



COURT OF APPEAL FOR ONTARIO

CITATION: Kassa (Re), 2020 ONCA 543

DATE: 20200901

DOCKET: C67530

Watt, Trotter and Harvison Young JJ.A.

IN THE MATTER OF: Samuel Kassa

AN APPEAL UNDER PART XX.1 OF THE
CODE

Kelley J. Bryan, for
    the appellant, Samuel Kassa

Michele Warner, for the respondent, Centre for Addiction
    and Mental Health

Emily Marrocco, for the respondent, Ministry of the
    Attorney General

Heard: June 11, 2020 by video conference

On appeal from the
    disposition of the Ontario Review Board dated, August 2, 2019, with reasons
    dated August 21, 2019, reported at 2019 CarswellOnt 13632.


Harvison Young J.A.:

A.

Overview

[1]

In July 2012, Samuel Kassa was found not criminally responsible (NCR) by
    reason of mental disorder of uttering a death threat to a Toronto Transit
    Commission (TTC) operator. Since this NCR finding, the appellant has been
    subject to orders requiring his detention.

[2]

At his annual hearing in July 2019, the appellant sought an absolute
    discharge, as he had done for a number of years previously. The Ontario Review
    Board (the Board) declined to order a discharge, and instead ordered the appellant
    be detained at a secure forensic unit. The person in charge at the hospital retained
    discretion to transfer the appellant to a general forensic unit.

[3]

The appellant says that the Board failed to conduct a very careful
    assessment of the likelihood and seriousness of potential future harm, as
    required by
Winko v. British Columbia (Forensic Psychiatric Institute)
,
    [1999] 2 S.C.R. 625
.
In particular, the appellant argues that the
    Boards analysis of whether he poses a significant risk to public safety was
    unreasonable. He seeks an absolute discharge, or for the matter to be returned
    to the Board for a new hearing.

[4]

For the following reasons, I disagree and would dismiss the appeal.

B.

Background

(1)

Pre-index offence conduct

[5]

The appellant had used cannabis and cocaine for close to a decade before
    the index offence. His hospital reports also detail incidents leading to  a
    number of admissions into psychiatric care, including: driving over 150 km/hr
    and causing an accident, possibly as part of a suicide attempt (2000); starting
    a fire in his apartment and throwing items off his balcony (2002); and setting
    fires in his apartment in attempts to notify people of upcoming civic elections
    (2005).

[6]

In 2009, the appellant was found guilty of uttering threats and weapons
    dangerous. He received a conditional discharge and two years probation. In 2010,
    the appellant was accused of throwing milk on and threatening to shoot a
    physician at the Centre for Addiction and Mental Health (CAMH).

(2)

Index offence and initial detention

[7]

The index offence took place in July 2010. The appellant walked up to a
    TTC operator, lifted his right arm up and put his hand out as if he were
    pointing a gun at the operator and pulling the trigger. The appellant stated:
    Fuck you, youre dead. He walked away, returned to stand within 10 feet of
    the operator, and repeated the hand gesture silently.

[8]

In July 2012, the appellant was found NCR by reason of mental disorder
    of uttering a death threat. From 2012 to 2018, the Board annually ordered the
    appellant to be detained on a general forensic unit, primarily at Ontario
    Shores Centre for Mental Health Sciences (Ontario Shores).

[9]

The appellant has been diagnosed with schizophrenia, and cocaine and
    cannabis use disorder. Following his initial admission into Ontario Shores, the
    appellant participated in various rehabilitative programs to help develop
    insight into his illnesses. However, the appellant has repeatedly relapsed into
    substance abuse. Typically, the appellant leaves the hospital or residence,
    uses substances, then returns after a day or two. While the appellant has been
    discharged to live in approved community homes on several occasions, he was
    eventually readmitted to the hospital due to substance use.

[10]

Until
    2018, Ontario Shores had recommended the appellant be detained to monitor his
    mental state and mitigate the risks of abusing drugs and reoffending, which
    would present a serious risk to safety of the public.

