COURT OF APPEAL FOR ONTARIO

CITATION: Skeene (Re), 2020 ONCA 661

DATE: 20201020

DOCKET: C67771

Doherty, van Rensburg and Trotter JJ.A.

IN THE MATTER OF: Kwasi Skeene

AN APPEAL UNDER PART XX.1 OF THE CODE

Anita Szigeti, for the appellant

Karen Papadopoulos, for the respondent, Attorney General of Ontario

Heard: October 2, 2020 by video conference

On appeal from the disposition of the Ontario Review Board, dated October 30, 2019, with reasons dated November 26, 2019.

REASONS FOR DECISION

A. Overview

[1] The appellant Kwasi Skeene appeals from the disposition of the Ontario Review Board (the “Board”) dated October 30, 2019 that renewed his conditional discharge, with reduced conditions. He submits that the Board’s conclusion that he continues to pose a significant risk to public safety was unreasonable. He seeks an absolute discharge, or in the alternative that the matter be referred back to the Board for a re-hearing before a differently constituted panel.

[2] For the following reasons, we dismiss the appeal.

B. Background Facts

[3] Mr. Skeene was found not criminally responsible on account of mental disorder (“NCRMD”) on charges of second degree murder and assault with a weapon after he fatally stabbed his neighbour, Kenneth Brennan, and wounded Mr. Brennan’s son on March 5, 2004. At the time of his arrest Mr. Skeene was acutely psychotic. He had not been compliant with his medication for schizophrenia and he was under the influence of cannabis.

[4] Mr. Skeene has been under the jurisdiction of the Board for more than 16 years.

[5] He was initially remanded to the Centre for Addiction and Mental Health (“CAMH”) following his NCRMD finding on September 8, 2004. He was discharged to live in the community on five occasions between 2007 and 2012, however in each instance Mr. Skeene was readmitted after substance use, which was usually followed by decompensation. From January 2013 to December 2014, Mr. Skeene’s mental state declined, with two periods in which he was declared incapable of consenting to treatment. In November 2014, he lit a fire while in a seclusion room at CAMH. Due to the deterioration in Mr. Skeene’s mental condition, he was transferred to the secure forensic unit at the Waypoint Centre for Mental Health Care (“Waypoint”) on December 24, 2014. After 13 months without any significant incident, Mr. Skeene was transferred to the secure forensic unit and eventually to the general forensic unit at St. Joseph’s Healthcare Hamilton (the “Hospital”).

[6] In December 2018 Mr. Skeene was discharged from the Hospital under a conditional discharge which required him to, among other things, live at a prescribed address in Hamilton, report weekly, refrain from the non-medical use of alcohol and drugs, submit to testing for same, and, on his consent, take treatment/medication as prescribed by the person in charge of the Hospital.

[7] Mr. Skeene’s current diagnoses are schizophrenia, substance use disorder (in remission in a controlled setting), and antisocial and narcissistic personality traits. By the time of his annual Board hearing in October 2019, he had been stable for five years, with no notable incidents since he was transferred from CAMH to Waypoint in December 2014.

[8] At the time of the Board hearing Mr. Skeene had been living in the community for ten months in an independent apartment in Hamilton subsidized by the Good Shepherd HOMES Program, and he was fully compliant with the conditions of his discharge.

C. The Disposition under Appeal

[9] At his most recent Board hearing in October 2019, Mr. Skeene sought an absolute discharge, while the Attorney General and the Hospital sought to reduce the frequency of his reporting and add a provision permitting his travel to Trinidad and Tobago for up to 14 days.

[10] The Board considered the Hospital report that provided information concerning Mr. Skeene’s personal and mental health history, and his condition and behaviour while hospitalized and in the community, both prior to and after the index offences. The Board heard evidence from Dr. Nagari, who has been Mr. Skeene’s attending psychiatrist at the Hospital since February 2017, and from Mr. Skeene.

