Court and Parties

Court: COURT OF APPEAL FOR ONTARIO Date: 20241031 Docket: COA-24-CR-0352 Judges: Trotter, Zarnett and George JJ.A.

In the Matter of: Kishoyian E. Kipusi

Nature of Appeal: AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel: Anita Szigeti, for the appellant Deepa Negandhi, for the respondent Attorney General of Ontario Hilary Chung, for the respondent Person in Charge of the Royal Ottawa Mental Health Centre

Heard: October 25, 2024

Appeal Against: the disposition of the Ontario Review Board, dated February 28, 2024, with reasons dated March 25, 2024.

Reasons for Decision

[1] On December 18, 2023, the appellant, Mr. Kipusi, was found not criminally responsible on account of mental disorder on charges of criminal harassment, uttering threats to cause death or bodily harm, mischief, and failing to comply with a recognizance. As a result, he is under the jurisdiction of the Ontario Review Board (“the Board”) and is detained at the Royal Ottawa Mental Health Centre (“the Hospital”).

[2] Mr. Kipusi appeals the disposition made by the Board following his initial review hearing in February 2024. First, he argues that the Board erred in making a detention order rather than granting a conditional discharge. Second, he submits that even if the detention order was appropriate, it was more restrictive than necessary or appropriate, focussing on two specific conditions.

[3] In the latter regard, Mr. Kipusi challenges the condition in para. 2(g) of the disposition that the person in charge of the Hospital may, in his or her discretion, permit him “to live in the community in supervised accommodation approved by the person in charge”. He objects to the inclusion of the term “supervised”, which limits the accommodation the Hospital may approve. He also objects to the entirety of the condition in para. 4(g) of the disposition that he “not communicate with his mother without her written revocable consent and the consent of the person in charge of the hospital, or their designate”.

[4] Decisions of the Board on these types of issues are reviewed on a standard of reasonableness. The reasonableness of a decision is generally assessed by considering whether the decision is based on internally coherent reasoning – whether a rational chain of analysis that led to the decision can be discerned – and whether the decision is justified in light of the legal and factual constraints bearing on the decision: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 99-103.

[5] For the reasons that follow, we allow the appeal in part.

Detention Order or Conditional Discharge

[6] We did not call on the respondents on this ground of appeal. In our view, the Board did not err in making a detention order.

[7] There was no issue at the hearing, and the Board properly found, that Mr. Kipusi represents a significant threat to the safety of the public. As the Board stated:

The parties were unanimous on this issue and this is well supported by the evidence.

Mr. Kipusi suffers from a serious mental disorder which is described as follows in the hospital report: “Schizophrenia, multiple episodes, current in an acute episode versus partial remission.” He has limited insight into his mental illness and he has a history of noncompliance with medication.

Since 2018, Mr. Kipusi has had numerous contacts with the police related to his mental health and aggressive behaviour, and he has been charged with offences, including property offences, and robbery which involved pointing a gun at an unknown female victim. The gun turned out to be fake, but the victim was unaware of this. He was also charged with breaking and entering his mother’s home and stealing some of her belongings, as well as failure to comply with a recognizance.

The current NCR finding is his second such finding and [since the NCR finding] he faces new charges, including harassment involving the same victim. He appears to have failed to comply with several of his criminal release conditions, including leaving the residence where he was to reside and going to Toronto.

[8] There was no factual or legal constraint to the granting of a detention order. It is one of the two dispositions that must be made consequent on a finding of significant threat. A detention order, rather than a conditional discharge, is appropriate when there is a need for a hospital to supervise (in the sense of approve) accommodation – a conditional discharge may only specify that an NCR accused reside in a specific place: Davies (Re), 2019 ONCA 738, 380 C.C.C. (3d) 552, at paras. 19-20. There is clearly a need in this case for the Hospital to approve what accommodation is appropriate for Mr. Kipusi, especially as his needs, treatment and outlook progress.

[9] Mr. Kipusi’s argument essentially is that the Board was still required to consider a conditional discharge in fulfillment of its duty to impose the least onerous and least restrictive disposition. Because the Board’s reasons nowhere show that a conditional discharge was even considered, the detention order cannot stand.