(3)

The 2018 disposition and subsequent appeal

[11]

In
    July 2018, however, the Ontario Shores hospital report stated that, in light of
    this courts decision in
Wall (Re)
,

2017 ONCA 713, 417 D.L.R.
    (4th) 124,

the appellant [did] not appear to meet the threshold for a
    significant threat to the safety of the public and thus is entitled to an
    absolute discharge. This was because there had been no incidents of the
    appellant engaging in behaviour likely to cause serious harm during his time
    under the Review Board. While the appellants actions during the index offence
    were undoubtedly frightening and intimidating it was difficult to view them as
    having the potential to cause serious psychological harm.

[12]

The
    report recommended that, if the Board did find that the appellant met the
    threshold of significant threat, he be detained on a secure forensic unit. This
    is because the appellants clinical team believed that his substance abuse
    could not be adequately addressed in the course of indirectly supervised
    privileges. The 2018 report was authored by Dr. Morgan, who was the appellants
    main treating physician for that reporting year.

[13]

In
    its reasons released on August 28, 2018, the Board found that the appellant
    continued to pose a significant threat to the safety of the public as defined
    in
Winko
. It stated that the appellants actions, both before and
    after the index offence,

could have caused real and
    substantial psychological harm to others (eg fire-setting, dangerous operation
    of a motor vehicle, threats, throwing things off his apartment balcony etc) . The
    Panel accepts the evidence of Dr. Morgan and the Treatment Team that without
    close supervision Mr. Kassa would likely become medication noncompliant, start
    to use substances which would lead to a decompensation and a re-emergence of
    behaviour similar to the index offence.

[14]

The
    Board continued the existing detention order, under which Ontario Shores had
    been in the process of admitting the appellant to Boxx House (a group home) but
    was interrupted by the appellants drug use and readmission to hospital. The
    prior disposition had also recommended a transfer to CAMH, which had not yet
    taken place due to a long waiting list.

[15]

The
    appellant challenged the Boards 2018 order at this court. By reasons dated
    April 18, 2019, this court allowed the appeal and ordered that the Board hold a
    new hearing based on a proper
Winko
analysis. Hoy A.C.J.O., writing
    for the court in
Kassa (Re)
, 2019 ONCA 313, at paras. 34-35, held that
    the Board had failed to properly apply the
Winko
test:

In considering only that there was a serious likelihood that
    conduct such as that which the appellant engaged in prior to the index offence,
    and of which limited details were available,
could
result in significant harm, the Board failed to engage in the core analysis
    that
Winko
requires.

Could does not suggest the
    real risk that
Winko
requires. Moreover, the Board did not expressly
    consider the seriousness of the potential harm or weigh it in combination with
    the risk of that harm materializing. [Emphasis in original.]

(4)

The 2019 disposition

[16]

By
    the time of the appellants annual hearing in July 2019, there was evidence
    that the appellants symptoms had significantly worsened. He was discharged to
    Boxx House in August 2018, but then readmitted to the hospital three times before
    the annual hearing. On two of those occasions, the police were necessary to readmit
    the appellant to the hospital.

[17]

The
    2019 hospital report, dated May 27, 2019 and authored by Dr. Pytyck, detailed
    clear evidence of clinical instability, with recurrent periods of
    decompensation due to substance use (specifically, synthetic cannabinoids) and
    a change in injectable medication. When unwell, the appellant

typically has presented as
    irritable and easily angered, as well as verbally inappropriate and rude
    towards staff. He has made indirectly threatening comments (for example, asking
    whether he should kill a member of a sports team) and he has, at times, caused
    staff members to feel intimidated due to his irritability and bizarre comments.

[18]

The
    report recommended that the appellant be detained on a general forensic unit at
    Ontario Shores. If discharged, the appellant would likely continue to engage in
    substance abuse that

would cause him to lose his
    housing and migrate to homelessness, which would in turn lead him to fall away
    from treatment and medication. He would be likely to deteriorate rapidly to a
    state similar to that in which he has previously engaged in problematic
    behaviours that had the potential to cause harm to others.

[19]

An
    addendum to the 2019 hospital report, dated July 9, 2019 and authored by Dr.
    Morgan, further detailed the appellants struggles. The appellant had been
    leaving Boxx House without signing out, going on a crack binge, then
    returning for a day (typically high and disruptive), before going out again.
    His hygiene had deteriorated and he was likely going to be evicted.

