Court of Appeal for Ontario

Date: 2019-10-08 Docket: C66361

Judges: Strathy C.J.O., Doherty and Tulloch JJ.A.

In the Matter of: Abdiaziz Abdulle

An Appeal Under Part XX.1 of the Criminal Code

Counsel

For the appellant Abdiaziz Abdulle: Michael Davies

For the respondent Her Majesty the Queen: Natalya Odorico

For the respondent Brockville Mental Health Centre: Marie-Pierre Pilon

Hearing and Decision

Heard: October 2, 2019

On appeal against: The disposition of the Ontario Review Board dated November 9, 2018, with reasons dated December 19, 2018.

Reasons for Decision

[1] The appellant, Mr. Abdulle, appeals the decision of the Ontario Review Board ordering his continued detention at the Brockville Mental Health Centre. We allowed the appeal with reasons to follow. These are those reasons.

[2] The appellant is under the jurisdiction of the Ontario Review Board, under Part XX.1 of the Criminal Code, after being found not criminally responsible for reasons of mental disorder in 2008 and then again in 2011, on various criminal charges. He appeals the November 9, 2018 decision of the Board ordering his continued detention at the Brockville Mental Health Centre.

[3] The appellant challenges the decision on three grounds: First, that the Board improperly used the appellant's request for a discharge against him, in reasoning that it demonstrated a lack of insight into his condition. Second, that the Board's analysis was insufficient on the question of whether the appellant would pose a significant risk to the public upon his release. Finally, he argues that the Board incorrectly stated that he had sexually assaulted a minor and included that in its reasons, when that was not true.

Improper Use of Request for a Discharge

[4] The appellant argues that the Board improperly used his request for an absolute discharge against him by citing it as proof of his lack of insight into his condition. The Board only mentions this in its summary of the evidence of Dr. Gulati and does not appear to have relied on it in its reasons.

Insufficient Analysis on Significant Risk

[5] The Board's reasons for finding that the appellant would pose a significant risk to public safety if he were not detained are insufficient. Under the reasonableness standard, the Board's reasons attract deference but must be able to withstand a "somewhat probing examination" on appellate review: Marchese (Re) 2018 ONCA 307 at para. 7, 359 C.C.C. (3d) 408. As in Marchese, the Board's analysis on the issue of significant risk in this case was cursory. It did not clearly explain what evidence led to its conclusion that the appellant must be detained to prevent a risk to public safety.

[6] The Board refers to the risk that the appellant will suffer a relapse of his mental illness if he is discharged, but not a risk that he will reoffend. The appellant's continued detention can only be justified if, upon his release, he would be at risk of committing serious crimes that threaten public safety: Hahmoud (Re) 2018 ONCA 317 at paras. 7-9. The risk that he may suffer a mental health relapse is not by itself a justification for detaining him.

[7] Counsel for the respondent argued that, reading the reasons as a whole along with the evidence that was before the Board, it is evident that the appellant would pose a significant risk to the community if he suffered a relapse in his mental illness. When the appellant has relapsed in the past he has behaved violently. In 2011, he suffered a relapse following a discharge from the Board's jurisdiction, and then committed crimes threatening public safety. The Board did not explain the connection between this past behaviour and a risk of future harmful behaviour. However, in the respondent's submission, the risk of relapse should be understood as a proxy for the risk to public safety in this case in light of this evidence.

[8] It is incorrect to conflate the risk of relapse in mental illness with a risk to public safety: Hahmoud at para. 9. The requirement to read the reasons and record as a whole does not overcome this improper conflation. If the appellant is to be detained, there must be specific findings that he would be at risk of committing serious crimes that would pose a danger to the public upon his release. The Board did not make those findings in its reasons.

[9] If, as the respondent argued, there is ample evidence to demonstrate that the appellant would pose a risk to public safety if he were released, the Board must address that evidence explicitly. The appellant cannot be detained on the basis of "mere speculation": Carrick (re) 2015 ONCA 866 at para. 17, 128 OR. (3d) 209.

Incorrect Finding Regarding Sexual Assault

[10] Finally, the appellant argues that the Board improperly included a finding that he had sexually assaulted an 11-year-old girl. He has never been convicted of sexual assault. The Board referred to an incident in which he was charged and convicted of common assault. Crown counsel at the Board hearing this matter clarified that the appellant had been acquitted of a sexual interference charge.

[11] While the Board does not appear to have relied on the sexual assault in its reasons, it improperly included a finding that the appellant had sexually assaulted a minor when there was no evidence to justify this conclusion. The appellant argued that this finding would become part of his record and, understandably, would likely become significant in future hearings. This should not be in the record if there is no evidence to support it.

Disposition

[12] We allow the appeal. The appellant is entitled to a new hearing before the Board, which must be held on or before his next scheduled review hearing in November 2019.

"G.R. Strathy C.J.O."

"Doherty J.A."

"M. Tulloch J.A."