Court of Appeal for Ontario

Date: September 19, 2019 Docket: C66761

Judges: Hourigan, Brown and Paciocco JJ.A.

In the Matter of: Samuel Abeje

An Appeal Under Part XX.1 of the Code

Counsel:

• Ken J. Berger, for the appellant
• Nicolas de Montigny, for the respondent, Attorney General of Ontario
• Michele Warner, for the respondent, the Person in Charge of the Centre for Addiction and Mental Health

Heard: September 17, 2019

On appeal against the disposition of the Ontario Review Board, dated March 7, 2019, with reasons dated March 27, 2019.

Reasons for Decision

Overview

[1] Mr. Samuel Abeje appeals from the March 7, 2019 disposition of the Ontario Review Board (the "Board") that continued his conditional discharge. Under that disposition, Mr. Abeje lives, on his own, in an apartment in Toronto, with no on-site supervision, and is required to report not less than once every 12 weeks to the Centre for Addiction and Mental Health ("CAMH"). At that time, Mr. Abeje receives a long-acting injectable antipsychotic medication to treat his schizoaffective disorder.

[2] Mr. Abeje submits the Board erred in holding that he continues to pose a significant risk to the safety of the public. Mr. Abeje asks this court to set aside the Board's disposition and grant an absolute discharge.

[3] At the hearing, we dismissed the appeal, with reasons to follow. These are those reasons.

Background Facts

[4] Mr. Abeje is 54 years old.

[5] He has a long history of mental illness, dating back to at least 1992 when he emigrated from Ethiopia to Canada. At the time of the Board hearing, his diagnosis was schizoaffective disorder, bipolar subtype, and borderline intellectual functioning. According to the hospital record, the diagnosis of borderline intellectual functioning "is significant in that Mr Abeje's ability to absorb and remember psychoeducational material is compromised."

[6] Mr. Abeje has been declared incapable of consenting to medical treatment. The Public Guardian and Trustee is his substitute decision-maker.

[7] Mr. Abeje has no significant history of alcohol or street drug abuse.

[8] Prior to the 2005 index offences, Mr. Abeje had a history of violence. In 1995, he was convicted of possession of a weapon, uttering a threat, and assault with a weapon for showing a bus driver a large kitchen knife. Later that year, he was convicted of theft under $5,000 and assault. In 1997, charges of uttering threats were withdrawn upon Mr. Abeje entering into a peace bond. In addition, as the Board noted in its reasons:

Mr. Abeje has a long history of non-adherence to medication. When unwell he develops mania and/or psychosis. He has a history of violence (apart from his criminal convictions and the index offences). They include: January 1993 - sexually assaultive behaviour in the context of a manic episode; October 1993 - sexually assaultive behaviour secondary to mania; and in 2004 - physical aggression towards police officers, at which time he had an axe in his possession.

[9] Prior to the index offences, Mr. Abeje had been admitted to psychiatric hospitals on several occasions.

[10] In 2005, Mr. Abeje was found not criminally responsible on account of mental disorder on two counts of aggravated assault and one count of possession of a weapon for a dangerous purpose. The first assault occurred when Mr. Abeje approached a woman on the street, spoke to her in an unknown language, stabbed her in the lower back, and ran away. This first victim suffered a fractured spinal bone and internal bleeding.

[11] Another woman saw the first victim running across the street holding her neck and followed Mr. Abeje to his residence. She approached him and asked if something was wrong. Mr. Abeje said "Nothing, nothing." He then stabbed the second victim twice in the head and once in the cheek. As well, he hit the second victim on her left arm. The second victim required 20 staples to close the wounds on her head.

[12] From 2005 until May 2008, Mr. Abeje resided at CAMH, with most of his time spent in minimum secure rehabilitation units. Since then, Mr. Abeje has lived in an unsupervised apartment and continued treatment at CAMH on an out-patient basis. For the past decade, he has been subject to a series of conditional discharge dispositions by the Board.

[13] As the Board noted, at para. 12, Mr. Abeje's mental state is stable, he is compliant with medication, attends all his appointments, and is virtually free from his underlying psychotic symptoms. Although he still has delusions "about the United Nations giving him power to control the world, and that Bill Clinton and Kofi Annan were aware of these powers", Mr. Abeje has not acted on those beliefs.