[20]

Like
    the 2019 hospital report, the addendum noted that the appellant would likely
    fall away from treatment if granted a discharge. This would lead to
    homelessness and contact with the police, either through the commission of
    minor offences and/or disorganized/bizarre behaviour driven by psychosis.
    However, it continued that this conduct likely will not result in serious
    physical or psychological harm to the public. The addendum described the
    appellants behaviour during his time under the Board as merely trivial or
    annoying, since there has not been any previous instance of the appellant
    causing serious physical or psychological harm.

[21]

The
    addendum did not explicitly recommend a discharge like the 2018 hospital
    report. Instead, it stated that if the Board found the appellant to be a
    significant threat, he should be detained within a Forensic Service, and that
    he would benefit from a transfer to CAMH or St. Josephs Healthcare.

[22]

Dr.
    Pytyck testified at the 2019 hearing, which took place on July 22, 2019. She
    reported that the appellants stability had deteriorated since the addendum was
    written, in that the appellant was displaying more psychotic and bizarre behaviour.
    Dr. Pytyck highlighted that staff members at the hospital have felt threatened
    by the appellants behaviour and the appellant has limited insight into his
    illness. She disagreed that the appellant has not historically been a threat, citing
    his pre-index conduct that included dangerous driving, throwing objects off a
    balcony, and a conviction for weapons dangerous and uttering threats. Dr.
    Pytyck also said that it was now her view that appellant should be detained on
    a secure forensic unit, with the ability to transfer to a general unit after a
    month or two.

[23]

The
    Board accepted Dr. Pytycks evidence and ordered the appellants continued detention.
    It reasoned the appellant was a significant risk to public safety, agreeing
    with Dr. Pytyck that if the appellant was discharged, he would become homeless,
    stop taking medication, and rapidly deteriorate:


[E]ven in hospital, and even while
      being medicated, Mr. Kassa has threatened both female and male staff members to
      the point where those staff members fear for their safety. In this panels
      opinion, that conduct on the part of Mr. Kassa meets the test set out in
Winko
.
We are satisfied there is a real risk of at least
        psychological harm occurring to those staff members. We are satisfied that this
        harm is serious. We are satisfied that Mr. Kassas conduct in making those
        threats are criminal in nature. [
Emphasis added.]


[24]

The
    Board acknowledged that Dr. Morgan came to a different conclusion about the
    appellants risk to public safety. The Board, however, preferred Dr. Pytycks
    conclusion, based on evidence of the appellants conduct over the past year
    (including two extended hospital admissions and threats to staff members), as
    well as the appellants behaviour during the hearing.

[25]

The
    Board was not satisfied that the Community Treatment Order (CTO), that the
    appellant signed under the
Mental Health Act
, R.S.O. 1990, c. M.7, would
    mitigate his risk to public safety. It also stated there was no air of
    reality to a conditional discharge, noting that the appellants return to the
    hospital on two occasions in the past six months was only achieved through the
    existing detention order.

[26]

Consequently,
    the Board ordered the appellant to be detained at a secure forensic unit at
    CAMH, with the person in charge having discretion to transfer him to a general
    forensic unit. Ontario Shores retained residual authority on the same terms. The
    appellant had transferred to CAMH by the time this appeal was heard.

C.

ANALYSIS

(1)

The Board did not err in basing its significant threat finding on the
    alleged verbal threats to staff members

[27]

The
    appellant argues that the Board decision cannot stand for a few reasons. First,
    the appellant says that the Board erred in basing its significant threat
    finding on the alleged threats made to staff. Specifically, the appellant
    alleges the Board overstated the nature of the threatening behaviour, failed to
    properly consider other evidence material to the significant threat analysis,
    and thus did not conduct a proper
Winko
analysis.

