Ontario Review Board
Re: Kenese D. Rae
ORB File No: 5775
Hearing held on: Thursday, April 24, 2025
Place of hearing: Thunder Bay Regional Health Sciences Centre
By Zoom Video-conference
Pursuant to: Section 672.82(1) of the Criminal Code of Canada
Before:
Alternate Chairperson: Ms. L. Banks
Members: Dr. R. Kunjukrishnan
Dr. G. Nexhipi
Ms. C. Murray
Mr. A. Mete
Parties Appearing:
Accused: Kenese D. Rae
Counsel: Mr. U. Agostino
Person in charge of the Hospital: Representative: Ms. M. Davidson
Attorney General of Ontario: Counsel: Ms. S. Curry
REASONS FOR DECISION
(Dated May 22, 2025)
Introduction:
On December 20, 2010, Kenese Rae was found not criminally responsible on account of mental disorder (“NCR”) with respect to charges of assault, cruelty to animals, uttering threats and breach of undertaking, contrary to the Criminal Code of Canada. Mr. Rae is currently subject to a Disposition of the Ontario Review Board (“ORB” or the “Board”) dated January 30, 2025, detaining him on the Secure Forensic Unit at Thunder Bay Regional Health Sciences Centre (the “hospital”) subject to a variety of terms and conditions. The Board’s Disposition removed community living and reporting conditions contained in Mr. Rae’s previous Disposition from 2024.
The Board’s Reasons for Disposition and Decision dated February 26, 2025, stated at paragraph 7 that the panel found that the necessary and appropriate Disposition in this matter was a continuation of Mr. Rae’s 2024 Disposition, which included the community living and reporting conditions. The Board’s Reasons conflicted with its Disposition, which removed these terms. Accordingly, on March 19, 2025, the Board issued Amended Reasons for Disposition and Decision in this matter which set out at paragraphs 57-66 the hearing panel’s rationale for removing community living from Mr. Rae’s 2025 Disposition.
By letter dated March 19, 2025, the Honourable Michael Dambrot, K.C., Chair, Ontario Review Board, advised the parties to this matter that, “The Board owes a duty of procedural fairness to accused individuals under its jurisdiction, including the right to a fair hearing. In my view, the series of events that led to the reasons in this matter requiring amendment might reasonably raise concerns in the mind of the accused about whether the Board’s duties of fairness to him were met in this case. An early review is required.”
On April 24, 2025, the Board convened an early haring to conduct a review of Mr. Rae’s Disposition pursuant to s. 672.82(1) of the Criminal Code. Mr. Rae was in attendance at the hearing and was represented by his counsel, Mr. U. Agostino. All parties participated at the hearing by Zoom video-conference.
The specific issues to be determined at the hearing are whether Mr. Rae continues to pose a significant threat to the safety of the public, and if so, the necessary and appropriate Disposition to manage that risk having regard to the criteria sent out in us. 672.54 of the Criminal Code.
For the reasons set out below, this Board finds the test for significant threat continues to be met and that Mr. Rae shall continue to be bound by his existing Detention Order with the addition of a community living privilege referred to at the conclusion of these Reasons.
Position of the Parties:
At the commencement of the hearing, the parties were canvassed as to their recommendations to the Board. Counsel for the hospital submitted that Mr. Rae continued to pose a significant threat to public safety and that the necessary and appropriate Disposition was that he continued to be subject to a Detention Order Disposition but that the Disposition include the privilege to live in the community of Thunder Bay in a supervised accommodation approved by the person in charge of the hospital, together with a reporting requirement of not less than once per week.
Counsel for the Attorney General agreed that Mr. Rae continued to pose a significant threat to public safety and that he be managed under a Detention Order; however, the Crown did not support the inclusion of a community living privilege.
Counsel for Mr. Rae indicated his support of the hospital’s recommendation and re-iterated that Mr. Rae should be granted the privilege of living in supervised housing in the community.
At the completion of Crown counsel’s questioning of Dr. Schubert, the Crown indicated that she was in support of the hospital’s recommendation and accordingly, the Board was presented with a joint recommendation in support of the addition of a supervised community living provision with a corresponding weekly reporting requirement.
