



COURT OF APPEAL FOR ONTARIO

CITATION: Skeene (Re), 2020 ONCA 661

DATE: 20201020

DOCKET: C67771

Doherty, van Rensburg and
    Trotter JJ.A.

IN THE MATTER OF: Kwasi Skeene

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Karen Papadopoulos, for the respondent,
    Attorney General of Ontario

Heard: October 2, 2020 by
    video conference

On appeal from the disposition of the
    Ontario Review Board, dated October 30, 2019, with reasons dated November 26,
    2019.

REASONS FOR DECISION

A.

Overview

[1]

The appellant Kwasi Skeene appeals from the disposition of the Ontario
    Review Board (the Board) dated October 30, 2019 that renewed his conditional
    discharge, with reduced conditions. He submits that the Boards conclusion that
    he continues to pose a significant risk to public safety was unreasonable. He
    seeks an absolute discharge, or in the alternative that the matter be referred
    back to the Board for a re-hearing before a differently constituted panel.

[2]

For the following reasons, we dismiss the appeal.

B.

Background Facts

[3]

Mr. Skeene was found not criminally responsible on account of mental
    disorder (NCRMD) on charges of second degree murder and assault with a weapon
    after he fatally stabbed his neighbour, Kenneth Brennan, and wounded Mr.
    Brennans son on March 5, 2004. At the time of his arrest Mr. Skeene was
    acutely psychotic. He had not been compliant with his medication for
    schizophrenia and he was under the influence of cannabis.

[4]

Mr. Skeene has been under the jurisdiction of the Board for more than 16
    years.

[5]

He was initially remanded to the Centre for Addiction and Mental Health
    (CAMH) following his NCRMD finding on September 8, 2004. He was discharged to
    live in the community on five occasions between 2007 and 2012, however in each
    instance Mr. Skeene was readmitted after substance use, which was usually
    followed by decompensation. From January 2013 to December 2014, Mr. Skeenes
    mental state declined, with two periods in which he was declared incapable of
    consenting to treatment. In November 2014, he lit a fire while in a seclusion
    room at CAMH. Due to the deterioration in Mr. Skeenes mental condition, he was
    transferred to the secure forensic unit at the Waypoint Centre for Mental
    Health Care (Waypoint) on December 24, 2014. After 13 months without any
    significant incident, Mr. Skeene was transferred to the secure forensic unit
    and eventually to the general forensic unit at St. Josephs Healthcare Hamilton
    (the Hospital).

[6]

In December 2018 Mr. Skeene was discharged from the Hospital under a
    conditional discharge which required him to, among other things, live at a
    prescribed address in Hamilton, report weekly, refrain from the non-medical use
    of alcohol and drugs, submit to testing for same, and, on his consent, take
    treatment/medication as prescribed by the person in charge of the Hospital.

[7]

Mr. Skeenes current diagnoses are schizophrenia, substance use disorder
    (in remission in a controlled setting), and antisocial and narcissistic
    personality traits. By the time of his annual Board hearing in October 2019, he
    had been stable for five years, with no notable incidents since he was
    transferred from CAMH to Waypoint in December 2014.

[8]

At the time of the Board hearing Mr. Skeene had been living in the
    community for ten months in an independent apartment in Hamilton subsidized by
    the Good Shepherd HOMES Program, and he was fully compliant with the conditions
    of his discharge.

C.

The Disposition under Appeal

[9]

At his most recent Board hearing in October 2019, Mr. Skeene sought an
    absolute discharge, while the Attorney General and the Hospital sought to reduce
    the frequency of his reporting and add a provision permitting his travel to
    Trinidad and Tobago for up to 14 days.

[10]

The
    Board considered the Hospital report that provided information concerning Mr.
    Skeenes personal and mental health history, and his condition and behaviour
    while hospitalized and in the community, both prior to and after the index
    offences. The Board heard evidence from Dr. Nagari, who has been Mr. Skeenes
    attending psychiatrist at the Hospital since February 2017, and from Mr.
    Skeene.

[11]

The
    Board concluded that Mr. Skeene continued to pose a significant threat to
    public safety. The Board accepted Dr. Nagaris opinion that Mr. Skeene remained
    a significant threat based on his firm refusal to engage with a non‑forensic
    community team when he refused to complete the application forms for IntAC (a
    community program for psychiatric services). The rejection of transitional
    assistance from a community team represented a rejection of future supports
    required for successful community reintegration. The Board observed that Mr.
    Skeenes testimony that he could enable a referral to a community psychiatrist
    through his family physician rings hollow as no referral request had yet been
    made. The Board preferred Dr. Nagaris contention that the refusal was
    demonstrative that Mr. Skeene had yet to develop sufficient insight into his
    illness and the ongoing need for treatment, which was buttressed by Mr. Skeenes
    recent statements that he might ask his family physician to switch him to an
    oral antipsychotic medication. The Board noted that Mr. Skeene failed to
    appreciate that he would likely decompensate and become floridly psychotic
    within two weeks if he missed a monthly injection and within two days if he
    became non-compliant with oral medication.

