Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240910 DOCKET: COA-24-CR-0112

Simmons, van Rensburg and Thorburn JJ.A.

IN THE MATTER OF: Taimaz Shahinjou

AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel: Jeff Marshman, for the appellant Vallery Bayly, for the respondent, Attorney General of Ontario Jessica Szabo, for the respondent, Ontario Shores Centre for Mental Health Sciences

Heard: August 16, 2024

On appeal against the disposition of the Ontario Review Board, dated October 24, 2023, with reasons dated November 28, 2023.

Reasons for Decision

[1] The appellant appeals from an October 24, 2023, disposition of the Ontario Review Board (the “Board”) ordering that he be detained at the Forensic Program of the Ontario Shores Centre for Mental Health Sciences (“Ontario Shores” or the “Hospital”) with privileges up to and including living in the community. The sole issue on appeal is whether the Board’s denial of the appellant’s request for a conditional discharge was unreasonable. For the reasons that follow, the appeal is dismissed.

Background

[2] The appellant was found not criminally responsible (“NCR”) in June 2012 in relation to charges of assault causing bodily harm, assault and breach of a conditional sentence order. He is diagnosed with schizophrenia, cannabis use disorder (moderate) and alcohol use disorder (moderate). The substance use disorders have been in remission since the appellant came under the jurisdiction of the Board. Prior to the NCR finding, the appellant had several convictions, primarily for assaultive behaviour and failing to comply with court orders.

[3] Subsequent to the NCR finding, the appellant was detained at the Centre for Addiction and Mental Health. He became an outpatient in March 2013 but was returned to hospital in October 2013. His behaviour deteriorated throughout 2013-2014, and included an incident involving a co-patient as a result of which he was charged, and later convicted, of sexual assault. [1] Following the sexual assault, on October 3, 2014, the appellant was transferred to the maximum secure setting at Waypoint Centre for Mental Health Care.

[4] While at Waypoint between 2014 and 2016, the appellant continued to exhibit problematic behaviour, including assaulting co-patients, threatening staff and using hostile and inappropriate language. However, this pattern began to change in August 2016 when he began treatment with clozapine. As a result of continuing improvement, in September 2017 he was transferred to the less secure setting at Ontario Shores. Although the appellant did not engage in any violent behaviour after he began treatment with clozapine, he continued to experience difficulties with interpersonal boundaries: for example, he would engage in unwanted touching of others. Eventually, in 2022, he was permitted to move into the community and live at his parents’ home.

[5] At the time of the Board hearing in October 2023 the appellant was 42 years old and had been living at his parents' home since September 2022. Treatment team visits had been reduced to once per week as compared to the daily visits that occurred when he first moved to the family home. The appellant was administering his medication independently and had been fully medication compliant for seven years. He occupied his days watching movies, playing video games, and going on walks, as well as to restaurants and on road trips with his family. He also exercised with a personal trainer, met with his family doctor and a dietitian, and pursued some programs independently from the hospital, such as a smoking cessation program. Although he spoke about obtaining employment, he had not pursued that option.

[6] At the Board hearing, the appellant offered to consent to a condition to take medication as prescribed pursuant to s. 672.55(1) of the Criminal Code in support of his request for a conditional discharge.

[7] The appellant’s outpatient psychiatrist, Dr. Pallandi, testified at the hearing and confirmed that, overall, the appellant had been doing very well. He had had a full year of living in the community safely, had not relapsed into substance abuse, and his relationship with his mother seemed quite good. [2] Dr. Pallandi confirmed that the appellant tolerated his medication well, had no plans to discontinue treatment, and recognized that he is “much better” on clozapine. The appellant had progressed to the point that the psychiatrist was prepared to recommend approval of the appellant’s request for a condition that he be permitted to travel internationally to vacation with his family for up to four weeks at the discretion of the person in charge. Such a condition would also necessitate reducing the appellant’s reporting requirement to not less than once every four weeks.