Index Offences:
- Details of the index offences are extracted from the Court Synopsis contained in the Hospital Report dated April 1, 2025 (the “Hospital Report”), as follows:
“On October 9, 2010, Mr. Rae was released from custody by way of a promise to appear and undertaking to keep the peace and be of good behaviour.
On October 16, 2010, Mr. Rae became angry with a woman believed to be his girlfriend. He began to yell, swear and throw furniture around the house. He then took the family dog into the yard and beat it with a rake, resulting in the dog’s death. Mr. Rae’s sister, Geraldine Rae, reported that less than a week earlier, her brother had asked if she wanted to die and then said, “No, not you it’s not your time right now”. Police attended from Sandy Lake, arrested Mr. Rae and took him into custody in the Sandy Lake detachment.
The Synopsis also indicated that “investigation revels {SP} 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”.
The Hospital Report indicated that, on October 8, 2010, the day prior to his release from custody on a promise to appear, Mr. Rae had been brought by police from North Spirit Lake to Meno Ya-Win Health Centre in Sioux Lookout. Apparently, Mr. Rae was allegedly caught breaking into a school and police reported that, over the past month, there had been multiple complaints about Mr. Rae’s behaviour in the community.”
Personal Background:
- Mr. Rae’s personal history is set forth in considerable detail in the Hospital Report and need not be reiterated here. Briefly summarized, he is a 41-year-old Indigenous man who
was born in Sioux Lookout and was raised with his two sisters in North Spirit Lake, Ontario, a fly-in community in Northern Ontario. The index offences relate to incidents which occurred in that remote community in September and October 2010.
Mr. Rae dropped out of school in grade eleven and moved in with his girlfriend. That relationship produced two sons, with whom he had lost contact for several years. Mr. Rae has very infrequent contact with his sisters and father but he does report speaking on the phone with his mother, who moved to Winnipeg.
It is reported Mr. Rae 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. He was also a heavy cannabis user.
Psychiatric History:
Mr. Rae has a history of mental illness, along with polysubstance abuse, dating back to 2006 when he was 23 years old. His first psychiatric admission occurred in May 2006 for a court-ordered assessment of fitness and criminal responsibility relating to an incident in which Mr. Rae set fire to his girlfriend’s house after an argument. Later that same year in November 2006, Mr. Rae was detained at St. Lawrence Valley Correctional and Treatment Centre until February 2007. His discharge diagnosis at the time was Schizophrenia and Substance Abuse (cocaine, crack, and sniffing of gas and glue).
In 2008, he was admitted on a Form 1 to Lake of the Woods Hospital after threatening suicide and being assaultive to his sister by throwing a can opener at her during an argument resulting in her requiring stitches. Following this incident, in August 2008, Mr. Rae was referred by the Court Diversion Program to Kenora-Rainy River District Assertive Community Treatment (“ACT”) team. This ACT team followed Mr. Rae until February 2010. It is reported that the ACT team’s notes indicated that Mr. Rae was difficult to engage due to chronic and frequent substance abuse. Mr. Rae’s mental condition and behaviour then deteriorated in the late summer and fall of 2010. In addition to his three previous admissions, Mr. Rae has had several psychiatric assessments.
Mr. Rae was last living in the community on November 30, 2024 at which time he was re-admitted to the hospital. Prior to that readmission, he had been living with his partner, Kayla, and her three children until November 22, 2024, at which point he became homeless.
Current Diagnoses
- Mr. Rae’s current diagnoses are:
Schizophrenia;
Cannabis Use Disorder;
Cocaine Use Disorder; and
Alcohol Use Disorder.
Criminal History:
- Mr. Rae has an extensive criminal history. Commencing in 2000, Mr. Rae’s criminal history includes convictions on four assaults, one assault with a weapon, one assault causing bodily harm by choking, one forcible confinement, one arson, two uttering threats, one mischief under $5000 and seven incidents of failing to comply with recognizance, undertaking or probation.