Recent Board Dispositions

2018

[14] In its April 2018 disposition, the Board continued Mr. Abeje's conditional discharge but lessened the reporting requirements. The Board expressed the view that CAMH had not moved as quickly as it could to consider "appropriate next steps to proceed to an Absolute Discharge and to assist Mr. Abeje's reintegration into society and his other needs." The Board observed that his treatment team had not made any referral to a non-forensic team or to an Assertive Community Treatment ("ACT") team.

2019

[15] As the Board notes in the disposition under appeal, in 2018 Mr. Abeje's treatment team acted on the Board's concerns and referred Mr. Abeje to the downtown west clinic of CAMH and the ACT team services provided by Access Point. Mr. Abeje was not accepted as a suitable candidate given his status under the Board and the psychiatric care he was receiving through the transitional care team in the CAMH forensic outpatient clinic.

[16] The Board unanimously concluded that Mr. Abeje was a significant risk to the safety of the public and continued his conditional discharge, with reduced reporting conditions.

Analysis

[17] Mr. Abeje submits that the Board's disposition was unreasonable in finding that he continued to pose a significant threat to the safety of the public. He advances two related arguments. First, Mr. Abeje argues that it was unreasonable for the Board to deny him any credit for his long-term stability and compliance, as well as placing undue weight on his lack of insight into his illness as a factor in assessing risk. Second, Mr. Abeje contends that the Board acted unreasonably in concluding that the civil mental health system could not manage adequately the risk that he might fall away from treatment.

[18] We are not persuaded by these submissions.

[19] Under s. 672.54 of the Criminal Code, on an annual review the Board must inquire into and determine whether an NCR accused is a significant threat to the safety of the public. Where it determines he is not, the Board must direct an absolute discharge. The meaning of the phrase "significant threat to the safety of the public" is well settled. It was summarized in R. v. Ferguson, 2010 ONCA 810, 264 C.C.C. (3d) 451, at para. 8:

The phrase refers to a foreseeable and substantial risk of physical or psychological harm to members of the public that is serious and beyond the trivial or annoying. A very small risk of even grave harm will not suffice. A high risk of relatively trivial harm will also not meet the substantial harm standard. While the conduct must be criminal in nature, not all criminal conduct will suffice to establish a substantial risk. There must be a risk that the NCR accused will commit a "serious criminal offence".

[20] In conducting its inquiry, the Board may have recourse to a broad range of evidence, including: the past and expected course of the NCR accused's treatment, if any; the present state of the NCR accused's medical condition; the NCR accused's own plans for the future; the support services existing for the NCR accused in the community; and the assessments provided by experts who have examined the NCR accused: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 62 (5).

[21] The Board's reasons disclose that in performing the required statutory assessment it drew upon a broad range of evidence and took into account a number of factors. Specifically, the Board stated at paras. 20 to 22:

The Board accepts the evidence of Dr. Choptiany [Mr. Abeje's psychiatrist] that Mr. Abeje lacks appropriate insight into his illnesses, that without the external controls of an order from the Ontario Review Board he would fall away from care, not take his injectable medication on a regular basis, become psychotic and engage in either violent and/or sexually inappropriate behaviour putting the public at risk. The Board considered the legacy of many hospitals' involvement with Mr. Abeje both before the index offence and after. The differences are stark. Before he was under the jurisdiction of the Ontario Review Board beginning in 2005, he had multiple hospital admissions but they were unsuccessful in reducing his risk to the public. This risk ultimately manifested [itself] in a very serious series of criminal acts in 2005 leading to gratuitous assaults on innocent individuals. Since that time and as a result of the efficacious mental health treatment he receives at CAMH, his risk to public safety has significantly diminished.

However, notwithstanding the fact that he is compliant with his medication and virtually symptom free, the history of his involvement with the mental health system strongly suggests that if he were to be transferred to the civil system, he would represent a significant risk to the safety of the public. As previously indicated the treatment team has attempted to refer him to other agencies but so far he has not been suitable given his status under the Ontario Review Board. As well, as we learned from Dr. Choptiany, his borderline intellectual functioning affects his insight. Dr. Choptiany was emphatic that if he were to decompensate, he would be involved in violent acts.

Accordingly, notwithstanding his compliance with the terms and conditions of last year's order and his stable functioning in the community, we are unanimously of the view that his current reasonably healthy mental state is a direct function of his compliance under the external control of an Ontario Review Board order.

[22] The Board's reasons disclose that as part of its risk assessment, it took into account Mr. Abeje's compliance with his medical regime and the long-term stability that has resulted from that regime. As this court observed in Afemui (Re), 2016 ONCA 689, at paras. 10 and 11, the Board is entitled to rely on expert evidence that the NCR accused is compliant with treatment because of the external controls associated with being under the Board's supervision. The Board accepted Dr. Choptiany's evidence to that effect.

