



COURT OF APPEAL FOR ONTARIO

CITATION: Abeje (Re), 2019 ONCA 734

DATE: 20190919

DOCKET: C66761

Hourigan, Brown and Paciocco
    JJ.A.

IN THE MATTER OF: Samuel Abeje

AN APPEAL UNDER PART XX.1 OF THE
CODE

Ken J. Berger, for the appellant

Nicolas de Montigny, for the
    respondent, Attorney General of Ontario

Michele Warner, for the respondent, the
    Person in Charge of the Centre for Addiction and Mental Health

Heard: September 17, 2019

On appeal against the disposition of the
    Ontario Review Board, dated March 7, 2019, with reasons dated March 27, 2019.

REASONS FOR DECISION

OVERVIEW

[1]


Mr. Samuel
    Abeje appeals from the March 7, 2019 disposition of the Ontario Review Board
    (the Board) that continued his conditional discharge. Under that disposition,
    Mr. Abeje lives, on his own, in an apartment in Toronto, with no on-site
    supervision, and is required to report not less than once every 12 weeks to the
    Centre for Addiction and Mental Health (CAMH). At that time, Mr. Abeje
    receives a long-acting injectable antipsychotic medication to treat his
    schizoaffective disorder.

[2]


Mr. Abeje submits the Board erred in holding that he continues to
    pose a significant risk to the safety of the public. Mr. Abeje asks this court
    to set aside the Boards disposition and grant an absolute discharge.

[3]

At the hearing, we dismissed the appeal, with reasons to follow.
    These are those reasons.

BACKGROUND FACTS

[4]


Mr. Abeje
    is 54 years old.

[5]


He has a long history of mental illness, dating back to at least
    1992 when he emigrated from Ethiopia to Canada. At the time of the Board
    hearing, his diagnosis was schizoaffective disorder, bipolar subtype, and
    borderline intellectual functioning. According to the hospital record, the
    diagnosis of borderline intellectual functioning is significant in that Mr
    Abejes ability to absorb and remember psychoeducational material is
    compromised.

[6]

Mr. Abeje has been declared incapable of consenting to medical
    treatment. The Public Guardian and Trustee is his substitute decision-maker.

[7]

Mr. Abeje has no significant history of alcohol or street drug
    abuse.

[8]

Prior to the 2005 index offences, Mr. Abeje had a history of
    violence. In 1995, he was convicted of possession of a weapon, uttering a
    threat, and assault with a weapon for showing a bus driver a large kitchen
    knife. Later that year, he was convicted of theft under $5,000 and assault. In
    1997, charges of uttering threats were withdrawn upon Mr. Abeje entering into a
    peace bond. In addition, as the Board noted in its reasons:

Mr. Abeje has a long history of non-adherence
    to medication. When unwell he develops mania and/or psychosis. He has a history
    of violence (apart from his criminal convictions and the index offences). They
    include: January 1993 - sexually assaultive behaviour in the context of a manic
    episode; October 1993 - sexually assaultive behaviour secondary to mania; and in
    2004 - physical aggression towards police officers, at which time he had an axe
    in his possession.

[9]

Prior to the index offences, Mr. Abeje had been admitted to
    psychiatric hospitals on several occasions.

[10]

In 2005, Mr. Abeje was found not criminally responsible
    on account of mental disorder on two counts of aggravated assault and one count
    of possession of a weapon for a dangerous purpose. The first assault occurred
    when Mr. Abeje approached a woman on the street, spoke to her in an unknown
    language, stabbed her in the lower back, and ran away. This first victim
    suffered a fractured spinal bone and internal bleeding.

[11]

Another woman saw the first victim running
    across the street holding her neck and followed Mr. Abeje to his residence. She
    approached him and asked if something was wrong. Mr. Abeje said Nothing,
    nothing. He then stabbed the second victim twice in the head and once in the
    cheek. As well, he hit the second victim on her left arm. The second victim
    required 20 staples to close the wounds on her head.

[12]

From 2005 until May 2008, Mr. Abeje resided at
    CAMH, with most of his time spent in minimum secure rehabilitation units. Since
    then, Mr. Abeje has lived in an unsupervised apartment and continued treatment
    at CAMH on an out-patient basis. For the past decade, he has been subject to a
    series of conditional discharge dispositions by the Board.

[13]

As the Board noted, at para. 12, Mr. Abejes
    mental state is stable, he is compliant with medication, attends all his
    appointments, and is virtually free from his underlying psychotic symptoms.
    Although he still has delusions about the United Nations giving him power to
    control the world, and that Bill Clinton and Kofi Annan were aware of these
    powers, Mr. Abeje has not acted on those beliefs.

