COURT OF APPEAL FOR ONTARIO

CITATION: Kassa (Re), 2020 ONCA 543

DATE: 20200901

DOCKET: C67530

Watt, Trotter and Harvison Young JJ.A.

IN THE MATTER OF: Samuel Kassa

AN APPEAL UNDER PART XX.1 OF THE CODE

Kelley J. Bryan, for the appellant, Samuel Kassa

Michele Warner, for the respondent, Centre for Addiction and Mental Health

Emily Marrocco, for the respondent, Ministry of the Attorney General

Heard: June 11, 2020 by video conference

On appeal from the disposition of the Ontario Review Board dated, August 2, 2019, with reasons dated August 21, 2019, reported at 2019 CarswellOnt 13632.

Harvison Young J.A.:

A. Overview

[1] In July 2012, Samuel Kassa was found not criminally responsible (“NCR”) by reason of mental disorder of uttering a death threat to a Toronto Transit Commission (“TTC”) operator. Since this NCR finding, the appellant has been subject to orders requiring his detention.

[2] At his annual hearing in July 2019, the appellant sought an absolute discharge, as he had done for a number of years previously. The Ontario Review Board (the “Board”) declined to order a discharge, and instead ordered the appellant be detained at a secure forensic unit. The person in charge at the hospital retained discretion to transfer the appellant to a general forensic unit.

[3] The appellant says that the Board failed to conduct a “very careful assessment” of the likelihood and seriousness of potential future harm, as required by Winko v. British Columbia (Forensic Psychiatric Institute), 1999 694 (SCC), [1999] 2 S.C.R. 625. In particular, the appellant argues that the Board’s analysis of whether he poses a significant risk to public safety was unreasonable. He seeks an absolute discharge, or for the matter to be returned to the Board for a new hearing.

[4] For the following reasons, I disagree and would dismiss the appeal.

B. Background

(1) Pre-index offence conduct

[5] The appellant had used cannabis and cocaine for close to a decade before the index offence. His hospital reports also detail incidents leading to a number of admissions into psychiatric care, including: driving over 150 km/hr and causing an accident, possibly as part of a suicide attempt (2000); starting a fire in his apartment and throwing items off his balcony (2002); and setting fires in his apartment in attempts to notify people of upcoming civic elections (2005).

[6] In 2009, the appellant was found guilty of uttering threats and weapons dangerous. He received a conditional discharge and two years’ probation. In 2010, the appellant was accused of throwing milk on and threatening to shoot a physician at the Centre for Addiction and Mental Health (“CAMH”).

(2) Index offence and initial detention

[7] The index offence took place in July 2010. The appellant walked up to a TTC operator, lifted his right arm up and put his hand out as if he were pointing a gun at the operator and pulling the trigger. The appellant stated: “Fuck you, you’re dead”. He walked away, returned to stand within 10 feet of the operator, and repeated the hand gesture silently.

[8] In July 2012, the appellant was found NCR by reason of mental disorder of uttering a death threat. From 2012 to 2018, the Board annually ordered the appellant to be detained on a general forensic unit, primarily at Ontario Shores Centre for Mental Health Sciences (“Ontario Shores”).

[9] The appellant has been diagnosed with schizophrenia, and cocaine and cannabis use disorder. Following his initial admission into Ontario Shores, the appellant participated in various rehabilitative programs to help develop insight into his illnesses. However, the appellant has repeatedly relapsed into substance abuse. Typically, the appellant leaves the hospital or residence, uses substances, then returns after a day or two. While the appellant has been discharged to live in approved community homes on several occasions, he was eventually readmitted to the hospital due to substance use.

[10] Until 2018, Ontario Shores had recommended the appellant be detained to monitor his mental state and mitigate the risks of abusing drugs and reoffending, which would present a serious risk to safety of the public.

(3) The 2018 disposition and subsequent appeal

[11] In July 2018, however, the Ontario Shores hospital report stated that, in light of this court’s decision in Wall (Re), 2017 ONCA 713, 417 D.L.R. (4th) 124, the appellant “[did] not appear to meet the threshold for a significant threat to the safety of the public and thus is entitled to an absolute discharge.” This was because there had been “no incidents” of the appellant “engaging in behaviour likely to cause serious harm during his time under the Review Board.” While the appellant’s actions during the index offence “were undoubtedly frightening and intimidating it was difficult to view them as having the potential to cause ‘serious’ psychological harm.”

[12] The report recommended that, if the Board did find that the appellant met the threshold of significant threat, he be detained on a secure forensic unit. This is because the appellant’s clinical team believed that his substance abuse could not be adequately addressed in the course of indirectly supervised privileges. The 2018 report was authored by Dr. Morgan, who was the appellant’s main treating physician for that reporting year.

