Court of Appeal for Ontario
Date: 2023-12-21 Docket: COA-23-CR-0629
Before: Fairburn A.C.J.O., Doherty and Trotter JJ.A.
In the Matter of: David Aliko
An Appeal Under Part XX.1 of the Code
Counsel: Leisha Senko, for the appellant Person in Charge of the Centre for Addiction and Mental Health Mercedes Perez, for the respondent David Aliko Brent Kettles, for the respondent Attorney General of Ontario
Heard: December 18, 2023
On appeal from the disposition of the Ontario Review Board dated April 26, 2023, with reasons dated May 29, 2023.
Reasons for Decision
[1] This is an appeal by the Centre for Addiction and Mental Health (“CAMH” or “the Hospital”) from a disposition in which the Ontario Review Board (“the Board”) granted the respondent, David Aliko, an absolute discharge.
Background
[2] On December 8, 2020, Mr. Aliko was found not criminally responsible on account of mental disorder (“NCR”) on charges of uttering a threat, failing to comply with an undertaking, assault, dangerous operation of a motor vehicle, assaulting police officers, and two counts of mischief under $5,000.
[3] When he appeared before the Board on April 26, 2023, Mr. Aliko was subject to a conditional discharge (dated April 21, 2022). He was diagnosed with bipolar disorder (type 1) and cannabis use disorder, but both were thought to be in remission. His attending psychiatrist, Dr. Paul Benassi, testified at the hearing. He indicated that, since 2021, medication had stabilized Mr. Aliko’s psychiatric conditions, with no recurrences of mood episodes or psychotic symptoms, and no further hospitalizations. Mr. Aliko had also gained an understanding of his condition and the need for continual compliance with his medication. Dr. Benassi, along with the entire treatment team and the forensic divisional leadership at CAMH, agreed that Mr. Aliko was no longer a significant threat.
[4] Based on this evidence, all parties jointly submitted that Mr. Aliko no longer posed a significant threat to the safety of the public, and that he was entitled to an absolute discharge. The Board unanimously agreed and granted the absolute discharge.
Post-Discharge Events
[5] Unfortunately, Mr. Aliko’s mental condition soon deteriorated and his behaviour became uncontrollable. He has since been charged with a number of criminal offences. Based on these post-disposition events, on June 12, 2023, within 15 days of the release of the Board’s reasons for its disposition, the Hospital appealed the Board’s disposition: Criminal Code, R.S.C. 1985, c. C-46, s. 672.72(2). The appeal is based solely on Mr. Aliko’s post-disposition behaviour and condition.
[6] Further, pursuant to s. 672.76(2)(a.1) of the Criminal Code, the Hospital sought an order suspending the absolute discharge pending the determination of the appeal. The application was based on a fresh evidence application, detailing Mr. Aliko’s circumstances since his absolute discharge, which included the affidavit of Dr. Sumeeta Chatterjee, the Hospital’s “person in charge”. Mr. Aliko did not oppose either application. On August 14, 2023, Pepall J.A. made an order suspending the absolute discharge. The conditional discharge, to which Mr. Aliko was previously subject, came back into force pending the determination of the appeal: s. 672.77 of the Criminal Code.
[7] The Hospital renews its application to adduce fresh evidence on the appeal. It is comprised of a more recent affidavit of Dr. Chatterjee, dated October 3, 2023. Dr. Chatterjee summarizes Mr. Aliko’s post-discharge circumstances as follows:
- On May 9, 2023, Mr. Aliko is alleged to have poured gasoline over two cars owned by the parents of a former friend. Around this time, his mother told the police that her son appeared to have experienced a bipolar episode in the previous days.
- On May 12, 2023, Mr. Aliko is alleged to have dumped laundry detergent on the front steps of his former intimate partner, a person who was a victim of some of the offences for which the appellant was found NCR on December 8, 2020. On the same day, he is alleged to have caused $35,000 in damage to another person’s house and vehicle. He was apprehended by the police later that day and involuntarily admitted to Homewood Health Care in Guelph. While hospitalized, Mr. Aliko is alleged to have sent abusive text messages to his parents, as well as threatening messages and phone calls to his former partner. Further incidents occurred until he was discharged on June 19, 2023.
- On July 4, 2023, Mr. Aliko was apprehended again on a Form 1. He is alleged to have assaulted the officers who were sent to apprehend him. After a bail hearing, he was taken to CAMH. He was discharged on July 21, 2023. He was detained once again on August 31, 2023 and discharged on September 21, 2023.
[8] Based on this information, Dr. Chatterjee expressed the following opinion:
Given this new information, it is my opinion that absent the supervision and oversight of a Board disposition, I believe there is a foreseeable and substantial risk that Mr. Aliko will commit a criminal offence that causes serious physical or psychological harm to a member of the public.
Discussion
[9] On appeal, the Hospital seeks the admission of the fresh evidence and submits that the absolute discharge be set aside, the conditional discharge imposed on April 21, 2022 be re-instituted, and the matter be sent back to the Board for a new hearing. This approach is supported by the Attorney General. Mr. Aliko takes no position on the appeal.
[10] This is an appropriate case to admit the fresh evidence tendered by the Hospital. The affidavit of Dr. Chatterjee meets the test for the admission of fresh evidence under s. 672.73(1) of the Criminal Code, which provides:
672.73(1) An appeal against a disposition by a court or Review Board or placement decision by a Review Board shall be based on a transcript of the proceedings and any other evidence that the court of appeal finds necessary to admit in the interests of justice.
[11] In our view, it is in the interests of justice to admit the affidavit of Dr. Chatterjee: Furlan (Re), 2014 ONCA 740, 123 O.R. (3d) 287, at para. 10, and R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at paras. 48-61. The information, based upon more current events, was not available at the time of the hearing. The evidence appears to be reliable; it was not challenged on appeal. It bears on the critical issue the Board was tasked with deciding.
[12] Dr. Chatterjee’s affidavit demonstrates a dramatic and rapid decline in Mr. Aliko’s condition since being discharged absolutely, resulting in a number of involuntary hospital admissions. The criminal charges remain outstanding. Nonetheless, the description of his post-discharge behaviour, considered in light of his deteriorated mental condition, supports Dr. Chatterjee’s opinion – absent the involvement and supervision of the Board, Mr. Aliko poses a significant risk of serious harm to the public: see LaTouche (Re), 2015 ONCA 675.
[13] In concluding, we observe that Mr. Aliko’s situation – being brought back under the jurisdiction of the Board based on post-discharge events – is unusual, although not without precedent. Notably, Mr. Aliko did not resist the order made by Pepall J.A.; nor did he oppose the Hospital’s appeal. To his credit, he appears to acknowledge the need for the Board’s supervision over him at this point in time.
Disposition
[14] The fresh evidence is admitted. The appeal is allowed. The April 26, 2023 absolute discharge is set aside. The conditional discharge, dated April 21, 2022, is reinstated on the same conditions. A new hearing should be held by the Board no later than 60 days from the release of this decision.
“Fairburn A.C.J.O.”
“Doherty J.A.”