Publication Ban Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Date: 20210721 Docket: C68952

Watt, Pardu and Trotter JJ.A.

In the Matter of: Abdi-Aziz F. Abdulle

An Appeal Under Part XX.1 of the Code

Abdi-Aziz F. Abdulle, in person Michael Davies, as amicus curiae Natalya Odorico, for the respondent, Her Majesty the Queen Marie-Pierre T. Pilon, for the respondent, Person in Charge of Brockville Mental Health Centre

Heard: June 30, 2021 by videoconference

On appeal from the disposition of the Ontario Review Board, dated December 8, 2020, with reasons dated December 23, 2020.

Reasons for Decision

[1] Mr. Abdulle appeals from a disposition of the Ontario Review Board dated December 8, 2020, maintaining a detention order but permitting a transfer Mr. Adbulle requested to the Royal Ottawa Mental Health Centre.

[2] The appellant submits that the Board erred in failing to grant him an absolute discharge. He indicates that, if granted an absolute discharge, he will continue to take the long-acting medication which has been prescribed for him.

[3] Amicus advances three arguments.

1. The Board erred in giving any weight to reasons for decision of this court on a previous appeal stating that a previous Board panel’s finding on the same issue “were both logical and reasonable on the record before it.”
2. The Board erred in giving any weight to the perceived vigour with which the appellant’s counsel argued for an absolute discharge.
3. He submits that the conclusion that the appellant constituted a significant threat to public safety was unreasonable. The Board did not engage in a robust analysis of the factors favoring the appellant and its reasons are conclusory.

A. Background

The index offences

[4] The 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.

[5] On 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: see Abdulle (Re), 2020 ONCA 698.

The appellant’s criminal record

[6] The appellant has a criminal record including convictions from 2003 to 2012. It includes convictions for assault, assaulting a police officer, possession of weapons (including a firearm), robbery, drug possession and trafficking. Two convictions – drug trafficking and assault – were entered while the appellant was living in the community, subject to the jurisdiction of the Board.

The appellant’s psychiatric history

[7] The appellant was first admitted to a psychiatric hospital in 1997, when he was eighteen, for a stay of a month’s duration. Between 2000 and 2006, he was hospitalized on multiple occasions but consistently failed to take medication prescribed for him when released. He has a significant history of daily alcohol and drug abuse since he was fifteen years old.

[8] His current diagnoses are the following:

• Bipolar Disorder – Type 1, currently euthymic;
• Polysubstance Use Disorder;
• Post-Traumatic Stress Disorder;
• Antisocial Personality Disorder; and,
• Somatic Symptom Disorder.

The appellant’s progress in the last reporting period

[9] The appellant has not made any significant progress in the last reporting period. The hospital report indicates that he has had repeated relapses, characterized by hypomania, lability of mood, bizarre behaviour and disinhibition. Part of the reason for the standstill was the appellant’s refusal to stop using cannabis, and his refusal to take mood stabilizing medication because he fears the side effects associated with it. He also refuses to be considered for community housing in the Brockville area and refuses to discuss community discharge planning, stating repeatedly that he will continue to appeal until he gets an absolute discharge.

[10] The hospital report before the Board, authored by Dr. Sanjiv Gulati, concluded that the appellant remained a significant threat to the safety of the public:

Given Mr. Abdulle's long history of mental illness, history of violence, ongoing periods of instability, indulgence in substance misuse and cyclical relapses, he remains a significant threat to the safety of the public at the present time. In my opinion, if Mr. Abdulle was to be out in the community and was going through a cyclical relapse such as been evidenced on the unit, he would pose a threat to the safety of the public through his bizarre, disinhibited and erratic behaviour. His behaviour during times of relapse can significantly be perceived as threatening towards others around him and it is only through the expertise and skill set of staff, he has been redirected and no aggressive/violent incidents have occurred. It is also to be noted that his behaviour goes over and above mere annoyance and can cause significant distress in people around him who are not familiar with his illness as they can perceive his gestures to be threatening.

It remains the opinion of the team that if Mr. Abdulle was in the community on a conditional/absolute discharge without adequate supervision, he will constitute a significant threat to the safety of the public. His current disposition is the least restrictive, least onerous, necessary and most appropriate way of managing risk.

The team is not opposed to Mr. Abdulle being discharged from the hospital on a detention order. A discharge on such an order would allow the team to adequately monitor him, screen for illicit substance misuse, timely intervene and put actions into place to mitigate any risks that he poses towards self and others. The team continues to look for supervised accommodation and has also made some suggestions to him such as the FITT House or consider other placements in the community, but Mr. Abdulle remains reluctant to accept any of these. Therefore, it appears that we are at an impasse but it does not necessarily equate to a therapeutic impasse where transfer to another team may resolve the impasse.