Evidence at the Hearing:
Dr. Schubert, Mr. Rae’s attending psychiatrist for approximately the past 14 years, testified before the Board. He confirmed the contents of the Hospital Report.
Dr. Schubert advised that Mr. Rae is assessed as capable to consent to his psychiatric treatment and he is currently treated with a long-acting injection (“LAI”) of the antipsychotic medication Invega Trinza which he receives every 3 months. His treatment is augmented by a daily oral dose of another antipsychotic medication, Olanzapine.
At the outset of the hearing, Dr. Schubert gave a broad overview of Mr. Rae’s course since coming under the ORB’s jurisdiction approximately 14 years ago. He stated that Mr. Rae had progressed to the point of being managed under a Conditional Discharge Disposition (ordered by the Board in in 2015 and 2020) and that he had also lived in the community in independent housing for significant periods of time. Dr. Schubert stated that a constant barrier to Mr. Rae’s ability to sustain his progress in the community has been his abuse of alcohol, cannabis and illicit substances.
The doctor noted that when Mr. Rae is adherent to his prescribed treatment, the symptoms of his mental illness are significantly attenuated. The doctor stated that Mr. Rae has not presented with psychotic symptoms since December 2022.
Dr. Schubert commented that the past approximate year and a half have been challenging for Mr. Rae and that he was required to be readmitted to hospital on three occasions. As well, the doctor reported that over the same time frame, Mr. Rae went on four unauthorized leaves of absences (“ULOA”), both as an in-patient and while living in the community.
The doctor noted that following the ORB’s annual hearing in January 2024, Mr. Rae continued to reside at the hospital’s forensic inpatient unit. On March 26, 2024, while on an indirectly supervised community access pass, Mr. Rae took an ULOA and he did not return to the unit. The following day, on March 27, 2024, Mr. Rae’s mother informed the hospital that he had been drinking and gambling.
On March 30, 2024, the police contacted the hospital to advise that Mr. Rae was in custody. He was charged with being unlawfully at large and he was returned to the hospital subject to a Release Order. Upon his return to the hospital, he admitted to smoking “weed” and crack cocaine the evening before. His urine sample that day tested positive for cocaine and marijuana.
On April 5, 2024, once stabilized, Mr. Rae was discharged from the hospital to return to reside with his partner, Kayla, and her three children in the community. One of the children is Mr. Rae’s biological child.
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 children. Mr. Rae reported to his case manager that while away he was compliant with his prescribed medication and that he remained abstinent; however, his urine screen of May 1, 2024 tested positive for cannabinoids.
On May 16, 2024, Mr. Rae’s partner reported to the forensic case manager that Mr. Rae had been out all night. The case manager attempted to make contact with Mr. Rae, without success.
On June 2, 2024, Mr. Rae presented himself to the forensic inpatient unit of the hospital and was re-admitted. The police attended at the hospital and Mr. Rae was charged with new charges for failure to comply with court orders. The following day, Mr. Rae admitted to Dr. Schubert that he had used cocaine, alcohol, and cannabis in the community. His urine samples were positive for THC.
Mr. Rae had been doing well in the hospital and, on June 20, 2024, he was granted indirectly supervised hospital and grounds access. On July 11, 2024, he was authorized to use indirectly supervised community day passes. Mr. Rae used these passes to go home to visit his family and to help around the house.
While detained in the hospital, Mr. Rae submitted 15 urine drug screens (“UDS”) 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 the sample from June 5, 2024 which tested positive for benzoylecgonine again.
On August 1, 2024 Mr. Rae was discharged once again to live with his family. Just three days later, on August 4, 2024, Mr. Rae was arrested and then incarcerated for approximately 25 days at the Thunder Bay district jail. He was charged with speeding, careless driving, driving with an open container of liquor, and failing to comply with the Release Order. On August 29, 2024 all of the charges were withdrawn, and Mr. Rae resumed living at home.
In mid-September 2024, Mr. Rae received a $10,000 Residential Day School payment. Dr. Schubert testified that following receipt of those funds, Mr. Rae went on several cocaine binges and his UDS returned positive for cocaine or cocaine metabolites on October 2, 3, 8 and 24, 2024.
