Ontario Review Board
Re: Kenese D. Rae
ORB File No: 5775
Hearing held on: Monday, January 20, 2025
Place of hearing: Thunder Bay Regional Health Sciences Centre
Pursuant to: Section 672.81(1) and 672.81(2.1) of the Criminal Code
Before:
Alternate Chairperson: Mr. J. Goldenberg
Members: The Hon. E. Kruzick
Dr. G. Eayrs
Dr. M. Green
Mr. A. Mete
Parties Appearing:
Accused: Kenese D. Rae
Counsel: Mr. U. Agostino
The Person in charge of Hospital: Representative: Ms. M. Davidson
Attorney General of Ontario: Counsel: Ms. S. Frenette
REASONS FOR DECISION AND DISPOSITION
(Dated February 26, 2025)
Introduction:
Kenese Rae was found not criminally responsible (NCR) on December 20, 2010 on charges of failing to comply with condition of undertaking, utter a threat to cause death or bodily harm, assault and killing or injuring animals other than cattle all under the Criminal Code of Canada (Criminal Code). He is currently subject to an Ontario Review Board (ORB or Board) disposition of February 1 2024 which detains him at the Secure Forensic Unit of the Thunder Bay Regional Health Science Centre, Thunder Bay (the hospital or TBRHSC) with privileges up to and including to live in the community in accommodation approved by the person in charge.
On January 20, 2025 the Ontario Review Board convened at the hospital to conduct Mr. Rae’s annual review. Mr. Rae attended in person and was represented by his counsel, Mr. Agostino.
By way of a letter dated December 9 2024 the Board was informed by the hospital that there has been a significant restriction of Mr. Rae’s liberty for a period exceeding 7 days. The ORB responded on December 10, 2024 with its confirming that it would schedule a restriction of liberty (ROL) hearing pursuant to s. 672.81(2) of the Criminal Code. Mr. Rae was admitted to hospital on November 30, 2024 and, at the time of this hearing, he continued to be detained in the hospital.
Position of the Parties
At the outset of the hearing the parties were canvassed as to their preliminary positions. Ms. Davidson, on behalf of the hospital and Ms. Frenette, counsel for the Attorney General submitted that Mr. Rae continues to be a significant threat to the safety of the public and the disposition as made last year should continue with no change in the terms and conditions. Furthermore, the hospital and counsel for the Attorney General informed the Board of their positions on the ROL, stating that Mr. Rae’s restriction of liberty is necessary, reasonable and warranted.
On behalf of Mr. Rae, Mr. Agostino indicated that with respect to significant threat to the safety of the public and disposition he had no objections to the position of the hospital. With respect to the ROL, Mr. Agostino expressed that he took no position.
Issues at the Hearing
- The issues to be dealt with by the Board on this hearing were a review of Mr. Rae's disposition in accordance with section 672.81(1) of the Criminal Code to determine if Mr. Rae poses a significant threat to the safety of the public, and if so, what is the necessary and appropriate disposition in the circumstances. Secondly, on the restriction of liberties hearing, pursuant to section 672.81(2.1) the issue to be determined was whether there was a restriction of Mr. Rae’s liberty and whether the restriction was necessary, reasonable and warranted.
Findings
- For the Reasons that follow, the panel found that the threshold for significant threat is met, and that the necessary and appropriate disposition is a continuation of the current detention disposition. On the ROL the Board finds that, in the circumstances of this case, the restriction of Mr. Rae’s liberty was necessary, reasonable and warranted.
Index Offences
- The allegations giving rise to the index offences are set out in last year’s Disposition and summarized as follows:
“On October 16, 2010, Members of the Nishnawbe-Aski Police Service in Sioux Lookout
Ontario received information from the North Spirit Nursing Station that a mentally disturbed male had killed his dog and there is no available officer in the community to attend the residence to investigate. Sgt. Dodsworth contacted the members of the Sandy Lake detachment to attend North Spirit Lake and investigate the situation.
The accused lives with his father Danny RAE and siblings in North Spirit Lake Ontario.
He has a history of violence and is mentally unstable. He received a Form 1 on October 8, 2010 and was found that he was mentally fit and released.
