Court of Appeal for Ontario

Date: 2019-09-13

Docket: C66359

Judges: Pardu, Brown and Trotter JJ.A.

In the Matter of: Donovan Ray Sim

An Appeal Under Part XX.1 of the Code

Counsel:

• Anita Szigeti, for the appellant
• Megan Petrie, for the respondent, Attorney General of Ontario
• Marie-Pierre T. Pilon, for the respondent, the Person in Charge of the Royal Ottawa Health Care Group

Heard: September 6, 2019

On appeal against the disposition of the Ontario Review Board, dated November 8, 2018, with reasons dated December 19, 2018.

Reasons for Decision

Overview

[1] Mr. Donovan Sim appeals from the November 8, 2018 disposition of the Ontario Review Board (the "Board") that continued his conditional discharge, with reduced conditions. He submits the Board erred in holding that he continues to pose a significant risk to the safety of the public. Mr. Sim asks this court to set aside the Board's disposition and grant an absolute discharge. In the alternative, he seeks a new hearing before a differently constituted Board panel.

[2] For the reasons set out below, we allow the appeal and direct the Board to hold a new hearing before a differently constituted panel.

Background Facts

[3] Mr. Sim is 49 years old.

[4] He has a long history of mental illness; his first admission to a psychiatric facility was in 1999. At the time of the Board hearing, his diagnosis was: schizoaffective disorder – treatment resistant with residual symptoms including positive symptoms; polysubstance dependence, which was in remission "in a controlled environment"; antisocial personality disorder; and schizoid traits. At the time of the hearing he was taking several medications, including Clozapine.

[5] Mr. Sim has a long history of substance abuse involving alcohol, cannabis, and methamphetamine. Some of his criminal conduct was associated with his addiction to methamphetamine. Prior to his first index offence in 2000, Mr. Sim had accumulated over 30 convictions, seven of them for assaultive behaviour.

[6] In 2000, he was found not criminally responsible on account of mental disorder on a charge of theft under $5,000 involving a car. He was detained in a series of hospitals. In 2007, he left a hospital without authorization, decompensated and, upon his admission to CAMH in November 2007, seriously assaulted nursing staff. This led to a second NCR verdict in 2008.

[7] From November 2007 until October 2009, Mr. Sim was detained at Oak Ridge. He was then transferred to the Brockville Mental Health Centre ("Brockville"). In August 2012, Mr. Sim went AWOL for several days; at the time of his return to Brockville he was labouring under significant delusions.

[8] Thereafter, Mr. Sim was cooperative with his treatment team and compliant with his prescribed medication. In July 2014, he was discharged to reside in a 24-hour supervised group home. In September 2015, he moved to an 8-hour supervised residence. In September 2016, he moved into co-op shared accommodation, where he was living at the time of his 2018 hearing.

[9] In March 2017, Mr. Sim used cannabis with his apartment mate over a weekend. This was his first relapse into substance use after several years of abstinence. At the end of the weekend, Mr. Sim voluntarily went to the hospital and disclosed his use of cannabis. No changes were observed in his mental condition at that time.

[10] In January 2018, Mr. Sim graduated from high school. According to the Board's reasons, during the review period Mr. Sim maintained his mental health stability and did not present with any evidence of psychosis.

Recent Board Dispositions

2016

[11] In its December 2016 disposition, the Board ordered Mr. Sim detained in the secure forensic unit of Brockville, with privileges that included living in approved outside accommodation.

2017

[12] In its November 2017 disposition, the Board granted Mr. Sim a conditional discharge. In its reasons, the Board stated, at para. 50:

[Mr. Sim] has continued to make progress both in hospital and since his discharge into the community in July 2014. Living in the shared apartment setting now for over a year, he has remained well, despite one-time use of marijuana over three days in March 2017. Apart from that incident, the Board agrees with counsel when he submits that the accused has done everything required of him.

[13] In assessing the issue of significant risk to the safety of the public, the Board noted that it was critical that Mr. Sim come to a more complete understanding of the harm that would result from resuming substance use.

2018

[14] In its December 19, 2018 disposition, the Board continued Mr. Sim's conditional discharge but removed one of the conditions contained in the 2017 disposition: to abstain absolutely from the non-medical use of alcohol or drugs or any other intoxicant.

[15] The Board concluded that it had "no difficulty" in concluding that Mr. Sim continued to represent a significant risk to the community:

[Mr. Sim] suffers from a long-standing mental illness in which he stills lacks good insight. He has a long history of substance use which was a factor in some of the index offences and other assaultive behaviour in his significant criminal record.

