “Greater Toronto Area” as this would “allow for more housing options and include housing options in Hamilton and its environs”.

[13] We agree that the Board and the parties, who agreed to the change in the geographic scope of the accommodation condition, assumed that the GTA included Hamilton, and that it would be appropriate, and consistent with the Board’s reasons, to change the geographical scope of both paragraphs 2(h) and 5(h) to “the Greater Toronto Area and Hamilton”. We allow the appeal and so order. We dismiss the balance of the appeal.

“K. van Rensburg J.A.”

“J. George J.A.”

“L. Favreau J.A.”