RECENT BOARD DISPOSITIONS

2018

[14]

In its April 2018 disposition, the Board
    continued Mr. Abejes conditional discharge but lessened the reporting
    requirements. The Board expressed the view that CAMH had not moved as quickly
    as it could to consider appropriate next steps to proceed to an Absolute
    Discharge and to assist Mr. Abejes reintegration into society and his other
    needs. The Board observed that his treatment team had not made any referral to
    a non-forensic team or to an Assertive Community Treatment (ACT) team.

2019

[15]

As the Board notes in the disposition under
    appeal, in 2018 Mr. Abejes treatment team acted on the Boards concerns and
    referred Mr. Abeje to the downtown west clinic of CAMH and the ACT team
    services provided by Access Point. Mr. Abeje was not accepted as a suitable
    candidate given his status under the Board and the psychiatric care he was
    receiving through the transitional care team in the CAMH forensic outpatient
    clinic.

[16]

The Board unanimously concluded that Mr. Abeje
    was a significant risk to the safety of the public and continued his
    conditional discharge, with reduced reporting conditions.

ANALYSIS

[17]

Mr. Abeje submits that the Boards disposition was unreasonable in
    finding that he continued to pose a significant threat to the safety of the
    public. He advances two related arguments. First, Mr. Abeje argues that it was
    unreasonable for the Board to deny him any credit for his
long-term
    stability and compliance, as well as placing undue weight on his lack of
    insight into his illness as a factor in assessing risk
.
Second, Mr. Abeje contends that the Board acted
    unreasonably in concluding that the civil mental health system could not manage
    adequately the risk that he might fall away from treatment.

[18]

We are not persuaded by these submissions.

[19]

Under s. 672.54 of the
Criminal Code
,
    on an annual review the Board must inquire into and determine whether an NCR
    accused is a significant threat to the safety of the public. Where it
    determines he is not, the Board must direct an absolute discharge. The meaning
    of the phrase significant threat to the safety of the public is well settled.
    It was summarized in
R. v. Ferguson
, 2010 ONCA 810, 264 C.C.C. (3d)
    451, at para. 8:

The phrase refers to 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. A high risk of relatively trivial harm will also
    not meet the substantial harm standard. While the conduct must be criminal in
    nature, not all criminal conduct will suffice to establish a substantial risk.
    There must be a risk that the NCR accused will commit a serious criminal
    offence.

[20]

In conducting its inquiry, the Board may have
    recourse to a broad range of evidence, including: the past and expected course
    of the NCR accuseds treatment, if any; the present state of the NCR accuseds
    medical condition; the NCR accuseds own plans for the future; the support
    services existing for the NCR accused in the community; and the assessments
    provided by experts who have examined the NCR accused:
Winko v. British
    Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625, at para.
    62(5).

[21]

The Boards reasons disclose that in performing
    the required statutory assessment it drew upon a broad range of evidence and
    took into account a number of factors. Specifically, the Board stated at paras.
    20 to 22:

The Board accepts the evidence of Dr. Choptiany
    [Mr. Abejes psychiatrist] that Mr. Abeje lacks appropriate insight into his
    illnesses, that without the external controls of an order from the Ontario
    Review Board he would fall away from care, not take his injectable medication
    on a regular basis, become psychotic and engage in either violent and/or
    sexually inappropriate behaviour putting the public at risk. The Board
    considered the legacy of many hospitals involvement with Mr. Abeje both before
    the index offence and after. The differences are stark. Before he was under the
    jurisdiction of the Ontario Review Board beginning in 2005, he had multiple
    hospital admissions but they were unsuccessful in reducing his risk to the
    public. This risk ultimately manifested [itself] in a very serious series of
    criminal acts in 2005 leading to gratuitous assaults on innocent individuals.
    Since that time and as a result of the efficacious mental health treatment he
    receives at CAMH, his risk to public safety has significantly diminished.

However, notwithstanding the fact that he is
    compliant with his medication and virtually symptom free, the history of his
    involvement with the mental health system strongly suggests that if he were to
    be transferred to the civil system, he would represent a significant risk to the
    safety of the public. As previously indicated the treatment team has attempted
    to refer him to other agencies but so far he has not been suitable given his
    status under the Ontario Review Board. As well, as we learned from Dr.
    Choptiany, his borderline intellectual functioning affects his insight. Dr.
    Choptiany was emphatic that if he were to decompensate, he would be involved in
    violent acts.

Accordingly, notwithstanding his compliance
    with the terms and conditions of last years order and his stable functioning
    in the community, we are unanimously of the view that his current reasonably
    healthy mental state is a direct function of his compliance under the external
    control of an Ontario Review Board order.

[22]

The Boards reasons disclose that as part of its
    risk assessment, it took into account Mr. Abejes compliance with his medical
    regime and the long-term stability that has resulted from that regime. As this
    court observed in
Afemui (Re)
, 2016 ONCA 689, at paras. 10 and 11, the
    Board is entitled to rely on expert evidence that the NCR accused is compliant
    with treatment because of the external controls associated with being under the
    Boards supervision. The Board accepted Dr. Choptianys evidence to that
    effect.