INVESTIGATION:
Investigation reveals that during the 1st week of September the Accused Kenese RAE jabbed his fingers into the ribs of the victim 23-month-old Robbie KAKEGAMIC about 3 to 5 times, this was witnessed by Trustine RAE, the mother of the child. On October 16, 2010, the accused was at his residence with Trustine RAE and Geraldine RAE when the accused became angry with a local female that he believed to have a relationship with. The accused began to yell, swear and throw furniture around the house. The accused proceeded to grab the family dog and bring it outside, where he began to hit it with a rake. The dog was approximately 4 to 5 weeks old and succumbed to its injuries. Police observed the dog to have sustained multiple injuries to its head. Another victim, Geraldine RAE, states that less than a week ago the accused asked her if she wanted to die and then went on to say that ‘no, not you, it’s not your time right now.’
Police from Sandy Lake detachment attended the community of North Spirit Lake and arrested the accused for assault and cruelty to animals. During the time in custody, the accused stated to police that he has the feeling of being a bad boy again and he often thinks of murder and sex. Police read RTC and caution to charged person where the accused stated ‘no’ when asked if he would like to speak to a lawyer and he says he understands his caution. The accused was transported to the Sandy Lake Detachment where he was lodged pending WASH court on October 17, 2010, in Thunder Bay Ontario.
On October 9, 2010, the accused was released from custody by way of PTA OIC undertaking where the accused received a condition to keep the peace and be of good behaviour.”
Criminal History
- Mr. Rae has an extensive criminal history. From 2000 Mr. Rae’s criminal history includes convictions on four assaults, one assault with a weapon, one assault causing bodily harm by choking, 1 forcible confinement 1 arson 2 uttering threats 1 mischief under $5000 and 7 incidents of failing to comply with recognizance, undertaking or probation.
Background Information
Mr. Rae is a 41year old indigenous man. He was born in Sioux Lookout, Ontario, and raised in the community of North Spirit Lake.
Before the index offence, and commencing in or about 2006, Mr. Rae has had three psychiatric hospitalizations. In addition, he has a number of psychiatric assessments; most of these were as a result of the criminal activity an assaultive and aggressive behaviour.
An assessment at the Addiction Services Kenora, in August 2009, noted that Mr. Rae suffered from Polysubstance abuse. It is reported he began using alcohol at the age of 21. Mr. Rae started using cocaine as well as opiates, hallucinogens and inhalants at the age of 25. The assessment also noted that he was a heavy cannabis abuser.
The question at Mr. Rae’s court hearing with respect to assessment for criminal responsibility was whether Mr. Rae suffered from a major mental health illness of schizophrenia and/or suffered from a substance induce disorder.
Once Mr. Rae was detained at the Thunder Bay hospital following a court finding of being not criminally responsible (NCR), the diagnosis of schizophrenia was confirmed.
Current Diagnoses
- Pursuant to the Hospital Report, Mr. Rae’s diagnoses at the date of this hearing are:
Schizophrenia
Cannabis use disorder
Cocaine use disorder and,
Alcohol use disorder.
Evidence at the Hearing
The Hospital Report dated December 18, 2024 was made an exhibit at this hearing and as such constitute evidence at this hearing. Dr. Schubert, who co-authored the Hospital Report, testified orally and adopted the contents of the Hospital Report.
Dr. Schubert has been Mr. Rae’s psychiatrist for 15 years.
Since the last ORB hearing, on January 24, 2024, Mr. Rae continued to reside at the Forensic Inpatient Unit of the TBRHSC. On March 26, 2024, while on an indirectly supervised community access pass, Mr. Rae took an unauthorized leave of absence from the hospital (ULOA). Mr. Rae did not return to the unit.
On March 27, 2024 Mr. Rae’s mother informed the hospital that he had been drinking and gambling. On March 30, 2024 the police called the hospital with information that Mr. Rae was in custody. He was charged with being unlawfully at large and returned to the hospital with a release order.
On returning to the hospital in March, 2024 Mr. Rae was unkempt, malodorous and in need of a shower. He admitted to smoking “weed” and crack cocaine the evening before. His urine sample that day tested positive for cocaine and marijuana.
Dr. Schubert had a lengthy conversation with Mr. Rae in March, 2024 about his recurrent use of substances. Mr. Rae admitted to Dr. Schubert that he should likely stay in the hospital. According to Dr. Schubert, Mr. Rae seemed to admit that things were not going well for him.
