WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
Rouleau, Benotto and Nordheimer JJ.A.
IN THE MATTER OF: Abdiaziz Abdulle
AN APPEAL UNDER PART XX.1 OF THE CODE
Michael Davies, for the appellant
Natalya Odorico, for the respondent Attorney General of Ontario
Marie-Pierre T. Pilon, for the respondent Person in Charge for the Brockville Mental Health Centre
Heard: in writing
On appeal from the disposition of the Ontario Review Board, dated December 20, 2019, with reasons dated January 21, 2020.
REASONS FOR DECISION
BACKGROUND
1The appellant appeals from the most recent disposition of the Ontario Review Board (“Board”) that concluded that the appellant continues to present a significant threat to the safety of the public. The Board ordered the continued detention of the appellant in the secure forensic unit of the Brockville Mental Health Centre (“Brockville”). The appellant was granted privileges, including approved community living and passes to travel within 200 kilometres of Brockville, either indirectly supervised or in the company of a staff member or another approved individual, for a maximum of 48 hours. The Person in Charge of Brockville must approve the appellant’s exercise of these privileges.
2The appellant’s detention relates to two sets of index offences. The first set occurred on April 8, 2008, when the appellant attended at the residence of his brother and sister-in-law, threatened to kill his brother, and kicked the front door off its hinges. On November 25, 2008, the appellant was found not criminally responsible on account of mental disorder (“NCR”) on charges of uttering threats to cause death or bodily harm, mischief, and failing to comply with an undertaking.
3On September 7, 2011, while the appellant was in the community after leaving Montfort Hospital, he committed the second set of index offences. The appellant, wielding a screwdriver, acted aggressively and chased a stranger. Later, armed with a rock, the appellant continued to chase the stranger, this time threatening to kill him. Also, before police brought him into custody, the appellant exposed himself to three women. On October 21, 2011, the appellant was found NCR on charges of assault with a weapon, uttering threats to cause death or bodily harm, committing an indecent act, and failing to comply with a recognizance.
4The appellant continues to be under the jurisdiction of the Board and receives treatment for his bipolar disorder, antisocial personality disorder, and polysubstance use disorder. Notably, the appellant continues to consume cannabis, which he has used since the age of 15, despite the risk that combining cannabis use with the appellant’s bipolar disorder could lead to additional relapses.
ISSUES
5The appellant seeks an absolute discharge and advances the three following grounds of appeal:
The Board erred in finding that the appellant poses a significant threat to the safety of the public;
The Board erred in its consideration of a conditional discharge; and
The Board erred in failing to take the necessary steps to assist the appellant in progressing toward an absolute discharge.
6For the reasons that follow, we dismiss the appeal.
ANALYSIS
(1) The Board’s finding that the appellant poses a significant threat to the safety of the public was reasonable
7The appellant contends that the Board’s finding that he remains a significant threat to the safety of the public is unreasonable and he is therefore entitled to an absolute discharge. To determine that an NCR accused remains a significant threat to the safety of the public, there must be “a real risk of physical or psychological harm to members of the public that is serious in the sense of going beyond the merely trivial or annoying”: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 62.The primary focus of the appellant’s submission is that the Board put insufficient weight on the fact that the appellant has had no serious incident involving physical violence since October 2011. We do not agree with this submission. We accept that the Board’s finding that the appellant remains a significant threat to the safety of the public was reasonable.
8The Board did not ignore the evidence favouring the appellant, notably that there has been no incident of serious physical harm to others since the second set of index offences in 2011. The Board considered all of the evidence tendered, including the appellant’s evidence that there has been a lack of serious physical acts of violence, and concluded the following:
Given [the appellant’s] lack of insight, undertreated Bipolar Disorder, continuing use of a THC substance, and the resistance or disagreements that he demonstrates as a result of his personality disorder, it is highly likely that if absolutely discharged he would stop or alter his medication and treatment and continue the use of cannabis. The symptoms of his Bipolar Disorder would emerge and his behaviour would eventually lead to his becoming a real risk of serious bodily or psychological harm to members of the public. [Emphasis added.]
9This conclusion was fully supported by the record. The Board conducted a broad inquiry and relied on numerous cogent and relevant risk factors, as required under s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46.
10The appellant suffers from bipolar disorder and an antisocial personality disorder that causes him to be manipulative and deceptive. The record shows that the appellant experienced cyclical periods of relapse into his bipolar disorder and “would become unstable and verbally aggressive.” It also revealed that he had limited insight into his illness, the risk of relapse, and the risk of decompensation and violence associated with his cannabis use. Despite having been educated and warned about the risks of cannabis use given his bipolar disorder, he persistently continues to consume this drug.
