



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information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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the victim shall not be published in any document or broadcast or transmitted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), 2020 ONCA 698

DATE: 20201104

DOCKET: C67960

Rouleau, Benotto and Nordheimer
JJ.A.

IN THE MATTER OF: Abdiaziz Abdulle

AN APPEAL UNDER PART XX.1 OF THE
CODE

Michael Davies, for the appellant

Natalya Odorico, for the respondent
Attorney General of Ontario

Marie-Pierre T. Pilon, for the respondent
Person in Charge for the Brockville Mental Health Centre

Heard: in writing

On appeal from
the disposition of the Ontario Review Board, dated December 20, 2019, with
reasons dated January 21, 2020.

REASONS FOR DECISION

BACKGROUND

[1]

The appellant appeals from the most recent
disposition of the Ontario Review Board (Board) that concluded that the
appellant continues to present a significant threat to the safety of the public.
The Board ordered the continued detention of the appellant in the secure
forensic unit of the Brockville Mental Health Centre (Brockville). The
appellant was granted privileges, including approved community living and passes
to travel within 200 kilometres of Brockville, either indirectly supervised or
in the company of a staff member or another approved individual, for a maximum
of 48 hours. The Person in Charge of Brockville must approve the appellants
exercise of these privileges.

[2]

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.

[3]

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.

[4]

The appellant continues to be under the
jurisdiction of the Board and receives treatment for his bipolar disorder,
antisocial personality disorder, and polysubstance use disorder. Notably, the
appellant continues to consume cannabis, which he has used since the age of 15,
despite the risk that combining cannabis use with the appellants bipolar
disorder could lead to additional relapses.

ISSUES

[5]

The appellant seeks an absolute discharge and advances
the three following grounds of appeal:

1.

The Board erred in finding that the appellant
poses a significant threat to the safety of the public;

2.

The Board erred in its consideration of a conditional
discharge; and

3.

The Board erred in failing to take the necessary
steps to assist the appellant in progressing toward an absolute discharge.

[6]

For the reasons that follow, we dismiss the
appeal.

ANALYSIS

(1)

The Boards finding that the appellant poses a
significant threat to the safety of the public was reasonable

[7]

The appellant contends that the Boards finding
that he remains a significant threat to the safety of the public is
unreasonable and he is therefore entitled to an absolute discharge. To
determine that an NCR accused remains a significant threat to the safety of the
public, there must be 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:
Winko v. British Columbia (Forensic Psychiatric Institute)
,
[1999] 2 S.C.R. 625, at para. 62.

The primary focus of the appellants
submission is that the Board put insufficient weight on the fact that the appellant
has had no serious incident involving physical violence since October 2011. We
do not agree with this submission. We accept that the Boards finding that the
appellant remains a significant threat to the safety of the public was
reasonable.

[8]

The Board did not ignore the evidence favouring
the appellant, notably that there has been no incident of serious physical harm
to others since the second set of index offences in 2011. The Board considered
all of the evidence tendered, including the appellants evidence that there has
been a lack of serious physical acts of violence, and concluded the following:

Given [the appellants] lack of insight, undertreated
Bipolar Disorder, continuing use of a THC substance, and the resistance or
disagreements that he demonstrates as a result of his personality disorder,
it
is highly likely that if absolutely discharged he would stop or alter his
medication and treatment and continue the use of cannabis. The symptoms of his Bipolar
Disorder would emerge and his behaviour would eventually lead to his becoming a
real risk of serious bodily or psychological harm to members of the public
.
[Emphasis added.]

[9]

This conclusion was fully supported by the
record. The Board conducted a broad inquiry and relied on numerous cogent and
relevant risk factors, as required under s. 672.54 of the
Criminal Code
, R.S.C. 1985, c. C-46
.

[10]

The appellant suffers from bipolar disorder and an
antisocial personality disorder that causes him to be manipulative and
deceptive. The record shows that the appellant experienced cyclical periods of
relapse into his bipolar disorder and would become unstable and verbally
aggressive. It also revealed that he had limited insight into his illness, the
risk of relapse, and the risk of decompensation and violence associated with
his cannabis use. Despite having been educated and warned about the risks of
cannabis use given his bipolar disorder, he persistently continues to consume
this drug.

[11]

Furthermore, the appellants history while under
the Boards jurisdiction demonstrated that he had difficulty adhering to the
medication regime without hospital oversight. The evidence discloses that he
resisted medication, questioned medications and doses, and liked to control his
medication regime. As a result, if the appellant is granted an absolute
discharge and is without clinical supervision, he is likely to alter the dosage
of his medication or stop taking his required medication altogether and continue
his use of cannabis. This conclusion of the Board was fully supported by the
record.