[23] As part of its examination of the present state of the NCR accused's medical condition, the Board is entitled to consider evidence concerning the accused's understanding of or insight into his medical condition, provided that evidence is assessed in the context of the entirety of the record before the Board: Sim (Re), 2019 ONCA 719, at paras. 20-22. In the present case, the Board accepted Dr. Choptiany's opinion that Mr. Abeje lacks appropriate insight into his illness: at para. 20. However, such lack of insight was only one of several factors that led the Board to its conclusion. In the present case, the evidence of insight did not improperly "dominate the significant threat analysis": Woods (Re), 2019 ONCA 87, at para. 17.

[24] Finally, we are not persuaded that the Board acted unreasonably in concluding that the civil mental health system could not manage adequately any risk that Mr. Abeje might fall away from treatment.

[25] As the Board noted, at para. 14, the CAMH treatment team made the inquiries about the availability of non-forensic treatment recommended in the Board's 2018 disposition. The hospital record for the review period reported that Mr. Abeje was not accepted as a suitable candidate. As well, the record reported that Mr. Abeje remained "quite socially isolated" and that "it is hard to identify anyone apart from outpatient clinicians who would be in a position to identify subtle signs of illness in the event of their recurrence, and to report these to the treatment team."

[26] At the hearing, the Board questioned Dr. Choptiany about the ability to manage Mr. Abeje's illness under the civil mental health regime: at para. 18. Dr. Choptiany expressed the view that the powers available under the civil mental health regime were not effective enough to deal with the risks: at para. 18.

[27] In its reasons, the Board accepted that evidence. At para. 23, the Board explained at some length why the controls available in the civil mental health regime would not be effective in managing the risk involved in Mr. Abeje's behaviour and actions should he decompensate.

[28] Given those inquiries made by the Board and its consideration of the alternatives available under the civil mental health regime, we are not persuaded that the Board acted unreasonably in concluding that the civil mental health regime would be inadequate to manage Mr. Abeje's risk should he fall away from treatment.

[29] In sum, the Board's reasons stand up to the standard of "a somewhat probing examination": R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 33. The Board considered a broad range of evidence, applied the statutory test, explained why it found that Mr. Abeje continued to pose a significant threat to the safety of the public, and inquired into the ability of the civil mental health regime to manage the risk. We are not persuaded that the Board's disposition was unreasonable in the circumstances.

[30] That said, we understand the frustration felt by Mr. Abeje about his current status under the Board. Although his counsel described Mr. Abeje's situation as a "treatment impasse," that term usually describes 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: Gonzalez (Re), 2017 ONCA 102, 136 O.R. (3d) 453, at paras. 28-29. In the case of Mr. Abeje, the evidence shows that his clinical team has found an effective course of treatment to manage his illness. The treatment is so effective that Mr. Abeje has been living unsupervised in the community for many years, with the only material restriction on his liberty being the requirement that he report to CAMH once every three months.

[31] What concerns Mr. Abeje is a sort of catch-22 in which he finds himself. On the one hand, the Board acknowledges Mr. Abeje's "stable functioning in the community"; indeed, he has lived almost independently in the community for many years: at para. 22. As well, in 2018 the Board exhorted CAMH "to consider appropriate next steps to proceed to an Absolute Discharge and to assist Mr. Abeje's reintegration into society and his other needs": at para. 35. Yet, on the other hand, when CAMH made such inquiries, the response back was that Mr. Abeje did not qualify for the programs or services, in part because of his stability under the ORB regime: at para. 14.

[32] Mr. Abeje's concerns are understandable. In 2018, the Board urged "the Treatment Team to take steps in the upcoming reporting year to refer Mr. Abeje to a non-forensic team and to plan for moving towards an Absolute Discharge, if his medication change occurs without incident and he remains stable": at para. 37. His medication change proceeded without incident, and Mr. Abeje remains stable. CAMH's inquiries of non-forensic teams did not produce any change for Mr. Abeje. In those circumstances, we would expect the Board in Mr. Abeje's next annual review to exercise its inquisitorial powers to obtain and examine in some detail evidence regarding the availability of non-forensic services for Mr. Abeje.

Disposition

[33] For the reasons set out above, the appeal is dismissed.

C.W. Hourigan J.A.

David Brown J.A.

David M. Paciocco J.A.