11Furthermore, the appellant’s history while under the Board’s jurisdiction demonstrated that he had difficulty adhering to the medication regime without hospital oversight. The evidence discloses that he resisted medication, questioned medications and doses, and liked to control his medication regime. As a result, if the appellant is granted an absolute discharge and is without clinical supervision, he is likely to alter the dosage of his medication or stop taking his required medication altogether and continue his use of cannabis. This conclusion of the Board was fully supported by the record.
12The altering of his medication and continued use of cannabis were such as to make it highly likely that the appellant would relapse into his mental illness of bipolar disorder. When in that state, he experiences persecutory delusions and becomes disinhibited and physically agitated, which presents a significant threat to the safety of the public. This is what led to incidents of verbal and physical aggression in the past.
13The Board considered the fact that there were no particularly serious incidents of physical violence since the appellant’s second NCR finding in October 2011. In the present case, the Board found that the structured environment of Brockville insulated the appellant’s potential for violence. When the appellant showed signs of relapsing to his bipolar disorder, his caregivers would quickly manage these relapses with relatively minimal consequences, preventing the appellant’s escalating behaviour as recorded in the index offences. Without continued supervision, “his risk to members of the public [would] be manifested through behaviours and actions similar to those surrounding the index offences.” This, the Board found, represents a significant threat to the safety of the public.
14As this court explained in Mott (Re), 2019 ONCA 560, at para. 10, “the absence of a significant or recent history of violence by itself is not determinative of whether an NCR accused poses a significant threat to the safety of the public”. Evidence of the appellant’s potential for violence, caused by his lack of insight into his illness, his resistance to medication, and his continued substance abuse, may support a finding that he remains a significant threat to the safety of the public: Mott, at para. 10. The Board used this type of evidence to confirm the appellant’s potential for violence and to conclude that the appellant remains a significant threat to the safety of the public.
15The Board’s findings were both logical and reasonable on the record before it. The Board was fully entitled to attribute limited weight to the fact there had been an absence of serious incidents of physical violence since October 2011, given its finding that the appellant’s behaviour had not escalated to the point of physical violence because of the external controls imposed by the hospital. In balancing these facts, the Board concluded that the appellant continued to pose a significant threat to the safety of the public and could therefore not receive an absolute discharge. This finding is entitled to deference.
(2) The Board properly considered and rejected a conditional discharge
16The appellant argues that the Board erred in its consideration and rejection of a conditional discharge. He submits that the Board failed to apply the appropriate legal test and failed to assess whether conditions could be crafted to manage his risk in the community.
17We disagree. At the outset, we note that the appellant did not ask the Board for a conditional discharge. However, the Board considered the possibility of a conditional discharge. Dr. Sanjiv Gulati, the appellant’s treating psychiatrist since his transfer to Brockville, explained that the hospital opposed a conditional discharge because the appellant had not had a significant period of stability. He explained that, for a number of reasons, there had been limited to no success in previous efforts to discharge the appellant into the community. This was due, in part, to the appellant’s continued use of cannabis, his violation of hospital rules, and relapses of his bipolar disorder requiring a return to hospital to control his behaviour. Dr. Gulati opined that the appellant was likely to relapse “within weeks” if he was discharged and continued his pattern of using cannabis and neglecting his medication.
18The Board’s conclusion that it was neither practical nor possible to manage the appellant in the community without putting members of the public at risk was reasonable. A gradual reintegration into the community via supervised or transitional housing is needed. The Board concluded that a detention order with no changes to the appellant’s privileges was required, and the Board’s finding in that regard was reasonable and is entitled to deference.
(3) The Board fulfilled its duty to ensure that progress was being made with the appellant
19The appellant faults the Board for not having done more to assist him to move toward an absolute discharge. In the appellant’s submission, there was an unresolved treatment impasse and the Board failed to make “recommendations as to how the appellant’s situation could be improved.” The term “treatment impasse” refers to “a situation where an NCR accused is detained without treatment, refuses treatment, or the treatment does not result in any progress in managing the mental health condition”: Abeje (Re), 2019 ONCA 734, at para. 30.
20We do not view this case as one involving treatment impasse. The record demonstrates that progress has been made and is likely to continue. As of the hearing date, Brockville had implemented an effective course of treatment to manage the appellant’s illness. Following an increase in the appellant’s medication, there were fewer relapses observed. As underscored by the Board, Dr. Gulati “embraced [the appellant’s] progress” and “is pleased with this apparent improvement”, as “he hopes that it may break the [appellant’s] cyclical pattern of episodes”. Still, Dr. Gulati confirmed it was too early to tell whether the increase in medication will eliminate the appellant’s relapse cycle.
21This is not a case where the appellant was languishing in hospital. Rather, he was receiving treatment at Brockville and was making some noticeable progress. Accordingly, this ground of appeal is dismissed.
DISPOSITION
22For the reasons above, the appeal is dismissed.
“Paul Rouleau J.A.”
“M.L. Benotto J.A.”
“I.V.B. Nordheimer J.A."