[12]

The altering of his medication and continued use
of cannabis were such as to make it highly likely that the appellant would
relapse into his mental illness of bipolar disorder. When in that state, he
experiences persecutory delusions and becomes disinhibited and physically
agitated, which presents a significant threat to the safety of the public. This
is what led to incidents of verbal and physical aggression in the past.

[13]

The Board considered the fact that there were no
particularly serious incidents of physical violence since the appellants
second NCR finding in October 2011. In the present case, the Board found that
the structured environment of Brockville insulated the appellants potential
for violence. When the appellant showed signs of relapsing to his bipolar
disorder, his caregivers would quickly manage these relapses with relatively
minimal consequences, preventing the appellants escalating behaviour as
recorded in the index offences. Without continued supervision, his risk to
members of the public
[
would
]
be manifested through behaviours and
actions similar to those surrounding the index offences. This, the Board found,
represents a significant threat to the safety of the public.

[14]

As this court explained in
Mott (Re)
,
2019 ONCA 560, at para. 10, the absence of a significant or recent history of
violence by itself is not determinative of whether an NCR accused poses a
significant threat to the safety of the public. Evidence of the appellants
potential for violence, caused by his lack of insight into his illness, his
resistance to medication, and his continued substance abuse, may support a
finding that he remains a significant threat to the safety of the public:
Mott
,
at para. 10. The Board used this type of evidence to confirm the appellants potential
for violence and to conclude that the appellant remains a significant threat to
the safety of the public.

[15]

The Boards findings were both logical and
reasonable on the record before it. The Board was fully entitled to attribute limited
weight to the fact there had been an absence of serious incidents of physical
violence since October 2011, given its finding that the appellants behaviour
had not escalated to the point of physical violence because of the external
controls imposed by the hospital. In balancing these facts, the Board concluded
that the appellant continued to pose a significant threat to the safety of the
public and could therefore not receive an absolute discharge. This finding is
entitled to deference.

(2)

The Board properly considered and rejected a
conditional discharge

[16]

The appellant argues that the Board erred in its
consideration and rejection of a conditional discharge. He submits that the
Board failed to apply the appropriate legal test and failed to assess whether conditions
could be crafted to manage his risk in the community.

[17]

We disagree. At the outset, we note that the
appellant did not ask the Board for a conditional discharge. However, the Board
considered the possibility of a conditional discharge. Dr. Sanjiv Gulati, the appellants
treating psychiatrist since his transfer to Brockville, explained that the
hospital opposed a conditional discharge because the appellant had not had a
significant period of stability. He explained that, for a number of reasons,
there had been limited to no success in previous efforts to discharge the
appellant into the community. This was due, in part, to the appellants
continued use of cannabis, his violation of hospital rules, and relapses of his
bipolar disorder requiring a return to hospital to control his behaviour.
Dr. Gulati opined that the appellant was likely to relapse within weeks
if he was discharged and continued his pattern of using cannabis and neglecting
his medication.

[18]

The Boards conclusion that it was neither
practical nor possible to manage the appellant in the community without putting
members of the public at risk was reasonable. A gradual reintegration into the
community via supervised or transitional housing is needed. The Board concluded
that a detention order with no changes to the appellants privileges was
required, and the Boards finding in that regard was reasonable and is entitled
to deference.

(3)

The Board fulfilled its duty to ensure that
progress was being made with the appellant

[19]

The appellant faults the Board for not having
done more to assist him to move toward an absolute discharge. In the
appellants submission, there was an unresolved treatment impasse and the Board
failed to make recommendations as to how the appellants situation could be
improved. The term treatment impasse refers to a situation where an NCR
accused is detained without treatment, refuses treatment, or the treatment does
not result in any progress in managing the mental health condition:
Abeje
(Re)
, 2019 ONCA 734, at para. 30.

[20]

We do not view this case as one involving
treatment impasse. The record demonstrates that progress has been made and is
likely to continue. As of the hearing date, Brockville had implemented an
effective course of treatment to manage the appellants illness. Following an
increase in the appellants medication, there were fewer relapses observed. As
underscored by the Board, Dr. Gulati embraced
[the
appellants]
progress and is pleased with this
apparent improvement, as he hopes that it may break the
[appellants] cyclical pattern of episodes.
Still, Dr. Gulati confirmed it was too early to tell whether the increase in
medication will eliminate the appellants relapse cycle.

[21]

This is not a case where the appellant was
languishing in hospital. Rather, he was receiving treatment at Brockville and
was making some noticeable progress. Accordingly, this ground of appeal is
dismissed.

DISPOSITION

[22]

For the reasons above, the appeal is dismissed.

Paul
Rouleau J.A.

M.L.
Benotto J.A.

I.V.B.
Nordheimer J.A."


