Re: Osama Filli

ORB File No: 7610

Hearing held on: Wednesday, January 29, 2025

Place of hearing: Centre for Addiction and Mental Health 1001 Queen Street West, Toronto

Pursuant to: Section 672.82(1) of the Criminal Code

Before:

Alternate Chairperson: Ms. C. Finley

Members: Dr. G.A. Chaimowitz Dr. K. Hand Mr. J. Goldenberg Mr. S. Duffy

Parties Appearing:

Accused: Osama Filli Counsel: Ms. M. Perez

The person in charge of hospital: Counsel: Ms. L. Senko

Attorney General of Ontario: Counsel: Ms. V. Culp

REASONS FOR DISPOSITION

(Dated April 7, 2025)

Introduction

1. On October 1, 2019, Osama Filli was found not criminally responsible by reason of mental disorder on a charge of manslaughter. He is currently subject to a Disposition of the Ontario Review Board (the Board/ORB), dated August 28, 2024, detaining him at the General Forensic Unit of the Centre for Addiction and Mental Health, Toronto (CAMH/the hospital), with discretionary privileges up to living in the community of the Greater Toronto Area in approved accommodation.

2. On October 31, 2024, the Board received a request from the Ministry of the Attorney General requesting an early hearing. Upon reviewing the current disposition, counsel for the Ministry noted that the order did not include “no contact”/”no attend” provisions with members of the deceased’s family. The request stated “[g]iven the gravity of the index offence, as well as the safety concerns that have been expressed by the family, the Crown is seeking an early hearing to address the issue of a “no contact” clause in relation to the deceased’s family members, as well as an attendance restriction for the area of Toronto where the majority of family members live (Danforth/Broadview/Victoria Park area).” Upon receiving written responses from the hospital and counsel for Mr. Filli, the Board exercised its discretion pursuant to s. 672.82(1) and ordered that an early hearing be convened to consider this request.

3. Mr. Filli was present and represented by counsel, Ms. Perez. An Arabic interpreter was made available to Mr. Filli in the event he required assistance at any time during the course of the hearing. One of the family members of the victim, Mr. Berhane, also was present.

4. Ms. Perez advised the Board that Mr. Filli had appealed his NCR verdict to the Ontario Court of Appeal. That appeal was heard the week prior to the hearing and the decision has been reserved.

5. All parties agreed that the only issue to be determined was whether the two conditions sought by the Ministry of the Attorney General should be included in the disposition. This hearing would not impact on the timing of Mr. Filli’s next annual hearing, which would be scheduled for sometime in the summer of 2025.

6. At the outset of the proceedings, Ms. Culp, on behalf of the Ministry of the Attorney General, outlined the specifics of the two conditions being sought. The first described a no-entry area bounded by Kingston Road on the south, Main Street on the west, Pharmacy Avenue on the east and St. Clair Avenue East on the north from which Mr. Filli would be barred entering. The second condition prohibited any contact, directly or indirectly, with the members of the victim’s immediate family. Six names were provided. The above geographic boundary encompassed the addresses of the family members. Were the Board not to accede to the boundary condition, Ms. Culp alternatively requested a condition prohibiting Mr. Filli from being within 100m of where he knew any of the family members to be.

7. Ms. Senko, on behalf of the hospital, agreed that the condition prohibiting contact with the victim’s family was appropriate, but took no position with respect to the prohibited area. Ms. Perez took no position with respect to the no-contact provision and was opposed to the geographic area restriction.

Findings

8. For the reasons that follow, the panel finds that the condition prohibiting direct or indirect contact with the named victims is necessary and appropriate and represents the least intrusive and least restrictive condition in keeping with public safety. The panel declines to include the geographic area prohibition and orders that Mr. Filli’s disposition include that he “Not knowingly be within 100m of the 6 immediate family members’ home, work, place of worship or where they are known to be”.

