Court of Appeal for Ontario

Date: 2025-05-20
Docket: COA-24-CR-1226
Coram: Michael Tulloch, L.B. Roberts, P.J. Monahan

In the matter of: Sami Kazi
An appeal under Part XX.1 of the Criminal Code

Appearances:

• Sami Kazi, acting in person
• Michael Davies, appearing as amicus curiae
• Akshay Aurora, for the respondent, the Attorney General of Ontario
• Paige Miltenburg, for the respondent, the Person in Charge of the Royal Ottawa Mental Health Centre

Heard: 2025-05-06

On appeal against the disposition of the Ontario Review Board dated October 24, 2024, with reasons dated November 20, 2024.

Reasons for Decision

Introduction

[1] The appellant, Sami Kazi, appeals from the disposition of the Ontario Review Board (the “Board”) dated October 24, 2024 (the “October 2024 Disposition”), following a finding that he was Not Criminally Responsible (NCR). The Board’s disposition ordered that the appellant be detained at the Secure Forensic Unit in the Royal Ottawa Mental Health Centre (the “Hospital”) with additional conditions, including a driving prohibition. In January 2025, the Board conducted an early review of the October 2024 Disposition at the Hospital’s request, and issued a new disposition dated January 23, 2025, that continued the detention order and varied the appellant’s conditions (the “January 2025 Disposition”). The appellant, with the help of amicus, specifically appeals the Board’s finding in the October 2024 Disposition that he constitutes a significant threat to public safety. He asks that the court allow his appeal and grant him an absolute discharge.

[2] For the reasons below, the appeal is dismissed as moot.

Background

[3] In December 2022, the appellant intentionally hit his employer with his car, threatened him with a knife, and drove into his place of employment. Two weeks later, the appellant texted a friend of his employer, making death threats towards his employer. The appellant was then charged with Assault with a weapon, Dangerous Operation of a Motor Vehicle, Failure to stop after an Accident, and Uttering Threat to Cause Death (the “index offences”).

[4] Following the commission of the index offences and prior to his hearing, the appellant was voluntarily admitted to hospital in December 2022 on two separate occasions for paranoid delusions and suicidal ideation. He was later voluntarily re-admitted in April 2023 following a suicide attempt. On May 3, 2023, he was discharged. The appellant experienced significant improvement and in the latter half of 2023, he began a nursing program in London, Ontario.

[5] On May 27, 2024, he was found NCR by the court and the matter was referred to the Board. At the time of his NCR finding, the appellant had completed his first year of his nursing degree and was living with his parents in Ottawa.

[6] Around July 2024, the appellant became mentally unwell again and experienced increased paranoia. He was prescribed antipsychotic medication. The appellant reported some improvement but continued to experience feelings of mistrust towards the police and government and pronounced preoccupation with the index offences and his former employer. The appellant also continued to consume cannabis daily, despite warnings from his psychiatrist that it could worsen his paranoia and anxiety symptoms.

The Decision on Appeal

[7] On October 7, 2024, the initial Board hearing took place. The appellant was represented by counsel and sought an absolute discharge. The Hospital and Crown sought a detention order. The Board received evidence in the form of the Hospital Report and viva voce evidence from his treating psychiatrist, Dr. Jiyoung Hwang. Although Dr. Hwang testified that the appellant had shown improvement since his index offences and was “doing well”, she noted concern about the appellant’s “ongoing paranoia”, continued cannabis use, and limited insight into his mental illness. She further confirmed the finding in the Hospital Report that assessed the appellant as moderate to high risk for future violence and recommended a detention order as the most necessary and appropriate disposition.

[8] In the Board’s reasons issued on November 20, 2024, it “had no difficulty” on the strength of the record before it in “arriving at the unanimous finding that [the appellant] represent[ed] a significant risk to the community.” The Board ordered detention with the conditions recommended by the Hospital and a driving prohibition. Given the appellant’s limited insight into his mental illness, the Board held that the appellant would “need to develop insight into the fact that his continued cannabis use could lead to a psychotic episode before any form of discharge [could] be considered.” Further, the Board was “concerned” that the appellant had not yet connected with a treatment team and, because the appellant had “recently” been “close to a decompensation”, allowing the appellant to drive could put the community at risk.

[9] On November 27, 2024, the appellant submitted his Notice of Appeal of the Board’s October 2024 Disposition to this court.

The Subsequent Board Hearing and Disposition

[10] After the initial ORB hearing, the appellant stopped taking his oral medication and experienced decompensation. In December 2024, he was involuntarily admitted to the Hospital for concerns over his “deteriorating mental health”. Prior to that, the Hospital notified the Board that they were requesting a mandatory early review of the October 2024 Disposition pursuant to s. 672.81(2) of the Criminal Code, RSC 1985, c C-46.