Although Mr. Sim is doing well now, this is in the context of close monitoring of his condition and the imposition of conditions including the prohibition from using substances. The evidence before the Board is that should Mr. Sim use Cannabis, or other substances, there is a high likelihood that he would stop taking his medication. Until he started taking Clozapine, he had continued to present with psychosis. The fact that Mr. Sim used Cannabis last year and the fact that he does not recognize that substance use would have a significant impact on his mental illness raises significant concern. He has said that he does not believe that using Cannabis would change anything. He has also said that he might "have a party" and use Cannabis now that it is legal to do so.

The Board agrees with Dr. Ahmed that it will be crucial that Mr. Sim develop a good understanding of the negative consequences of substance use on his mental illness and that he internalizes his commitment to remaining abstinent. Removing the condition in the Board disposition prohibiting substance use could be a good way of determining if Mr. Sim will abstain from substances without such a condition.

The Board agrees that the presence, or absence, of insight is not the test to determine if significant risk continues to exist. On the other hand, the Board is convinced that unless Mr. Sim can develop an understanding that Cannabis use could lead to a decompensation of his mental illness and an increased risk to the community, he will continue to require support and monitoring of his condition. While AWOL in 2007, he used cannabis. This contributed to a serious mental deterioration that culminated in the assault on the male nurse at CAMH which caused serious physical injury. He should be able to recognize that substance use had been a factor in several incidents of assaultive behaviour including some of the index offences.

The Board is convinced that the maintenance of a conditional discharge remains necessary in this case.

Analysis

[16] Mr. Sim submits that the Board's disposition was unreasonable because it failed to conduct a proper assessment of whether he was "a significant threat to the safety of the public." Instead, the Board focused on whether he possessed sufficient insight into the effect of cannabis use on his mental condition, letting that condition improperly dominate its analysis.

[17] We accept Mr. Sim's submission.

[18] 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".

[19] In conducting its inquiry, the Board may have recourse to a broad range of evidence, including: the past and expected course of the NCR accused's treatment, if any; the present state of the NCR accused's medical condition; the NCR accused's 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).

[20] As part of its examination of the present state of the NCR accused's medical condition, the Board is entitled to consider evidence concerning the accused's understanding of or insight into his medical condition. As this court stated in Woods (Re), 2019 ONCA 87, at para. 17: "Lack of insight has its place in the overall clinical picture."

[21] However, evidence regarding an NCR accused's insight must be assessed in the context of the entirety of the record before the Board. To use the language of Woods, evidence of insight should not "dominate the significant threat analysis": at para. 17. Instead, it forms part of the broad range of evidence before the Board. The Board must sensitively evaluate "all the relevant factors on an ongoing basis" (emphasis added) and make, "as best it can, an assessment of whether the NCR accused poses a significant threat to the safety of the public": Winko, at para. 59.

[22] This court repeated the point recently in Kalra (Re), 2018 ONCA 833, at para. 52:

It bears stating that lack of insight is not of itself a basis to deny an absolute discharge. As the Supreme Court instructs, the mentally ill are not inherently dangerous: Winko, at para. 35. Whether an NCR accused has insight into his or her mental illness, and the extent of that insight, is only part of the analysis in determining if there is a significant threat to the safety of the public. While insight is a treatment goal, it is one some persons living with mental illness may be unable to fully achieve. In some instances, particularly where the contemplated harm falls at the lower end of the spectrum, it may be unreasonable to require, as the Board did here, that an NCR accused's insight into his or her illness be "entrenched on his consciousness" in order to obtain an absolute discharge. [Emphasis added.]

[23] In the present case, the disposition reached by the Board was unreasonable for two reasons.

[24] First, the Board lost sight of the key issue: Did the evidence, as a whole, demonstrate that Mr. Sim presented a foreseeable and substantial risk of physical or psychological harm to members of the public that is serious and beyond the trivial or annoying? Instead, the Board focused on the degree of Mr. Sim's insight into his medical condition. Although in its reasons the Board expressly agreed that "the presence, or absence, of insight is not the test to determine if significant risk continues to exist", a reading of its reasons leads to the conclusion that in fact it was the major focus of the Board's analysis, overshadowing the required consideration of the rest of the evidence relevant to the statutory inquiry of whether Mr. Sim posed a "significant threat to the safety of the public."