The Evidence

9. The evidence at the hearing consisted of Victim Impact Statements from 2019, 2023 and January 20, 2025, an Addendum to the Hospital Report dated January 22, 2025 and the viva voce evidence of Dr. Swayze, Mr. Filli’s treating psychiatrist until his transfer to a general forensic unit on January 17, 2025 under the care of Dr. Woodside.

The Index Offence

10. The circumstances of the index offence are taken from the Reasons for Disposition, dated September 18, 2024:

“On September 26, 2014, Mr. Filli bought a knife. He testified that he bought the knife to replace the one that had been taken from him on September 14th.

Mr. Filli went to a park at around 10 or 10:30 p.m. and drank about 5-6 shots of bourbon and consumed some marijuana with five other men. He had stopped drinking about three hours before the offence. After drinking in the park Mr. Filli went to a bar and then to a café. Shortly before 3 AM on September 27, Mr. Filli was sitting outside the café when Mr. Berhane came to sit next to him. Mr. Filli and Mr. Berhane began yelling at each other and pushing each other. This initial confrontation was broken up but a second confrontation occurred shortly afterwards. In the second confrontation there was pushing and punching. A friend of Mr. Berhane became involved and attempted to stop the fight. At this point, Mr. Filli took out his knife and stabbed Mr. Berhane. As “I [Justice Forestell] found in my earlier reasons, Mr. Filli subjectively believed that he was in danger of being killed or kidnapped but that belief was not objectively reasonable.

Additional Exhibits indicate following the attack, Mr. Filli fled the scene. Police received several 911 calls and attended the scene. The victim was transported to the Toronto East General Hospital, where he was pronounced dead. On September 28, 2014, police attended the YMCA Men’s Shelter on Queen Street West in Toronto, where Mr. Filli was located and arrested for Second Degree Murder.”

Victim Impact Statements

11. It is clear from the filed Victim Impact Statements that the circumstances surrounding the death of Mr. Berhane have had a significant and lasting impact on his family. They continue to experience trauma in the form of depression, anxiety, anger, fear, confusion, and distrust. During the hearing in August 2024, they learned for the first time that Mr. Filli was exercising indirectly supervised passes in the community, to the Trinity Bellwoods Community Centre in particular. The family members incorrectly believed a condition prohibiting the accused from contacting them was a routine term in dispositions in cases such as this. They “immediately started to imagine the fear and panic we would experience, to be caught off guard by encountering the accused in public… This possibility looms over us like a dark cloud, disrupting any sense of normalcy or safety we’ve tried to rebuild. The idea of facing him, of being forced to relive the horror of what he did, is distressing not just for our family, but also the community that is still mourning the loss of Nahom”. “This is not a request to restrict or punish the accused. We are simply advocated for our protection and peace of mind.”

Background Information

12. Given the limited focus of this hearing, it is not necessary to review Mr. Filli’s background and psychiatric history in detail. Mr. Filli is a 33-year-old man who presently resides on the General Forensic Unit at CAMH. His current diagnoses are Schizoaffective Disorder, Gambling Disorder and Alcohol Use Disorder. His current disposition includes terms that he abstain from the nonmedical use of alcohol or drugs or any other intoxicants; submit samples for analysis; and not be in possession of any weapons.

13. According to the Addendum to the Hospital Report, Mr. Filli has not engaged in any violence, aggression or any concerning behaviours over the last six months. He has been compliant with treatment and his schizoaffective disorder is in full remission. The report notes that “[h]e does have difficulty recognizing and responding effectively to stressors and this leads to episodes of significant anxiety, often associated with prominent irritability. The clinical team is aware of this pattern and intervenes accordingly”.

14. Mr. Filli has achieved passes at level 7, which allows for indirectly supervised hospital and grounds and community privileges for rehabilitation purposes. He has identified activities at a local community centre and mosque. Mr. Filli recently began twice a week attendance indirectly supervised at the community agency “Progress Place” to assist with volunteer administrative work and “West Neighborhood House” weekly for English tutoring. Mr. Filli is currently supported by the Ontario Disability Support Program (ODSP). However, he is interested in pursuing some form of employment.