[28]

I
    disagree. The Board did not overstate the nature of the alleged threats. Verbal
    threats, bizarre voice messages, and intimidating behaviour were reported
    multiple times in the evidence. Moreover, the Board did not base its finding of
    significant risk solely on the verbal threats made to staff. The Boards
    decision was also based on the appellants broader history and Dr. Pytycks
    evidence, which the Board accepted without reservation. Dr. Pytycks evidence
    detailed the following relevant factors for the significant threat analysis:

·

if given an absolute discharge, the appellant would stop
    medication, continue abusing substances, become homeless, and rapidly
    deteriorate;

·

the appellants use of synthetic cannabinoids has dramatically
    increased his psychotic symptoms;

·

the appellant has limited insight to his use of substances and
    illness; and

·

the appellants recent deterioration in his stability has resulted
    in hospitalizations of extended periods.

[29]

The
    fact that the appellants situation was worsening was reflected in the need for
    both an addendum a month after the 2019 report, and then a further update from
    Dr. Pytyck at the hearing a month after that. At the hearing, Dr. Pytyck
    testified that as recently as the week prior, the appellant had to be placed in
    intensive care on the secure forensic unit. This was because the appellant was
    engaging in behaviours that the staff were having great deal of difficulty
    managing and the appellant was making them feel personally intimidated and  threatened.
    The Board observed that it also had the benefit of seeing the appellant
    throughout the hearing:

Frequently, Mr. Kassa would laugh
    inappropriately during the evidence and in this panels opinion, it is simply
    more evidence of Mr. Kassas psychotic symptoms.

[30]

The
    Board squarely addressed the fact that Dr. Pytyck and Dr. Morgan disagreed on
    the question of significant threat. The Board was entitled to prefer Dr.
    Pytycks evidence. While the addendum expressed that the appellants behaviours
    under the Boards jurisdiction are best descried as trivial or annoying, this
    was qualified by the caveat that the appellant has received consistent
    antipsychotic treatment for a number of years. Dr. Pytyck referred to this
    caveat in her evidence and was cross-examined on this difference of opinion. Her
    testimony about the appellants recent deterioration was the most current
    information before the Board. It is also worth noting that Dr. Morgan stopped
    short of recommending an absolute discharge in the addendum, contrary to his
    recommendation in the 2018 hospital report. Given the evidence outlined above, I
    see no error in the Board preferring Dr. Pytycks opinion on whether the
    significant threat threshold was met.

[31]

The
    Board properly instructed itself on the
Winko
threshold for
    significant threat. It also expressly considered this courts decision in
Kassa
    (Re)
, noting that there must be more than a potential for harm.

[32]

In
    short, the Board based its decision on significant threat not only on the
    verbal threats, but the evidentiary record as a whole. It closely considered
    the difference between Dr. Pytyck and Dr. Morgans opinion. It also correctly
    considered the
Winko
test and applied it to the evidence which it
    accepted.

(2)

The Board did not fail in exercising its inquisitorial function

[33]

The
    appellant argues that the Board failed to exercise its inquisitorial duty to
    search out all available evidence pertaining to the factors in s. 672.54 of the
Criminal Code
, R.S.C., 1985, c. C-46. In particular, he says that the
    Board should have obtained the clinical notes relevant to the verbal threats described
    by Dr. Pytyck and sought Dr. Morgans testimony.

[34]

Again,
    I do not agree. The Boards duty to inquire arises when additional information
    is necessary, in the Boards view:
Palmer (Re)
, 2013 ONCA 475, 307
    O.A.C. 322, at para. 23. When Dr. Pytyck testified about the threats and
    intimidation of staff members, the Board asked her multiple and specific
    questions about the nature of the threats. It is not clear why the clinical
    notes pertaining to the threats would be necessary or useful in these
    circumstances.

[35]

The
    Board also directly considered the two diverging opinions as to whether the
    appellant posed a significant risk to public safety. Dr. Pytyck explained how
    her opinion differed from Dr. Morgans several times in her testimony. The
    Board clearly understood the nature of the divergence, as it explicitly quoted
    a portion of Dr. Morgans addendum that outlined the divergence, as follows:

It would appear that the primary
    issue is whether Mr. Kassas psychotically driven behaviours prior to coming
    under the Board  during episodes where his schizophrenia was completely
    untreated  are sufficiently serious in nature that it can be determined with
    certainty that Mr. Kassa remains a significant threat as defined in law. These
    behaviours are listed on pages 46 and 47 of his ORB report.