[8] Nonetheless, Dr. Pallandi confirmed the recommendation in the Hospital Report that a detention order was the necessary and appropriate disposition. In his view, it was important to consider that the appellant had been under hospital supervision for many years and that in the past year he had been functionally under the supervision of his mother. Although the appellant was now very cooperative with his treatment team, the psychiatrist testified that “[w]hen he’s unwell, things look very, very different” and, it was “an issue of balancing those two things”. Dr. Pallandi said that given the appellant’s history of violent incidents while under the jurisdiction of the Board, if there was a destabilization in the appellant’s mental state, he would want to utilize the mechanisms available under a detention order rather than waiting for the appellant to deteriorate further to the point that he met the criteria for involuntary admission under the Mental Health Act, R.S.O. 1990, c. M.7. The signals the psychiatrist would look for to indicate that things were going awry would include the appellant breaching interpersonal boundaries, for example, approaching strangers and engaging in intrusive verbiage, touching people without consent or engaging in sexualized commentary. While Dr. Pallandi acknowledged that there had been no aggressive or violent behaviours since the introduction of clozapine, there had been episodes of verbally abusive and bullying behaviours, even in the years immediately preceding the appellant’s return into the community. Further, although the appellant had not been completely isolated since moving to his parents’ home, he had not become integrated into the broader community and remained untested in that environment.

[9] In its reasons, the Board acknowledged that there was an air of reality to the appellant's request for a conditional discharge. However, it agreed with the Hospital’s position that there is a need to be able to quickly intervene and readmit the appellant in the event of a decompensation or threatened decompensation in his mental state. It found that because clozapine, an oral antipsychotic medication, is the mainstay of the appellant's treatment, there is a risk he would decompensate rapidly if he were to refuse medication or otherwise experience an increase in symptoms. In the result, and given that the appellant is treatment capable, it concluded that, in the absence of a detention order, the Hospital would not be able to intervene sufficiently quickly to ensure public safety.

[10] The Board acknowledged that the appellant “is on a very positive trajectory” and had an “excellent relationship” with his treatment team. However, given his long history of violence and breaching court orders and the fact that he was almost entirely untested in terms of his ability to interact safely with others in the broader community, the Board concluded there was a need for the appellant to demonstrate continued stability in the community before a conditional discharge could be granted. This was particularly the case because of the duration and multiplicity of the appellant's risk factors. The Board referred to some behaviour the appellant had exhibited before being moved to his family home and stated: “Forward progress in [the appellant’s case] is best accomplished slowly and incrementally.”

The appellant’s position

[11] The appellant submits that the Board's disposition is unreasonable because, based on the evidence before it, a detention order does not reflect the least onerous, least restrictive alternative. He contends that two findings at the heart of the Board’s reasons were based on speculation. First, the Board’s finding of a risk that he would decline treatment with clozapine or otherwise experience an increase in illness symptoms. Second, the Board’s finding of a risk that the mechanisms for ensuring the appellant’s return to the hospital under a conditional discharge would not allow the Hospital to intervene sufficiently quickly to ensure public safety.

[12] The appellant asserts that the evidence before the Board demonstrated overwhelmingly that he was committed to clozapine treatment and that there was no reasonable basis for a finding that non-compliance was a real possibility.

[13] Similarly, he submits that there was no reasonable basis for the conclusion that he might otherwise experience a rapid significant increase in symptoms. His steady improvement while being treated with clozapine over seven years belied the prospect of unforeseen rapid decompensation.

[14] Further, the appellant asserts that given the speculative nature of the concern over rapid decompensation, the Board’s finding that the mechanisms for ensuring his return under a conditional discharge would not allow the Hospital to intervene sufficiently quickly to ensure public safety was also unreasonable. The appellant had consented to a treatment condition. The Board could have imposed a condition that the appellant return to the Hospital at the request of the treatment team. [3] In the event of deterioration in the appellant’s mental condition or medication non-compliance, the Hospital could invoke the breach of condition mechanisms under the Criminal Code [4] for warrantless arrest and return to the Hospital.

Discussion

[15] We do not accept the appellant’s submissions. There was no dispute at the Board hearing that the appellant continues to pose a significant threat to public safety. Relying on the appellant’s history of aggression and violence, his diagnoses, which make him “highly vulnerable to acting out in serious, criminal and violent ways when mentally unwell”, and the clinical assessment of risk in the Hospital Report, the Board made a finding of significant threat. That finding was not in dispute before the Board and is not challenged on appeal.