[23]

As part of its examination of the present state of the NCR accuseds
    medical condition, the Board is entitled to consider evidence concerning the
    accuseds understanding of or insight into his medical condition, provided that
    evidence is assessed in the context of the entirety of the record before the
    Board:
Sim (Re)
, 2019 ONCA 719, at paras. 20-22. In the present case,
    the Board accepted Dr. Choptianys opinion that Mr. Abeje lacks appropriate
    insight into his illness: at para. 20. However, such lack of insight was only
    one of several factors that led the Board to its conclusion. In the present
    case, the evidence of insight did not improperly dominate the significant
    threat analysis:
Woods (Re)
, 2019 ONCA 87, at para. 17.

[24]

Finally, we are not persuaded that the Board
    acted unreasonably in concluding that the civil mental health system could not
    manage adequately any risk that Mr. Abeje might fall away from treatment.

[25]

As the Board noted, at para. 14, the CAMH
    treatment team made the inquiries about the availability of non-forensic
    treatment recommended in the Boards 2018 disposition. The hospital record for
    the review period reported that Mr. Abeje was not accepted as a suitable
    candidate. As well, the record reported that Mr. Abeje remained quite socially
    isolated and that it is hard to identify anyone apart from outpatient
    clinicians who would be in a position to identify subtle signs of illness in
    the event of their recurrence, and to report these to the treatment team.

[26]

At the hearing, the Board questioned Dr.
    Choptiany about the ability to manage Mr. Abejes illness under the civil
    mental health regime: at para. 18. Dr. Choptiany expressed the view that the
    powers available under the civil mental health regime were not effective enough
    to deal with the risks: at para. 18.

[27]

In its reasons, the Board accepted that
    evidence. At para. 23, the Board explained at some length why the controls
    available in the civil mental health regime would not be effective in managing the
    risk involved in Mr. Abejes behaviour and actions should he decompensate.

[28]

Given those inquiries made by the Board and its
    consideration of the alternatives available under the civil mental health
    regime, we are not persuaded that the Board acted unreasonably in concluding
    that the civil mental health regime would be inadequate to manage Mr. Abejes
    risk should he fall away from treatment.

[29]

In sum, the Boards reasons stand up to the
    standard of a somewhat probing examination:
R. v. Owen
, 2003 SCC 33,
    [2003] 1 S.C.R. 779, at para. 33. The Board considered a broad range of
    evidence, applied the statutory test, explained why it found that Mr. Abeje
    continued to pose a significant threat to the safety of the public, and
    inquired into the ability of the civil mental health regime to manage the risk.
    We are not persuaded that the Boards disposition was unreasonable in the
    circumstances.

[30]

That said, we understand the frustration felt by
    Mr. Abeje about his current status under the Board. Although his counsel
    described Mr. Abejes situation as a treatment impasse, that term usually
    describes a situation where an NCR accused is detained without treatment,
    refuses treatment, or the treatment does not result in any progress in managing
    the mental health condition:
Gonzalez (Re)
, 2017 ONCA 102, 136 O.R.
    (3d) 453, at paras. 28 -29. In the case of Mr. Abeje, the evidence shows that
    his clinical team has found an effective course of treatment to manage his
    illness. The treatment is so effective that Mr. Abeje has been living
    unsupervised in the community for many years, with the only material
    restriction on his liberty being the requirement that he report to CAMH once
    every three months.

[31]

What concerns Mr. Abeje is a sort of catch-22 in
    which he finds himself. On the one hand, the Board acknowledges Mr. Abejes
    stable functioning in the community; indeed, he has lived almost
    independently in the community for many years: at para. 22. As well, in 2018
    the Board exhorted CAMH to consider appropriate next steps to proceed to an
    Absolute Discharge and to assist Mr. Abejes reintegration into society and his
    other needs: at para. 35. Yet, on the other hand, when CAMH made such
    inquiries, the response back was that Mr. Abeje did not qualify for the
    programs or services, in part because of his stability under the ORB regime: at
    para. 14.

[32]

Mr. Abejes concerns are understandable. In
    2018, the Board urged the Treatment Team to take steps in the upcoming
    reporting year to refer Mr. Abeje to a non-forensic team and to plan for moving
    towards an Absolute Discharge, if his medication change occurs without incident
    and he remains stable: at para. 37. His medication change proceeded without
    incident, and Mr. Abeje remains stable. CAMHs inquiries of non-forensic teams
    did not produce any change for Mr. Abeje. In those circumstances, we would expect
    the Board in Mr. Abejes next annual review to exercise its inquisitorial
    powers to obtain and examine in some detail evidence regarding the availability
    of non-forensic services for Mr. Abeje.

DISPOSITION

[33]

For the reasons set out above, the
    appeal is dismissed.

C.W.
    Hourigan J.A.

David
    Brown J.A.

David
    M. Paciocco J.A.