[36]

Pages
    46 and 47 of the hospital report describe instances of his pre-index offence
    conduct, such as setting fires, dangerous driving, and throwing items off a
    balcony. In these circumstances, the Board had sufficient information to
    appreciate the difference of opinion and determine which one it preferred. It accepted
    Dr. Pytycks opinion without reservation. In doing so, as I have already
    discussed, the Board was required to consider Dr. Morgans opinion and the
    appellants criminal and psychiatric history as a whole. It did so, based on an
    extensive evidentiary record, and it was entitled accept Dr. Pytycks evidence
    without calling Dr. Morgan to testify.

[37]

As
    outlined earlier, Dr. Pytycks evidence as to the verbal threats was only one
    element of the significant threat analysis. I see no basis for the appellants
    claim that the Board should have required the clinical notes or Dr. Morgans
    testimony. The Board had the necessary and relevant information to determine whether
    the appellant constituted a significant threat to public safety.

(3)

The Board did not err with respect to the CTO

[38]

The
    appellants final argument is that the Board unreasonably concluded that the
    civil mental health system could not mitigate any risk that the appellant would
    fall away from treatment in the context of either an absolute discharge or a
    conditional discharge. I see no merit to this ground of appeal.

[39]

The
    Board was aware of and explicitly considered the CTO, which was filed as an
    exhibit. It was advised at the start of the hearing that the appellant had
    signed a CTO that was valid until January 2020, unless the appellant revoked
    his consent. During the hearing, the Chairperson confirmed that the appellant
    was capable and could therefore revoke his consent to the CTO at any time. In
    its reasons, the Board stated:

We are mindful of the evidence that Mr. Kassa has entered into
    a Community Treatment Order.

That fact does not give this panel any comfort. Mr. Kassa is
    capable of making treatment decisions. This Community Treatment Order
    terminates January 1, 2020. Mr. Kassa has no obligation to renew that Community
    Treatment Order. In fact, Mr. Kassa as a capable patient, has the right to
    terminate the terms of the Community Treatment Order at any time.

There was evidence that the civil mental health system would
    not be useful for the appellant, given his lack of housing and community
    supports, as well as his substance abuse issues. In particular, the 2019
    hospital report stated that the 
Mental Health Act
would not be
    sufficient to keep Mr. Kassa in hospital long enough to fully stabilize him or
    to organize appropriate resources to manage him in the community, given his
    tendency to rapidly return to his usual psychiatric baseline. Furthermore, the
    addendum stated that:

Mr. Kassa pays no heed to the
    terms of his Disposition. He wantonly uses substances, disregards requests to
    return to hospital, and elopes from hospital whenever he feels the desire to do
    so. He is unmotivated to address these risk factors and as such, we anticipate
    that, for the time being, Mr. Kassa will remain on a highly supervised forensic
    unit without access to indirectly supervised privileges.

[40]

The
    Board specifically accepted Dr. Pytycks evidence that it is absolutely
    necessary that the appellant be subject to a detention order, noting that
    there was no air of reality to a conditional discharge. As the Board noted, on
    at least two occasions in the previous six months, the appellants return to
    the hospital had been achieved only because he was subject to a detention
    order.

[41]

I
    see no misapprehension in the Boards treatment of this issue as the appellant
    submits. The Board is an expert tribunal and is presumed to be well aware of
    the mechanisms under the
Mental Health Act.
Absent some evidence that
    the Board truly misunderstood how to enforce the order, there is no basis to
    find that the Board misapprehended the consequences of a revocation of consent.
    In this case, none of the parties, including the appellant, focused on the
    community treatment order during the hearing. It did not figure prominently
    into the hearing and was not central to the decision.

D.

disposition

[42]

Read as a whole, the Boards reasons are reasonable and disclose
    no error or misapprehension that could warrant allowing the appeal. I would
    dismiss the appeal.

Released: September 1, 2020

D.W.

A. Harvison Young J.A.

I agree David Watt J.A.

I agree
Gary Trotter J.A.