15. He has recently reconnected with a cousin in Mississauga and a staff escorted visit is scheduled for January 26, 2025.

16. The treatment team acknowledges the progress that Mr. Filli has made and notes that this has been in the context of significant supervision and supports while in hospital. It is anticipated that this level of support will continue as Mr. Filli continues to progress through the privilege levels. The team’s position with respect to the proposed boundary condition, as outlined in the Addendum to the hospital Report, is that the condition would not be necessary nor appropriate as Mr. Filli has a cultural affiliation with the proposed area. Further, several family members and friends reside within the area.

17. Dr. Swayze testified before the panel. In his opinion, while a no contact order and specific distances from the family made sense, the geographic boundary was not necessary. There was nothing clinically that would necessitate the wide geographical boundary restriction. Mr. Filli’s mental status has remained stable for quite some time and there have been no concerning behavioural changes. He has been entirely cooperative with the team. Mr. Filli currently travels indirectly supervised several times a week to Progress Place and other locations and has not deviated from those directions. In Dr. Swayze’s opinion, Mr. Filli would not deviate to areas that would be identified as problematic. Having said that, Mr. Filli’s current passes would not be impacted should the Board impose the requested boundary restriction.

18. In response to questions from Ms. Culp, Dr. Swayze testified that currently Mr. Filli does not have any programs or connections to east Toronto. However, he does have a cultural centre link and at least one family member who resides in that area.

19. Dr. Swayze agreed that Mr. Filli has had an “uneven path” while under the Board and, should he decompensate, it could be quite severe. In the doctor’s opinion, a boundary restriction would make no difference to Mr. Filli’s behaviour. Other mechanisms to intervene would be available to the hospital, including restricting his access to the community.

20. In response to questions from Ms. Perez, Dr. Swayze agreed that Mr. Filli has been exercising indirectly supervised passes in the community both while at Ontario Shores and at CAMH. There have been no issues with him having any thoughts of contacting the victim’s family. Indeed, Mr. Filli has stated that he would have a hard time recognizing members of the victim’s family. Mr. Filli has indicated that he has had no desire whatsoever to have any contact with the family. He has no wish to cross paths with them.

21. Dr. Swayze agreed that when the treatment team is looking at housing options for Mr. Filli, the availability of housing options would likely be reduced by the large area contemplated by the proposed boundary restriction.

Submissions

22. Ms. Culp submitted that the statements submitted by the victims reflected the devastating loss experienced by the victim’s family and their fear of encountering Mr. Filli unexpectedly on the street. The requested conditions would provide the family with psychological security. In Ms. Culp’s submission a safe space for the victims was necessary and appropriate. At this time, Mr. Filli is still in the early stages of his reintegration into the community. His stability has been for a relatively short period of time after having experienced a ‘bumpy road” while at Ontario Shores and initially at CAMH.

23. Ms. Senko supported the proposed condition prohibiting contact with the family of the victim. While acknowledging the feelings that family has described, Ms. Senko invited the Board to balance that with the potential limitations given the large area being proposed. She invited the Board to consider a smaller geographic limitation, perhaps not to enter the area within 200 metres of a specific intersection within the relevant area.

24. Ms. Perez took no position with respect to proposed conditions prohibiting contact with the victim’s family members. Mr. Filli does not want contact with the family. With respect to the geographic area boundary, Ms. Perez submitted that Mr. Filli has a family member and a friend who reside within the area. Further, there is an Ethiopian community within that area. The condition is neither necessary nor appropriate.

