COUR D'APPEL DE L'ONTARIO

RÉFÉRENCE: Muzaliwa (Re), 2018 ONCA 545

DATE: 2018-06-13

DOSSIER: C64452

Les juges: Rouleau, van Rensburg et Pardu

DANS L'APPEL DE: David Muzaliwa

UN APPEL EN VERTU DE LA PARTIE XX.1 DU CODE CRIMINEL

Counsel:

• Mélanie Lord, for the appellant
• Marie-Pierre T. Pilon, for the Royal Ottawa Mental Health Centre
• Philippe Cowle, for the Attorney General of Ontario

Date of hearing: April 23, 2018

Appeal from: Decision of the Ontario Review Board dated September 22, 2017

Judgment by: Justice Rouleau

Introduction

1The appellant, Mr. Muzaliwa, appeals from the decision of the Ontario Review Board (the "Board") dated August 11, 2017 (and amended September 22, 2017) in which he was found unfit to stand trial. The Board also ordered his detention at the forensic psychiatry unit of the Brockville Mental Health Centre (the "Brockville Centre"), a division of Royal Ottawa Health Care Services. The appellant does not contest the finding that he is unfit to stand trial and that he continues to pose a significant risk to the community due to serious mental illness. He maintains that the Board should have ordered his transfer from the Brockville Centre to the Royal Ottawa Mental Health Centre (the "Ottawa Centre").

The Facts

2Mr. Muzaliwa is 32 years old. He has exhibited behavioural problems since at least 2006 and has had several contacts with police due to inappropriate sexual behaviour. In 2013, he was charged with assault and unlawful presence in a dwelling. He was subsequently admitted to the Ottawa Centre due to his unfitness to stand trial. Following the withdrawal of charges in April 2015, Mr. Muzaliwa continued to be hospitalized, this time under the Mental Health Act, R.S.O. 1990, c. M.7.

3In January 2016, while detained at the Ottawa Centre, Mr. Muzaliwa was charged with sexual assault against a patient residing at the same institution. Following the commission of the offence, Mr. Muzaliwa was transferred to the evaluation unit of the forensic psychiatry service at the Ottawa Centre. This transfer was intended to separate him from the complainant and to establish a more rigorous treatment plan.

4The current diagnosis is that Mr. Muzaliwa suffers from mild intellectual disability. His country of birth is the Democratic Republic of the Congo. Before coming to Canada, Mr. Muzaliwa lived with his mother in Gabon.

5Although Mr. Muzaliwa comes from a francophone family and speaks French, he also speaks some English. However, his communication abilities in both languages are limited, corresponding to the ability level of an eight to nine-year-old person. That said, French is his language of choice. His mother resides in Ottawa and speaks French.

6During his detention in the evaluation unit at the Ottawa Centre, Mr. Muzaliwa was able to participate in certain groups and activities of the unit. The unit's resources were adapted so that he could participate in activities more appropriate to his level of intellectual functioning. The behavioural therapist met with him weekly. She provided him with sexual education adapted to his intellectual disability. Despite this therapy and the medications prescribed to him, Mr. Muzaliwa's inappropriate sexual behaviour continued, although less markedly than before.

(1) The 2016 Decision

7Mr. Muzaliwa appeared before the Board on May 24, 2016. The Board ordered his transfer to the Brockville Centre. The primary reason for this transfer was that the complainant remained hospitalized in the rehabilitation unit of the Ottawa Centre. According to the Board, this would mean that Mr. Muzaliwa would have to remain confined to the evaluation unit to avoid any possible contact with the complainant. The evaluation unit does not permit Mr. Muzaliwa to have ground privileges. Thus, such placement would impose a more severe restriction on his freedom than if he were transferred to the Brockville Centre.

8According to the testimony of the doctor who treated Mr. Muzaliwa when he was at the Ottawa Centre, Dr. Dufour, a transfer to Brockville would allow him to be placed on a unit where he could benefit from ground privileges on the hospital grounds and possibly in the community. Furthermore, Brockville has a unit that houses only male patients, thereby reducing the risk of inappropriate sexual behaviour.

(2) The 2017 Decision

9Two further hearings took place in 2017. The hearings proceeded in French, with an interpreter for Dr. Prior, Mr. Muzaliwa's treating psychiatrist at Brockville, who does not speak French. The decision rendered following the second hearing is the subject of this appeal.