[13] In its reasons released on August 28, 2018, the Board found that the appellant continued to pose a significant threat to the safety of the public as defined in Winko. It stated that the appellant’s actions, both before and after the index offence,

could have caused real and substantial psychological harm to others (eg fire-setting, dangerous operation of a motor vehicle, threats, throwing things off his apartment balcony etc) …. The Panel accepts the evidence of Dr. Morgan and the Treatment Team that without close supervision Mr. Kassa would likely become medication noncompliant, start to use substances which would lead to a decompensation and a re-emergence of behaviour similar to the index offence.

[14] The Board continued the existing detention order, under which Ontario Shores had been in the process of admitting the appellant to Boxx House (a group home) but was interrupted by the appellant’s drug use and readmission to hospital. The prior disposition had also recommended a transfer to CAMH, which had not yet taken place due to a long waiting list.

[15] The appellant challenged the Board’s 2018 order at this court. By reasons dated April 18, 2019, this court allowed the appeal and ordered that the Board hold a new hearing based on a proper Winko analysis. Hoy A.C.J.O., writing for the court in Kassa (Re), 2019 ONCA 313, at paras. 34-35, held that the Board had failed to properly apply the Winko test:

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.

… “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. [Emphasis in original.]

(4) The 2019 disposition

[16] By the time of the appellant’s annual hearing in July 2019, there was evidence that the appellant’s symptoms had significantly worsened. He was discharged to Boxx House in August 2018, but then readmitted to the hospital three times before the annual hearing. On two of those occasions, the police were necessary to readmit the appellant to the hospital.

[17] The 2019 hospital report, dated May 27, 2019 and authored by Dr. Pytyck, detailed “clear evidence of clinical instability, with recurrent periods of decompensation” due to substance use (specifically, synthetic cannabinoids) and a change in injectable medication. When unwell, the appellant

typically has presented as irritable and easily angered, as well as verbally inappropriate and rude towards staff. He has made indirectly threatening comments (for example, asking whether he should kill a member of a sports team) and he has, at times, caused staff members to feel intimidated due to his irritability and bizarre comments.

[18] The report recommended that the appellant be detained on a general forensic unit at Ontario Shores. If discharged, the appellant would likely continue to engage in substance abuse that

would cause him to lose his housing and migrate to homelessness, which would in turn lead him to fall away from treatment and medication. He would be likely to deteriorate rapidly to a state similar to that in which he has previously engaged in problematic behaviours that had the potential to cause harm to others.

[19] An addendum to the 2019 hospital report, dated July 9, 2019 and authored by Dr. Morgan, further detailed the appellant’s struggles. The appellant had been leaving Boxx House without signing out, going “on a crack binge”, then returning for a day (typically high and disruptive), before going out again. His hygiene had deteriorated and he was likely going to be evicted.

[20] Like the 2019 hospital report, the addendum noted that the appellant would likely fall away from treatment if granted a discharge. This would lead to homelessness and contact with the police, “either through the commission of minor offences and/or disorganized/bizarre behaviour driven by psychosis.” However, it continued that this conduct likely “will not result in serious physical or psychological harm to the public.” The addendum described the appellant’s behaviour during his time under the Board as merely “trivial or annoying”, since there has not been any previous instance of the appellant causing serious physical or psychological harm.

[21] The addendum did not explicitly recommend a discharge like the 2018 hospital report. Instead, it stated that if the Board found the appellant to be a significant threat, he should be detained “within a Forensic Service”, and that he would benefit from a transfer to CAMH or St. Joseph’s Healthcare.

[22] Dr. Pytyck testified at the 2019 hearing, which took place on July 22, 2019. She reported that the appellant’s stability had deteriorated since the addendum was written, in that the appellant was displaying more psychotic and bizarre behaviour. Dr. Pytyck highlighted that staff members at the hospital have felt threatened by the appellant’s behaviour and the appellant has limited insight into his illness. She disagreed that the appellant has not historically been a threat, citing his pre-index conduct that included dangerous driving, throwing objects off a balcony, and a conviction for weapons dangerous and uttering threats. Dr. Pytyck also said that it was now her view that appellant should be detained on a secure forensic unit, with the ability to transfer to a general unit after a month or two.

[23] The Board accepted Dr. Pytyck’s evidence and ordered the appellant’s continued detention. It reasoned the appellant was a significant risk to public safety, agreeing with Dr. Pytyck that if the appellant was discharged, he would become homeless, stop taking medication, and rapidly deteriorate:

[E]ven in hospital, and even while being medicated, Mr. Kassa has threatened both female and male staff members to the point where those staff members fear for their safety. In this panel’s opinion, that conduct on the part of Mr. Kassa meets the test set out in Winko. We are satisfied there is a real risk of at least psychological harm occurring to those staff members. We are satisfied that this harm is serious. We are satisfied that Mr. Kassa’s conduct in making those threats are criminal in nature. [Emphasis added.]