[11] On January 14, 2025, the Board held a hearing that served two purposes. First, the hearing served to conduct an early review of the October 2024 Disposition as requested by the Hospital. Second, the hearing also served as a restriction of liberty hearing, which dictates that when a hospital significantly restricts the liberty of an accused for more than seven days, the Board must review the hospital’s decision as soon as practicable, pursuant to s. 672.81(2.1). On consent, the parties agreed to have both hearings done concurrently. The appellant was present and represented by counsel.

[12] For the early review hearing, the Board was required to determine whether the changes to the October 2024 Disposition requested by the Hospital were necessary and appropriate. Among the changes requested on consent were a removal of the total driving prohibition in favour of a condition allowing the appellant to drive with prior written consent, a reduction in his reporting requirements, and the allowance of travel passes. On the basis of the evidence before it, which included the initial Hospital Report and an updated Hospital Report dated December 17, 2024, the Board agreed with the recommended amendments to the October 2024 Disposition.

[13] For the restriction of liberty hearing, the parties, including counsel for the appellant, agreed that the “initial restriction of liberty was warranted, necessary and appropriate for his protection and the safety of the public.” The parties further agreed that the ongoing restriction of liberty was also warranted, necessary and appropriate. In its Reasons for Disposition issued on January 23, 2025, the Board accepted the joint submission. It considered the appellant’s lack of medication compliance, continued cannabis use, and decompensation since the previous disposition to find that the necessary and appropriate disposition was to continue the existing detention order with the agreed upon amendments.

[14] The appellant has not filed a Notice of Appeal of the Board’s January 2025 Disposition.

The Parties’ Submissions

[15] In submissions, the amicus submitted that despite the October 2024 Disposition being superseded by the January 2025 Disposition, the nature of the subsequent hearing was such that it does not make the matter under appeal moot. First, he argues that the subsequent hearing was not an annual Board hearing that necessarily determined the issue of a significant threat to public safety. Rather, the Board addressed the restriction of liberty issue as required by s. 672.81(2.1) of the Criminal Code, on the basis of the parties’ joint submission. It therefore did not specifically assess whether the appellant continued to present a significant threat and it remains a live issue between the parties.

[16] Second, the amicus argues that to conclude that the October 2024 Disposition is moot, despite no submissions on significant threat and no clear finding by the Board in the subsequent Disposition, would be to set a precedent that counsel must re-argue all points to preserve rights on appeal. That is because when hospitals request early review hearings under s. 672.81(2), the Board must hold a hearing as soon as practicable after receiving notice. He argues that this creates a scenario where all Board disposition appeals could be rendered moot at the will of the hospital regardless of whether the issue on appeal is litigated in the subsequent hearing or not. The amicus does not allege that the Hospital requested an early review hearing for any improper purpose.

[17] In contrast, the Crown submits that the appeal of the October 2024 Disposition is moot. Section 672.81(2) expressly provides for a hearing to review a prior disposition. Pursuant to s. 672.63, a disposition “shall remain in force until the Board holds a hearing to review the disposition and makes another disposition.” As a result, the Board’s new January 2025 Disposition leaves the October 2024 Disposition “spent and of no further effect” and “[t]here is therefore no live issue between the parties in relation to that disposition.” See Halat (Re), 2019 ONCA 112, para 9; Roberts (Re), 2022 ONCA 836, para 5.

[18] The Crown argues that this court should decline to hear the moot appeal because it presents no issues of broader legal importance and is based on a stale factual record that has been overtaken by significant subsequent events such as the appellant’s decompensation and admittance to the Hospital after the October 2024 Disposition. See e.g. Roberts (Re), 2022 ONCA 836, para 4.

[19] Finally, the Crown argues that the mootness arguments advanced by amicus rely on alleged deficiencies with the January 2025 Disposition, however there is no appeal of that disposition before this court. Moreover, the Board’s reasons must be viewed contextually. At the January 2025 hearing, the Board had the benefit of the full record before them and an express position from both parties that a continued detention order was necessary. All parties jointly asked for amendments to the detention order, but no objection was taken to the detention order itself. The Board was mindful of the evidence before it and its role in determining “the paramount consideration [of] the safety of the public, … the mental condition of [the appellant], his reintegration into society, and his other needs” as required by s. 672.54. Thus, the reasons demonstrate that the Board did, indeed, turn its mind to whether the appellant continued to constitute a significant threat.

[20] The Hospital adopts the same position as the Crown and submits that if this court were to grant the appeal, the proper remedy would be to send the matter back for a new hearing.

Analysis

[21] We agree with the Crown’s position that the appeal is moot because the October 2024 Disposition is spent and is of no further legal effect. See Halat (Re), 2019 ONCA 112, para 9; Roberts (Re), 2022 ONCA 836, para 5. The January 2025 Disposition is currently operative, and no appeal has been taken from it.

[22] Despite the amicus’ able submissions, we are not persuaded that the October 2024 Disposition is not moot because significant threat was not argued at the January 2025 hearing.

