Re: Syed Zaheer Haider Shah, 2025 CanLII 21195

Re: Syed Zaheer Haider Shah

ORB File No: 7951

Hearing held on: Tuesday, January 28, 2025

Place of hearing: Southwest Centre for Forensic Mental Health Care

Pursuant to: Section 672.81(1) of the Criminal Code

Before:

Alternate Chairperson: Ms. T. Mann

Members: Dr. A.D. Jones

Dr. H. Moulden

Ms. K. Tomaszewski

Ms. C. Plyley

Parties Appearing:

Accused: Mr. Syed Z.H. Shah

Counsel: Mr. S. Gehl

The person in charge of hospital: Counsel: Ms. J. Zamprogna

Attorney General of Ontario: Counsel: Mr. D. Rows

REASONS FOR DISPOSITION

(Dated March 4, 2025)

Introduction

1. On September 27, 2021, Mr. Syed Shah, was found not criminally responsible on account of mental disorder, on a charge of attempt murder, contrary to the Criminal Code of Canada (“Criminal Code”).

2. Mr. Shah is currently subject to the terms and conditions of a Disposition of the Ontario Review Board (the “Board”), dated February 6, 2024. Pursuant to this Disposition, he is discharged from the Southwest Centre for Forensic Mental Health Care, St. Joseph's Health Care London (“hospital” or “Southwest”) subject to certain conditions.

3. On January 28, 2025, the Board convened a hearing at Southwest to conduct the annual review of the current Disposition. Mr. Shah was present at the hearing and was represented by counsel, Mr. S. Gehl.

4. The issue at this hearing is whether Mr. Shah is a significant threat to public safety, as defined in s. 672.5401 of the Criminal Code. If so, the necessary, and appropriate, Disposition in the circumstances must be determined, bearing in mind the factors enunciated in s. 672.54 of the Criminal Code.

5. The following documents were marked as Exhibits: Hospital Report dated December 16, 2024 (Exhibit 1); CMHA letter by Ms. Wallis (Exhibit 2); and Updated PCL-R Report dated January 23, 2025 (Exhibit 3).

6. Counsel for the hospital and Mr. Shah submitted that Mr. Shah no longer represents a significant threat to the safety of the public and should therefore be absolutely discharged. Counsel for the Attorney General agreed that Mr. Shah no longer represents a significant threat but had some questions. In final submissions, all parties agreed that Mr. Shah no longer represents a significant threat to the safety of the public.

7. For the reasons set out below, the Board found that Mr. Shah is no longer a significant threat to the safety of the public and ordered that he be absolutely discharged.

Current Psychiatric Diagnoses

7. Delusional Disorder; Mixed Cluster B Personality Traits; Substance Use Disorder (Opioids, Cannabis), in remission; Traumatic Brain Injury (TBI), by history.

Background and Index Offence

12. Mr. Shah’s background is accurately summarized in last year's Reasons for Disposition as follows:

“In 2011, when Mr. Shah was eighteen years of age he was struck by a van. He sustained a fractured pelvis and a traumatic brain injury. He was eventually discharged from hospital and underwent a period of physiotherapy and psychotherapy. Mr. Shah began regularly using cannabis and CBD oil. He reported experiencing paranoia and agitation related to cannabis use. Mr. Shah also was prescribed OxyContin to which he became addicted.

As a result of the accident, he ultimately received a lump sum payment that continues to be managed by his lawyer. He has not been gainfully employed since. In February 2012, Mr. Shah was admitted to Homewood Health Centre after he became depressed and suicidal. He was diagnosed with Adjustment Disorder and Cluster B Features, rule-out PTSD and Mood Disorder. In July 2012, Mr. Shah reported experiencing auditory hallucinations of car sounds and episodic anger that included physical aggression towards objects.

Mr. Shah began psychotherapy with Dr. Steven Jett in January 2014. At the time Mr. Shah was diagnosed with Major Depressive Disorder, PTSD, Somatic Symptom Disorder with predominant pain and personality change due to acquired brain injury. Mr. Shah complained of among other things, persistent distress associated with medical-legal issues and adjusting to life following his brain injury. Paranoia was observed repeatedly over the course of treatment and included themes of suspicions that people were following him, stealing from him, talking about him and that he was being tricked.