10The evidence presented to the Board at the first hearing demonstrates that, following his transfer to Brockville, Mr. Muzaliwa presented numerous problems. Due to his behaviour, he required periods of placement in a higher security unit as well as periods of isolation. There was no improvement in his aggressive sexual behaviour. He also developed inappropriate sexual behaviours toward men. At the time of his appearance before the Board, Mr. Muzaliwa had been placed on the most restrictive unit of the hospital for some time due to his behaviour.

11Mr. Muzaliwa is not currently receiving behavioural therapy, due to the lack of a therapist in this field at Brockville. The two employees who could communicate in French were about to leave their employment at the hospital. This would mean that all communications, including the assessment of Mr. Muzaliwa's fitness to stand trial as required by the Criminal Code, would likely have to be conducted through an interpreter.

12Mr. Muzaliwa therefore requested that the Board order his return to the Ottawa Centre. He argued that none of the anticipated advantages that motivated the Board to order his transfer to the Brockville Centre the previous year had materialized. Furthermore, the absence of French at the Brockville Centre constitutes an obstacle not only for him, but also for his mother.

13Indeed, apart from the linguistic issue, Mr. Muzaliwa's isolation is also problematic since his mother and children live in Ottawa. When Mr. Muzaliwa appeared before the Board in 2016, his mother testified that travel between Ottawa and Brockville would be extremely difficult.

14In his testimony at the first hearing, Dr. Prior agreed that Mr. Muzaliwa would be better served in French. Dr. Prior described Mr. Muzaliwa's English ability as "very elementary." According to the psychiatrists who worked with Mr. Muzaliwa at the Ottawa Centre, his French ability would be "elementary." However, Dr. Prior qualified his opinion by noting that he had no expertise in the field of linguistic abilities.

15The Board adjourned the hearing and requested that the treatment teams from the Brockville Centre and the Ottawa Centre meet to discuss the question of the optimal environment for Mr. Muzaliwa. They were to consider linguistic issues, proximity to his family, and the type of housing available.

16The supplementary report, signed by both treatment teams, recommended that Mr. Muzaliwa remain detained at the Brockville Centre, primarily because the complainant remained hospitalized in the rehabilitation unit at the Ottawa Centre. Thus, if Mr. Muzaliwa returned to the Ottawa Centre, his privileges would be severely limited since he would be detained on the evaluation unit, the most restrictive unit.

17All the doctors were of the opinion that treatment in French would not necessarily confer therapeutic benefits because of Mr. Muzaliwa's limited abilities. This conclusion appears to be based on speech-language pathology assessments made in the past that were not before the Board. However, the report considers that French language services would be advantageous for Mr. Muzaliwa's family.

18At the second hearing, Dr. Prior explained the conclusions of the supplementary report. With respect to Mr. Muzaliwa's family, he was of the opinion that they would not play a very active role in his treatment, which would be focused primarily on medication and behavioural therapy. Furthermore, French-speaking staff were usually present at Brockville during meetings with his mother to assist as needed.

19The Board accepted the recommendation of Dr. Prior and the two treatment teams. The Board ordered that Mr. Muzaliwa remain detained at the Brockville Centre.

(3) The Appeal

20Mr. Muzaliwa appealed the Board's decision. He maintains that the decision is unreasonable and that the appeal should be granted. He argues that the Board:

(a) placed too much importance on the possibility that the complainant would be traumatized by his return to the Ottawa Centre;

(b) failed to consider that the anticipated advantages of the transfer to the Brockville Centre did not materialize. In fact, he has made virtually no progress during the past year and remains detained on the evaluation unit, the most restrictive unit at the Brockville Centre;

(c) erred in indicating that placement at Ottawa would be more severe. Mr. Muzaliwa accepts being placed on the evaluation unit at the Ottawa Centre, notwithstanding the absence of any privileges, rather than remaining on the evaluation unit at the Brockville Centre where he also receives no privileges;

(d) did not accord sufficient importance to his linguistic rights and those of his family. It also did not accord sufficient importance to his needs to be near his family and to be in a francophone environment;

(e) erred in indicating that another move could have negative effects on Mr. Muzaliwa.

21Furthermore, as reported by the Brockville Centre, the complainant was discharged from the Ottawa Centre on March 28, 2018. In light of this new evidence, there is no longer any reason justifying the refusal to order his return to the Ottawa Centre.