On November 27, 2024, Mr. Rae’s partner reported to his forensic case manager that Mr. Rae had pushed her into wall to take the cell phone from her. At the time, their children had locked themselves in the bathroom as they were scared.
On November 30, 2024, Mr. Rae attended the inpatient unit at the hospital as he had been homeless in the community and had been sleeping in the street for days. He was promptly re-admitted to the hospital.
On January 9, 2025, Mr. Rae while on a hospital grounds pass, Mr. Rae eloped and was returned by the police the following day. On his return to the hospital, he reported panhandling outside a Casino and using crack cocaine.
Dr. Schubert testified that since Mr. Rae’s last ORB hearing in January 2025, he has settled in hospital, engaged in recommended programming, and consistently progressed through the privilege ladder. On February 13, 2025, Mr. Rae began using supervised hospital passes. Since March 6, 2025, he has been using indirectly supervised hospital grounds passes with 2-hour check-ins, as well as supervised community passes.
Dr. Schubert advised that Mr. Rae has more recently been utilizing indirectly supervised community access since April 3, 2025. These passes allow him to access the community for up to four hours daily from Monday to Friday. He is required on Wednesday evenings to use these passes to attend Indigenous programming at Dilico Child and Family Services (“Dilico”) aftercare. The Dilico programming Mr. Rae attends focuses on substance abuse issues. In respond to a question posed by a panel member, Dr. Schubert advised that Mr. Rae has also attended at the local Canadian Mental Health Association for programming when using his indirectly supervised community passes. The doctor advised that when out in the community independently, Mr. Rae must adhere to his hospital approved itinerary and all phone check-ins.
Dr. Schubert advised that on April 10, 2025, Mr. Rae’s partner, Kayla, provided written consent allowing Mr. Rae to have contact with her and their children and allowing him to attend at the family home. She was clear however that she was not prepared to have him return to reside at the family home. Since obtaining Kayla’s consent, Mr. Rae has used his indirectly supervised community passes to attend at the family home for visits and to assist with child-care. Dr. Schubert advised that the treatment team has tried to connect with Kayla over the past two weeks to get her feedback on Mr. Rae’s management of these family visits but she has not yet returned the hospital’s calls.
In response to questions posed by panel members, Dr. Schubert advised that upon Mr. Rae’s return from using indirectly supervised community passes, he is required to check in with hospital staff and a clinical assessment of his presentation and mental state is conducted. Team members are alert to signs of intoxication but none have been observed. Further, the doctor advised that random UDSs are also conducted, approximately three times weekly, and since his use of these indirectly supervised community passes, all screens have returned negative for the presence of substances of abuse and positive for medication compliance. Further, since Mr. Rae’s last ORB hearing, he has submitted 16 UDSs and all returned negative.
In terms of the plan going forward, Dr. Schubert stated that Mr. Rae is now on a positive trajectory but the question remains whether he can maintain his current course of medication compliance and abstinence from illicit substances, while continuing to use increasingly liberal privileges appropriately. Should he be successful in these domains then the doctor opined that Mr. Rae would be an appropriate candidate for discharge to community living over the course of the upcoming reporting period.
Dr. Schubert advised the panel that Mr. Rae has never resided in staff supervised housing when living in the community under the Board’s jurisdiction. When asked why that had not been previously trialed in a supervised residence, Dr. Schubert stated that it was not considered necessary as Mr. Rae is high functioning, had lived independently in the community in the past, and does not require support with activities of daily living. The doctor stated that he is now of the opinion that Mr. Rae would benefit from intensive staff supports on site as well as from a structured program.
Dr. Schubert stated that the treatment team is looking at a 24-7 staff supervised residence in the community of Thunder Bay known Andras Court. This residence has four individual large apartment complex and it has staff on site 24/7. As well, Andras Court requires that its residents adhere to its house rules, including an evening curfew. The housing program also provides medication oversight. Staff are also on-site to monitor Mr. Rae’s mental state and housing staff liaise closely with the hospital’s forensic out-patient program (“FOP”) team should there be any concerns.
