Court of Appeal for Ontario

Date: 2024-01-03 Docket: COA-23-CR-0549

Simmons, van Rensburg and George JJ.A.

In the Matter of: Biko Miguna

An Appeal Under Part XX.1 of the Code

Counsel: Anita Szigeti, for the appellant Samuel Mazzuca, for the respondent Attorney General of Ontario Leisha Senko, for the respondent Person in Charge of the Centre for Addiction and Mental Health

Heard: November 9, 2023

On appeal from the disposition of the Ontario Review Board, dated April 26, 2023, with reasons dated May 19, 2023.

Reasons for Decision

[1] The appellant appeals from an initial disposition of the Ontario Review Board ordering that he be conditionally discharged. He raises a single issue on appeal, namely, that the Board erred in finding that he poses a significant threat to the safety of the public and therefore in failing to grant him an absolute discharge.

[2] For the reasons that follow, we dismiss the appeal.

Background

[3] The appellant is a 27-year-old man who has been diagnosed with both schizophrenia and cannabis use disorder, the latter in remission.

[4] On April 5, 2022, the appellant was found not criminally responsible on account of mental disorder (“NCR”) with respect to six counts of sexual assault. The charges arose from five incidents that occurred on June 9, 2018, and one incident that occurred on October 18, 2018.

[5] The five June 9, 2018, offences occurred while the appellant was riding a bus and then a subway train during the afternoon commute. Within a span of a little more than 27 minutes, the appellant kissed two of the five female victims on the lips and also grabbed, or attempted to grab, the other three victims by their arms, and attempted to kiss each of them. He was persistent in his efforts but was eventually pinned down by bystanders and ultimately arrested by the police. The appellant subsequently reported hearing voices insisting that he kiss the victims.

[6] The sixth offence occurred around 1:15 a.m. on October 18, 2018. The appellant approached the female victim who was walking her dog. He initially asked her for directions but soon became verbally aggressive, asking if he could kiss her and come to her place and have sex with her. The appellant grabbed the victim’s hands several times as she tried to get away. He also yelled to a bystander that the victim was his girlfriend and repeatedly called her Samantha or Sam, which was not her name. When the victim tried to run away, he pursued her, caught up with her, and grabbed her by the arms. The victim escaped only by kicking the appellant in the groin.

[7] The appellant was first detained and then hospitalized following the June 2018 offences. However, his parents arranged to have him released into their care [1].

[8] Following his arrest on October 18, 2018, the appellant was detained at the Toronto South Detention Centre. While in custody, he assaulted a female correctional officer and subsequently attempted to assault another. He was later hospitalized on two occasions. After being found unfit to stand trial in July 2019, he was admitted to the Centre for Addiction and Mental Health (“CAMH”) on a treatment order.

[9] Eventually, the appellant was stabilized and found fit to stand trial following treatment with a long-acting injectable drug and another drug taken orally each day. On November 15, 2019, he was released on bail with his parents and his sister acting as sureties. He remained on bail until, and following, the April 2022 NCR finding. At the request of the appellant’s counsel, the court ordered a risk assessment to facilitate making a Disposition. A forensic psychiatrist, Dr. Eid, conducted the assessment in June 2022. On August 23, 2022, the presiding judge held she could not readily make a Disposition. She therefore referred the matter to the Board.

[10] While on bail, the appellant was subject to strict conditions that required that he live with his mother and be in the presence of one of his sureties at all times when outside the home. Following his release on bail, he worked in his father's law office. Subsequently, he obtained, and maintained, employment in customer service with a bank, which he is able to do from home.

The Evidence before the Board

[11] The evidence before the Board included the Hospital Report from CAMH (which, in this case, appears to consist essentially of a Board-ordered risk assessment referred to below), corrections to it prepared by the appellant, and testimony from Dr. Wilkie, a CAMH psychiatrist who assessed the appellant both in connection with the NCR finding and as part of a Board-ordered risk assessment prepared in anticipation of the Board’s initial disposition hearing (the “Risk Assessment”). The evidence also included a letter from Dr. Lo, a psychiatrist with Across Boundaries Ethnoracial Mental Health Centre, an organization that took over the appellant’s out-patient care in September 2020. One Victim Impact Statement was filed, and the Board also had available to it all material filed in connection with the appellant’s NCR hearing, including Dr. Eid’s June 20, 2022, risk assessment report. Both of the appellant’s parents testified.