[12]

The
    Boards conclusion on significant risk is summarized in its reasons (at p. 9)
    as follows:

Given the foregoing, the Board prefers the expert evidence of
    Dr. Nagari that, if granted an Absolute Discharge at this time, Mr. Skeene
    would ask his family physician to switch him from long-acting injectable
    medications to oral medications. Thereafter, Mr. Skeene would not take those
    medications regularly and would not reach out for assistance were he to
    experience signs of decompensation. Absent community monitoring services, Mr.
    Skeene would continue to decline and is highly likely to experience florid
    psychosis and exhibit the types of behaviours he has demonstrated in the past
    as serious as the index offence of murder.

D.

The Legal Framework

[13]

The
    threshold issue when an NCRMD accused comes before the Board is whether that
    person represents a significant threat to the safety of the public. In the
    absence of such a finding, the NCRMD accused must be discharged absolutely.
    There is no discretion to do otherwise:
Criminal Code
,
    R.S.C., 1985, c. C-46, s. 672.54(a);
Winko v. British Columbia (Forensic
    Psychiatric Institute)
, [1999] 2 S.C.R. 625, at paras. 33, 47-48;
Carrick
    (Re)
, 2018 ONCA 752, at para. 34.

[14]

A
    significant threat to the safety of the public means a real risk of physical or
    psychological harm to members of the public that is serious and that gives rise
    to serious criminal conduct. The threat must be more than speculative; it must
    be supported by evidence:
Winko
, at paras. 57, 62. There must be a
    foreseeable and substantial risk of harm to members of the public that is
    serious and beyond the trivial or annoying:
R. v. Ferguson
, 2010 ONCA
    810, 264 C.C.C. (3d) 451, at para. 8.

[15]

An
    absolute discharge cannot be denied on the basis that it is not in the
    individuals best interests, including the risk that the individual will cease
    taking medication and that their condition will worsen, absent a finding of
    significant threat to public safety:
Pellett (Re)
, 2017 ONCA 753, 139
    O.R. (3d) 651, at para. 32.

[16]

A
    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 decision 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;
R. v. Owen
,
    2003 SCC 33, [2003] 1 S.C.R. 779, at para. 31.

E.

Analysis

[17]

The
    sole issue on this appeal is whether the Boards conclusion in October 2019 that
    Mr. Skeene continued to pose a significant threat to public safety, is
    unreasonable. If we conclude that it is unreasonable, Mr. Skeene must be
    absolutely discharged.

[18]

On
    behalf of Mr. Skeene, Ms. Szigeti makes two central arguments in support of her
    contention that the refusal of an absolute discharge was unreasonable. First,
    she submits that the Board did not treat Mr. Skeenes evidence fairly and did
    not conduct an even-handed analysis of that evidence when put against the
    evidence of Dr. Nagari. Second, Ms. Szigeti asserts that the Board wrongly
    allowed its concerns about Mr. Skeenes lack of insight to dominate its
    analysis of the issue of significant threat.

[19]

The
    Attorney General submits that the Boards conclusion on the significant threat
    issue was reasonable. It was fully supported by the evidence, and there was no
    error in the Boards approach to the evidence or to the question of Mr.
    Skeenes insight.

[20]

We
    deal with the appellants arguments in turn.

(1)

The Boards Treatment of Mr. Skeenes Evidence

[21]

Ms.
    Szigeti submits that the Board ignored the evidence of Mr. Skeenes significant
    progress, including his five years without incident, and ten months of
    successful living in the community. She asserts that the Boards summary of Mr. Skeenes
    evidence was unfair and incomplete, and that the Board ignored the critical
    points on which Mr. Skeene testified, relating to his insight into the
    seriousness of his mental illness, the need to abstain from substances, and his
    ongoing need for medication and to have a community psychiatrist.

[22]

We
    disagree.

[23]

At
    the hearing, the Board recognized that Mr. Skeene had done well in the
    community during the preceding ten months, and that he had complied with all
    reporting and other requirements, including abstaining from alcohol and drugs. Dr. Nagari
    emphasized Mr. Skeenes progress in his evidence.

