Court of Appeal for Ontario

Date: April 18, 2019

Docket: C65965

Judges: Hoy A.C.J.O., Doherty and Zarnett JJ.A.

In the Matter of Samuel Kassa

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• Kelley Bryan, for appellant
• Joe Hanna, for the respondent

Heard: March 29, 2019

On appeal from: The disposition of the Ontario Review Board dated August 2, 2018.

Hoy A.C.J.O.:

Introduction

[1] The appellant, Samuel Kassa, has been diagnosed with schizophrenia in addition to cocaine and cannabis use disorders. He has been under the jurisdiction of the Ontario Review Board since he was found not criminally responsible on account of mental disorder ("NCR") for uttering a threat to cause bodily harm on July 19, 2012.

[2] At the time of his most recent hearing before the Board, the appellant was 43 years of age. He appeals the disposition dated August 2, 2018 arising from that hearing, concluding that he continues to constitute a "significant threat to the safety of the public" and ordering that he continue to be detained at the General Forensic Unit of the Ontario Shores Centre for Mental Health Sciences (the "Hospital") pending transfer to the General Forensic Unit of the Centre for Addiction and Mental Health ("CAMH"). The appellant asks that the disposition be set aside and that he be discharged absolutely or, in the alternative, that he be discharged subject to conditions or, in the further alternative, that the matter be returned to the Board with directions for a new hearing.

[3] The Hospital takes no position on the appeal. The Crown argues that the appeal should be dismissed and the Board's disposition affirmed.

[4] For the following reasons, I would allow the appeal and return the matter to the Board for a new hearing.

Background

[5] The index offence of uttering a death threat arose out of an incident on July 28, 2010. The appellant went to CAMH intending to see his addictions counsellor, but the security guard told him to leave the building, probably because he was barefoot. The appellant saw a TTC operator stationed at the corner. The appellant paced in that area and engaged in conversation with the TTC operator. The appellant indicated that the TTC operator called him an "asshole". The appellant walked up to the TTC operator, lifted his right arm up and put his hand out as if he were holding a gun, then stated: "Fuck you, you're dead". He walked away, then turned around and came back within 10 feet of the TTC operator. He repeated the gesture, this time not saying anything. At the time, the appellant was using crack cocaine and cannabis and was likely non-compliant with antipsychotic medication.

[6] The report dated July 5, 2018 of his treatment team at the Hospital noted that it was difficult to view the appellant's actions on July 28, 2010 "as having the potential to cause 'serious' psychological harm", and there was no reported physical harm.

[7] Further, during his tenure under the Board, the appellant had not exhibited any behaviour that reasonably could be viewed as having the potential to cause serious physical or psychological harm. Indeed, he had been assaulted twice in the past year and did not respond with any form of aggression. The Hospital described the appellant as remaining calm, cooperative and stable during the reporting period.

[8] The Hospital reviewed the appellant's behavior before he came under the Board's jurisdiction that could have potentially led to serious harm:

• In 2000, the appellant was charged with dangerous operation of a motor vehicle. The available materials suggest that he drove through a red light, rear ended a slower car, and drove at speeds of over 150 km/h. This may have been a suicide attempt and led to his first psychiatric contact in Canada.

• In 2005, the appellant started a fire in his apartment and was throwing items off his balcony. No additional detail was available. The appellant said he had been attacked by a friend who was using drugs. The friend left trousers in the appellant's apartment, and the appellant said he put them on the stove.

• In 2009, the appellant reportedly set fires in his apartment to notify people of the upcoming civic elections. The appellant claims that he did not actually start a fire. Rather, he was using his lighter to try to set off the fire alarm.

• In 2009, the appellant was convicted of threatening bodily harm and weapons dangerous. He received a conditional discharge and two years' probation.

• In 2010, the appellant was accused of threatening a physician at CAMH. The synopsis indicated that he became agitated when told he was not going to be admitted to hospital and threw milk, and then the carton, on the physician. He then allegedly threatened to come back with a gun and shoot the doctor.

• In 2011, the appellant was charged with assault. This may have been in respect of the 2010 incident.

[9] The Hospital concluded that it did not appear that the appellant had ever caused serious physical or psychological harm, although his driving in 2000 and fire setting in 2005 and 2009 "would certainly have the potential for serious injury to another person".

[10] The Hospital reported that the appellant's insight into his schizophrenia is good, he has adhered to his long-acting medication regime, and his psychosis was fully remitted, although he struggles with substance abuse on an ongoing basis. The appellant had availed himself of multiple interventions to address his substance abuse. The Hospital concluded that because it remained likely that the appellant would continue to use substances with regularity, if the appellant were granted an absolute discharge, it was unlikely that he would be able to maintain housing on an indefinite basis and, should he end up homeless, it would be very difficult to ensure that he receives consistent treatment in the community. Accordingly, it was likely the appellant will "eventually fall away from psychiatric treatment."

