Re: Ismail Muse, 2025 CanLII 31462

Ontario Review Board

Re: Ismail Muse

ORB File No: 8508

Hearing held on: Wednesday, February 26, 2025

Place of Hearing: Royal Ottawa Mental Health Centre

Pursuant to: Sections 672.81(2) of the Criminal Code

Before:
Alternate Chairperson: Ms. M. Labrosse Members: Dr. S. Lessard Dr. G. Nexhipi Mr. D. Sandor Ms. K. Brisson

Parties Appearing:

Accused: Ismail Muse Counsel: Mr. S. Brass

Person in charge of hospital: Representative: Dr. M. Strike

Attorney-General of Ontario: Counsel: Ms. M. Dufort

REASONS FOR DECISION AND DISPOSITION

(Dated April 7, 2025)

Introduction

1. On March 4, 2024, the accused, Ismail Muse, was found not criminally responsible on account of mental disorder on charges of being unlawfully in a dwelling and criminal harassment, all contrary to the Criminal Code of Canada.

2. Mr. Muse is currently subject to a Disposition of the Ontario Review Board dated June 26, 2024, which detains him at the Secure Forensic Unit of the hospital with privileges up to and including to live in the community in accommodation approved by the person in charge.

3. On February 26, 2025, the Ontario Review Board convened a hearing at the Royal Ottawa Mental Health Centre, hereinafter referred to as the hospital, to conduct an early review hearing pursuant to section 672.81(2) of the Criminal Code. Mr. Muse attended his hearing and was represented by his counsel, Mr. Alan Brass. A hospital report dated February 23, 2025, was entered as Exhibit No. 1.

4. At the outset of the hearing, Mr. Brass asked for an appointment as counsel which the Board granted pursuant to s. 672.5(8)(b) of the Criminal Code.

5. The issues for this hearing are set out as follows:

(a) Whether Mr. Muse represents a significant threat to the safety of the public, and, if so, to determine the necessary and appropriate Disposition;

(b) At the outset of the hearing, it was determined that Mr. Muse’s liberty by detention at the Ottawa-Carleton Detention Centre (OCDC) was a significant increase in the restriction of his liberty. The Board was asked to make a decision on that restriction of liberty pursuant to s. 672.81(2.1) of the Criminal Code; and

(c) Whether to transfer Mr. Muse’s care to either the Brockville Mental Health Centre (BMHC) or Providence Care Hospital in Kingston.

6. For the reasons set out below, the Board finds:

(a) That Mr. Muse continues to pose a significant threat to the safety of the public, that a detention order, without community living is the necessary and appropriate Disposition.

(b) The hospital’s decision to issue a Form 49 which led to Mr. Muse’s apprehension by police and detention in jail did amount to a significant increase of a restriction of his liberty. The Board finds that that decision was reasonable and warranted in the circumstances and represented the least onerous and least restrictive decision available to the hospital at that time and continuing to the present.

(c) There shall be a transfer of Mr. Muse’s care to the Brockville Mental Health Centre, and until such time as a bed becomes available at the Brockville Mental Health Centre, should one become available at the Royal Ottawa Mental Health Centre, Mr. Muse shall be readmitted there pending the availability of a bed in Brockville.

Index Offences

7. The circumstances of the index offences are set out in last year’s Reasons for Disposition as follows:

“On September 13, 2023, Mr. Muse was walking on Penny Drive when he observed the victim, Brittany Clenighan, walking on the same street with her dogs and her two young children. He waved at the victim to get her to go see him. The victim felt uncomfortable by this, as she had no idea who he was. He started to walk in a rushed manner towards the victim, and the victim started walking faster and up the front steps to her residence. She saw that Mr. Muse was chasing her, so she ran into her unit with Mr. Muse following suit. Mr. Muse entered right behind her and closed the front door behind him, leaving the victim’s two children outside on the front step”.

Background History

8. Mr. Muse’s personal, legal and psychiatric history are set out in detail in the hospital report. Briefly summarized, Mr. Muse is 34 years of age and was born in Somalia at a time of escalating instability leading to the overthrow of the federal government and the onset of the civil war. He was a young child when his father died during this conflict. Mr. Muse left Somalia with his mother and two brothers when he was 8 years old, through a refugee camp in Kenya, then arrived in Canada with his mother when he was ten. He resided with his aunt in Ottawa from the age of 13 to 16, when his mother moved to Alberta.