Dr. Schubert testified that Andras Court is intended as transitional housing and one of its objectives is to support its residents with mandatory programming to assist them to transition to independent living. If Mr. Rae were discharged to this housing program, he would be expected to participate in a wide variety of programming which might include relapse prevention groups, dialectical behavioural therapy, anger management groups, occupational therapy, financial management skills, as well as lifestyle and recreational programing. Dr. Schubert stated that a psychologist, social worker and occupational therapist from the hospital also run programs at Andras Court on a twice weekly basis.
Should Mr. Rae be discharged to Andras Court, he would be followed by the hospital’s FOP as mandated by his Disposition. The doctor commented that there would be “many eyes” on Mr. Rae if he were to reside at Andras Court.
When asked by a panel member when a bed might become available at Andras Court, Dr. Schumer stated that Mr. Rae is next on the waitlist and a bed could be available within a few months.
When asked if Mr. Rae is ready at the present time for discharge to the community, Dr. Rae responded by saying that although Mr. Rae is mentally stable and free of psychotic symptoms, the treatment team would like to see a lengthier period of time where Mr. Rae could demonstrate his ability to continue to use his indirectly supervised community passes appropriately, without incident.
Dr. Schubert stated that the team envisions the process of discharging Mr. Rae as being a step-wise and graduated process, likely allowing him to first attend day programs at Andras Court and then allowing for overnight stays and eventually a full discharge. He commented that the discharge process might take several weeks. Dr. Schubert underscored to the Board that Mr. Rae’s readiness for discharge to the community will be dependent to a great degree on his ability to remain abstinent of substances of abuse, maintain his medication adherence, and exercise increasingly liberal passes without incident.
Dr. Schubert stated that Mr. Rae has expressed his willingness to reside at Andras Court as he wants to remain within the Thunder Bay community so that he is close proximity to his partner and their children. As well, the doctor commented that Mr. Rae’s mother resides in Winnipeg and were he to move from the Thunder Bay area, it would likely be challenging for her to visit him.
Dr. Schubert testified that Mr. Rae’s insight into his mental illness and benefits of antipsychotic medication is limited and it fluctuates. Although he sometimes will acknowledge that his medication is helpful to him, over the years, he has been non-compliant on numerous occasions as well as duplicitous with Dr. Schubert and his treatment team regarding same.
The Hospital Report indicates that “Mr. Rae’s insight into his substance use and the effect it has had on his behaviour is also considered poor. This is despite at times that Mr. Rae will acknowledge that some of the behaviours and consequences of his substance use in the community have led to setbacks in his life and conflicts with others, including detention in hospital, relationship difficulties, criminal charges and incarceration.” Mr. Rae has continued to engage in active substance use on an intermittent basis in the community and he is often duplicitous with his treatment team regarding his use of substances of abuse.
When asked about the impact of substance use on Mr. Rae’s Schizophrenia, Dr. Schubert stated that substance use would increase the likelihood that Mr. Rae would experience psychotic symptoms; however, compliance with his LAI of antipsychotic medication has been a protective factor.
No further evidence was called by the parties.
Analysis and Conclusion:
The panel accepts the evidence of Dr. Schubert and the Hospital Report and 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 and as further defined by the Supreme Court of Canada in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625.
In coming to this conclusion, we have considered Mr. Rae’s diagnosis of Schizophrenia and the fact that he suffers from symptoms of his illness when he is non-adherent with his medications and/or using substances of abuse. He continues to demonstrate under-developed insight into his illness, the need for compliance with his prescribed medications, and the importance of remaining abstinent from substances of abuse.
In considering the issue of the level of risk Mr. Rae poses, we have also taken into consideration his history of criminal convictions as well as his documented history of domestic violence. We note that in 2006, Mr. Rae reportedly attempted to stab his common-law partner and burn down the house. In 2016, Mr. Rae is alleged to have kicked his partner in the shin and the put his hand on her face, cheeks and neck area, possibly in an attempt to choke her. In January 2021, Mr. Rae forcibly entered the victim’s residence, pushed her back and took hold of the belt on her housecoat and wrapped it around her neck to choke her with the garment. Finally, Mr. Rae recently engaged in domestic violence when he assaulted his partner. He did this in the presence of his three children who were so frightened they locked themselves in the bathroom.