[24]

Mr.
    Skeene confirmed that he would remain compliant with his medication if he were
    discharged absolutely, and that, although he had a history of substance use, he
    would not return to using cannabis. The issue that was squarely before the
    Board however was whether, notwithstanding these assertions, and Mr. Skeenes
    progress during the reporting year, he would remain compliant with his
    medication if he were to receive an absolute discharge. Compliance was necessary
    in order to avoid the trajectory that Dr. Nagari had predicted, of missed medication,
    followed by decompensation, and conduct as serious as that which occurred in
    the index offences. This trajectory was supported by the psychiatric evidence,
    the circumstances of the index offences, and Mr. Skeenes history both before
    the index offences (when he was non-compliant with medication) and under the
    jurisdiction of the Board (when he was repeatedly discharged and readmitted after
    relapses into substance use and symptoms). In other words, there was ample
    evidence that if Mr. Skeene were to become non-compliant with his medication,
    he would pose a significant threat to public safety. The Hospital considered it
    necessary and appropriate to address the risk of non-compliance by having Mr. Skeene
    followed by a community team, including a case manager who could assess his
    mental status and ensure his ready access to the services of a psychiatrist on
    the team as required.

[25]

While
    the Board did not summarize all of Mr. Skeenes evidence, it referred fairly and
    accurately to his evidence on the key issue before it: the likelihood that he
    would remain compliant with his medication if he were to obtain an absolute
    discharge.

[26]

The
    Board referred to Mr. Skeenes evidence that he would remain compliant with
    treatment following an absolute discharge, that he would continue to see Dr. Nagari
    for as long as necessary, and that he prefers to receive medications by mouth
    because he feels injections are invasive and painful and require a rigid
    schedule of injection dates. As for his rejection of a referral to IntAC, the
    Board referred to Mr. Skeenes evidence that he recognizes that he will need
    psychiatric follow up in the community but that he does not need a case
    manager, that he does not want to be bonded to a team in order to live in the
    community, and that he proposes the option of a referral to a community
    psychiatrist by his family physician.

[27]

Ms.
    Szigeti submits that the Board failed to grapple with a misunderstanding about Mr.
    Skeenes intention to follow up with psychiatric care in the community and
    about the role of a case manager. As we read the evidence, any misunderstanding
    was more apparent than real.

[28]

While
    Mr. Skeene, at one time, may have misunderstood the role of the IntAC case
    manager, it was made clear, both by his treatment team (as Dr. Nagari
    explained) and at the Board hearing, that the case manager would check on his
    mental status and act as a liaison to the psychiatric team. Mr. Skeene was not
    prepared to accept such oversight or monitoring. Rather, he did not want to be
    bonded to a team, which he regarded as a form of control. He recognized that
    he needed a community psychiatrist for medication and thats about it. He
    thought that he could manage very well with a doctor who would assess him, and
    he [didnt] want to be caught up in anything rigid: Transcript, at pp. 74, 80-83.

[29]

In
Sim (Re)
, 2019 ONCA 719, a case relied on by
    Ms. Szigeti, this court observed that the Boards evidentiary analysis was
    inadequate because its conclusion that Mr. Sim did not believe that substance
    use would have a significant impact on his mental health was based on a statement
    from the hospital record that was selectively quoted, and the Board failed to
    address Mr. Sims evidence on this point at the hearing. The Board did not
    explain why it preferred the evidence of the attending psychiatrist to that of
    Mr. Sim on this point: at paras. 26-27, 30.

[30]

Here,
    by contrast, the Board did consider the relevant evidence offered by Mr. Skeene
    on the central question  whether his risk of non-compliance with medication could
    be managed in the community. The Board adverted to Mr. Skeenes reasons
    for rejecting community support and reasonably concluded that his plan to be
    followed by a community psychiatrist after a referral from his family doctor was
    insufficient. This was not, as his counsel suggests, simply a disagreement
    about the path forward where reasonable people can disagree. The Board was
    entitled, as it did, to accept the opinion of Mr. Skeenes forensic team,
    including Dr. Nagari, that community monitoring services would be required to
    address Mr. Skeenes risk of non-compliance with medication and the significant
    threat he poses to public safety.

(2)

The Boards Treatment of the Issue of Mr. Skeenes Insight

[31]

Ms.
    Szigeti also submits that the Board unreasonably concluded that Mr. Skeene
    was lacking insight and gave this factor too much weight in its analysis.

[32]

While
    lack of insight is not itself a basis to deny an absolute discharge, whether an
    NCRMD accused has insight into his or her mental illness, and the extent of
    such insight, are part of the analysis in determining if there is a significant
    threat to the safety of the public:
Kalra (Re)
, 2018 ONCA 833, at
    para. 52. Lack of insight has its place in the overall clinical picture, but it
    must not dominate the significant threat analysis, and it alone cannot form the
    basis for indeterminate detention under Part XX.1 of the
Criminal
    Code:
Woods (Re)
, 2019 ONCA 87, at
    para. 17.