[11] The Board concluded that Mr. Skeene continued to pose a significant threat to public safety. The Board accepted Dr. Nagari’s opinion that Mr. Skeene remained a significant threat based on his firm refusal to engage with a non‑forensic community team when he refused to complete the application forms for IntAC (a community program for psychiatric services). The rejection of transitional assistance from a community team represented “a rejection of future supports required for successful community reintegration.” The Board observed that Mr. Skeene’s testimony that he could enable a referral to a community psychiatrist through his family physician “rings hollow” as no referral request had yet been made. The Board preferred Dr. Nagari’s contention that the refusal was demonstrative that Mr. Skeene had yet to develop sufficient insight into his illness and the ongoing need for treatment, which was buttressed by Mr. Skeene’s recent statements that he might ask his family physician to switch him to an oral antipsychotic medication. The Board noted that Mr. Skeene failed to appreciate that he would likely decompensate and become floridly psychotic within two weeks if he missed a monthly injection and within two days if he became non-compliant with oral medication.

[12] The Board’s conclusion on significant risk is summarized in its reasons (at p. 9) as follows:

Given the foregoing, the Board prefers the expert evidence of Dr. Nagari that, if granted an Absolute Discharge at this time, Mr. Skeene would ask his family physician to switch him from long-acting injectable medications to oral medications. Thereafter, Mr. Skeene would not take those medications regularly and would not reach out for assistance were he to experience signs of decompensation. Absent community monitoring services, Mr. Skeene would continue to decline and is highly likely to experience florid psychosis and exhibit the types of behaviours he has demonstrated in the past as serious as the index offence of murder.

D. The Legal Framework

[13] The threshold issue when an NCRMD accused comes before the Board is whether that person represents a significant threat to the safety of the public. In the absence of such a finding, the NCRMD accused must be discharged absolutely. There is no discretion to do otherwise: Criminal Code, R.S.C., 1985, c. C-46, s. 672.54(a); Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at paras. 33, 47-48; Carrick (Re), 2018 ONCA 752, at para. 34.

[14] A significant threat to the safety of the public means a real risk of physical or psychological harm to members of the public that is serious and that gives rise to serious criminal conduct. The threat must be more than speculative; it must be supported by evidence: Winko, at paras. 57, 62. There must be a “foreseeable and substantial risk” of harm to members of the public that is serious and beyond the trivial or annoying: R. v. Ferguson, 2010 ONCA 810, 264 C.C.C. (3d) 451, at para. 8.

[15] An absolute discharge cannot be denied on the basis that it is not in the individual’s best interests, including the risk that the individual will cease taking medication and that their condition will worsen, absent a finding of significant threat to public safety: Pellett (Re), 2017 ONCA 753, 139 O.R. (3d) 651, at para. 32.

[16] A 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 decision 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; R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 31.

E. Analysis

[17] The sole issue on this appeal is whether the Board’s conclusion in October 2019 that Mr. Skeene continued to pose a significant threat to public safety, is unreasonable. If we conclude that it is unreasonable, Mr. Skeene must be absolutely discharged.

[18] On behalf of Mr. Skeene, Ms. Szigeti makes two central arguments in support of her contention that the refusal of an absolute discharge was unreasonable. First, she submits that the Board did not treat Mr. Skeene’s evidence fairly and did not conduct an even-handed analysis of that evidence when put against the evidence of Dr. Nagari. Second, Ms. Szigeti asserts that the Board wrongly allowed its concerns about Mr. Skeene’s lack of insight to dominate its analysis of the issue of significant threat.

[19] The Attorney General submits that the Board’s conclusion on the significant threat issue was reasonable. It was fully supported by the evidence, and there was no error in the Board’s approach to the evidence or to the question of Mr. Skeene’s insight.

[20] We deal with the appellant’s arguments in turn.

(1) The Board’s Treatment of Mr. Skeene’s Evidence

[21] Ms. Szigeti submits that the Board ignored the evidence of Mr. Skeene’s significant progress, including his five years without incident, and ten months of successful living in the community. She asserts that the Board’s summary of Mr. Skeene’s evidence was unfair and incomplete, and that the Board ignored the critical points on which Mr. Skeene testified, relating to his insight into the seriousness of his mental illness, the need to abstain from substances, and his ongoing need for medication and to have a community psychiatrist.

[22] We disagree.

[23] At the hearing, the Board recognized that Mr. Skeene had done well in the community during the preceding ten months, and that he had complied with all reporting and other requirements, including abstaining from alcohol and drugs. Dr. Nagari emphasized Mr. Skeene’s progress in his evidence.