[10] We reject this submission. Mr. Kipusi, who was represented by counsel at the hearing, did not seek a conditional discharge. His counsel at the hearing agreed that there be a detention order – a detention order was the joint submission by all parties. Counsel for Mr. Kipusi explained at the hearing that although she might otherwise have sought a conditional discharge, new charges against him, of subsequently harassing the same person who was the victim of the index offences approximately one month before the Board hearing, led her not to take that position. There is no suggestion that she lacked proper instructions.

[11] In these circumstances, it was not incumbent on the Board to provide detailed reasons as to why a conditional discharge was not appropriate.

Overly Restrictive Conditions

[12] Paragraph 2(g) of the Board’s disposition stipulates that the person in charge of the Hospital may, in his or her discretion, permit Mr. Kipusi “to live in the community in supervised accommodation approved by the person in charge.”

[13] We agree with Mr. Kipusi that the inclusion of the word “supervised” in the condition about where he may be permitted by the Hospital to live makes the condition unreasonably restrictive. It limits the range of accommodation which the Hospital may approve to “supervised accommodation”, rather than leaving it to the discretion of the Hospital to determine whether to approve accommodation that is, or is not, supervised.

[14] The “supervised” limitation on accommodation that could be approved was not requested by the Hospital. When a Board member raised the matter, Dr. Strike, the treating psychiatrist at the Hospital who testified at the hearing, was firmly opposed to it. She explained that while currently the Hospital would not approve accommodation for Mr. Kipusi that was unsupervised – his current accommodation is supervised – circumstances could change. Depending on his progress, unsupervised accommodation may become appropriate to approve. According to Dr. Strike, limiting what the Hospital could approve to “supervised” accommodation was not necessary to manage the risk – it was “too onerous, too restrictive.” [1]

[15] The Board’s reasons shed no light on why the “supervised” limitation was included. The Board did not reject Dr. Strike’s evidence. The Board explained, in the conclusion of the reasons, that “[t]he Board further agrees with the disposition recommended in the [H]ospital report.” That report did not recommend that approvable accommodation be limited to only supervised accommodation.

[16] There is accordingly no rational chain of analysis that led to this aspect of the disposition that can be discerned, and it is without a factual underpinning.

[17] The word “supervised” should accordingly be struck from para. 2(g) of the disposition.

[18] Paragraph 4(g) of the Board’s disposition requires that Mr. Kipusi “not communicate with his mother without her written revocable consent and the consent of the person in charge of the hospital, or their designate”.

[19] Mr. Kipusi submits that this entire condition should be struck. It was not requested in the Hospital report. He emphasizes again that the Board said it agreed with the disposition proposed in the Hospital report.

[20] However, the Board referred in its reasons to the facts that (i) Mr. Kipusi was previously subject to a restraining order requiring him not to contact his mother, and (ii) Mr. Kipusi had previously displayed aggressive behaviour toward her and had been charged with offences against her. Dr. Strike also gave evidence that Mr. Kipusi’s mother had expressed concerns for her own safety. The Board also noted that Mr. Kipusi’s mother was very involved in his treatment.

[21] It would have been better had the reasons specifically adverted to the inclusion of this condition since it was not in the Hospital report. Nonetheless, the inclusion of this condition is rooted in the Board’s factual findings referred to above and is consistent with the overall thrust of the reasons and the disposition to the extent that it forbids contact without the mother’s written, revocable consent. To that extent, it balances protecting the safety of the mother with advancing Mr. Kipusi’s interests in maintaining critically important family relationships and assisting his treatment. Although one must look harder for it, a rational chain of analysis can be discerned that leads to the inclusion of this aspect of the condition.

[22] We see no basis, however, for the part of this condition that requires, in addition to the mother’s consent, the consent of the Hospital – language that would allow the Hospital to forbid contact even if the mother has consented to it. There was no basis for including this requirement in the evidence. Nor was any rationale for it expressed by the Board or implicit in its reasons. The respondents did not strenuously oppose the deletion of that part of the condition.

[23] We would therefore strike the words “and the consent of the person in charge of the hospital, or their designate” from para. 4(g) of the disposition.

Conclusion

[24] The appeal is allowed in part, in accordance with paragraphs 17 and 23 above.

“Gary Trotter J.A.”

“B. Zarnett J.A.”

“J. George J.A.”

[1] The conditions of Mr. Kipusi’s bail on the new charges he is currently facing require him to live in his current accommodation, which is supervised. Clearly he must comply with the bail order that governs where he may live as long as that order is in force.