In September 2016, Mr. Shah travelled to Pakistan for an arranged marriage to Ms. Batool. She immigrated to Canada in 2018. In 2019, Ms. Batool suffered depression and was briefly hospitalized as a result of an ectopic pregnancy. At the time, tensions in the relationship escalated. They reportedly argued about phone use and money. Mr. Shah was monitoring Ms. Batool and imposing several restrictions on her activities. He believed that she was having an affair with another man and they were plotting to kill him.

In February 2019, Mr. Shah’s paranoia worsened. He stated that he struggled with high anxiety, in part because he felt that Ms. Batool was adding things to his food and poisoning him. On April 4, 2019, the day before the index offence, Mr. Shah experienced chest pain and he and his wife went to the Guelph General Hospital. He left before the examination was complete. On April 7, 2019, Mr. Shah’s urine toxicology screen was positive for cannabinoids, morphine, and oxycodone.”

8. The circumstances giving rise to the Index Offence are excerpted from last year’s Board Reasons, as follows:

“The accused Syed Zaheer SHAH and the victim Farah BATOOL had been married for approximately 3 years in 2019. The arranged marriage took place in Pakistan. They lived apart until October 2018 when Ms. BATOOL came to live in Canada and moved into Mr. SHAH's home at 11 Valleyview Drive, Guelph.

On April 05, 2019, at approximately 3:32 am, Mr. SHAH called the police. He said that he had “messed up” and that he needed the police and the ambulance. Police found Mr. SHAH at the Petro Canada located at Silvercreek Parkway and Willow Road, Guelph. He had blood on his hands and his pants. He told the officers to arrest him. He said that he had "fucked up" and that he had stabbed his wife. He said his wife was at 11 Valleyview Road, Guelph.

Police found Ms. BATOOL at 11 Valleyview Road, Guelph. She was lying on the bedroom floor, bloody and unable to speak. She had sustained more than a dozen stab wounds. She was stabbed in the back, in the face and her throat. It appeared as though her throat had been cut from ear to ear. Her teeth were visible through a large cut to her cheek.

At Guelph General Hospital, an emergency room doctor noted that Ms. Batool had multiple stab wounds to her face, neck, chest, abdomen, and back. She was airlifted, intubated, fully ventilated, and admitted to St. Michael’s hospital in Toronto. A CT scan and other observations revealed[serious injuries.]

Ms. BATOOL was treated in the hospital until May 13, 2020, when she was discharged. She received plastic surgery for her facial lacerations and her thumb, fingers, and palm injuries. While in the hospital, Ms. BATOOL suffered additional medical complications from a bacterial infection and urinary tract leak. She was again intubated on April 17, 2019. A further injury to her right kidney was found that required surgery, and the insertion of a ureteric stent."

Evidence at the Hearing

9. Dr. Arun Prakash, Mr. Shah’s attending psychiatrist, adopted the contents of the Hospital Report and testified on behalf of the hospital.

10. Mr. Shah has been living in the community since 2023. On June 2, 2023, Mr. Shah transitioned to independent living in an apartment located at 613-294 Talbot Street in St. Thomas, Ontario. Mr. Shah worked full-time in St. Thomas until he was laid off (through no fault of his own).

11. Mr. Shah is capable to manage his own apartment. He is financially stable and manages his own finances. He has no financial stressors. His house in Guelph is rented, and he has invested the money he received from the settlement for the motor vehicle accidents.

12. On May 1, 2024, he moved into another independent apartment where he currently resides, located in Cambridge. His new location is closer to his family and offers more employment opportunities.

13. Mr. Shah coped well with the stress of losing his job; finding a new apartment; relocating to another city; and searching for work.

14. He communicates well with the outreach team.

15. He structures his time by going for walks, going to the “Y;” volunteering at an Islamic Centre; visiting family; and looking for jobs.

16. Mr. Shah took the initiative to enroll as a patient in a medical practice and is under the care of a Nurse Practitioner. He has also become a member of the YMCA.

17. Mr. Shah has full insight into the index offence and no longer blames the victim. He experiences “a lot of remorse” for the index offence, both personally and culturally.

18. Mr. Shah is capable to consent to treatment of his mental illness. He has insight into his illness and has insight into his symptoms and the early warning signs of decompensation. He is internally motivated to receive treatment for his mental illness and to abstain from substances.