On April 5, 2024 Mr. Rae was discharged into the community to reside with his partner, Kayla, and her three children.
As a result of the passing of his father, on April 24, 2024, Mr. Rae was granted a leave of absence to attend his father’s celebration of life which required travel to North Spirit Lake. Mr. Rae travelled with his partner and the children. During this absence he was in telephone contact with his case manager, Mr. McGuire. Mr. Rae reported to his case manager that while away he was compliant with his prescribed medication. When Mr. Rae and the family returned to Thunder Bay on April 30, 2024. Mr. Rae reported that he did not use drugs or alcohol during this absence. To the contrary, his urine screen on May 1, 2024 was positive for cannabinoids.
On Tuesday May 14, 2024, Mr. McGuire, his case manager met with Mr. Rae at the home. At that meeting Mr. Rae admitted to forgetting to take his prescribed medication on the weekend and admitted to using cocaine, marijuana and alcohol with a friend on the Saturday. On that occasion, Mr. Rae reported blacking out, sustaining a bruise to the right side of his torso and right leg. He did not remember what happened.
Mr. McGuire reported that during the home visit Mr. Rae’s partner and children were not in the house as a result of water backing up in the drain. Mr. Rae did not call the landlord about the plumbing problem as they were behind in rent and house was dirty and damaged. The following day Mr. Rae’s urine sample was positive for cannabis.
On May 16, 2024 Mr. McGuire followed up with a phone call to Mr. Rae. His partner answered the phone and reported that Mr. Rae was out all night. She also said that he took the X-box and TV to pawn. That day he told his partner that he was going on the run. Thereafter the case manager attempted to make contact with Mr. Rae without success.
On May 23, 2024 Mr. Rae’s community living privileges were revoked. On June 2, 2024 Mr. Rae presented himself to the Forensic Inpatient Unit of the TBRHSC and was admitted back to the unit pursuant to the Detention Order.
The police attended at the hospital on March 24, 2024. Mr. Rae was charged with new charges for failure to comply with orders. In an interview with Dr. Schubert, the following day, he admitted to Dr. Schubert using cocaine, alcohol and cannabis. His urine samples were positive for tetra hydro cannabinol (THC). Dr. Schubert reported that once Mr. Rae was back on the unit at the hospital he settled quickly, as he usually does.
Mr. Rae was doing well in the hospital. He was granted indirectly supervised hospital and grounds access on June 20, 2024. On July 11, 2024 these were expanded to indirect supervised community access day passes. Mr. Rae used them to go home to visit his family and to help around the house.
During the Spring months, while residing in the hospital, Mr. Rae submitted 15 urine sample screenings for intoxicating substances. All the samples were negative except for the first two: on June 3rd, 2024 being positive for benzoylecgonine (cocaine metabolite), Phenacetin (used to “cut cocaine”) and on June 5, 2024 being positive for benzoylecgonine again.
On August 1, 2024 Mr. Rae was discharged once again to live with his family. While in the community he had ongoing follow up and monitoring through the Forensic Mental Health Outpatient Case Management Program.
During this period in the community, on August 4, 2024, while driving, Mr. Rae was arrested and then incarcerated at the Thunder Bay district jail. Mr. Rae was charged with failing to comply with the release order, for speeding, careless driving and driving with an open container of liquor. On August 29, 2024 all of the charges were withdrawn and Mr. Rae resumed living at home and doing well.
In mid-September 2024 Mr. Rae received government compensation for his Day School experience. Mr. Rae then voiced his intention to get married and wanting to get his life back on track by spending more time at home and looking after the children. He reported actively looking for employment. He was not successful and frustrated by this failed attempt.
In the Hospital Report, Dr. Schubert documented the following on November 20, 2024.