It is the insight on Mr. Abdulle's part that needs to be worked on and we will continue to endeavor to work on this in the coming year in the hope that he will engage and be willing to abstain from illicit substances and comply with a mood stabilizer thus achieve a period of stability, prior to being granted an absolute discharge.

[11] At the hearing, Dr. Gulati testified that, if he were to receive an absolute discharge, the appellant would not comply with his medication regime and would quickly deteriorate. In a controlled setting his risk was moderate, but without Board oversight he would be at a high risk to the public within weeks.

[12] The appellant had proposed to live with his brother near Ottawa, however the brother was sentenced in November 2016 to 3.5 years in prison for serious fraud offences. The investigating social worker concluded that he could not support that residence as approved for the appellant, without extensive prior planning. Dr. Gulati would want a successful trial of community living in approved accommodation before he could recommend an absolute discharge. A previous discharge in 2017 into highly structured, approved accommodation in the community broke down after only four days, following cannabis use by the appellant and decompensation.

The Board’s decision

[13] The Board considered the arguments made on behalf of the appellant at para. 38 of its reasons:

Mr. Davies submitted that Mr. Abdulle no longer meets the significant risk threshold. He pointed to the fact that the index offences occurred in 2008 and 2011, and that there had been a significant period of time with no evidence of convictions. He submitted that there is no empirical evidence that Mr. Abdulle’s continued cannabis use contributes to his periodic relapses, and he emphasized that there have been no physically violent incidents during the periods when Mr. Abdulle has been hospitalized.

[14] The Board’s reasons for concluding that the appellant remained a significant threat are contained at paras. 41-44 of its reasons:

There can be no doubt on the evidence before us that Mr. Abdulle remains a significant threat to public safety. The uncontradicted evidence is that the risk factors for Mr. Abdulle remain the same as at last year’s annual hearing. At last year’s hearing, the Board heard evidence that Mr. Abdulle was making encouraging progress and that his relapses had become less frequent. At this year’s hearing, the evidence was that no progress had been made, and that the Hospital and Mr. Abdulle had reached an impasse, albeit it was not acknowledged that the impasse was a “treatment impasse.”

Yet, based on the evidence before the Board at last year’s hearing, and the Board’s explanation for its conclusion, the Court of Appeal stated at para. 15 of its decision, released on November 4, 2020, that the Board’s findings that Mr. Abdulle remained a significant threat “were both logical and reasonable on the record before it”.

Given the less encouraging evidence at this year’s hearing, it is understandable that Mr. Davies did not vigorously press for an Absolute Discharge.

Based on the evidence, the Board had no hesitation in concluding that Mr. Abdulle continues to pose a significant threat to the safety of the public. The evidence persuades us that without Board oversight, Mr. Abdulle would stop taking his prescribed medications. We are persuaded that within a short time, he would relapse, thereby leading to his engaging in criminal conduct that would put members of the public at significant risk of psychological or physical, harm.

B. Analysis

(1) Did the Board err by referring to a previous decision of this Court?

[15] The appellant argues that the Board erred in citing a decision of this court which referred to previous Board findings that the appellant constituted a significant threat as “both logical and reasonable on the record before it.” Since that finding, the appellant’s condition had worsened.

[16] This court reviews Board findings according to the norm of reasonableness. This requires an assessment of whether the Board’s reasons for the disposition are justified, transparent, and intelligible and whether the disposition itself falls within the range of possible acceptable outcomes: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, at paras. 84-86. “A reasonable decision is one where the Board’s ‘reasoning process and the outcome’ reflects ‘an internally coherent and rational chain of analysis … that is justified in relation to the facts and the law’”: Nguyen (Re), 2020 ONCA 247, 387 C.C.C. (3d) 13, at para. 28, quoting Vavilov, at paras. 83 and 85; Sim (Re), 2020 ONCA 563, at paras. 67-68.

[17] A previous decision of this court dealing with the appellant’s history with the Board is part of the jurisprudential history of this case, and the Board did not err by referring to that case. It would err, however, if it considered that the range of reasonable decisions open to it was constrained by the previous appellate decision. The Board was obliged to come to its own decision as to how best balance the competing objectives of s. 672.54 of the Criminal Code.

