



COURT OF APPEAL FOR ONTARIO

CITATION: Kassa (Re), 2019 ONCA 313

DATE: 20190418

DOCKET: C65965

Hoy A.C.J.O., Doherty and Zarnett JJ.A.

IN THE MATTER OF: SAMUEL KASSA

AN APPEAL UNDER PART XX.1 OF THE
CODE

Kelley Bryan, for appellant

Joe Hanna, for the respondent

Heard: March 29, 2019

On appeal from the disposition of the Ontario Review
    Board dated, August 2, 2018.

Hoy A.C.J.O.:

[1]

The appellant, Samuel Kassa, has been diagnosed with
    schizophrenia in addition to cocaine and cannabis use disorders. He has been
    under the jurisdiction of the Ontario Review Board since he was found not
    criminally responsible on account of mental disorder (NCR) for uttering a
    threat to cause bodily harm on July 19, 2012.

[2]

At the time of his most recent hearing before
    the Board, the appellant was 43 years of age. He appeals the disposition dated
    August 2, 2018 arising from that hearing, concluding that he continues to
    constitute a significant threat to the safety of the public and ordering that
    he continue to be detained at the General Forensic Unit of the Ontario Shores
    Centre for Mental Health Sciences
(the Hospital)
pending transfer to the General Forensic Unit of the Centre for Addiction and
    Mental Health (CAMH). The appellant asks that the disposition be set aside
    and that he be discharged absolutely or, in the in the alternative, that he be
    discharged subject to conditions or, in the further alternative, that the
    matter be returned to the Board with directions for a new hearing.

[3]

The Hospital takes no position on the appeal. The Crown argues
    that the appeal should be dismissed and the Boards disposition affirmed.

[4]

For the following reasons, I would allow the appeal and
    return the matter to the Board for a new hearing.

Background

[5]

The index offence of uttering a death threat arose out of an incident on
    July 28, 2010. The appellant went to CAMH intending to see his addictions
    counsellor, but the security guard told him to leave the building, probably
    because he was barefoot. The appellant saw a TTC operator stationed at the
    corner. The appellant paced in that area and engaged in conversation with the
    TTC operator. The appellant indicated that the TTC operator called him an asshole.
    The appellant walked up to the TTC operator, lifted his right arm up and put
    his hand out as if he were holding a gun, then stated: Fuck you, youre dead.
    He walked away, then turned around and came back within 10 feet of the TTC
    operator. He repeated the gesture, this time not saying anything. At the time,
    the appellant was using crack cocaine and cannabis and was likely non-compliant
    with antipsychotic medication.

[6]

The report dated July 5, 2018 of his treatment team at the Hospital
    noted that it was difficult to view the appellants actions on July 28, 2010
    as having the potential to cause serious psychological harm, and there was
    no reported physical harm.

[7]

Further, during his tenure under the Board, the appellant had not
    exhibited any behaviour that reasonably could be viewed as having the potential
    to cause serious physical or psychological harm. Indeed, he had been assaulted
    twice in the past year and did not respond with any form of aggression. The
    Hospital described the appellant as remaining calm, cooperative and stable
    during the reporting period.

[8]

The Hospital reviewed the appellants behavior before he came under the
    Boards jurisdiction that could have potentially led to serious harm:

·

In 2000, the appellant was charged with dangerous operation of a
    motor vehicle. The available materials suggest that he drove through a red
    light, rear ended a slower car, and drove at speeds of over 150 km/h. This may
    have been a suicide attempt and led to his first psychiatric contact in Canada.

·

In 2005, the appellant started a fire in his apartment and was
    throwing items off his balcony. No additional detail was available. The
    appellant said he had been attacked by a friend who was using drugs. The friend
    left trousers in the appellants apartment, and the appellant said he put them
    on the stove.

·

In 2009, the appellant reportedly set fires in his apartment to
    notify people of the upcoming civic elections. The appellant claims that he did
    not actually start a fire. Rather, he was using his lighter to try to set off
    the fire alarm.

·

In 2009, the appellant was convicted of threaten bodily harm and
    weapons dangerous. He received a conditional discharge and two years
    probation.

·

In 2010, the appellant was accused of threatening a physician at
    CAMH. The synopsis indicated that he became agitated when told he was not going
    to be admitted to hospital and threw milk, and then the carton, on the
    physician. He then allegedly threatened to come back with a gun and shoot the
    doctor.

·

In 2011, the appellant was charged with assault. This may have
    been in respect of the 2010 incident.

[9]

The Hospital concluded that it did not appear that the appellant had
    ever caused serious physical or psychological harm, although his driving in
    2000 and fire setting in 2005 and 2009 would certainly have the potential for
    serious injury to another person.

[10]

The
    Hospital reported that the appellants insight into his schizophrenia is good,
    he has adhered to his long-acting medication regime, and his psychosis was
    fully remitted, although he struggles with substance abuse on an ongoing basis.
    The appellant had availed himself of multiple interventions to address his
    substance abuse. The Hospital concluded that because it remained likely that
    the appellant would continue to use substances with regularity, if the
    appellant were granted an absolute discharge, it was unlikely that he would be
    able to maintain housing on an indefinite basis and, should he end up homeless,
    it would be very difficult to ensure that he receives consistent treatment in the
    community. Accordingly, it was likely the appellant will eventually fall away
    from psychiatric treatment.