Mr. Rae’s risk for violent re-offending continues and is strongly tied to his mental health symptoms and his use of substances of abuse. The Hospital Report indicates that in 2023, his risk of violent re-offending was “high” Dr. Schubert indicated that it remains so.
Since finding that Mr. Rae poses a significant threat, we must shape a Disposition for the upcoming year. All parties agreed that at the present time a Detention Order is both necessary and appropriate and the panel endorses same. The question that the panel weighed was whether or not it was necessary and appropriate, as well as least restrictive and least onerous, to include in Mr. Rae’s Disposition the discretionary privilege of living in the community in supervised housing approved by the person in charge of the hospital.
The doctor’s evidence indicates that the treatment team is of the opinion that Mr. Rae’s risk can be safely managed in the community if he were to be discharged to “supervised” housing. The evidence before the panel indicates that the team has identified Andras Court as a likely residential placement for Mr. Rae. This is transitional housing with staff on site 24/7 to closely supervise, monitor, and support Mr. Rae at such time as the treatment team considers him ready for discharge to the community.
We note that if discharged to the community over the course of the upcoming reporting year, Mr. Rae will be supervised by the FOP team and, if placed at Andras Court, he will have 24/7 oversight from housing staff as well as other care providers who conduct programming on-site at that residence as well as at the hospital. As Dr. Schubert testified there will be many eyes on Mr. Rae if discharged to Andras Court residence to closely monitor, assess, and supervise him in order to safely manage his risk.
In this panel’s assessment, the expert evidence supports the assertion that community living is an attainable goal for Mr. Rae over. The course of the upcoming reporting period. In our assessment, the inclusion of such a discretionary privilege is necessary and appropriate, as well as least restrictive and least onerous, and it is hoped that it will motivate Mr. Rae to continue to progress towards full community reintegration.
The panel encourages the hospital to consider whether or not a Gladue Report should be prepared in this matter notwithstanding the doctor’s evidence that the hospital is very familiar with Indigenous issues and he did not consider that one was warranted or would be helpful in this case.
The panel carefully considered whether Mr. Rae could be managed under a less restrictive Conditional Discharge Disposition and we have determined that, at the present time, he cannot. We note that Mr. Rae has been readmitted to hospital 15 times since he was initially released into the community on June 16, 2014 while under the ORB’s jurisdiction. He currently remains in hospital since being admitted on November 30, 2024 and the evidence before us the panel was that Mr. Rae continues to require an in-patient admission.
In our assessment, the hospital continues to require the authority of a Detention Order for two key risk management reasons. The first is that it allows the hospital oversight regarding Mr. Rae’s placement in the community in order to ensure that his housing provides him with the necessary degree of support, supervision and monitoring to safely manage his risk. The second risk management tool afforded by a Detention Order is that it allows the hospital the ability to promptly intervene, in a proactive manner, to cause Mr. Rae’s readmittance to the hospital should he experience any decompensation in his mental state whether as a result of medication noncompliance, relapse to substance use, or otherwise.
For all of the above reasons, we concur with the joint recommendation of the parties and find that Mr. Rae shall continue to be bound by the terms of his existing Detention Order Disposition with the following additional provisions:
the privilege of living in the community of Thunder Bay in a supervised accommodation approved by the person in charge of the hospital; and
when living in the community Mr. Rae will be required to report to the person in charge of the hospital, or his/her delegate, not less than once per week or as required.
- In reaching our decision the Board has taken into consideration the need to protect the public from danger, the mental condition of Mr. Rae, his reintegration into society and his other needs.
DATED this 22nd of May 2025, at the City of Toronto, in the Toronto Region.
Ms. L. Banks
Alternate Chairperson
Office of the Registrar
Ontario Review Board
Alternate Chairperson