



COURT OF APPEAL FOR ONTARIO

CITATION: Abdullahi (Re), 2022 ONCA 220

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

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 Boards 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 Boards 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 Boards finding that he
    continued to pose a significant threat. The Board considered that a conditional
    discharge was necessary to ensure that the appellants 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
    appellants current attending psychiatrist, and includes excerpts from the
    appellants clinical record since the Boards 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 appellants 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 appellants
    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 Boards 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.