19. He has been compliant with receiving the long-acting injectable Abilify (the “LAI”) and has not missed any appointments with the outreach team.

20. Dr. Prakash noted that Mr. Shah is attentive/concerned to take the LAI as prescribed. If it is delayed by a day or two, as happened when there was a delay caused by switching to a new pharmacy in Cambridge, Mr. Shah was nervous that he might have a relapse.

21. He had a brief one-day period of depression in the context of his move to Cambridge but was able to overcome this low mood.

22. Mr. Shah has accepted all treatment offered to him and practices the strategies he learned in the various treatments and programs.

23. He has demonstrated no positive or negative symptoms of his mental illness since being treated with the LAI. He has not experienced any cravings for opioids or medical marijuana. His pain is now well managed medically by his Nurse Practitioner.

24. Mr. Shah has been accepted by FACTT, a program run through the Canadian Mental Health Association (CMHA). FACTT offers multidisciplinary team-based approach to supporting individuals living in the community who are dealing with significant mental health and addiction issues. Since October 2023, the FACTT team has seen Mr. Shah weekly to help develop rapport and provide assessments and review his mental status.

25. FACTT will provide ongoing community mental health and addiction support absent the forensic system. This includes a community psychiatrist (Dr. Mattie) and mental health and addiction support workers.

26. By January 9, 2025, Mr. Shah met with FACTT ten times.

27. Dr. Mattie is aware of the hospital’s recommendation of an absolute discharge and is willing to accept Mr. Shah as a patient. Dr. Mattie is aware of the possible risk(s) posed if Mr. Shah is non-compliant with treatment; uses substances; or is involved in an intimate relationship.

28. In the opinion of Dr. Prakash, Mr. Shah has developed a sufficient relationship with FACTT and Dr. Mattie that Mr. Shah will likely continue to have a positive relationship with FACTT if he is absolutely discharged.

29. While ideally Dr. Prakash would have liked to see Mr. Shah work with FACTT for a longer period of time before recommending an absolute discharge, the doctor was of the opinion that Mr. Shah is not currently a significant threat to the safety of the public, and it is not necessary for Mr. Shah to be subject to the supervision of the ORB under a conditional discharge for an additional year.

30. Dr. Prakash emphasized that all the dynamic and future risk factors have been well addressed. Mr. Shah’s mental illness is well-managed with the LAI. He will be observed by FACTT and his family, which will provide enough external support to identify any early signs of relapse. Mr. Shah does not crave opioids or medical marijuana and has no need for them to manage pain. His pain is managed medically by his NP.

31. Mr. Shah has developed healthy coping strategies, has managed stress well, and has structured his days. He knows he cannot self-isolate as this could lead to issues.

32. In response to questions from the panel about whether Mr. Shah should undergo intimate partner training/counselling prior to being absolutely discharged, Dr. Prakash testified that Mr. Shah does not currently intend to become involved in an intimate relationship, and that FACTT would be able to provide this type of support if he became involved in a relationship in the future.

33. With the consent of the parties, Ms. Wallis, a worker with CMHA in Cambridge, who was in attendance at the hearing, was asked by the panel whether these types of resources would be available to Mr. Shah if the need arises.

34. Ms. Wallis told the panel that within the team a mental health clinician provides intimate partner counselling, and that there were also several other resources available in the community. FACTT is willing to provide this counseling/programing to Mr. Shah. Ms. Wallis stated that FACTT support is long-term, and that Mr. Shah would be discharged to the care of a psychiatrist if he is stable and manages well for a long time. She noted that they follow people for up to five years.

35. Dr. Prakash was asked “what changed” to make Mr. Shah’s risk assessment on the HCR-20 (V3) change from “high” on an absolute discharge in December 2023, to “low” on November 26, 2024.

36. Dr. Prakash testified that while the historical risk factors remain, the future trajectory has changed because of: longitudinal assessment by the team; compliance with treatment; participation in programs offered to him and the application of what he has learned to his own life; increased insight; strong supportive relationships with family members; structured time management; pro-social friends; employment; stable finances; no additional stressors; no cravings for substances; no symptoms of the mental illness; being well-settled in Cambridge with no plans to move; and the establishment of a good relationship with FACTT.