[33]

The
    Board did not deny Mr. Skeene an absolute discharge because of his lack of
    insight, nor did the question of his insight overwhelm or dominate the significant
    threat analysis. His lack of insight however did have a role to play in the
    significant threat analysis, particularly since the contemplated harm to public
    safety, if Mr. Skeene were to become non-compliant with his medications, is at
    the very serious end of the spectrum.

[34]

While
    Mr. Skeene recognizes that he has schizophrenia and he has developed insight
    into the need to abstain from alcohol and drugs, at the time of the most recent
    Board hearing he was lacking insight into the consequences if he were to stop
    taking his medication and his need for support. Dr. Nagari testified, and the
    Board agreed, that Mr. Skeenes refusal of the IntAC referral because he felt
    it was another mechanism to control him indicated that he had yet to develop
    full insight into his illness and the ongoing need for treatment: at pp. 5, 9.
    The Board noted Dr. Nagaris observation that Mr. Skeene accepts that he
    suffers from schizophrenia but that he does not appreciate the level of support
    he continues to need or how his symptoms would re-emerge if he were to discontinue
    his prescribed medications: at p. 6. Indeed, at the Board hearing, Mr. Skeene asserted
    that it was unfair and speculative to assume when somebody has a relapse or
    [is] floridly psychotic, theyre just going to act out violently (Transcript, at
    p. 79) and, when asked what would happen if he were off his medication for a
    week, he responded I dont know (Transcript, at p. 91).

[35]

We
    see no error in the Boards treatment of the issue of insight in this case as
    it helped shape the overall clinical picture but did not dominate the analysis
    of significant harm. Whether Mr. Skeene would be able to independently manage
    the risk of missing his medication that would lead to the predicted trajectory
    of decompensation and violent behaviour, without the assistance of a community
    psychiatric team, would depend at least in part on his having insight into his
    vulnerability to becoming unwell.

(3)

The Boards Disposition Is Reasonable

[36]

The
    Boards most recent disposition, denying an absolute discharge, based on its
    conclusion that Mr. Skeene remains a significant threat to public safety, is
    reasonable.

[37]

Mr.
    Skeene made important strides in the five years preceding the most recent Board
    hearing, and in particular in his ten months living in the community. He has
    abstained from alcohol and drugs, coming to recognize the risks if he were to
    use cannabis. Mr. Skeenes mental illness is well-controlled by his
    anti-psychotic medication, without which there is a significant risk of very
    serious harm to public safety such as occurred in connection with the index
    offences. The Boards focus accordingly was on the risk that Mr. Skeene would
    not take his medication, notwithstanding his assurances that he would do so,
    and the consequences that would likely follow. The Board reasonably concluded
    that the risk of non-compliance with medication was not sufficiently mitigated
    by Mr. Skeenes being followed by a community psychiatrist. He required a team
    that would be able to assist with monitoring symptoms and accessing psychiatric
    services quickly, if needed, between scheduled appointments with a psychiatrist.
    Mr. Skeenes expressed preference for oral medication  which would mean that
    he would need to take the medication by mouth each day, rather than relying on
    a long-lasting injection  created concern, as did his reluctance to accept
    supervision. These concerns, combined with evidence that Mr. Skeene may be
    overestimating his ability to cope independently with his mental illness,
    support the Boards conclusion that an absolute discharge would create a risk
    of non-compliance with medication that would lead to a significant threat to
    public safety.

(4)

Removal of Condition 1 (c)

[38]

The
    Boards reasons indicate that, in addition to accepting the changes put forward
    by the Hospital and supported by the Attorney General (reducing Mr.

Skeenes reporting to once every two weeks and
    permitting indirectly supervised travel to Trinidad and Tobago for up to 14
    days), the Board struck para. 1(c) of the existing disposition (the
    condition that Mr. Skeene abstain absolutely from the non-medical use of
    alcohol or drugs or any other intoxicant), in order to assess whether absent
    any directed prohibition, he would continue to abstain from the non-medical use
    of alcohol or drugs while residing in the community. Unfortunately, condition
    1(c) continues to appear in the current formal order of the Board, and, on the
    consent of the parties, will need to be removed.

F.

Conclusion

[39]

For
    these reasons, we conclude that the Boards disposition of October 30, 2019, based
    on its conclusion that Mr. Skeene continued to pose a significant risk to
    public safety, is reasonable. The disposition is amended to remove condition
    1(c). In all other respects, the disposition will remain the same and the
    appeal is accordingly dismissed.

Doherty
    J.A.

K. van
    Rensburg J.A.

Gary
    Trotter J.A.