[24] The Board acknowledged that Dr. Morgan came to a different conclusion about the appellant’s risk to public safety. The Board, however, preferred Dr. Pytyck’s conclusion, based on evidence of the appellant’s conduct over the past year (including two extended hospital admissions and threats to staff members), as well as the appellant’s behaviour during the hearing.

[25] The Board was not satisfied that the Community Treatment Order (“CTO”), that the appellant signed under the Mental Health Act, R.S.O. 1990, c. M.7, would mitigate his risk to public safety. It also stated there was no “air of reality” to a conditional discharge, noting that the appellant’s return to the hospital on two occasions in the past six months was only achieved through the existing detention order.

[26] Consequently, the Board ordered the appellant to be detained at a secure forensic unit at CAMH, with the person in charge having discretion to transfer him to a general forensic unit. Ontario Shores retained residual authority on the same terms. The appellant had transferred to CAMH by the time this appeal was heard.

C. ANALYSIS

(1) The Board did not err in basing its significant threat finding on the alleged verbal threats to staff members

[27] The appellant argues that the Board decision cannot stand for a few reasons. First, the appellant says that the Board erred in basing its significant threat finding on the alleged “threats” made to staff. Specifically, the appellant alleges the Board overstated the nature of the threatening behaviour, failed to properly consider other evidence material to the significant threat analysis, and thus did not conduct a proper Winko analysis.

[28] I disagree. The Board did not overstate the nature of the alleged threats. Verbal threats, bizarre voice messages, and intimidating behaviour were reported multiple times in the evidence. Moreover, the Board did not base its finding of significant risk solely on the verbal threats made to staff. The Board’s decision was also based on the appellant’s broader history and Dr. Pytyck’s evidence, which the Board accepted “without reservation”. Dr. Pytyck’s evidence detailed the following relevant factors for the significant threat analysis:

• if given an absolute discharge, the appellant would stop medication, continue abusing substances, become homeless, and rapidly deteriorate;

• the appellant’s use of synthetic cannabinoids has dramatically increased his psychotic symptoms;

• the appellant has limited insight to his use of substances and illness; and

• the appellant’s recent deterioration in his stability has resulted in hospitalizations of extended periods.

[29] The fact that the appellant’s situation was worsening was reflected in the need for both an addendum a month after the 2019 report, and then a further update from Dr. Pytyck at the hearing a month after that. At the hearing, Dr. Pytyck testified that as recently as the week prior, the appellant had to be placed in intensive care on the secure forensic unit. This was because the appellant was “engaging in behaviours that the staff were having great deal of difficulty managing” and the appellant was “making them feel personally intimidated and … threatened.” The Board observed that it also had the benefit of seeing the appellant throughout the hearing:

Frequently, Mr. Kassa would laugh inappropriately during the evidence and in this panel’s opinion, it is simply more evidence of Mr. Kassa’s psychotic symptoms.

[30] The Board squarely addressed the fact that Dr. Pytyck and Dr. Morgan disagreed on the question of significant threat. The Board was entitled to prefer Dr. Pytyck’s evidence. While the addendum expressed that the appellant’s behaviours under the Board’s jurisdiction are best descried as “trivial or annoying”, this was qualified by the caveat that the appellant has received consistent antipsychotic treatment for a number of years. Dr. Pytyck referred to this caveat in her evidence and was cross-examined on this difference of opinion. Her testimony about the appellant’s recent deterioration was the most current information before the Board. It is also worth noting that Dr. Morgan stopped short of recommending an absolute discharge in the addendum, contrary to his recommendation in the 2018 hospital report. Given the evidence outlined above, I see no error in the Board preferring Dr. Pytyck’s opinion on whether the significant threat threshold was met.

[31] The Board properly instructed itself on the Winko threshold for significant threat. It also expressly considered this court’s decision in Kassa (Re), noting that “there must be more than a potential for harm.”

[32] In short, the Board based its decision on significant threat not only on the verbal threats, but the evidentiary record as a whole. It closely considered the difference between Dr. Pytyck and Dr. Morgan’s opinion. It also correctly considered the Winko test and applied it to the evidence which it accepted.

(2) The Board did not fail in exercising its inquisitorial function

[33] The appellant argues that the Board failed to exercise its inquisitorial duty to search out all available evidence pertaining to the factors in s. 672.54 of the Criminal Code, R.S.C., 1985, c. C-46. In particular, he says that the Board should have obtained the clinical notes relevant to the verbal threats described by Dr. Pytyck and sought Dr. Morgan’s testimony.

