Abdikarim (Re)

Abdikarim (Re) Collection Decisions of the Court of Appeal Date 2011-02-07 Neutral citation 2011 ONCA 103 Docket numbers C52401 Judges Moldaver, Michael James; Cronk, Eleanore Ann; Lang, Susan Elizabeth Subject Criminal Decision Content CITATION: Abdikarim (RE), 2011 ONCA 103 DATE: 20110207 DOCKET: C52401 COURT OF APPEAL FOR ONTARIO Moldaver, Cronk and Lang JJ.A. BETWEEN Her Majesty the Queen Respondent and Mohamed Abdikarim Appellant Mohamed Abdikarim, in person Paul Burstein, Amicus Curiae James P. Thomson, for the Centre for Addiction and Mental Health Alison Wheeler, for the Crown Heard: February 1, 2011 On appeal from the disposition of the Ontario Review Board, dated May 4, 2010. ENDORSEMENT [1] The appellant, Mohamed Adbikarim, appeals from the disposition of the Ontario Review Board dated May 4, 2010, requiring that he remain detained in the minimum secure unit of the Centre for Addiction and Mental Health (the “Hospital”) subject to various conditions, including the possibility of living in the community in accommodation approved by the Hospital. The disposition at issue resulted from the appellant’s annual review hearing, coupled with a hearing into restrictions on his liberty resulting from his readmission to the Hospital in March 2010. [2] The appellant seeks an absolute or conditional discharge from the Hospital. In the alternative, he seeks an order remitting his case back to the Board with directions for a new hearing. [3] The Crown and the Hospital support the continued detention of the appellant on the terms ordered by the Board. The Hospital, supported by the Crown, seeks to file fresh evidence concerning the appellant’s condition and progress in the Hospital since the date of the Board hearing. [4] The appellant is self-represented. Mr. Paul Burstein was appointed as amicus curiae for the purpose of this appeal. Like the appellant, Mr. Burstein argues that the disposition should be set aside and a new hearing ordered. As advanced in oral argument, he submits that the Board erred by finding that there was no “treatment impasse” in this case and, further, by failing to impose terms of disposition that require the Hospital “to do more to explore new housing options for the appellant’s re-integration into the community”. In light of the fresh evidence sought to be filed, Mr. Burstein did not pursue the other grounds of appeal set out in his factum. [5] We conclude that the appeal must be dismissed. [6] The Board held that the appellant continues to pose a significant threat to the safety of the public. This finding is not directly challenged on this appeal, although we note that the appellant argued that he is “fine” and simply wants “to move forward”. In our opinion, on the record before the Board, this finding was reasonable. [7] The Board’s decision to deny a conditional discharge was also reasonable and the least onerous and least restrictive disposition in all the circumstances. There was unchallenged evidence before the Board that the balancing of the appellant’s liberty interests with containment of risk to public safety requires that the appellant function in a structured and controlled environment to maintain his mental stability. It was open to the Board to accept this evidence, including the evidence of the appellant’s treating psychiatrist that “ongoing structure is important to ensure [the appellant’s] successful transition back into the community”. [8] We also regard the Board’s rejection of the notion that a “treatment impasse” has been reached in this case as reasonable, based on the evidence before the Board. [9] The record indicates that while suitable accommodation in the community has yet to be found for the appellant, the Hospital has made repeated efforts to arrange such a placement. On four separate occasions, after consultation with the appellant, the Hospital approved the appellant’s discharge to live with his parents or his mother. On each occasion difficulties arose culminating, on the appellant’s fourth discharge, with a demonstration by the appellant that he was unable to comply with the terms of his at-home release plan. Ultimately, this led to his readmission to the Hospital. [10] In addition, the appellant has been ambivalent regarding his willingness to agree to a supervised community housing placement. On at least two occasions in the recent past, he declined to agree to specific supervised community housing placements proposed by the Hospital. More generally, at various times during his hospitalization – including in the months prior to the Board hearing – the appellant opposed living in a non-familial supervised setting in the community. The record confirms that several possible placements have proved impossible due either to long waiting lists or the appellant’s lack of co-operation or ambivalence. However, the Hospital remains committed to finding appropriate supervised housing in the community for the appellant. [11] In these circumstances, while progress in finding suitable accommodation for the appellant has been difficult, it cannot be said that an impasse where no progress and no prospect of it has been reached. [12] In any event, based on the fresh evidence tendered by the Hospital, which we conclude meets the requirements for admission before this court, the appellant’s condition has deteriorated significantly since his March 2010 readmission to the Hospital. For example, the appellant appears to have suffered at least one manic-like episode following his readmission that necessitated his transfer, for a period of time, from a minimum to a medium secure unit in the Hospital. In light of the fresh evidence, the appellant’s continued detention in accordance with the Board’s disposition remains the least onerous and least restrictive disposition for him at the present time. [13] We conclude with these observations. Although, as we have said, the record reveals efforts by the Hospital to identify suitable supervised community housing for the appellant, it is important that these efforts continue, including those that may realistically be undertaken while the appellant is recovering from his recent setback, in order to avoid a cycle of continuing detention and deterioration in the appellant’s condition. [14] The fresh evidence reveals that treatment and counselling of the appellant has continued since his readmission in an effort to stabilize his mental condition with a view to reintegrating him into the community. This, too, should continue. [15] We would expect that at the appellant’s next annual review hearing, which is likely to be held in the spring of this year, evidence of the continuing treatment of the appellant and of counselling to equip him for living safely in the community, as well as evidence of his then current condition, mental health status and accommodation preferences, will be filed with and considered by the Board. [16] For the reasons given, the appeal is dismissed. “M.J. Moldaver J.A.” “E.A. Cronk J.A.” “S.E. Lang J.A.”