9. Mr. Muse attended elementary school upon arriving in Canada at the age of ten. His participation in school declined when at age 15 when he was using substances and engaging in criminal activity. Nonetheless, he completed Grade 12 and obtained his high school diploma. He did not pursue any post-secondary education or vocational training. He was employed inconsistently as an adult, and he has been the recipient of ODSP since 2008.

10. His medical records indicate that he experienced homelessness intermittently for several years since adolescence. He also resided in group homes in Ottawa since then. He resided with his mother intermittently in his late teens to early twenties, but as of 2012, his mother would no longer allow him to reside at her home due to his aggressive behaviour.

Legal History

11. A review of Mr. Muse’s CPIC showed that that he had four convictions in the Youth Justice Court. His convictions were for an assault with a weapon, assault with intent, obstruct peace officer, and failing to comply in 2005; for a fail to comply with recognizance in 2006; for possession of a weapon in 2007, and for uttering threats, mischief under $5000, failure to comply with conditions of undertaking, and fail to comply with recognizance in 2009. As an adult, Mr. Muse has been convicted on six occasions for a total of seven offences.

Psychiatric History

12. Mr. Muse has a long history of involvement with psychiatric services dating back to December 2008 when he was admitted at the Royal Ottawa Mental Health Centre for an NCR assessment after suffering his first psychotic episode. At the time, Dr. Booth determined that he did not meet the NCR criteria. He was prescribed Olanzapine and his condition improved. He was discharged and was followed by Dr. Booth until April 2009 when he stopped his Olanzapine and stopped attending for his appointment.

13. His next contact with the mental health system was in January 2012 when he was ordered by his probation officer to attend an appointment with Dr, Booth. He had been on a long-acting injectable antipsychotic medication while in jail. This was changed to oral medication at his request. He did not attend any follow-up appointments.

14. Mr. Muse was involuntarily admitted at the Ottawa Hospital from July 30 to October 4, 2012. He had not been seen for several months. Following his discharge, he was on a CTO which was renewed several times until June 2015. His attendance for his monthly injections was variable and he was often late.

15. Mr. Muse was hospitalized at the Ottawa Hospital and the Royal Ottawa Mental Health Centre from February to late May 2014.

16. He was next admitted to the Royal Ottawa Mental Health Centre from March 8 to June 18, 2018. Following his discharge his reporting for appointments was erratic until May 2023. He was admitted to the Ottawa Hospital on June 19, 2023 by the police after he was seen walking on Highway 417. He was discharged on July 11, 2023. Shortly thereafter, on July 19, 2023, he presented at the Emergency of the General Hospital. He was homeless and consuming substances, including cocaine. He was released the same day.

17. Following an appointment on September 5, 2023, Dr. Booth noted that Mr. Muse’s mental health was still poor and that “he appears to have deteriorated likely in the context of substance use, lost housing and criminal charges.”

18. Mr. Muse’s current diagnoses are:

• Schizophrenia, multiple episodes, in partial or full remission currently

• Antisocial personality disorder

• Cannabis use disorder

• Cocaine use disorder

• Amphetamine use disorder

• Alcohol use disorder

Evidence at the Hearing

19. The hospital’s evidence was presented through its report as well as through the oral testimony of Dr. Melanie Strike. This evidence is summarized below.

20. Dr. Strike adopted the contents of the hospital report and advised that Mr. Muse had been seen yesterday by her colleague, Dr. Hwang, at the Ottawa-Carleton Detention Centre (OCDC). Mr. Muse is currently very stable at his baseline, is experiencing no overt symptoms of his illness and has been compliant with medication.

21. The hospital believes that Mr. Muse requires a long-term admission to hospital for bio-psychosocial rehabilitation with a multi-disciplinary approach to target Mr. Muse’s violent risk factors, including his criminality/rule defiance, substance use, and his poor engagement in treatment. In the opinion of Dr. Strike, improvements in these areas are not possible outside of a controlled setting with limited access to substances. Until this happens Mr. Muse cannot be safely managed in the community.