[24] Mr. Skeene confirmed that he would remain compliant with his medication if he were discharged absolutely, and that, although he had a history of substance use, he would not return to using cannabis. The issue that was squarely before the Board however was whether, notwithstanding these assertions, and Mr. Skeene’s progress during the reporting year, he would remain compliant with his medication if he were to receive an absolute discharge. Compliance was necessary in order to avoid the trajectory that Dr. Nagari had predicted, of missed medication, followed by decompensation, and conduct as serious as that which occurred in the index offences. This trajectory was supported by the psychiatric evidence, the circumstances of the index offences, and Mr. Skeene’s history both before the index offences (when he was non-compliant with medication) and under the jurisdiction of the Board (when he was repeatedly discharged and readmitted after relapses into substance use and symptoms). In other words, there was ample evidence that if Mr. Skeene were to become non-compliant with his medication, he would pose a significant threat to public safety. The Hospital considered it necessary and appropriate to address the risk of non-compliance by having Mr. Skeene followed by a community team, including a case manager who could assess his mental status and ensure his ready access to the services of a psychiatrist on the team as required.

[25] While the Board did not summarize all of Mr. Skeene’s evidence, it referred fairly and accurately to his evidence on the key issue before it: the likelihood that he would remain compliant with his medication if he were to obtain an absolute discharge.

[26] The Board referred to Mr. Skeene’s evidence that he would remain compliant with treatment following an absolute discharge, that he would continue to see Dr. Nagari for as long as necessary, and that he prefers to receive medications by mouth because he feels injections are invasive and painful and require a rigid schedule of injection dates. As for his rejection of a referral to IntAC, the Board referred to Mr. Skeene’s evidence that he recognizes that he will need psychiatric follow up in the community but that he does not need a case manager, that he does not want to be bonded to a team in order to live in the community, and that he proposes the option of a referral to a community psychiatrist by his family physician.

[27] Ms. Szigeti submits that the Board failed to grapple with a misunderstanding about Mr. Skeene’s intention to follow up with psychiatric care in the community and about the role of a case manager. As we read the evidence, any misunderstanding was more apparent than real.

[28] While Mr. Skeene, at one time, may have misunderstood the role of the IntAC case manager, it was made clear, both by his treatment team (as Dr. Nagari explained) and at the Board hearing, that the case manager would check on his mental status and act as a liaison to the psychiatric team. Mr. Skeene was not prepared to accept such oversight or monitoring. Rather, he did not want to be “bonded to a team”, which he regarded as a form of control. He recognized that he needed a community psychiatrist “for medication and that’s about it”. He thought that he could manage very well with a doctor who would assess him, and he “[didn’t] want to be caught up in anything rigid”: Transcript, at pp. 74, 80-83.

[29] In Sim (Re), 2019 ONCA 719, a case relied on by Ms. Szigeti, this court observed that the Board’s evidentiary analysis was inadequate because its conclusion that Mr. Sim did not believe that substance use would have a significant impact on his mental health was based on a statement from the hospital record that was selectively quoted, and the Board failed to address Mr. Sim’s evidence on this point at the hearing. The Board did not explain why it preferred the evidence of the attending psychiatrist to that of Mr. Sim on this point: at paras. 26-27, 30.

[30] Here, by contrast, the Board did consider the relevant evidence offered by Mr. Skeene on the central question – whether his risk of non-compliance with medication could be managed in the community. The Board adverted to Mr. Skeene’s reasons for rejecting community support and reasonably concluded that his plan to be followed by a community psychiatrist after a referral from his family doctor was insufficient. This was not, as his counsel suggests, simply a disagreement about the path forward where reasonable people can disagree. The Board was entitled, as it did, to accept the opinion of Mr. Skeene’s forensic team, including Dr. Nagari, that community monitoring services would be required to address Mr. Skeene’s risk of non-compliance with medication and the significant threat he poses to public safety.

(2) The Board’s Treatment of the Issue of Mr. Skeene’s Insight

[31] Ms. Szigeti also submits that the Board unreasonably concluded that Mr. Skeene was lacking insight and gave this factor too much weight in its analysis.

[32] While lack of insight is not itself a basis to deny an absolute discharge, whether an NCRMD accused has insight into his or her mental illness, and the extent of such insight, are part of the analysis in determining if there is a significant threat to the safety of the public: Kalra (Re), 2018 ONCA 833, at para. 52. Lack of insight has its place in the overall clinical picture, but it must not dominate the significant threat analysis, and it alone cannot form the basis for indeterminate detention under Part XX.1 of the Criminal Code: Woods (Re), 2019 ONCA 87, at para. 17.