[12] Dr. Wilkie opined, in her evidence, that the appellant is a significant threat to the safety of the public. The Risk Assessment reached the same conclusion. Dr. Wilkie’s opinion and the Risk Assessment were based on several factors, which included:

• the appellant’s psychotic mental illness;
• when symptomatic, the appellant had experienced delusions, including command auditory hallucinations, persecutory and grandiose delusions, paranoia, and aggression;
• when ill, the appellant had perpetrated sexual and physical assaults against women, which included not only the index offences but also conduct directed at correctional officers and fellow patients while detained or hospitalized;
• when ill, the appellant’s safe management had, in the past, required the use of isolation and chemical and/or physical restraints;
• the appellant’s history of cannabis use, which had, in the past, exacerbated the symptoms of his psychotic illness;
• the appellant’s history of inconsistent medication compliance while living in the community in the past, prior to his more recent history of compliance while living with his mother under restrictive bail conditions that did not permit independent access to the community;
• although the appellant possessed a low level of psychopathic traits and his static risk factors placed him in a low-moderate risk category for violent re- offending on the Sex Offender Risk Appraisal Guide, he was in a well-above-average risk for sexual reoffence on the Static-99R.

[13] Further, Dr. Wilkie opined that, if given an absolute discharge, the appellant would face stressors likely to destabilize him and interfere with his medication compliance and abstinence from substances – leading, in turn, to a real risk of decompensation, re-emergence of psychotic symptoms and a high risk of engaging in sexual offences and other criminal behaviour. These stressors would arise from unsupervised interactions in the community. In her opinion, the appellant requires forensic support to monitor him and to put in place a risk management plan. Both she and the Hospital Report recommended a detention order with community living privileges.

[14] In his letter filed with the Board, Dr. Lo explained that he had been informed of the CAMH risk assessment indicating that the appellant still presents a significant risk and recommending detention with community living privileges. He said he could not understand the “grounds for such a conclusion”, noting that the appellant had complied with his treatment throughout the period Dr. Lo had known him, had developed good insight into his mental health condition and was “accepting of the necessary treatment.” Dr. Lo also stated that Across Boundaries would be continuing with regular psychiatric follow-up and case management.

[15] The appellant's parents both confirmed their son's voluntary medication compliance and their willingness to seek help on his behalf should he become non-compliant.

The Board’s Reasons

[16] The Board found that the appellant poses a significant threat to the safety of the public based on the expert evidence in the Risk Assessment contained in the Hospital Report and from Dr. Wilkie. They noted that his index offences were directly linked to his active psychotic symptoms and stated, “we reasonably conclude that his behaviours at that time caused significant psychological harm to the victim(s).”

[17] The Board found that the appellant's insight has fluctuated and that while he currently reports that he accepts the importance of medication and mental health supports, “this is a relatively recent change in attitude”. The Board stated that it would be important to monitor that such attitudes remain sustained over time and in the context of exposure to destabilizers and increased independence in the community.

[18] Taking account of the Risk Assessment, history of treatment non-compliance while not subject to orders or supervision and limited insight into the factors that would be part of a risk management plan, the Board also found “a foreseeable and substantial risk that [the appellant] would be likely to engage in further criminal behaviours if discharged absolutely” at that time.

[19] The Board’s disposition includes conditions that the appellant continue to reside with his mother, report to the person in charge of CAMH not less than every two weeks and submit samples of his urine and/or breath, and participate in a program of rehabilitation created by CAMH.

Discussion

[20] The appellant submits that the Board's finding that he meets the significant threat threshold is unreasonable.

[21] He emphasizes that the significant threat test imposes a high threshold requiring “a foreseeable and substantial risk of physical or psychological harm to members of the public that is serious and beyond the trivial or annoying.” A very small risk of even grave harm will not suffice. Nor will a high risk of relatively trivial harm. There must be a risk that an NCR accused will commit a “serious criminal offence”: R. v. Ferguson, 2010 ONCA 810, 264 C.C.C. (3d) 451, at para. 8.

[22] Given that he had been stable in the community for three-and-a-half years, the appellant contends that the evidence in this case was simply not capable of meeting the high threshold required by the significant threat test.

[23] The evidence was clear that, since being placed on a new medication regime in 2019, the appellant had been medication compliant and had not experienced any symptoms of psychosis. Whereas medications he had been prescribed prior to the index offences had caused side effects and led to non-compliance, he had not complained of any side effects from his new medication. He had not asked to stop taking medication or even reduce the dosage. He had also developed insight into the nature of his illness and the need for medication. Further, the appellant had complied with all conditions of his strict bail and had sustained cannabis abstinence since shortly before the 2018 index offences.