22. Mr. Muse was detained at the Ottawa-Carleton Detention Centre on January 10, 2025. He had been apprehended by police on January 10^th and was released from the OCDC on January 15^th with a GPS monitoring bracelet. On January 23, 2025, Mr. Muse was again apprehended and charged for not complying with the battery-charging requirements of his GPS monitoring bracelet. On February 10^th, he allegedly sold crack-cocaine to a roommate at his residence and was charged with failing to comply with a release order and was charged once again on for leaving his residence after curfew on February 14, 2025.

23. The group home manager has advised the treatment team that they can no longer manage Mr. Muse’s behaviours.

24. Due to the bed shortage at the Royal Ottawa Mental Health Centre, Dr. Strike believes that it will be many months before Mr. Muse is transferred to the hospital such that he is likely to spend a further prolonged period of time in detention awaiting a bed, as was the case at the time of the finding of NCR where Mr. Muse was detained in jail for close to a year before being discharged directly to a group home due to the unavailability of a bed.

25. Despite the stability of his mental illness, Mr. Muse has not engaged whatsoever in psychosocial treatment. He did participate in an O.T. assessment in December 2024 which was not completed.

26. The hospital sent out two Rule 13 requests for transfer notices on February 19, 2025, to the Brockville Mental Health Centre and to Providence Care in Kingston. Both hospitals have voiced their opposition to the transfer, and according to Dr. Strike, this has much to do with Mr. Muse’s antisocial personality disorder as well as bed pressures and resource shortages in those two hospitals.

27. The Clinical Director of Providence Care Hospital in Kingston, Dr. N. Khalifa, has provided a response dated February 25, 2025 to the Rule 13 Notice stating that Providence Care is opposed to the transfer of Mr. Muse as he has no connections with Kingston, that they do not have the type of long-term housing supports that he would require once discharged to the community, and that the hospital is experiencing bed shortages.

28. Dr. J. Gray of the Brockville Mental Health Centre advised that Dr. Strike said that he would attend Mr. Muse’s hearing to voice his opposition to the transfer but has not done so. Dr. Gray’s main argument is that Mr. Muse’s issue is an antisocial personality disorder and not an AXIS I mental illness. Brockville prefers not to accept a patient whose primary issues are personality disorders or substance use disorders. In the opinion of Dr. Strike, Brockville is well equipped to deal with those types of concurrent disorders.

29. Dr. Strike believes that both these facilities are equipped to deal with patients like Mr. Muse but prefer not to. Mr. Muse’s issues are not uncommon issues that forensic programs are required to deal with in the management of their patients.

30. In response to questions posed to her by counsel for the Attorney General, Ms. Dufort, Dr. Strike responded as follows:

(a) Dr. Strike acknowledged that the BMHC has typically been viewed as an appropriate facility for longer term admissions as it has a stepwise discharge program as well as vocational therapy on site.

(b) The hospital is recommending the removal of a community living provision in Mr. Muse’s detention order given that community living is likely not attainable in the next 12 months. Dr. Strike added that should Mr. Muse progress at an unexpected rate, the hospital could always call an early hearing if discharge unexpectedly became possible within the year.

(c) Dr. Strike acknowledged that despite daily threats of admissions and/or detention in jail, Mr. Muse was unable to comply with the expectations of his treatment team and the terms of his disposition.

(d) Dr. Strike stated that he identified negative peers in the community, but the hospital is not aware who these people are. Mr. Muse has lived in Ottawa his entire life and is well resourced in the city. One of the benefits of a transfer to another hospital, would be to distance Mr. Muse from his antisocial peers.

(e) Dr. Strike does not believe that restricting access to the Ottawa/Gatineau area would be good for Mr. Muse’s longer term rehabilitative needs.

(f) The plan to transfer Mr. Muse to a different hospital is not necessarily a long-term plan but one that aims to provide him with an opportunity to properly engage in psychosocial treatment and to make greater rehabilitative progress which he has not done to date. The fact that he does not have social supports in either Brockville or Kingston should not be a significant issue given that the intent would be for him to be there in the shorter term. Dr. Strike is not recommending community living in either Brockville or Kingston.

(g) Dr. Strike stated that she is not aware that either Brockville or Providence Care are at capacity but that she is quite certain that their wait times are shorter than at the Royal Ottawa. Dr. Strike confirmed that if a bed became available at the Royal Ottawa while awaiting a transfer to either Kingston or Brockville, Mr. Muse could be admitted while awaiting the transfer.