[33] The Board did not deny Mr. Skeene an absolute discharge because of his lack of insight, nor did the question of his insight overwhelm or dominate the significant threat analysis. His lack of insight however did have a role to play in the significant threat analysis, particularly since the contemplated harm to public safety, if Mr. Skeene were to become non-compliant with his medications, is at the very serious end of the spectrum.

[34] While Mr. Skeene recognizes that he has schizophrenia and he has developed insight into the need to abstain from alcohol and drugs, at the time of the most recent Board hearing he was lacking insight into the consequences if he were to stop taking his medication and his need for support. Dr. Nagari testified, and the Board agreed, that Mr. Skeene’s refusal of the IntAC referral because he felt it was another mechanism to control him indicated that he had yet to develop full insight into his illness and the ongoing need for treatment: at pp. 5, 9. The Board noted Dr. Nagari’s observation that Mr. Skeene accepts that he suffers from schizophrenia but that he does not appreciate the level of support he continues to need or how his symptoms would re-emerge if he were to discontinue his prescribed medications: at p. 6. Indeed, at the Board hearing, Mr. Skeene asserted that it was unfair and speculative to assume “when somebody has a relapse or [is] floridly psychotic, they’re just going to act out violently” (Transcript, at p. 79) and, when asked what would happen if he were off his medication for a week, he responded “I don’t know” (Transcript, at p. 91).

[35] We see no error in the Board’s treatment of the issue of insight in this case as it helped shape the overall clinical picture but did not dominate the analysis of significant harm. Whether Mr. Skeene would be able to independently manage the risk of missing his medication that would lead to the predicted trajectory of decompensation and violent behaviour, without the assistance of a community psychiatric team, would depend at least in part on his having insight into his vulnerability to becoming unwell.

(3) The Board’s Disposition Is Reasonable

[36] The Board’s most recent disposition, denying an absolute discharge, based on its conclusion that Mr. Skeene remains a significant threat to public safety, is reasonable.

[37] Mr. Skeene made important strides in the five years preceding the most recent Board hearing, and in particular in his ten months living in the community. He has abstained from alcohol and drugs, coming to recognize the risks if he were to use cannabis. Mr. Skeene’s mental illness is well-controlled by his anti-psychotic medication, without which there is a significant risk of very serious harm to public safety such as occurred in connection with the index offences. The Board’s focus accordingly was on the risk that Mr. Skeene would not take his medication, notwithstanding his assurances that he would do so, and the consequences that would likely follow. The Board reasonably concluded that the risk of non-compliance with medication was not sufficiently mitigated by Mr. Skeene’s being followed by a community psychiatrist. He required a team that would be able to assist with monitoring symptoms and accessing psychiatric services quickly, if needed, between scheduled appointments with a psychiatrist. Mr. Skeene’s expressed preference for oral medication – which would mean that he would need to take the medication by mouth each day, rather than relying on a long-lasting injection – created concern, as did his reluctance to accept supervision. These concerns, combined with evidence that Mr. Skeene may be overestimating his ability to cope independently with his mental illness, support the Board’s conclusion that an absolute discharge would create a risk of non-compliance with medication that would lead to a significant threat to public safety.

(4) Removal of Condition 1 (c)

[38] The Board’s reasons indicate that, in addition to accepting the changes put forward by the Hospital and supported by the Attorney General (reducing Mr. Skeene’s reporting to once every two weeks and permitting indirectly supervised travel to Trinidad and Tobago for up to 14 days), the Board struck para. 1(c) of the existing disposition (the condition that Mr. Skeene abstain absolutely from the non-medical use of alcohol or drugs or any other intoxicant), in order to assess whether absent any directed prohibition, he would continue to abstain from the non-medical use of alcohol or drugs while residing in the community. Unfortunately, condition 1(c) continues to appear in the current formal order of the Board, and, on the consent of the parties, will need to be removed.

F. Conclusion

[39] For these reasons, we conclude that the Board’s disposition of October 30, 2019, based on its conclusion that Mr. Skeene continued to pose a significant risk to public safety, is reasonable. The disposition is amended to remove condition 1(c). In all other respects, the disposition will remain the same and the appeal is accordingly dismissed.

“Doherty J.A.”

“K. van Rensburg J.A.”

“Gary Trotter J.A.”