



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    information that could identify the victim or a witness shall not be published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 complainants 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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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

CITATION: Abdulle (Re), 2021 ONCA 524

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
    panels 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 appellants 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 appellants 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 appellants 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 appellants psychiatric history

[7]

The appellant was first admitted to a
    psychiatric hospital in 1997, when he was eighteen, for a stay of a months
    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 appellants 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 appellants 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 Boards 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. Abdulles 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 Boards 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 years annual hearing. At last years hearing, the Board heard
    evidence that Mr. Abdulle was making encouraging progress and that his relapses
    had become less frequent. At this years 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 years hearing, and the Boards explanation for its conclusion, the Court
    of Appeal stated at para. 15 of its decision, released on November 4, 2020,
    that the Boards 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
    years 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 appellants condition had
    worsened.

[16]

This court reviews Board findings according to
    the norm of reasonableness. This requires an assessment of whether the Boards
    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 Boards 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 appellants 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 courts decision. The Boards
    reference to this courts decision was simply further justification for the
    Boards conclusion that, given the less encouraging evidence at this years
    hearing, there was no basis to grant an absolute discharge.

(2)

Did the Board err in referring to the vigour of
    the appellants counsels submissions?

[19]

The Board made a passing reference to the force
    of counsels submissions: [g]iven the less encouraging evidence at this years
    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 counsels 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 judges 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 lawyers 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
    Boards reasons make clear that it came to its own decision on the merits.

(3)

Was the Boards 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 Boards 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.