[11] The Hospital wrote:

In short, in the event of an absolute discharge, it is likely that [the appellant] will continue to have significant challenges with substance abuse. He is likely to have further interactions with the criminal justice system in relation to this. Should he act in a manner that is likely to cause significant harm this will likely flow from untreated psychosis. So long as [the appellant] remains on antipsychotic treatment, we can only say that his continued drug usage is potentially linked to problematic symptoms. Even in the worst-case scenario where [the appellant] is homeless, non-compliant with antipsychotic medication, and actively using crack cocaine and cannabis, the view of the treatment team is that we can only conclude that this might lead to serious harm through reckless behaviour.

[12] In prior years, the Hospital had concluded that the appellant was a significant threat to the safety of the public. The Hospital considered whether the appellant met the significant threat threshold "in light of the clarification" by this court in Wall (Re), 2017 ONCA 713, 417 D.L.R. (4th) 124, since the Hospital's prior report.

[13] By way of context, in Wall, the appellant's diagnoses included bipolar disorder and polysubstance abuse. Prior to the index offence, Mr. Wall had accumulated an extensive criminal record, including robbery, assault, and assault with a weapon. At his hearing, the question of significant threat was linked to his cannabis use and its impact on his bipolar affective disorder. Mr. Wall was treatment capable and compliant with medication. His physician testified that he would continue with treatment if discharged. He was willing to consent to a Community Treatment Order ("CTO"). Until shortly before the Board's decision, his bipolar disorder was well managed by medication and unaffected by his ongoing use of marijuana. But his treating physician linked recent signs of mania to his marijuana use and testified that when manic he may pose a risk of violent and transgressive behavior.

[14] The court held that "the only evidence connected to the risk of physical harm…was dated and speculative" and that the Board could conclude no more than that Mr. Wall's marijuana use was "potentially linked to problematic symptoms". As a result, the court found that the Board's decision was unreasonable, set aside the order of the Board, and granted an absolute discharge.

[15] The Hospital concluded that there were several similarities between the appellant's situation and that of Mr. Wall. Further, it noted that the appellant had indicated that he is willing to have a CTO and continue with medication by long-acting injection. The Hospital recommended that he be discharged absolutely. If not, the Hospital recommended that the appellant be detained in a secure forensic unit because his substance use cannot be adequately addressed while allowing him indirectly supervised privileges.

[16] Prior to his hearing before the Board, the appellant signed a CTO.

[17] The appellant's treating physician, Dr. Morgan, testified before the Board. He noted that while on medication the appellant displays no psychotic symptoms when he uses cannabis and cocaine. It is only when he uses the synthetic cannabinoid "Spice" that he develops psychotic symptoms, but those are mild. Further, the appellant has openly admitted to his drug use and has returned to hospital voluntarily after elopements to use drugs. He has described coming back to the hospital as a "vacation".

[18] Dr. Morgan reiterated that he did not believe that any actions by the appellant if he engaged in substance abuse and became medication non-compliant would cause serious physical or psychological harm to others. However, he conceded that the appellant's actions "could" do so, although that had not historically been the case. The Hospital reiterated its recommendation that the appellant receive an absolute discharge.

[19] The Board did not accept the Hospital's position.

[20] It concluded that this case was not like Wall. It was clear that Mr. Wall would remain treatment compliant if discharged, whereas Dr. Morgan's evidence was that the appellant would likely stop his medication if discharged. Further, the CTO that the appellant had signed was not a guarantee of compliance.

[21] The Board purported to apply the standard for determining significant threat set out by the Supreme Court in Winko v. British Columbia (Forensic Psychiatric Institute), [1992] 2 S.C.R. 625, which the Board summarized as whether the accused poses a serious risk of substantial psychological or physical harm to others.

[22] The Board found that there was a clear pattern of activity. While it acknowledged that none of the appellant's actions had resulted in substantial psychological or physical harm to others, it found that the threshold for "significant threat to the safety of the public" was met because "there is a serious likelihood that such actions in the future could result in significant harm particularly if Mr. Kassa is medication noncompliant" (emphasis added). The Board concluded that the appellant continues to constitute a "significant threat to the safety of the public". It found that the alternative of detention in a secure forensic facility recommended by the Hospital was not the least onerous and restrictive alternative and ordered that he continue to be detained at the General Forensic Unit of the Hospital pending transfer to the General Forensic Unit of CAMH.

Issues on Appeal

[23] In his oral submissions, the appellant clarified that he does not challenge the Board's disposition on the basis that it was unreasonable. Rather, he argues that the Board failed to apply the proper legal test for "significant threat to the safety of the public" in two ways.