“Since Mr. Rae’s discharge on August 20th 2024 he did well through the month of September. However after receiving a $10,000 Residential Days School payment he went on several cocaine splurges. He had positive urine screens on October 2, 3, 8 and 24, 2024 for cocaine or cocaine metabolites, as well as October 24, 2024 was positive for THC. He tells me today he has also used cocaine this past Friday and Saturday and stayed out all night walking about. That was on November 1 and 2, 2024. He states he is now committed to stopping. He has spent the entire $10,000 he in fact had to return his wife's engagement ring that he purchased for $2000, he has pawned his PlayStation 5 and he subsequently lost his phone as well now using his wife’s phone”
On November 27, 2024 Mr. Rae’s case manager attended at the home because Mr. Rae was not returning Mr. McGuire’s phone calls. Mr. McGuire spoke to Mr. Rae’s partner. As a result of that visit, the case manager contacted Dilico Child and Family Services. In an email, Mr. McGuire recorded: “L. (Dilico worker) told me he (Mr. Rae) physically pushed her (Kayla) into wall to take the cell phone from her (Kayla) never told me this). The girls locked themselves in the bathroom scared.”
In November, 2024 the hospital team was of the opinion that Mr. Rae was putting the community at increased risk. Contact with Mr. Rae was once again lost. It was believed he had been removed from the home on the basis of Dilico’s determination. Mr. Rae was therefore without approved housing. On November 27, 2024, Mr. Rae’s privilege to live in the community was revoked and the police were notified.
On November 30, 2024, Mr. Rae attended the inpatient unit and was admitted. He was assessed by Dr. Schubert on December 2, 2024. Extracted from the Hospital Report, Dr. Schubert wrote:
“Mr. Rae was a bit teary and a bit downcast. He stated to me that he got into a fight with his partner on Friday evening after he drank a substantial amount of alcohol. He states he drank “a Mickey and a lot of beer.” He states he was very intoxicated he states that he got physical with her during the fight, “I got into a fight. I fought her a little bit, pushing and then punched her in the head.” When I asked him what else he may have done he stated, “I punched her more than one time, but I'm not sure how many.” He could not recall if she had been knocked down or if she was seriously injured or at all. At that point he left the house took her cell phone to sell to buy drugs. I asked where the children were during this time and he stated, “they were in their room.” He states he then went out on the street, sleeping in doorways and using the money to buy cocaine. He was walking around and became very cold. He had a cough. At that point on November 30, 2024 he had nowhere else to go. He felt unwell. He was out of money. He was not able to purchase drugs. He had nowhere to sleep, and so he presented himself to the hospital as a place of refuge. He was subsequently admitted.”
Since the preparation of the Hospital Report, Dr. Schubert reported that on January 9, 2024 while Mr. Rae was granted two hours on hospital grounds privileges he eloped and was returned by the police on January 10, 2024. During Mr. Rae’s absence he reported panhandling outside the Casino using crack cocaine and staying out all night.
In response to questions from Ms. Frenette, counsel for the Attorney General, Dr. Schubert confirmed that Mr. Rae is not allowed to live in the family residence. When asked about housing in the community for Mr. Rae, Dr. Schubert indicated that there was nothing in the works at the present time. When asked if Andras Court would be appropriate for Mr. Rae, Dr. Schubert indicated that while Mr. Rae needs oversight, he does not require the 24-7 supervision that Andras Court provides its residents. According to Dr. Schubert, Mr. Rae meets with his case manager, Mr. McGuire, two times a week. Now in the hospital, Mr. Rae is on long-acting depot medication as a result of his history of non-compliance.
In response to questioning by Mr. Agostino about returning into the community Dr. Schubert confirmed that it is a difficult to predict when that can occur. It is not going to be immediate as he has no housing. Mr. Rae had an apartment in the community which he lost. Dr. Schubert stated that Mr. Rae does well in the hospital setting and when his psychosis is under control. When asked about Mr. Rae’s prospects of employment, Dr. Schubert expressed that employment has been a problem for Mr. Rae as a result of a history of absenteeism.
When asked by a Board member if Mr. Rae would respect a “no contact” condition should Mr. Rae go AWOL again, Dr. Schubert replied that it remains a concern.
In response to another question from the Board, Dr. Schubert expressed that Mr. Rae’s insight into his mental illness and benefits of antipsychotic medication is limited. As stated in the Hospital Report, Mr. Rae has repeatedly been non-compliant and duplicitous and not forthright with Dr. Schubert and the hospital staff regarding compliance with his medication.
When asked whether a transfer to Waypoint would be an option, Dr. Schubert expressed that that could be an option but Mr. Rae is very connected to his family who live in Thunder Bay and his Northwest Ontario roots.