37. Dr. Prakash also referred to the updated PCL-R scores. The Doctor noted that previous PCL-R scores were much higher than the most recent ones. He said he relied on page 5 of that report, and that it was administered and scored by experienced assessors. He noted that the lower score is ‘more appropriate’ and more consistent with Mr. Shah’s clinical presentation.

Analysis and Conclusion

38. The central issue is whether Mr. Shah is a significant threat to the safety of the public.

39. The relevant legal principles to be applied to the evidence with respect to the issue of significant threat are summarized in the decision of the Ontario Court of Appeal in Marmolejo (Re), 2021 ONCA 130 at paras 34-37:

…the role of the Board is first to determine whether an NCR accused represents a significant threat to public safety. If the answer to that question is "no" or uncertain then the NCR accused must be discharged absolutely: Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, [1999] S.C.J. No 31, at pp. 659-61, 669 S.C.R. If the NCR accused does present a significant threat, the Board must either conditionally discharge or detain the individual: Winko, pp. 662, 669 S.C.R.

It is important to bear in mind that the Board's responsibility to grant an absolute discharge is non-discretionary in the event that it harbours any doubt about whether the NCR accused represents a significant threat: Carrick (Re), [2018] O.J. No. 4878, 2018 ONCA 752, at para. 16. As the majority of the Supreme Court emphasized in Winko, at pp. 652-53 S.C.R.: "Once an NCR accused is no longer a significant threat to public safety, the criminal justice system has no further application."

Individuals with mental disorders are not inherently dangerous: Winko, at p. 653 S.C.R. There is no presumption of dangerousness and no burden on the NCR accused to prove a lack of dangerousness: Winko, at pp. 660-61, 662 S.C.R. Rather, the legal and evidentiary burden of establishing significant threat rests on the Board or the court: Winko, at p. 663 S.C.R.

The threshold for significant risk is "onerous": Carrick (Re) (2015), 128 O.R. (3d) 209, [2015] O.J. No. 6524, 2015 ONCA 866, at para. 17. A significant threat to the safety of the public means a foreseeable and substantial risk of physical or psychological harm to members of the public: R. v. Ferguson, [2010] O.J. No. 5138, 2010 ONCA 810, at para. 8. The conduct must be of a serious criminal nature: Ferguson, at para. 8. A very small risk of grave harm will not suffice, nor will a high risk of trivial harm: Ferguson, at para. 8. The threat must be more than speculative in nature; it must be supported by evidence: Winko, at p. 665 S.C.R.; Pellett (Re) (2017), 139 O.R. (3d) 651, [2017] O.J. No. 5025, 2017 ONCA 753, at para. 21.

40. The Board carefully considered the evidence before it, in particular the results of the updated PCL-R and the HCR-20 (V3). The Board concluded that because the historical risk factors are by definition static, they would continue to contribute to a finding that Mr. Shah presents a risk for future violence, but that in determining whether Mr. Shah continues to pose a risk of significant harm to the public at this time, the Board must consider the dynamic factors of the HCR-20(V3) as well as the protective factors identified by the SAPROF.

41. The Board adopts the following risk management items set out on pages 53-54 of the Hospital Report:

The Risk Management items reflect anticipation of future adjustment and risk-related factors. When evaluating the absence of Forensic support, Mr. Shah scored on the following items:

• Mr. Shah is not likely to experience future problems with professional services and plans as he remains independent with managing his medications (aside from having his anti-psychotic medication prescribed) and treatment (as demonstrated in this reporting year). He also obtained necessary community mental health supports independently following his transition to Cambridge, parallelling the support currently provided by his Forensic treatment team.

• Mr. Shah is not likely to experience future problems with treatment or supervision response. He has good insight into his medication and need for ongoing treatment. He has been receptive to all treatment recommendations throughout his time in the community that pertain to his recovery, stability and rehabilitation.

• Mr. Shah is not likely to experience future problems with stress or coping. He demonstrated adaptive coping strategies when transitioning to a new environment and effectively leaned on professional and personal supports when necessary.