[18] We are not persuaded that the Board failed to perform its own independent analysis in this case. The Board reviewed a significant body of evidence post-dating this court’s decision. The Board’s reference to this court’s decision was simply further justification for the Board’s conclusion that, given the “less encouraging evidence at this year’s hearing”, there was no basis to grant an absolute discharge.

(2) Did the Board err in referring to the vigour of the appellant’s counsel’s submissions?

[19] The Board made a passing reference to the force of counsel’s submissions: “[g]iven the less encouraging evidence at this year’s hearing, it is understandable that Mr. Davies did not vigorously press for an Absolute Discharge.”

[20] On appeal, Mr. Davies, now acting as amicus curiae, submits that the Board erred in referring to this. He says the degree of vigour of counsel’s submissions is an unmeasurable quality. He submits that, in some contexts, such observations are not helpful as they may impair the relationship between counsel and client. Moreover, the Board cannot default to positions taken by the parties. It is an inquisitorial body that is obliged to search out evidence when necessary and come to its own conclusions: see Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at paras. 54-55.

[21] A reasonable decision-making process is driven by the merits of the case, i.e. the facts and the law before the court. The style of advocacy is not a governing factor.

[22] That said, counsel should expect and would welcome the notion that their advocacy would have an impact on a judge’s reasoning process. A judge will almost invariably have thoughts about counsels’ advocacy although those thoughts will not often be expressed. Sometimes arguments made by the most eloquent and able lawyers are not accepted by a court. At other times, less able lawyers find their arguments win the day, despite deficiencies in their own performance. As amicus suggests, clients do not always understand this. For example, the best advocates do not yell at the court by making all their arguments uniformly loud; in some circumstances, understatement is more persuasive and helpful to the client. In any event, the outcome of a proceeding should not be taken as an endorsement or repudiation of a lawyer’s approach in a particular case.

[23] Here, the Board did not default to any perceived message conveyed by the manner in which counsel made his submissions. The Board’s reasons make clear that it came to its own decision on the merits.

(3) Was the Board’s decision that the appellant was a significant threat reasonable?

[24] An absolute discharge is warranted where the NCR accused poses no significant threat to the safety of the public. There is no presumption that an NCR accused is dangerous. A significant threat must be proven and, as amicus points out in his factum:

A significant threat to the safety of the public 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 that gives rise to the harm must be criminal in nature. The threat must be “significant” in at least two senses: first, there must be a real risk that the actions leading to harm will actually occur; and second, the potential or contemplated harm must be serious. [Citing Winko, at paras. 62 and 57.]

[25] The hospital report filed in evidence mirrored the elements of this test, both the likelihood of the behaviours and the degree of harm that would result. I repeat the relevant observations for ease of reference:

In my opinion, if Mr. Abdulle was to be out in the community and was going through a cyclical relapse such as been evidenced on the unit, he would pose a threat to the safety of the public through his bizarre, disinhibited and erratic behaviour. His behaviour during times of relapse can significantly be perceived as threatening towards others around him and it is only through the expertise and skill set of staff, he has been redirected and no aggressive/violent incidents have occurred. It is also to be noted that his behaviour goes over and above mere annoyance and can cause significant distress in people around him who are not familiar with his illness as they can perceive his gestures to be threatening.

[26] Dr. Gulati reiterated that the appellant would quickly deteriorate if he received an absolute discharge and would constitute a danger to the public within weeks. He opined that the appellant would likely commit offences similar to the index offences under those circumstances.

[27] The Board was entitled to accept this evidence. It referred to and considered the arguments made by the appellant, the length of time since the index offences with no further convictions, the uncertainty as to the effects of the continued use of cannabis, and the absence of any violence during periods when the appellant has been hospitalized. Nonetheless, it was persuaded that without Board oversight Mr. Abdulle would stop taking his prescribed medications, relapse, and engage in criminal conduct that would put members of the public at significant risk of psychological or physical harm. There can be no doubt that the index offences were of a nature to cause harm beyond the merely trivial or annoying.

[28] Amicus submits that the Board gave no consideration to the fact that the appellant had been reasonably consistent in taking injected antipsychotic medication, had completed all programs offered at Ottawa and Brockville, and had a place to stay with his brother in Ottawa. However, none of these factors undermine the essential conclusion accepted by the Board as to significant threat.

[29] The Board’s reasoning, though brief, reflects an internally coherent and rational chain of analysis that is justified in relation to the facts and the law and there is no basis to intervene.

C. Disposition

[30] For these reasons, the appeal is dismissed.

“David Watt J.A.”

“G. Pardu J.A.”

“Gary Trotter J.A.”