[25] There was considerable evidence relevant to the statutory test: the evidence of Mr. Sim's continued progression; his increasingly independent living arrangements; his long-standing compliance with his medication regime; a dated history of violent conduct; his limited use of marijuana; the self-reporting of his March 2017 marijuana use; and the lack of any change in his medical condition stemming from that use. None of that evidence finds express treatment in the Board's analysis in the "Conclusion and Disposition" section of its reasons. At most, that evidence is subsumed in the Board's seven-word phrase: "Although Mr. Sim is doing well now ..." With respect, that does not constitute the depth of evidentiary analysis required by Winko to support a disposition that can be justified as a reasonable one.

[26] The second reason why the Board's disposition is unreasonable also concerns the inadequacy of its evidentiary analysis. On the face of its reasons, the Board did not conduct an even-handed assessment of Mr. Sim's evidence. The Board's disposition was driven primarily by its conclusion that Mr. Sim did not recognize that substance use would have a significant impact on his mental health. The Board stated: "[Mr. Sim] has said that he does not believe that using Cannabis would change anything. He has also said that he might 'have a party' and use Cannabis now that it is legal to do so."

[27] That part of the Board's reasons was based on a statement attributed to Mr. Sim in the hospital record. However, the Board was selective in its use of that part of the hospital record. The Board failed to recite the complete statement attributed to Mr. Sim. The hospital record stated: "With regards to Mr. Sim's insight into cannabis use, however, he stated that 'cannabis is soon going to be legal…I may just have one party at least… but it's almost zero " (emphasis added). The Board neglected to include the qualifier – "but it's almost zero" – in its consideration of Mr. Sim's statement.

[28] As well, the analysis section of the Board's reasons failed to address how Mr. Sim's direct evidence at the hearing about his insight factored into its determination. In his evidence-in-chief, Mr. Sim testified about his insight into his medical condition, stating that he did not intend to use cannabis if granted an absolute discharge. His counsel asked him why. Mr. Sim answered: "Because it will make me sick again … I don't want to get sick; I hate it." Mr. Sim's evidence continued:

Mr. Brodsky: And the last thing I wanted to ask you is, in terms of the – we heard Clozapine is something that you're taking for your psychiatric condition. The medication that you're taking for your psychiatric condition, whatever it is at the time, how long do you think you need to be taking that medication?

Mr. Sim: For the rest of my life.

Mr. Brodsky: Okay. Why?

Mr. Sim: Because I'll get sick.

[29] Although the Board referred to Mr. Sim's evidence in the early section of its reasons setting out the evidence given at the hearing, the Board made no use of it in its analysis section.

[30] In the result, the Board agreed with Dr. Ahmed, Mr. Sim's attending psychiatrist, that it would be "crucial that Mr. Sim develop a good understanding of the negative consequences of substance use on his mental illness and that he internalizes his commitment to remaining abstinent." Yet, the Board did not explain why Mr. Sim's evidence-in-chief did not display precisely such an understanding. Put another way, on the issue of Mr. Sim's insight into his medical condition that played the determinative role in the Board's analysis – at least on the face of its reasons – the Board provided no explanation about why it preferred Dr. Ahmed's evidence over that of Mr. Sim.

[31] Absent such an explanation, the Board's disposition, based as it was on Mr. Sim's lack of insight, is not supported by the evidence: Sheikh (Re), 2019 ONCA 692, at para. 35, citing s. 672.78(1) of the Criminal Code.

[32] The failure of the Board to deal expressly with the conflicting evidence on the critical issue of insight, when coupled with its losing sight of the statutory test, renders its decision unreasonable. The Board did not conduct the careful assessment of the level of risk required by the onerous standard set out in s. 672.5401 of the Criminal Code, the same deficiency in reasons identified last year in two decisions of this court: Marchese (Re), 2018 ONCA 307, 359 C.C.C. (3d) 408, at para. 8; and Hammoud (Re), 2018 ONCA 317, at para. 9.

Disposition

[33] For the reasons set out above, we allow the appeal, set aside the November 8, 2018 disposition, and remit the matter to the Board for a new hearing as soon as possible before a differently constituted panel to determine whether there was sufficient evidence for the review period to satisfy the Board that Mr. Sim posed a significant threat to public safety.

[34] According to counsel, Mr. Sim's next annual review is scheduled for October 7, 2019. The new hearing that we have directed should be heard either before or together with that scheduled annual review.

G. Pardu J.A.

David Brown J.A.

Gary Trotter J.A.