[11]

The
    Hospital wrote:

In short, in the event of an absolute discharge, it is likely
    that [the appellant] will continue to have significant challenges with
    substance abuse. He is likely to have further interactions with the criminal
    justice system in relation to this. Should he act in a manner that is likely to
    cause significant harm this will likely flow from untreated psychosis. So long
    as [the appellant] remains on antipsychotic treatment, we can only say that his
    continued drug usage is potentially linked to problematic symptoms. Even in the
    worst-case scenario where [the appellant] is homeless, non-compliant with
    antipsychotic medication, and actively using crack cocaine and cannabis, the
    view of the treatment team is that we can only conclude that this might lead to
    serious harm through reckless behaviour.

[12]

In
    prior years, the Hospital had concluded that the appellant was a significant
    threat to the safety of the public. The Hospital considered whether the
    appellant met the significant threat threshold in light of the clarification
    by this court in
Wall (Re)
, 2017 ONCA 713, 417 D.L.R. (4th) 124, since
    the Hospitals prior report.

[13]

By
    way of context, in
Wall
, the appellants diagnoses included bipolar
    disorder and polysubstance abuse. Prior to the index offence, Mr. Wall had
    accumulated an extensive criminal record, including robbery, assault, and
    assault with a weapon. At his hearing, the question of significant threat was
    linked to his cannabis use and its impact on his bipolar affective disorder.
    Mr. Wall was treatment capable and compliant with medication. His physician
    testified that he would continue with treatment if discharged. He was willing
    to consent to a Community Treatment Order (CTO). Until shortly before the
    Boards decision, his bipolar disorder was well managed by medication and
    unaffected by his ongoing use of marijuana. But his treating physician linked
    recent signs of mania to his marijuana use and testified that when manic he may
    pose a risk of violent and transgressive behavior.

[14]

The
    court held that the only evidence connected to the risk of physical harmwas
    dated and speculative and that the Board could conclude no more than that Mr.
    Walls marijuana use was 
potentially linked to problematic symptoms
.
    As a result, the court found that the Boards decision was unreasonable, set
    aside the order of the Board, and granted an absolute discharge.

[15]

The
    Hospital concluded that there were several similarities between the appellants
    situation and that of Mr. Wall. Further, it noted that the appellant had
    indicated that he is willing to have a CTO and continue with medication by
    long-acting injection. The Hospital recommended that he be discharged
    absolutely. If not, the Hospital recommended that the appellant be detained in
    a secure forensic unit because his substance use cannot be adequately addressed
    while allowing him indirectly supervised privileges.

[16]

Prior
    to his hearing before the Board, the appellant signed a CTO.

[17]

The
    appellants treating physician, Dr. Morgan, testified before the Board. He
    noted that while on medication the appellant displays no psychotic symptoms
    when he uses cannabis and cocaine. It is only when he uses the synthetic
    cannabinoid Spice that he develops psychotic symptoms, but those are mild.
    Further, the appellant has openly admitted to his drug use and has returned to
    hospital voluntarily after elopements to use drugs. He has described coming
    back to the hospital as a vacation.

[18]

Dr.
    Morgan reiterated that he did not believe that any actions by the appellant if
    he engaged in substance abuse and became medication non-compliant would cause
    serious physical or psychological harm to others. However, he conceded that the
    appellants actions could do so, although that had not historically been the
    case. The Hospital reiterated its recommendation that the appellant receive an
    absolute discharge.

[19]

The
    Board did not accept the Hospitals position.

[20]

It
    concluded that this case was not like
Wall
. It was clear that Mr. Wall
    would remain treatment compliant if discharged, whereas Dr. Morgans evidence
    was that the appellant would likely stop his medication if discharged. Further,
    the CTO that the appellant had signed was not a guarantee of compliance.

[21]

The
    Board purported to apply the standard for determining significant threat set
    out by the Supreme Court in
Winko v. British Columbia (Forensic Psychiatric
    Institute)
, [1992] 2 S.C.R. 625, which the Board summarized as whether the
    accused poses a serious risk of substantial psychological or physical harm to
    others.

[22]

The
    Board found that there was a clear pattern of activity. While it acknowledged
    that none of the appellants actions had resulted in substantial psychological
    or physical harm to others, it found that the threshold for significant threat
    to the safety of the public was met because there is a serious likelihood
    that such actions in the future
could
result in
    significant harm particularly if Mr. Kassa is medication noncompliant (emphasis
    added). The Board concluded that the appellant continues to constitute a
    significant threat to the safety of the public. It found that the alternative
    of detention in a secure forensic facility recommended by the Hospital was not
    the least onerous and restrictive alternative and ordered that he continue to
    be detained at the General Forensic Unit of the Hospital pending transfer to
    the General Forensic Unit of CAMH.