[24] First, in considering whether significant harm "could" result, the Board descended into the realm of speculation, contrary to both Winko and this court's decision in Wall.

[25] Second, the Board failed to consider the likelihood of the appellant engaging in criminal conduct resulting in physical or psychological harm, and the seriousness of the harm that might occur together, as required by Winko, at para. 57.

[26] Further, the appellant argues that having found that he is a significant threat to the safety of the public, the Board erred by failing to consider whether that risk could be managed under a conditional discharge.

Analysis

[27] As I will explain, I agree with the appellant that, despite adverting to Winko, the Board failed to apply the proper legal test for "significant threat to the public".

[28] Section 672.54(a) of the Criminal Code directs that where an NCR accused is "not a significant threat to the safety of the public" he or she must be discharged absolutely.

[29] Section 672.5401 of the Criminal Code defines a "significant threat to the safety of the public" to mean "a risk of serious physical or psychological harm to members of the public – including any victim of or witness to the offence, or any person under the age of 18 years – resulting from conduct that is criminal in nature but not necessarily violent."

[30] In Winko, the Supreme Court describes, at para. 57, what amounts to a significant threat to the safety of the public:

[T]he threat must be more than speculative in nature; it must be supported by evidence. The threat must also be "significant", both in the sense that there must be a real risk of physical or psychological harm occurring to individuals in the community and in the sense that this potential harm must be serious. A miniscule risk of a grave harm will not suffice. Similarly, a high risk of trivial harm will not meet the threshold. Finally, the conduct or activity creating the harm must be criminal in nature. In short, Part XX.1 can only maintain its authority over an NCR accused where… the individual poses a significant risk of committing a serious criminal offence. [Citations omitted.]

[31] While the contemplated conduct must be criminal, not all criminal conduct will meet this standard. There must be a risk that the NCR accused will commit a serious criminal offence: Winko, at paras. 57, 69.

[32] This court may set aside an order of the Board only where it is of the opinion that: (a) the decision is unreasonable or cannot be supported by the evidence; (b) the order is based on a wrong decision on a question of law (unless no substantial wrong or miscarriage of justice has occurred); or (c) there was a miscarriage of justice: Criminal Code, s. 672.78(1); R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 31.

[33] Winko requires that the Board assess the likelihood of physical or psychological harm occurring as a result of criminal conduct if the appellant is granted an absolute discharge and the seriousness of the potential harm, and weigh the seriousness of the potential harm in combination with the likelihood of that harm materializing: Kalra (Re), 2018 ONCA 833, at para. 51; Hammoud (Re), 2018 ONCA 317, at paras. 6-9. In other words, "[t]he likelihood of a risk materializing and the seriousness of the harm that might occur must be considered together": Wall, at para. 13.

[34] In considering only that there was a serious likelihood that conduct such as that which the appellant engaged in prior to the index offence, and of which limited details were available, could result in significant harm, the Board failed to engage in the core analysis that Winko requires.

[35] The Board did not grapple with the likelihood of physical or psychological harm occurring as a result of the appellant engaging in criminal conduct if granted an absolute discharge. As Winko instructs, there must be a "real" risk of physical or psychological harm arising from criminal conduct: at paras. 51, 57. "Could" does not suggest the "real" risk that Winko requires. Moreover, the Board did not expressly consider the seriousness of the potential harm or weigh it in combination with the risk of that harm materializing.

[36] It does not appear to be disputed that there is no evidence that the appellant has at any point engaged in criminal conduct that resulted in serious physical or psychological harm. It is critical that the Board engage in the analysis that Winko requires.

[37] The "significant threat" standard is an onerous one that requires a very careful assessment of the question of risk: Carrick (Re), 2015 ONCA 866, 128 O.R. (3d) 209, at para. 17; Carrick (Re), 2018 ONCA 752, at para. 20.

[38] I am unable to conclude that the Board would necessarily have reached the same conclusion if it had applied Winko correctly. I would return the matter to the Board for a rehearing based on a proper Winko analysis.

[39] Finally, I note the evidence that the appellant is compliant with his three-month injectable medication and voluntarily returns to hospital upon re-emergence of symptoms. While the appellant had not requested a conditional discharge, on the evidence before the Board, there was an air of reality that a conditional discharge would be appropriate. Should the Board conclude, following a new hearing, that the appellant remains a significant threat to the public, it should consider whether the risk could be managed under a conditional discharge order: Collins (Re), 2018 ONCA 563, at para. 43.

Disposition

[40] I would allow the appeal and return the matter to the Board for a new hearing.

Released: April 18, 2019

"Alexandra Hoy A.C.J.O."

"I agree Doherty J.A."

"I agree B. Zarnett J.A."