[34] Again, I do not agree. The Board’s duty to inquire “arises when additional information is necessary, in the Board’s view”: Palmer (Re), 2013 ONCA 475, 307 O.A.C. 322, at para. 23. When Dr. Pytyck testified about the threats and intimidation of staff members, the Board asked her multiple and specific questions about the nature of the threats. It is not clear why the clinical notes pertaining to the threats would be necessary or useful in these circumstances.

[35] The Board also directly considered the two diverging opinions as to whether the appellant posed a significant risk to public safety. Dr. Pytyck explained how her opinion differed from Dr. Morgan’s several times in her testimony. The Board clearly understood the nature of the divergence, as it explicitly quoted a portion of Dr. Morgan’s addendum that outlined the divergence, as follows:

It would appear that the primary issue is whether Mr. Kassa’s psychotically driven behaviours prior to coming under the Board — during episodes where his schizophrenia was completely untreated — are sufficiently serious in nature that it can be determined with certainty that Mr. Kassa remains a significant threat as defined in law. These behaviours are listed on pages 46 and 47 of his ORB report.

[36] Pages 46 and 47 of the hospital report describe instances of his pre-index offence conduct, such as setting fires, dangerous driving, and throwing items off a balcony. In these circumstances, the Board had sufficient information to appreciate the difference of opinion and determine which one it preferred. It accepted Dr. Pytyck’s opinion without reservation. In doing so, as I have already discussed, the Board was required to consider Dr. Morgan’s opinion and the appellant’s criminal and psychiatric history as a whole. It did so, based on an extensive evidentiary record, and it was entitled accept Dr. Pytyck’s evidence without calling Dr. Morgan to testify.

[37] As outlined earlier, Dr. Pytyck’s evidence as to the verbal threats was only one element of the significant threat analysis. I see no basis for the appellant’s claim that the Board should have required the clinical notes or Dr. Morgan’s testimony. The Board had the necessary and relevant information to determine whether the appellant constituted a significant threat to public safety.

(3) The Board did not err with respect to the CTO

[38] The appellant’s final argument is that the Board unreasonably concluded that the civil mental health system could not mitigate any risk that the appellant would fall away from treatment in the context of either an absolute discharge or a conditional discharge. I see no merit to this ground of appeal.

[39] The Board was aware of and explicitly considered the CTO, which was filed as an exhibit. It was advised at the start of the hearing that the appellant had signed a CTO that was valid until January 2020, unless the appellant revoked his consent. During the hearing, the Chairperson confirmed that the appellant was capable and could therefore revoke his consent to the CTO at any time. In its reasons, the Board stated:

We are mindful of the evidence that Mr. Kassa has entered into a Community Treatment Order.

That fact does not give this panel any comfort. Mr. Kassa is capable of making treatment decisions. This Community Treatment Order terminates January 1, 2020. Mr. Kassa has no obligation to renew that Community Treatment Order. In fact, Mr. Kassa as a capable patient, has the right to terminate the terms of the Community Treatment Order at any time.

There was evidence that the civil mental health system would not be useful for the appellant, given his lack of housing and community supports, as well as his substance abuse issues. In particular, the 2019 hospital report stated that the “Mental Health Act would not be sufficient to keep Mr. Kassa in hospital long enough to fully stabilize him or to organize appropriate resources to manage him in the community, given his tendency to rapidly return to his usual psychiatric baseline.” Furthermore, the addendum stated that:

Mr. Kassa pays no heed to the terms of his Disposition. He wantonly uses substances, disregards requests to return to hospital, and elopes from hospital whenever he feels the desire to do so. He is unmotivated to address these risk factors and as such, we anticipate that, for the time being, Mr. Kassa will remain on a highly supervised forensic unit without access to indirectly supervised privileges.

[40] The Board specifically accepted Dr. Pytyck’s evidence that it is “absolutely necessary” that the appellant be subject to a detention order, noting that there was no “air of reality” to a conditional discharge. As the Board noted, on at least two occasions in the previous six months, the appellant’s return to the hospital had been achieved only because he was subject to a detention order.

[41] I see no misapprehension in the Board’s treatment of this issue as the appellant submits. The Board is an expert tribunal and is presumed to be well aware of the mechanisms under the Mental Health Act. Absent some evidence that the Board truly misunderstood how to enforce the order, there is no basis to find that the Board misapprehended the consequences of a revocation of consent. In this case, none of the parties, including the appellant, focused on the community treatment order during the hearing. It did not figure prominently into the hearing and was not central to the decision.

D. disposition

[42] Read as a whole, the Board’s reasons are reasonable and disclose no error or misapprehension that could warrant allowing the appeal. I would dismiss the appeal.

Released: September 1, 2020

“D.W.”

“A. Harvison Young J.A.”

“I agree David Watt J.A.”

“I agree Gary Trotter J.A.”