• Mr. Shah is not likely to experience future problems with personal support. He has now relocated to live closer to his family, allowing for additional support in close proximity. His family’s insight into his mental illness, as assessed by the team, has developed greatly since his admission to Forensics and the team opines that his family would be able to provide appropriate intervention should Mr. Shah experience a relapse in symptoms.

• Mr. Shah is not likely to experience future problems with living situation. He is extremely happy with his new apartment, and he does not have any future plans of moving. He is able to maintain his apartment with his current budget and beginning to make positive peer relationships in the building. He is financially stable and manages all his finances appropriately.

42. The Board also accepts the Overall Clinical Assessment of Risk set out on pages 55 – 56 of the Hospital Report:

Overall Clinical Assessment of Risk

It is the opinion of the treatment team that Mr. Shah no longer poses a risk of serious physical or psychological harm to members of the public. The following evidence supports this opinion:

1. Mr. Shah has a serious mental illness and committed a serious index offence. However, with treatment and Forensic support, he has reached and sustained a continued level of stability. He maintained his wellness while living independently in the community, and sought necessary mental health supports to support his continued reintegration, recovery and wellness post-forensic support. Professional mental health support will remain available and involved in his care post forensics;

2. Mr. Shah has abstained from relapsing on opioids and cannabis since his hospital admission (2021). He moved into the community to Steele Street in March 2023, his own apartment in June 2023 and now again to another independent living apartment in May 2024. There have been no signs of relapse or feeling triggered during these transitions. His past psychoeducation and addiction programming involvement around his mental health and substance use issues as well as his internal motivation to abstain and improved insight have provided a strong foundation in reducing his overall risk of relapsing. Furthermore, his community mental health and addictions team (FACTT) will support ongoing problems with substance use should they arise, and;

3. Mr. Shah has been adherent to his medication regime this reporting year. Post-forensics his treatment would continue to be supervised and monitored (by FACTT and a community psychiatrist);

4. Mr. Shah and his supports have developed good insight into his index offence, his mental illness, his ongoing need for treatment and the future risk of violence;

5. Mr. Shaw is independent in maintaining his financial stability, housing, and other life areas. He utilizes adaptive coping when required, and promotes maintaining positive peer relationships;

6. Mr. Shah’s integrated risk is considered low as he demonstrated key protection from future risk and appears internally motivated to purse a life of self-sufficiency; and

7. Mr. Shah has strong personal and professional supports in close proximity. These supports would provide appropriate intervention in supporting future risk-enhancing areas (violence, decompensation, noncompliance).

8. The Board considered whether protection of the public safety requires Mr. Shah to engage in intimate partner training/counselling; and/or to have a longer period of stable transition to FACTT, prior to being absolutely discharged.

9. The Board agreed with Ms. Zamprogna’s submission that Mr. Shah is not currently interested in intimate relationships, and that a decision based on this potential risk factor would be speculative. Nevertheless, the Board notes that Ms. Wallis indicated that FACCT can provide this to Mr. Shah. The Board encourages FACTT to engage Mr. Shah in intimate partner counselling, if deemed appropriate.

10. The Board also agreed with Mr. Gehl’s submission that while one more year under a conditional discharge might look like Mr. Shah would be of less risk to the safety of the public, it was Dr. Prakash’s expert opinion that but for the relatively short time frame of transition to FACTT, Mr. Shah has met all the criteria for an absolute discharge.

11. Dr. Prakash provided ample evidence that Mr. Shah has successfully transitioned to the care of Dr. Mattie and FACTT.

12. The Board gave serious consideration to the gravity of Mr. Shah's index offence; the rapidity with which he progressed through the forensic process; and the fact his stability, cooperation and adherence to treatment and follow-up was untested in the community by way of a conditional discharge; but on balance concluded that with the current supports in place Mr. Shah no longer meets the threshold for significant threat to the safety of the public.

13. The threshold for significant risk is onerous. A significant threat to the safety of the public means a foreseeable and substantial risk of physical or psychological harm to members of the public. Upon the consideration of all of the evidence, the Board is unable to conclude that Mr. Shah continues to pose a significant threat to the safety of the public. Accordingly, the Board orders that he be absolutely discharged.

14. The Board wishes Mr. Shah every success.

DATED this 4th day of February 2025, at the City of Toronto, in the Region of Toronto.

_____________________

Ms. K. Tomaszewski

Legal Member