No other evidence was called.
Submissions of Counsel
On behalf of the hospital Ms. Davidson confirmed the position as expressed at the outset of the hearing that Mr. Rae poses a significant threat to the safety of the public and all the terms and conditions of last year’s detention disposition should continue. On the issue of the ROL the Hospital submits that the restriction of Mr. Rae’s liberty on November 30, 2024 and continuing was warranted and necessary.
Ms. Frenette, counsel for the Attorney General, supported the position of the Hospital on significant threat. With respect to the disposition, while counsel for the Attorney General was in agreement with the terms and conditions in last year’s disposition it was submitted that Mr. Rae should not be allowed the privileges of living in the community given the events of this past reporting year and given Mr. Rae’s most recent AWOL in January of 2025. Counsel for the Attorney General submitted that para. 2(h) as set out in last year’s disposition should be removed in this year’s disposition. Counsel for the Attorney General, supported the position of the Hospital on the ROL.
On behalf of Mr. Rae, Mr. Agostino made no submissions and left the determination of the issues to the Board.
Analysis
Significant Threat
The panel accepts the evidence of Dr. Schubert and the Hospital Report. We unanimously find that Mr. Rae remains a significant threat to the safety of the public within the meaning of s.672.5401 of the Criminal Code. In coming to this conclusion, we bear in mind the submission of counsel for the Attorney General and the hospital and that counsel for Mr. Rae made no submissions.
As set out by the Supreme Court of Canada, in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at para. 62, the court referred to a significant threat as: “[A] real risk of physical or psychological harm to members of the public that is serious in the sense of going beyond the merely trivial or annoying. The conduct giving rise to harm must be criminal in nature”. Justice McLachlin made it clear in Winko that the threshold of significant threat is a “relatively high” one. She said at para. 69, that “the phrase conjures a threat to public safety of sufficient importance to justify depriving a person of his or her liberty”.
As directed by the Court of Appeal in Marchese (Re), 2018 ONCA 307, the Board carefully reviewed and considered the oral evidence of Dr. Schubert and in the Hospital Report. The evidence at this hearing satisfied the Board of this high threshold. In coming to this conclusion, we bear in mind the underlying concern for Mr. Rae’s family and members of the general public.
The panel accepts the expert opinion of Dr. Schubert opinion and the diagnoses of Mr. Rae’s serious mental health, namely his schizophrenia and substance use disorders. As assessed by Dr. Schubert, we also accept the evidence of Mr. Rae lacks insight into his illness. Mr. Rae’s unsettling conduct in the past reporting year also supports that Mr. Rae does not appreciate the need to take the prescribed medication to manage his serious illness or to abstain from the use of substances. The chronology of events this past reporting year, as set out in the evidence portion of these Reasons, satisfies this panel that Mr. Rae poses a significant threat to the safety of the public.
Disposition
Since the Board finds that Mr. Rae poses a significant threat, we must make a disposition for the forthcoming year. In doing so we must bear in mind the paramount consideration of the safety of the public and, in doing so, take into account the needs of Mr. Rae and his reintegration in the community. The panel bears in mind that the disposition is governed by s. 672.54 of the Criminal Code.
Counsel for the Attorney General supported the position on the hospital with respect to the continuation of the detention order. However, counsel for the Attorney General strongly submitted that given the serious events of the past year, more specifically, Mr. Rae’s admitted assault of his partner, that the condition that allowed Mr. Rae to live in the community should be removed and not form part of this year’s disposition.
Mr. Rae is currently detained at the Secure Forensic Unit of the TBRHSC. The person in charge is directed to create a program for Mr. Rae’s detention in custody on certain conditions. We are mindful that pursuant to last year’s disposition Mr. Rae could be and in fact, was allowed to live in the community as approved by the person in charge. That term does not give Mr. Rae a carte blanche to live in the community. It must be approved by the hospital.
The evidence of Mr. Rae’s most recent AWOL in January, 2025 is that he did not attend at the home of his partner.