Analysis and Conclusion

25. Section 672.542 of the Criminal Code requires the Board to consider whether it is desirable, in the interests of the safety and security of any person, particularly a victim of or witness to the offence or a justice system participant, to include as a condition of the disposition that the accused:

(a) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the disposition, or refrain from going to any place specified in the disposition; or

(b) comply with any other condition specified in the disposition that the court or Review Board considers necessary to ensure the safety and security of those persons.

26. It is clear that the family of Mr. Berhane has been devastated. The impact of his death over 10 years ago is still acutely felt by them. One can appreciate that they do not want to have any contact with Mr. Filli. The panel orders that Mr. Filli’s disposition include a condition that he have no direct or indirect contact with the members of Mr. Berhane’s immediate family, the names of whom have been provided.

27. Under s. 672.542(b), the Board may consider whether it is desirable to impose any other condition necessary to ensure the safety or security of such persons. This requires a balancing of the interests of the accused on the one hand, and the interests of the victim on the other. The geographic boundary proposed by Ms. Culp covers a significant area of the city and includes supports and potential activities within the Ethiopian community that Mr. Filli could access as part of his ultimate reintegration.

28. Dr. Swayze and the treatment team are of the opinion that such a condition is neither necessary nor appropriate. Mr. Filli’s mental status has been stable for some time and there have been no behavioural issues of concern. With significant support and supervision on the part of the team, Mr. Filli has been successfully exercising indirectly supervised passes in the community. There is no suggestion that he has taken any steps to contact the family of the victims. Indeed, there is some question whether he would even recognize them. Should Mr. Filli deteriorate, the hospital has the tools under his disposition to manage his risk and, if necessary, prohibit him from exercising indirectly supervised passes.

29. The decision of Gajewski (Re) [2021] O.J. No. 2041 (OCA) provides some guidance on this issue. The Board ordered that Mr. Gajewski have no contact with the victim and ordered that he not be within 500 metres of where the victim lives, works, worships, or is otherwise known to be. The Crown appealed maintaining that there should have been a boundary restriction. The Court of Appeal dismissed the appeal. Tulloch, J.A. (as he then was) states at para 39:

I agree with the appellant that s. 672.542 requires the Board to balance the NCR accused's interests against those of the victim. However, I am not persuaded that the decision of the Board failed to meet this obligation. There were terms in the conditional discharge that restricted the respondent's liberty in order to sufficiently protect the victim: specifically, the no contact order and the 500 metre prohibition. It is also important to bear in mind that the Board must apply s. 672.542 in accordance with its other statutory obligations. Specifically, pursuant to s. 672.54,the Board was required to only impose conditions that are both necessary and appropriate, given the twin goals of protecting the public and safeguarding the NCR accused's liberty interests. In my view, these goals were met by the conditions imposed.

The Court found that the 500-metre prohibition already created a "safe zone" - one that was calibrated to be the least onerous and restrictive measure as was necessary and appropriate in the circumstances.

30. Ms. Culp sought to distinguish Re Gajewski on the basis that it involved a single victim and that it involved a different charge. Like the victim in the Grajewski case, the family members of Mr. Berhane want to ensure their protection from the psychological harm of encountering Mr. Filli in the community. It is their protection that needs to be addressed not that of an entire community. That can be achieved by prohibiting Mr. Filli from coming into contact with them. There is no suggestion that Mr. Filli knows where Mr. Berhane’s family members live or work. Therefore, the panel finds that the necessary and appropriate condition that balances both the protection of the victim and supports the reintegration of Mr. Filli into the community is a condition prohibiting Mr. Filli from knowingly being within 150 metres of any of the family members. If he sees any one of them or comes to learn that he is in their vicinity, it is incumbent on him to leave the area in question immediately.

31. Accordingly, Mr. Filli’s disposition will now include a condition that he have no contact directly or indirectly with the named family members of Mr. Berhane, and that he not knowingly be within 150 meters of the family members’ homes, places of work, places of worship, or anywhere they are known to be.

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

Ms. C. Finley Alternate Chairperson

Office of the Registrar Ontario Review Board