COURT OF APPEAL FOR ONTARIO

CITATION: Kusi (Re), 2016 ONCA 317

DATE: 20160429

DOCKET: C61058

Weiler, Simmons and Epstein JJ.A.

IN THE MATTER OF: Ebenezer Kusi

AN APPEAL UNDER PART XX.1 OF THE CODE

Mercedes Perez, for the appellant

Carmen Elmasry, for the Attorney General of Ontario

Kathryn Hunt, for the Centre for Addiction and Mental Health

Heard and released orally: April 26, 2016

On appeal against the disposition of the Ontario Review Board dated August 11, 2015.

ENDORSEMENT

[1] Mr. Kusi was diagnosed with schizophrenia in 2005. On four occasions in August, September, and December 2011, Mr. Kusi was harassing the other tenants in his building and damaging a lock on one of the apartment doors. On December 18, 2011, he also swung a hammer at a neighbor, inflicting a number of cuts, and was subdued by neighbors until police arrived. When he was arrested, police found a kitchen knife in Mr. Kusi’s waistband. He was found NCR in June 2013.

[2] Mr. Kusi’s initial disposition hearing was held on October 2013, and he was granted a conditional discharge. This disposition was maintained until the Board’s hearing in 2015.

[3] During the 2015 hearing, CAMH recommended a detention order with community living, acknowledging that this was unusual given that Mr. Kusi was not exhibiting behavioral issues.

[4] The Board determined that Mr. Kusi remained a significant threat to public safety and that were he to be granted an absolute discharge, he would drift away from his treatment. He consistently does not believe that his delusion about women being able to control his “spirit” is part of his illness.

[5] The Board’s rationale for concluding that a detention order was necessary and appropriate was three-fold.

[6] The hospital required the ability to approve Mr. Kusi’s accommodation in the community. Unless Mr. Kusi is under a detention order, the Board is unable to approve his accommodation.

[7] A re-admission to hospital might be required to optimize Mr. Kusi’s treatment. The hospital required the ability to rapidly readmit Mr. Kusi in the event of further deterioration in his already compromised mental state.

[8] Mr. Kusi appeals and submits that the Board’s refusal to grant an absolute discharge or in the alternative to maintain the conditional discharge was unreasonable.

[9] In our opinion the Board’s decision in refusing to grant an absolute discharge was not unreasonable. Given the evidence from his treatment team that Mr. Kusi continued to pose a significant threat to public safety, an absolute discharge was not statutorily available as a disposition.

[10] We are, however, concerned that read as a whole, the Board’s decision to change Mr. Kusi’s disposition from a conditional discharge to a detention order did not address why this disposition was necessary and appropriate or the least onerous and least restrictive one. There is only one conclusory sentence in its reasons. The evidentiary basis for the Board’s decision is not apparent to us. Mr. Kusi has been compliant with all of the terms and conditions imposed on him since he was granted a conditional discharge.

[11] Accordingly, the appeal is allowed, the Board’s disposition is set aside and in its place a conditional discharge is ordered on the same terms and conditions as the 2014 conditional discharge.

“K.M. Weiler J.A.”

“Janet Simmons J.A.”

“Gloria Epstein J.A.”