(h) With respect to his supports in the Ottawa area, Dr. Strike believes that Mr. Muse has not really been engaging with them due to his antisocial behaviour in the community. He does have a relationship with Rita, who is the mother of an ex-girlfriend, and there is also apparently an aunt who lives in Ottawa. Mr. Muse’s mother resides in Alberta, and she is hoping to come to visit in Ottawa but there is no time-line for this visit.

31. In response to questions posed to her by counsel for Mr. Muse, Mr. Brass, Dr. Strike responded as follows:

(a) Mr. Muse would not currently be certifiable under the Mental Health Act for admission to hospital. Mr. Muse’s persistent drug use has not led to any overt psychosis or aggression; however, Dr. Strike believes that there are other pathways to increased threat to the public through the criminality that Mr. Muse must resort to in order to serve his addictions.

(b) In the opinion of Dr. Strike, Mr. Muse’s risk assessment would not change if the charges that he currently faces are withdrawn. Dr. Strike acknowledged that those incidents did not involve violence. Looking at the overall history, the risk assessment does not change.

(c) There are some risk-mitigating factors including the fact that Mr. Muse takes a long-acting injectable which lowers the risk of decompensation. Additionally, Mr. Muse had been attending the hospital to attend groups regularly.

(d) Dr. Strike notes that despite a history of criminality and mental health issues, this is Mr. Muse’s first time under the Ontario Review Board which means that he has never had the benefit of a step-wise rehabilitation.

(e) Dr. Strike maintains that both Brockville and Providence Care are equipped to handle a patient like Mr. Muse, as are many medium secure units in the province, however, Mr. Muse is not a desirable patient due to his concurrent disorders and the antisocial personality disorder. Dr. Strike acknowledged that Mr. Muse is at risk of languishing in jail due to similar pressures at all psychiatric hospitals in the province.

(f) Dr. Strike acknowledged that Mr. Muse’s mother is hoping to come to Ottawa to visit and she does not agree with Mr. Brass’ suggestion that it would be more costly for her to visit him in either Kingston or Brockville.

32. In response to questions posed to her by members of the Panel, Dr. Strike responded as follows:

(a) Mr. Muse tends to present as very childish and immature and Dr. Strike believes that this is a coping strategy for him as he has lacked the opportunity of learning other ways to cope.

(b) Dr. Strike has set out Mr. Muse’s diagnosis as partially remitted schizophrenia as she believes that he sometimes expresses delusional thought content, primarily in the context of excusing his rule defiance, but that there seems to be a loosening of associations at times. Dr. Strike cannot be sure that these are not some mild psychotic symptoms and accordingly cannot rule out that there are mild psychotic symptoms.

(c) Brockville would be the ideal setting for Mr. Muse to have a longer period of hospitalization.

(d) Mr. Muse is incapable of consenting to treatment and his SDM is the Public Guardian and Trustee.

(e) Including community living in the disposition as a motivator could detract from the commitment to the longer period of rehabilitation that Mr. Muse requires.

33. The hospital’s risk assessment is set out in the hospital report at pages 32 and 33 of the hospital report and is summarized below:

“To assess Mr. Muse’s risk of future violence, I used the HCR-20, version 3, which is a structured clinical judgment instrument. Based on this assessment, it is my opinion that Mr. Muse presents a moderate to high risk of future violence. By violence, I mean any aggressive behaviours that he has exhibited in the past, including assault, assault with a weapon, possess weapon, robbery, and harassment. Mr. Muse’s historical (static) risk factors for violence include nine out of 10 of these factors, which are:

• H1: History of problems with violence

• H2: Other antisocial behaviours

• H3: History of problems with relationships

• H4: History of problems with employment

• H5: History of problems with substance use

• H6: Major mental disorder (schizophrenia)

• H7: History of problems with personality disorder

• H8: History of problems with traumatic experiences

• H10: History of problems with treatment or supervision response I have insufficient information to determine that he has a history of problems with violent attitudes.

Mr. Muse’s clinical (current or recent) risk factors include three out of the five clinical risk factors, as follows:

• C1: Recent problems with insight

• C4: Recent problems instability of behaviour, thinking and mood

• C5: Recent problems treatment or supervision response He has not presented with recent problems with symptoms of a major mental disorder or with violent ideation/intent.