[16] Nonetheless, the Board went on to find that the appellant’s request for a conditional discharge had an air of reality based on the appellant’s “relative mental stability” during the preceding year, the level of support he was receiving from his mother and his treatment team, and the fact that he had “no clear plan to precipitously change residences”. For that reason, the Board stated that it had carefully considered whether the appellant’s proposed consent to a treatment order under s. 672.55(1) of the Criminal Code, together with other provisions of the Criminal Code and the civil mechanisms available under the Mental Health Act, were sufficient to maintain the appellant’s mental stability in the community and ensure his expeditious return to the Hospital in the event of decompensation.

[17] The Board concluded that such measures were not sufficient, and that the necessary and appropriate disposition was a detention order. In reaching its decision, the Board considered a constellation of factors, including:

• although currently stable, the appellant continued to be symptomatic while taking clozapine, the antipsychotic medication which was responsible for the reduction in his aggressive and intrusive behaviour;
• because the appellant continued to be symptomatic while on clozapine and because clozapine is an oral medication, if the appellant were to stop taking it, he would likely decompensate quickly;
• as of the date of the Board hearing, the appellant’s participation in structured activities was limited and he was almost entirely untested in terms of his ability to safely interact with others in the wider community;
• the evidence before the Board disclosed that while living at the more stimulating Forensic Community Reintegration Unit at the Hospital before being discharged to his parents’ home, the appellant exhibited many instances of “loud, intrusive and inappropriate behaviour … including touching and overly-familiar remarks” and had to be redirected by staff;
• the appellant’s long history of violent and aggressive behaviour and lengthy hospitalization; and
• the Hospital’s position that there would be a need to intervene and readmit the appellant quickly in the event of a decompensation or a threatened decompensation in his mental state.

[18] We agree that the appellant’s stability in the community in the year leading up to the Board hearing demonstrated very positive progress and lent an air of reality to a conditional discharge. However, we are satisfied that the Board’s disposition was open to it on the record before it and is not unreasonable. The Board had to weigh the appellant’s positive progress in the supportive and somewhat isolated circumstances in which he had been living against his history of violent and aggressive behaviours while unwell and the reality that further progress would entail him experiencing a more stimulating and stressful environment. Even in the recent past, following years of treatment on clozapine, the appellant had exhibited concerning behaviours while in the Hospital environment that involved more interactions with others.

[19] Read fairly, in our view, the Board’s reasons are not rooted in findings that the appellant was likely to stop treatment with clozapine and experience rapid decompensation. Rather, the possibility that those events could occur was merely one factor that the Board considered in arriving at its conclusion. Patently, the Board accepted Dr. Pallandi’s opinion that the appellant’s relatively short period of stability had to be weighed against his lengthy history of violent and aggressive behaviour and hospitalization and that, given that context, a detention order was necessary to permit the Hospital to intervene in the event of any sign of decompensation as the appellant experienced more community interaction. Dr. Pallandi’s opinion that a detention order is the only mechanism that would permit the Hospital to swiftly intervene in the event of signs of threatened decompensation is supported by decisions such as Young (Re), 2011 ONCA 432, 273 C.C.C. (3d) 512, at para. 32, and Davies (Re), 2019 ONCA 738, 380 C.C.C. (3d) 552, at paras. 34 and 38. As those decisions explain, although the Criminal Code provisions for enforcing Conditional Discharge orders could permit the appellant to be returned to the Hospital if he were to breach a condition of such an order, they would not provide the Hospital with authority to detain him unless he met the criteria for detention under the Mental Health Act. Dr. Pallandi’s opinion was that, in the appellant’s case, the goal of public protection required that the Hospital be in a position to act before that threshold was reached.

[20] The Board is an expert tribunal and familiar with both the Criminal Code provisions and the Mental Health Act provisions. It was open to it to accept Dr. Pallandi’s opinion, and its disposition is entitled to deference. We are unable to say that its disposition in this case is unreasonable.

Disposition

[21] Based on the foregoing reasons, the appeal is dismissed.

“Janet Simmons J.A.” “K. van Rensburg J.A.” “Thorburn J.A.”

[1] The sexual assault consisted of the appellant entering another patient’s room, lying down on her bed, kissing her on the mouth, pulling down her pants and underwear, and putting his hand on her vagina, breast and buttocks over her objections.

[2] The appellant’s father also lived in the family home but the psychiatrist had not met him.

[3] The appellant did not raise this possibility at the Board hearing. The possibility of such a condition arose during submissions on the appeal.

[4] Sections 672.91, 672.92 and 672.93.