COURT OF APPEAL FOR ONTARIO

CITATION: Dezzou-Koulombo (Re), 2013 ONCA 687

DATE: 20131113

DOCKET: C56747

Weiler, Sharpe and Rouleau JJ.A.

IN THE MATTER OF: SIMON DEZZOU-KOULOMBO

AN APPEAL UNDER PART XX.1 OF THE CODE

Jean Richer, amicus curiae, for the appellant

Robert Gattrell and Davin Garg, for the respondent Attorney General of Ontario

Michelle O’Bonsawin, for the respondent Ottawa Mental Health Centre

Heard: October 17, 2013

On appeal against the disposition of the Ontario Review Board dated December 7, 2012.

Rouleau J.A.:

[1] The appellant has appealed from the annual review held on December 7, 2012. The Board concluded that the appellant’s detention in a hospital, with terms and conditions, continued to be necessary.

[2] I note that there was a subsequent decision of the Board dated February 25, 2013, followed by reasons released on March 26, 2013. Although the decision and reasons were included in the appeal record submitted by the Crown, no application was made to adduce fresh evidence. Accordingly, this decision does not address the Board’s subsequent decision or the incidents related in it. I consider only the annual review on December 7, 2012, that has been appealed, and the fact situation as it existed at the time that annual review was completed.

[3] The appellant was found not criminally responsible by reason of mental disorder on a sexual assault charge. The charge stemmed from an incident that took place in 2007 in which the appellant rubbed female store employee’s thighs and grabbed her genitals.

[4] In the appellant’s 2012 annual review, the Board found that if [translation] “the Board did not make a disposition in respect of [the appellant], he would stop taking his medication and would then pose a very significant threat to the community”. The explanation given by the Board for that finding is that the appellant suffers from a [translation] “serious mental illness of which he has absolutely no awareness, and … has suffered significant decompensation in the last year. He has clearly stated that he has no mental disorder and has no need to take medication.”

[5] The Board therefore ordered that the appellant be detained, that disposition being necessary [translation] “so the hospital can choose his place of residence and hospitalize him quickly if it becomes necessary”.

[6] The appellant is appealing the disposition. He submits that he does not suffer from a mental illness and he should be discharged from the supervision of the Board. I reject that ground of appeal. In my opinion, the Board’s finding that the appellant suffers from a serious mental illness is consistent with the evidence presented at the hearing and the experts’ opinions.

[7] The amicus, however, presented a different ground of appeal. The amicus submits that the reasons of the Board are insufficient. For the purposes of the appeal, he agrees that the appellant suffers from a mental disorder and that it is very possible that if he is discharged, he will not take his medication and as a result will decompensate. The risk of decompensation alone does not amount to a significant threat to the safety of the public within the meaning of section 672.54 of the Criminal Code, R.S.C. 1985, c. C-46. The Board must explain how the appellant’s behaviour, when he decompensates, could pose a significant threat to the safety of the public. The amicus also submits that a detailed examination of the record does not support that conclusion.

[8] In all cases, the respondents have the burden of proving that the appellant poses a significant threat, which means “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. The conduct giving rise to the harm must be criminal in nature”: Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625 at para. 62. In addition, the threat must be supported by evidence, and the Board’s dispositions must be supported by reasons: R. v. Owen, 2003 SCC 33, [2003] S.C.R. 779 at para. 46; Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20, [2004] 1 S.C.R. 498 at para. 73.

[9] I am of the opinion that there are errors in the Board’s reasons.

[10] In particular, hearsay seems to play a major role in this case. In Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, at para. 115, the Supreme Court of Canada acknowledged that a board, in that case the Consent and Capacity Board, could admit hearsay evidence and that “[t]he weight to be accorded to such evidence is normally a matter that is left to the discretion of the Board”. However, the Court added the caveat that the Board “must be careful to avoid placing undue emphasis on uncorroborated evidence that lacks sufficient indicia of reliability”: Ibid.

