Court File and Parties

Court of Appeal for Ontario Date: 20220317 Docket: C69689

Rouleau, Huscroft and Trotter JJ.A.

In the Matter of: Abdimalik Abdullahi

An Appeal Under Part XX.1 of the Code

Counsel: Anita Szigeti and Maya Kotob, for the appellant Alysa Holmes, for the respondent, Attorney General of Ontario Hilary Chung, for the respondent, Person in Charge of Royal Ottawa Mental Health Centre

Heard: March 11, 2022 by video conference

On appeal from the disposition of the Ontario Review Board dated June 8, 2021, with reasons dated July 14, 2021.

Reasons for Decision

[1] The appellant seeks an absolute discharge on the basis that the Board’s finding that he poses a significant threat to the safety of the public is unreasonable.

[2] The appeal is dismissed for the reasons that follow.

[3] The appellant has been under the Board’s jurisdiction since 2011, following the commission of the index offences: two counts of utter threat to cause death or bodily harm, assault, and causing a disturbance in a public place. In its July 14, 2021 decision, the Board found that the appellant continued to meet the threshold for significant threat to the safety of the public and maintained the conditional discharge he had been under.

[4] The appellant argues that he posed only a moderate risk of low-level violence; that the Board failed to consider his disability and the extent to which it mitigated the risk he posed; and that the Board failed to consider the extent to which the Mental Health Act addressed the relevant concerns. We disagree.

[5] As this court has emphasized, the significant threat test is onerous: the Board must be satisfied as to both the existence and the gravity of the risk of physical or psychological harm posed by the appellant in order to deny him an absolute discharge: Carrick (Re), 2015 ONCA 866, 128 O.R. (3d) 209. Although the appellant appeared to have made progress, his offer in 2020 to pay another patient to stab or “hit” his then-treating psychiatrist supports the Board’s finding that he continued to pose a significant threat. The Board considered that a conditional discharge was necessary to ensure that the appellant’s treatment could be monitored. The Board did not address the extent to which the threat the appellant posed was mitigated by his disability, but this is insignificant in light of the fresh evidence proffered by the Person in Charge of Royal Ottawa Mental Health Centre (discussed below), which demonstrates that he is no longer wheelchair bound.

[6] The fresh evidence is contained in the affidavit of Dr. Zeynep Selaman, the appellant’s current attending psychiatrist, and includes excerpts from the appellant’s clinical record since the Board’s disposition. The appellant acknowledges that the evidence is relevant and is properly admitted given that he is seeking an absolute discharge. Accordingly, the fresh evidence is admitted.

[7] The fresh evidence indicates that the appellant has been ambulatory using a prosthesis since October 2021. Since that time, he sought readmission to the Royal Hospital on several occasions. On six occasions, the appellant’s conduct resulted in staff calling a Code White. He made threatening comments to staff when he did not get what he wanted and has been physically aggressive. He punched one orderly in the face, struck another in the arm with his cane, and attempted to hit other staff.

[8] As a result of this conduct, Dr. Selaman has recommended that the appellant’s conditional discharge be changed to a detention order. A pre-hearing conference is to be held March 23, and it is anticipated that a date will be set for the early review shortly after that.

[9] In all of these circumstances, we conclude that the Board’s decision that the appellant poses a significant threat to the safety of the public is reasonable.

[10] The appeal is dismissed.

“Paul Rouleau J.A.”

“Grant Huscroft J.A.”

“Gary Trotter J.A.”