



COURT OF APPEAL FOR ONTARIO

CITATION: Abdulle (Re), 2019 ONCA 812

DATE: 20191008

DOCKET: C66361

Strathy C.J.O., Doherty and
    Tulloch JJ.A.

IN THE MATTER OF: Abdiaziz Abdulle

AN APPEAL
    UNDER PART XX.1 OF THE
CODE

Michael Davies, for the appellant Abdiaziz
    Abdulle

Natalya Odorico, for the respondent Her
    Majesty the Queen

Marie-Pierre Pilon, for the respondent
    Brockville Mental Health Centre

Heard: October 2, 2019

On appeal against the disposition of the
    Ontario Review Board dated November 9, 2018, with reasons dated December 19,
    2018.

REASONS FOR DECISION

[1]

The appellant, Mr. Abdulle, appeals the decision
    of the Ontario Review Board ordering his continued detention at the Brockville
    Mental Health Centre. We

allowed the appeal with reasons to follow. These are those reasons.

[2]

The appellant is under the jurisdiction of the
    Ontario Review Board, under Part XX.1, of the
Criminal Code
, after being
    found not criminally responsible for reasons of mental disorder in 2008 and
    then again in 2011, on various criminal charges. He appeals the November 9, 2018
    decision of the Board ordering his continued detention at the Brockville Mental
    Health Centre.

[3]

The appellant challenges the decision on three
    grounds: First, that the Board improperly used the appellants request for a
    discharge against him, in reasoning that it demonstrated a lack of insight into
    his condition. Second, that the Boards analysis was insufficient on the
    question of whether the appellant would pose a significant risk to the public
    upon his release. Finally, he argues that the Board incorrectly stated that he had
    sexually assaulted a minor and included that in its reasons, when that was not
    true.

Improper Use of Request for a Discharge

[4]

The appellant argues that the Board improperly
    used his request for an absolute discharge against him by citing it as proof of
    his lack of insight into his condition. The Board only mentions this in its
    summary of the evidence of Dr. Gulati and does not appear to have relied on it
    in its reasons.


Insufficient Analysis on Significant Risk

[5]

The Boards reasons for finding that the
    appellant would pose a significant risk to public safety if he were not
    detained are insufficient. Under the reasonableness standard, the Boards
    reasons attract deference but must be able to withstand a somewhat probing
    examination on appellate review:
Marchese (Re)
2018 ONCA 307 at para.
    7, 359 C.C.C. (3d) 408. As in
Marchese
, the Boards analysis on the
    issue of significant risk in this case was cursory. It did not clearly explain
    what evidence led to its conclusion that the appellant must be detained to
    prevent a risk to public safety.

[6]

The Board refers to the risk that the appellant
    will suffer a relapse of his mental illness if he is discharged, but not a risk
    that he will reoffend. The appellants continued detention can only be
    justified if, upon his release, he would be at risk of committing serious
    crimes that threaten public safety:
Hahmoud (Re)
2018 ONCA 317 at paras.
    7-9. The risk that he may suffer a mental health relapse is not by itself a
    justification for detaining him.

[7]

Counsel for the respondent argued that, reading
    the reasons as a whole along with the evidence that was before the Board, it is
    evident that the appellant would pose a significant risk to the community if he
    suffered a relapse in his mental illness. When the appellant has relapsed in
    the past he has behaved violently. In 2011, he suffered a relapse following a
    discharge from the Boards jurisdiction, and then committed crimes threatening
    public safety. The Board did not explain the connection between this past
    behaviour and a risk of future harmful behaviour. However, in the respondents
    submission, the risk of relapse should be understood as a proxy for the risk to
    public safety in this case in light of this evidence.

[8]

It is incorrect to conflate the risk of relapse
    in mental illness with a risk to public safety:
Hahmoud
at para. 9. The
    requirement to read the reasons and record as a whole does not overcome this
    improper conflation. If the appellant is to be detained, there must be specific
    findings that he would be at risk of committing serious crimes that would pose
    a danger to the public upon his release. The Board did not make those findings
    in its reasons.

[9]

If, as the respondent argued, there is ample
    evidence to demonstrate that the appellant would pose a risk to public safety
    if he were released, the Board must address that evidence explicitly. The
    appellant cannot be detained on the basis of mere speculation:
Carrick
    (re)
2015 ONCA 866 at para. 17, 128 OR. (3d) 209.

Incorrect Finding Regarding Sexual Assault

[10]

Finally, the appellant argues that the Board
    improperly included a finding that he had sexually assaulted an 11-year-old
    girl. He has never been convicted of sexual assault. The Board referred to an
    incident in which he was charged and convicted of common assault. Crown counsel
    at the Board hearing this matter clarified that the appellant had been
    acquitted of a sexual interference charge.

[11]

While the Board does not appear to have relied
    on the sexual assault in its reasons, it improperly included a finding that the
    appellant had sexually assaulted a minor when there was no evidence to justify
    this conclusion. The appellant argued that this finding would become part of
    his record and, understandably, would likely become significant in future
    hearings. This should not be in the record if there is no evidence to support
    it.

[12]

We

allow the appeal. The appellant is entitled to a new hearing before
    the Board, which must be held on or before his next scheduled review hearing in
    November 2019.

G.R.
    Strathy C.J.O.

Doherty
    J.A.

M.
    Tulloch J.A.