[23] For one, s. 672.63 of the Criminal Code makes it clear that a disposition shall only “remain in force until the Board holds a hearing to review the disposition and makes another disposition” (emphasis added). Consequently, the issuing of a new disposition means that the previous disposition no longer governs or applies to the appellant. See also Halat (Re), 2019 ONCA 112, para 9.

[24] Second, the circumstances of the request for early review and the joint position taken by the parties in the January 2025 hearing demonstrates that there is no “live controversy” between the parties in relation to the October 2024 Disposition. See Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, pp. 357-58; Halat (Re), 2019 ONCA 112, para 9. As noted by the Board in its January 2025 Disposition, in light of the significant subsequent events since the previous disposition, “[a]ll parties agreed that the [Hospital’s] initial restriction of liberty was warranted, necessary and appropriate, as is the ongoing restriction of liberty.” As the Crown points out, implicit in the joint submission on this issue was an acknowledgement that continued detention for the appellant represented the least onerous and least restrictive measure in the circumstances. After all, the purpose of a restriction of liberty hearing “is to act as a final liberty safeguard, allowing for a second-look at those hospital decisions that have such serious ramifications for the liberty of the NCR accused, that they should be examined ahead of the next yearly review”. See Heinekamp (Re), 2024 ONCA 183, para 25, citing Campbell (Re), 2018 ONCA 140, para 64. It would therefore be incongruent for the appellant to acknowledge that a continuation of significant restrictions on his liberty are necessary on the restriction of liberty hearing while arguing for an absolute discharge on the early review hearing.

[25] Finally, the Board review process is inquisitorial in nature. See Winko v. Forensic Psychiatric Institute, para 54. “Once a detention order is made, the task of monitoring whether an NCR individual continues to constitute a significant threat to the safety of the public is given to the Board” (emphasis in original). See R. v. Owen, 2003 SCC 33, para 26. If, at the end of the hearing, “the court or Review Board cannot so conclude, the legal justification for confinement is absent and the NCR [individual] must be released". See R. v. Owen, 2003 SCC 33, para 27, citing Winko, para 51. This obligation to consider the significant threat analysis applies to all review hearings, not just the annual ones.

[26] We are not persuaded to exercise our discretion to decide this moot appeal. As the amicus acknowledges in his written materials, this is not a case where the appeal raises an important legal issue or is evasive of review. See Campbell (Re), 2018 ONCA 140, paras 23-26. The issues raised on this appeal are confined to ones of concern only to the parties in the immediate circumstances of the appellant. There is therefore no reason to depart from the general rule that this court does not decide moot cases. See Borowski; Abernethy (Re), 2021 ONCA 509, para 4.

[27] We further do not accept that the concerns raised by the amicus create the problematic scenarios he suggests. For one, the early reviews initiated by hospitals are included in the Part XX.1 scheme to “respond quickly to changing circumstances relevant to both the individual’s best interests and public safety concerns.” See Katsav (Re), 2013 ONCA 627, paras 12-13. It is not an abuse of process for the hospital to request early review in the face of significant events that would “justif[y] a reconsideration of [the appellant’s] status” (Katsav (Re), 2013 ONCA 627, para 14) and would potentially be relevant fresh evidence on appeal. See Latouche (Re), 2015 ONCA 675, para 7, citing R. v. Owen, 2003 SCC 33, paras 48-61, 78; Conway (Re), 2018 ONCA 139, paras 8-9. Second, “[c]hanges in circumstances or in an accused's condition are more effectively addressed by the [Board] process than by the appellate process.” See Katsav (Re), 2013 ONCA 627, para 13. NCR accused are not “at the mercy” of the hospital in such hearings. It is open to counsel to raise arguments on live issues they would like the Board to decide upon.

[28] In this case, the issues raised are fact-specific, the factual record is stale, and the matter has been overtaken by intervening clinical developments. We also accept the Crown’s further position that we should decline to hear this appeal because the appellant’s circumstances have now materially changed, and the issue of significant threat should be assessed based on the appellant’s current circumstances. See Le Feuvre (Re), 2024 ONCA 626, para 6.

[29] In any event, were the appeal not moot, we would have dismissed it on the merits of the Board’s reasonable conclusion that the appellant posed a significant threat to the safety of the public. This conclusion was supported by ample evidence, including the seriousness of the index offence, the appellant’s persistent paranoia, continued cannabis use, limited insight, and recent decompensation. The reasons of the Board, read contextually, demonstrate that the Board applied the appropriate legal standard and reached a reasonable conclusion based on the record before it. We see no basis for appellate intervention.

Disposition

[30] Accordingly, the appeal from the disposition of October 24, 2024, is dismissed as moot.

“M. Tulloch C.J.O.”
“L.B. Roberts J.A.”
“P.J. Monahan J.A.”