In our careful consideration of the Attorney General’s counsel submission, we bear in mind the court decision in Winko that the detention provision, which we make here, significantly deprives Mr. Rae of his liberty. We also considered the case of Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services) 2006 SCC 7, where at para. 32, the court states: “[T]he primary purpose of the legislative scheme is to protect the public while minimizing any restrictions on the NCR accused’s liberty interests.” The decision in Re Ahmed-Hirse, 2014 O.R.B.D. No. 1876 (Ont. Review Board) was also helpful in our deliberation. As set out in that decision, when the wording of Part XX.1 of the Criminal Code came into effect on 30 July, 2014, the current language of “necessary and appropriate” did not change the requirement that the Board’s disposition should be “least onerous and least restrictive” (See paras. 34-36).
Relying on the Court of Appeal decision in Campbell (Re), 2018 ONCA 140, we conclude that when it comes to privilege levels, the treatment team (and the person in charge) are best make that determination in accordance with an accused’s clinical presentation. At para. 63 the Court of Appeal states:
“Section 672.56(2) is not intended to transform the Board into a body that second guesses all or even most hospital decisions that adversely impact liberty. After all, the expert board delegates to expert hospitals the power to adjust liberty up and down as called for. This delegation is done with confidence that the hospital, which is entrusted with the NCR accused’s care between annual reviews, will act professionally, ethically, an in accordance with the guiding legal authorities. Hospitals must be left to do their work free from the constant review and all of the demands that a decision-notice -review-decision - notice - review approach would impose”
- In considering the evidence, the Board finds that detention on the same terms as last year’s disposition is necessary and appropriate in the circumstances. When considering what is necessary and appropriate our consideration included leaving in all of the current terms and conditions as made last year. In the context of the detention, maintaining the same terms and conditions is the least onerous and least restrictive while still protecting the safety of the public by restricting Mr. Rae’s liberty by detention at the TBRHSC.
Restriction of Liberty
With respect to Mr. Rae’s restriction of liberty on December 9, 2024 the hospital wrote to the Ontario Review Board informing the Board that Mr. Rae had been admitted to the hospital. Mr. Rae was living in the community of Thunder Bay up to then so that his liberty was significantly restricted for a period exceeding seven days.
Accordingly, at this hearing the Board’s task is to determine whether Mr. Rae’s liberties were a significant restriction and whether the restriction was necessary, reasonable and warranted. In our consideration we bear in mind the submissions of counsel on the restriction of liberty.
The panel considered the evidence that led to Mr. Rae admission as set out above in the summary of the evidence. Dr. Schubert’s summary of his assessment of Mr. Rae in December, 2024, which we accept, addresses that Mr. Rae’s detention was warranted. The Board bears in mind that on November 30, 2024 Mr. Rae presented himself independently to the hospital. The hospital thereafter saw fit to conduct a toxicology screening which determined positive for cocaine and marijuana.
At the date of this hearing Mr. Rae was in the hospital.
It is for the Board to determine, in accordance with s. 672.81(2.1), whether Mr. Rae’s liberty has been restricted and whether that restriction is necessary and appropriate. In doing so, we must consider Mr. Rae’s liberty norm as that norm is defined in Campbell prior to the imposition of the restriction.
The Board finds that Mr. Rae’s return to the Hospital on November 30, 2024, and his continuing stay at the TBRHSC is a significant restriction of his liberties. In the circumstances, we find the restriction was necessary, warranted and reasonable.
Conclusion
In the panel’s consideration of the evidence, we have no difficulty in accepting the evidence of Dr. Schubert that Mr. Rae poses a significant threat to the safety of the public. We find on the evidence supported by the submissions of counsel for the Attorney General and the hospital that the necessary and appropriate disposition is a Detention Order.
In our opinion, if Mr. Rae returns to reside in the community, should the need arise, the hospital should have the authority to return him quickly to ensure safety to the public.
Given our analysis as set out above, the panel concludes the Disposition should contain the same terms and conditions as found in last year’s Disposition.
On the restrictions of Mr. Rae’s liberty, he returned to the Hospital on November 30, 2024, and continues to stay at the TBRHSC. This is a significant restriction of his liberties. In the circumstances, we find the restriction was necessary, warranted and reasonable.
DATED this 26th day of February 2025, at the City of Toronto, in the Toronto Region.
E. Kruzick
Legal Member
____________________________
Office of the Registrar
Ontario Review Board