Analysis

22In my opinion, the appeal must be granted. From my reading of the Board's reasons, the fact that the complainant still resided at the Ottawa Centre was the primary reason for refusing Mr. Muzaliwa's transfer request. Due to the risk of trauma to the complainant, it would have been necessary to limit all contact between them. To do so, Mr. Muzaliwa would have had to be detained in the evaluation unit following a transfer. According to the Board, this would have unduly limited his freedom.

23However, the Board did not investigate whether and when the Ottawa Centre anticipated that the complainant would be discharged from the hospital before rendering its decision. The Board also did not examine the impact that the complainant's departure would have on Mr. Muzaliwa's placement. In the circumstances of the present case, including Mr. Muzaliwa's willingness to remain on the evaluation unit despite the limitations on his freedom, this constitutes an error. It was important to investigate this issue given the critical role that the complainant's presence at the Ottawa Centre played in the Board's refusal.

24According to the evidence, it is apparent that Mr. Muzaliwa would benefit from being detained at the Ottawa Centre. Although the Board does not appear to have investigated the matter, he could potentially resume treatment with the behavioural therapist who treated him before his transfer to the Brockville Centre. The evidence indicates that behavioural therapy is essential for Mr. Muzaliwa, and there is currently no therapist in this field at the Brockville Centre.

25In Ottawa, Mr. Muzaliwa could be served in his language of choice, French, with all the advantages this represents. He would be close to his mother, his children, and his linguistic community. Furthermore, a transfer to Ottawa likely offers better chances of obtaining placement in the community in French if his condition improves sufficiently. Indeed, his mother testified in 2016 that Mr. Muzaliwa participated in programs at the francophone community centre in Ottawa when his privileges permitted. Although these were different circumstances, this court has already recognized that cultural and linguistic isolation could potentially harm the social reintegration and other needs of an accused: R. v. Aghdasi, 2011 ONCA 57, 280 O.A.C. 119, at para. 24.

26The main disadvantage, namely the need to place him on the evaluation unit to isolate him from the complainant, disappears with her departure. The only other disadvantage mentioned by the Board is that another move could have negative effects. There is very little in the record to support this observation. On this point, it is in my opinion relevant that Mr. Muzaliwa expressed the desire to be transferred to the Ottawa Centre and that he would be closer to his mother and children.

27The appeal also raises an important question concerning language. On this issue, the Board limited itself to saying that "[a]lthough Mr. Muzaliwa may receive treatment in French in Ottawa, nothing indicates that this transfer would provide him with significant therapeutic benefit." Although it seems surprising to me that psychiatric treatment in his language would not be highly preferable, I accept that this conclusion appears to be consistent with the psychiatric evidence presented to the Board at the second hearing.

28However, the Board did not address the question of the linguistic rights that Mr. Muzaliwa might have, a question distinct from the possibility of "therapeutic benefit." Section 530 of the Criminal Code and the French Language Services Act provide for the right to certain services in French. Do psychiatric evaluation and other steps taken in the course of determining fitness to stand trial form part of the trial, or are they otherwise encompassed under section 530? Are the treatment provided to Mr. Muzaliwa during his detention and the communications he maintains with the Ottawa Centre and the Brockville Centre "services" for the purposes of section 1 of the French Language Services Act? To answer this question, it is necessary to determine what entity communicates and provides treatment to Mr. Muzaliwa. Is it simply a service offered by the hospital, which is subject to an exemption under section 1(a), and whose partial designation of Royal Ottawa Health Care Services under section 1.180 of Regulation 398/93 does not cover? Or, rather, is it a service that the hospital provides to Mr. Muzaliwa on behalf of the province, the Board, or correctional services, and therefore on behalf of a government agency under Regulation 284/11, which could mean that Mr. Muzaliwa is entitled to services in French under section 5? The evidence record in our possession does not allow us to answer these questions.

29If the transfer to the Ottawa Centre is still denied to him and Mr. Muzaliwa does not have access to services in French, the Board should consider the possible impact on his rights.

Conclusion

30Mr. Muzaliwa requests that the appeal be granted and that an order be issued transferring him to the Ottawa Centre.

31Although I would grant the appeal, I am of the opinion that a new hearing should be ordered. According to the evidence, the treatment team is experiencing difficulties in developing an appropriate treatment for Mr. Muzaliwa. Not knowing what progress the team may have made, it seems preferable to remit the matter to the Board so that it may decide on the best placement for Mr. Muzaliwa on the basis of a complete and up-to-date evidentiary record.

32For these reasons, the appeal is granted and the matter is remitted to the Board for a new hearing.