[11] The Board had before it reports containing hearsay. Those reports indicate that the appellant had allegedly been seen by someone in the hallway of his apartment with a knife. He had also allegedly been seen talking loudly to himself in the hallways, to the point that some people were made uneasy, and behaved inappropriately with residents of the building where he lived. The psychiatrists seem to have relied on this hearsay—from unidentified sources—in concluding that when the appellant is in a decompensated state he may present [translation] “disorganized behaviour, inappropriate sexual behaviour and diminished judgment and insight”.

[12] However, the various incidents related in the reports were denied or explained by the appellant in his testimony before the Board. There was also support for what the appellant said. The hospital reports indicate that the appellant’s neighbours, who were the source of the hearsay relating to certain incidents, are somewhat intolerant of him and [translation] “tease him and provoke him”. The Board did not address the credibility issues raised by the appellant in his testimony and the Board’s reasons do not contain any comment on the reliability of the hearsay evidence cited by the psychiatrists in support of their opinion.

[13] There was certainly evidence in the record that showed that the appellant’s behaviour, when he decompensates, can be perceived as disturbing, aggressive and alarming. This does not necessarily amount to criminal conduct that poses a significant threat to the safety of the public.

[14] The Board must assess the appellant’s sometimes disturbing behaviour in the entire context offered by the record. The appellant has committed only one offence, the initial sexual assault in 2007 in which the prosecution elected to proceed by summary conviction. The appellant has no criminal record and no charges have been laid against him since 2007, in spite of the fact that he has lived in the community for a good part of that period. The results of the HCR-20 dangerousness test show that he was low-risk when he was admitted in 2007. Since then, his score has gone from 11 to 7, indicating a lower risk.

[15] The [translation] “threat to society” posed by Mr. Dezzou-Koulombo has also, in the psychiatrists’ opinion, gone from [translation] “significant threat” in their January 10, 2012, report to simple [translation] “threat” in the report that was before the Board at the annual review on December 7, 2012. That change is noteworthy because the paragraph where it appears, which consists of the [translation] “Assessment of threat in the community”, is otherwise virtually identical, as between the two psychiatrists’ reports. The psychiatrists’ conclusion that Mr. Dezzou-Koulombo continues to be “a threat to society” does not meet the requirements of section 672.54 of the Criminal Code, which reads “a significant threat to the safety of the public”, as I noted earlier and as explained in Penetanguishene and Winko.

[16] In its reasons, the Board stated: [translation] “Based on the evidence submitted, the Board has no difficulty making the unanimous finding that [the appellant] still poses a significant threat to the community.” However, those reasons do not explain how the Board found that the threat was [translation] “significant”, given that the psychiatrists’ report before the Board in December 2012 no longer described it as such.

[17] In this case, the reasons are insufficient to show that the Board had regard to all of the evidence and to explain why the Board rejected the appellant’s testimony and accepted the hearsay evidence from unidentified sources. The appellant and this Court are left in doubt about why the Board found that he posed a threat of this nature: R. v. Sheppard, 2002 SCC 26,[2002] 1 S.C.R. 869 at para. 55.

[18] That being said, and despite the excellent submission by the amicus, I am not able to conclude that there was not sufficient evidence before the Board to find that the appellant might pose a significant threat to the safety of the public. The original incident in 2007 was serious and the psychiatrists’ testimony shows that they believe the appellant is still a threat to the community. It is the role of the Board to assess that evidence and the other evidence in order to determine the level of threat. However, the assessment must also take into account evidence to the contrary. The reasons must explain the Board’s reasoning.

[19] For these reasons, I would order that the Board be convened to decide the case again, following what was said in Penetanguishene and Winko, and to explain its findings in accordance with Sheppard. I note that the next annual review is scheduled for November 28, 2013. The Board could make the disposition required by this order in conjunction with the annual review already scheduled.

“Paul Rouleau J.A.”

“I concur K.M. Weiler J.A.”

“I concur Robert J. Sharpe J.A.”

Released: November 13, 2013