Mr. Muse’s risk management (future) factors include all five of the factors, as follows:

• R1: Future problems with professional services and plans

• R2: Future problems with living situation

• R3: Future problems with personal support

• R4: Future problems with treatment or supervision response

• R5: Future problems with stress or coping

34. No other evidence was presented.

Submissions of the Parties

35. The hospital submits that Mr. Muse continues to represent a significant threat to the safety of the community and that a detention order, without community living, as well as a transfer to the either the Brockville Mental Health Centre or Providence Care Hospital in Kingston, is the necessary and appropriate Disposition. Counsel for the Attorney General, Ms. Dufort, supports the hospital recommendation.

36. Counsel for Mr. Muse, Mr. Brass submits that the least onerous and least restrictive Disposition would be the maintenance of the current detention order, without the removal of community living and without a transfer to another hospital. Mr. Brass added that the Board may not have a sufficient evidentiary basis to change the existing Disposition, and that it is required to order the least onerous and least restrictive Disposition based on the evidence before it.

37. With respect to the restriction of liberty, the hospital submits that the exercise of the Form 49, leading to Mr. Muse’s apprehension and detention at the OCDC on February 17, 2025, was necessary due to Mr. Muse’s repeated offending and breach of the terms of his Disposition, as well as his bail conditions resulting from new criminal charges. Counsel for the Attorney General, Mr. Dufort, supports the hospital position, whereas counsel for Mr. Muse, Mr. Brass, did not oppose it.

Analysis and Conclusion

38. Having considered all of the evidence presented at the hearing, and the submissions of the parties, the Board finds that Mr. Muse continues to meet the threshold of significant threat to the safety of the public as set out in s. 672.5401 of the Criminal Code of Canada and as further defined by the Supreme Court of Canada in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625.

39. Mr. Muse suffers from a severe, long-standing, treatment-resistant schizophrenia which has led to a history of aggressive behaviour starting in his youth. Prior to the NCR finding, Mr. Muse had been socially isolated for several years, often living on the street or in shelters, with limited supports in the community. He has a long history of substance abuse which has led to various problems with his mental illness and his behaviour in the community.

40. Following a lengthy period of detention in jail, Mr. Muse was transitioned directly to the community to a supervised group home. Despite being compliant with treatment, Mr. Muse appears to have fallen back into his previous pattern of drug use, criminality and rule defiance, all of which increase the risk that he will re-offend violently. He was evicted from his group home as a result of this behaviour.

41. Mr. Muse needs to engage in psychosocial rehabilitation with a multidisciplinary approach and this will only happen with a longer-term admission to hospital.

42. The Panel is persuaded that a transfer to the Brockville Mental Health Centre is necessary and appropriate in the circumstances and represents the best chance for Mr. Muse to properly engage in his rehabilitation. Unfortunately, patients like Mr. Muse are generally viewed as undesirable because of their antisociality and concurrent disorders.

43. Mr. Muse is a young man who desperately needs an opportunity to change his life trajectory, which has not been very positive to date. We hope that he will benefit from the multidisciplinary treatment and rehabilitation program that will be available for him in Brockville.

44. Having considered the four factors set out in s. 672.54 of the Criminal Code, namely the protection of the public which is the paramount consideration, the mental condition of the accused, his reintegration into society and his other needs, the Board finds that a detention order at the Secure Forensic Unit of the Brockville Mental Health Centre, without community living, with privileges up to and including to enter the community of Brockville, indirectly supervised, is the necessary and appropriate, least onerous and least restrictive Disposition in all of the circumstances.

45. Finally, with respect to the restriction of liberty which occurred as a result of the hospital’s decision to exercise the Form 49 and have Mr. Muse apprehended and detained in jail, as a result of further criminal charges against him, was reasonable and warranted in the circumstances and represented the least onerous and least restrictive decision available to manage the increased risk posed by Mr. Muse’s repeated criminal offending, his persistent substance use and breaches of his ORB Disposition. The restriction of liberty remains necessary at this time, as Mr. Muse awaits a bed at the Brockville Mental Health Centre, or at the Royal Ottawa Mental Health Centre in the interim, should a bed become available there before one becomes available in Brockville.

DATED this 7^th day of April 2025, at the City of Toronto, in the Toronto Region.

Ms. M. Labrosse Alternate Chairperson

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Office of the Registrar Ontario Review Board