Court of Appeal for Ontario

Date: 2024-03-21 Docket: COA-23-CR-0863

Judges: MacPherson, Sossin and Copeland JJ.A.

In the Matter of: Akil Skeete An Appeal Under Part XX.1 of the Code

Counsel: Shannon Darby, for the appellant Akshay Aurora, for the respondent Attorney General of Ontario Jessica Szabo, for the respondent Person in Charge of Ontario Shores Centre for Mental Health Sciences

Heard: February 22, 2024

On appeal from the disposition of the Ontario Review Board, dated May 10, 2023, with reasons dated May 23, 2023.

Reasons for Decision

[1] The appellant, Akil Skeete, has been under the jurisdiction of the Ontario Review Board (“ORB”) since 2015. In December 2015, the appellant was found not criminally responsible on account of a mental disorder on a charge of aggravated assault. The appellant had stabbed a male roommate, unprovoked, repeatedly with a kitchen knife.

[2] Following this disposition, the appellant was detained at Ontario Shores Centre for Mental Health Sciences (“Ontario Shores”) for several years.

[3] In September 2021, the appellant moved to community living in McKay House, a 24-hour supervised home operated by Durham Mental Health Services (“DMHS”).

[4] In March 2022, the appellant was readmitted to Ontario Shores after an incident at McKay House. He had sex with a co-resident at the home that he said was consensual. The co-resident alleged the sexual encounter was coerced and non-consensual. The police were involved. DHMS banned him from returning to its community housing.

[5] At the annual review hearing in May 2023, the Ontario Shores medical team recommended that the appellant be transferred to the Centre for Addiction and Mental Health (“CAMH”) in Toronto.

[6] A majority (four members) of the ORB panel agreed with the Ontario Shores medical team’s recommendation. A minority (one member) disagreed and favoured keeping the appellant at the Ontario Shores facility.

[7] The appellant does not challenge the component of the ORB’s order that continues his detention. He does challenge the component of the order that would transfer him from Ontario Shores to CAMH.

[8] The leading case dealing with the standard of review of ORB decisions is R. v. Owen, 2003 SCC 33. In Owen, the court said that the ORB’s findings are reviewed on a reasonableness standard. If the ORB’s decision falls within a range of reasonable outcomes, it is entitled to deference, absent an error in law or a miscarriage of justice: at para. 31. The test for reasonableness is whether the ORB’s disposition order is supported by reasons that can bear an even “somewhat probing” examination: at para. 33.

[9] The ORB majority relied heavily on the testimony of the appellant’s treating psychiatrist at Ontario Shores, Dr. J. Pytyck, who favoured a transfer to CAMH because it offers a sexual behaviour clinic that is not available at Ontario Shores. According to Dr. Pytyck, many of the appellant’s problems are rooted in his hypersexuality and a pattern of concerning behaviour towards others, particularly those who are more vulnerable. The ORB majority found that Ontario Shores has tried, but failed, to address these issues through therapies and psychoeducation. Accordingly, the ORB majority concluded the “expertise of CAMH’s sexual behaviour clinic, including a fresh analysis, and ready resources, satisfy the Board that would enhance Mr. Skeete’s potential positive trajectory while potentially protecting the public.”

[10] In our view, this analysis and conclusion easily come within the reasonableness framework enunciated by the Supreme Court of Canada in Owen. Accordingly, the appeal is dismissed.

“J.C. MacPherson J.A.”

“L. Sossin J.A.”

“J. Copeland J.A.”