Issues on Appeal

[23]

In
    his oral submissions, the appellant clarified that he does not challenge the
    Boards disposition on the basis that it was unreasonable. Rather, he argues
    that the Board failed to apply the proper legal test for significant threat to
    the safety of the public in two ways.

[24]

First,
    in considering whether significant harm could result, the Board descended
    into the realm of speculation, contrary to both
Winko
and this courts
    decision in
Wall
.

[25]

Second,
    the Board failed to consider the likelihood of the appellant engaging in criminal
    conduct resulting in physical or psychological harm, and the seriousness of the
    harm that might occur
together
, as required by
Winko
,
    at para. 57.

[26]

Further,
    the appellant argues that having found that he is a significant threat to the
    safety of the public, the Board erred by failing to consider whether that risk
    could be managed under a conditional discharge.

Analysis

[27]

As I will explain, I agree with the appellant that, despite
    adverting to
Winko
,
    the Board failed to apply the proper legal test for significant threat to the
    public.

[28]

Section
    672.54(a) of the
Criminal Code
directs that where an NCR accused is
    not a significant threat to the safety of the public he or she must be
    discharged absolutely.

[29]

Section
    672.5401 of the
Criminal Code
defines a significant threat to the
    safety of the public to mean a risk of serious physical or psychological harm
    to members of the public  including any victim of or witness to the offence,
    or any person under the age of 18 years  resulting from conduct that is
    criminal in nature but not necessarily violent.

[30]

In
Winko
,
the Supreme Court describes, at para. 57, what amounts
    to a significant threat to the safety of the public:

[T]he threat must be more than speculative in
    nature; it must be supported by evidence. The threat must also be
    significant, both in the sense that there must be a real risk of physical or
    psychological harm occurring to individuals in the community and in the sense
    that this potential harm must be serious. A miniscule risk of a grave harm will
    not suffice. Similarly, a high risk of trivial harm will not meet the
    threshold. Finally, the conduct or activity creating the harm must be criminal
    in nature. In short, Part XX.1 can only maintain its authority over an NCR
    accused where the individual poses a significant risk of committing a serious
    criminal offence. [Citations omitted.]

[31]

While the contemplated conduct must be criminal, not all criminal
    conduct will meet this standard. There must be a risk that the NCR accused will
    commit a
serious
criminal offence:
Winko
,
at paras. 57, 69.

[32]

This court may set aside an order of the Board only where it is
    of the opinion that: (a) the decision is unreasonable or cannot be supported by
    the evidence; (b) the order is based on a wrong decision on a question of law
    (unless no substantial wrong or miscarriage of justice has occurred); or (c)
    there was a miscarriage of justice:
Criminal Code
, s. 672.78(1);
R.
    v. Owen
, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 31.

[33]

Winko
requires that the Board assess
    the likelihood of physical or psychological harm occurring as a result of
    criminal conduct if the appellant is granted an absolute discharge and the
    seriousness of the potential harm, and weigh the seriousness of the potential
    harm in combination with the likelihood of that harm materializing:
Kalra
    (Re)
, 2018 ONCA 833, at para. 51;
Hammoud (Re)
,
2018 ONCA 317, at paras. 6-9. In other
    words, 
[t]he likelihood of a
    risk materializing and the seriousness of the harm that might occur must be
    considered together:
Wall
,
at para.
    13.

[34]

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.

[35]

The Board did not grapple with the likelihood of
    physical or psychological harm occurring as a result of the appellant engaging
    in criminal conduct if granted an absolute discharge. As
Winko
instructs, there must be a real risk of physical or psychological harm
    arising from criminal conduct: at paras. 51, 57. 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.

[36]

It does not appear to be disputed that there is
    no evidence that the appellant has at any point engaged in criminal conduct
    that resulted in serious physical or psychological harm. It is critical that
    the Board engage in the analysis that
Winko
requires.

[37]

The significant threat standard is an onerous
    one that requires a very careful assessment of the question of risk:
Carrick
    (Re)
, 2015 ONCA 866, 128 O.R. (3d) 209, at para. 17;
Carrick
    (Re)
,
2018 ONCA 752, at
    para. 20.

[38]

I am unable to conclude that the Board would
    necessarily have reached the same conclusion if it had applied
Winko

correctly. I would return the matter to the Board for a
    rehearing based on a proper
Winko

analysis.

[39]

Finally, I note the evidence that the appellant
    is compliant with his three-month injectable medication and voluntarily returns
    to hospital upon re-emergence of symptoms. While the appellant had not
    requested a conditional discharge, on the evidence before the Board, there was
    an air of reality that a conditional discharge would be appropriate. Should the
    Board conclude, following a new hearing, that the appellant remains a
    significant threat to the public, it should consider whether the risk could be
    managed under a conditional discharge order:
Collins (Re)
,
2018 ONCA
    563, at para. 43
.

Disposition

[40]

I would allow the appeal and return the matter
    to the Board for a new hearing.

Released: AH APR 18 2019

Alexandra Hoy A.C.J.O.

I agree Doherty J.A.

I agree B. Zarnett J.A.