[24] In addition, the appellant contends that, even when acutely unwell, he was never seriously violent in the community such that any risk he poses could meet the “serious criminal offence” standard.

[25] The appellant also argues that the Board erred in its analysis in the following significant ways:

• by mischaracterizing the evidence concerning the appellant’s insight by saying that it fluctuated when the evidence was clear that his insight had done nothing but improve over time;
• by allowing lack of insight to dominate its analysis; and
• by applying the wrong standard “likely to engage in further criminal behaviours” when the proper standard requires a risk of committing a “serious criminal offence” with a potential for harm “that is serious”.

[26] We do not accept these submissions.

[27] We acknowledge the importance of the fact that the appellant has been stable in the community and apparently medication-compliant for a significant period of time.

[28] Nonetheless, we are satisfied that it was open to the Board to find that the appellant met the significant threat threshold based on a number of factors. These factors include: the nature of the appellant's mental illness, the manner in which the appellant acted out when destabilized, the appellant’s past history of cannabis use and medication non-compliance while unsupervised, the close supervision to which the appellant had been subjected during the past three-and-a-half years, the recency of the appellant’s developing insight into his mental illness and the need for medication, and the opinions expressed by Dr. Wilkie and in the Hospital Report concerning the appellant’s risk of reoffence.

[29] Concerning the issue of the appellant’s insight, we reject the appellant’s argument that the Board mischaracterized the evidence when it said the appellant’s insight “has fluctuated”. In June 2022, the appellant told Dr. Eid that he “could easily go on without medications” and that if he stopped taking medications, his symptoms “wouldn’t come back”. He also told Dr. Eid that he no longer required the Board’s supervision or further psychiatric care or support. He indicated instead that he was continuing to see his psychiatrist and case worker “to take part in the court process, because it’s been recommended.”

[30] Although the appellant had more recently acknowledged the need for medication and mental health supports to Dr. Wilkie, we do not accept that use of the term “fluctuated” constituted any form of error or misapprehension of the evidence. Read fairly, the Board’s statement that the appellant’s insight has fluctuated was a reasonable observation that the appellant’s insight was recent and inconsistent with his position in the past.

[31] Moreover, we do not accept that the Board’s analysis was dominated by the lack of insight issue. Equally critical to the Board’s conclusion were the Risk Assessment conclusion that if granted an absolute discharge, the appellant’s risk of a future sexual offence would be high and the Board’s review of Dr. Wilkie’s evidence indicating that if granted an absolute discharge, the appellant would be confronted with stressors that would likely destabilize him and interfere with his medication compliance leading to decompensation and re-emergence of his psychotic symptoms.

[32] Similarly, we reject the appellant’s argument that the Board applied the wrong standard when it referred to the risk of the appellant engaging in further “criminal behaviours”. The impugned statement appears in a paragraph of the Board’s reasons where it noted that the Risk Assessment had concluded that the risk of future sexual offence would be high if the appellant was granted an absolute discharge. Considered in context, the Board was not speaking to a risk of the appellant engaging in criminal behaviour that was “merely trivial or annoying” but rather to the risk of the appellant committing a serious criminal offence in the form of a sexual assault.

[33] At least some, if not all, of the index offences met the standard of being serious criminal offence(s) creating a risk of serious harm. Grabbing women’s arms and faces aggressively and kissing them or attempting to kiss them against their will and engaging in such behaviour persistently and against multiple victims such that bystander(s) would intervene constitutes serious criminal behaviour creating a risk of psychological harm to the victims. Moreover, the October 2018 index offence was patently a serious criminal offence.

[34] No doubt the appellant’s stability for a significant period of time while on restrictive bail conditions provides considerable reason for optimism that he will remain stable as the conditions limiting his unsupervised access to the community are lifted with the benefit of the ongoing support provided in the terms of the conditional discharge. If that is the case, the issue of an absolute discharge can be revisited at a future hearing.

Disposition

[35] Based on the foregoing reasons, the appeal is dismissed.

“Janet Simmons J.A.”

“K. van Rensburg J.A.”

“J. George J.A.”

Footnotes

[1] The appellants’ parents’ relationship ended when he was three years old. He and his sister lived with their mother while growing up. Nonetheless, it is undisputed that both parents are supportive of the appellant.