COURT OF APPEAL FOR ONTARIO

CITATION: Gibson (Re), 2016 ONCA 369

DATE: 20160513

DOCKET: C61256

Epstein, Pepall and van Rensburg JJ.A.

IN THE MATTER OF: Matthew Gibson

AN APPEAL UNDER PART XX.1 OF THE CODE

Stephen F. Gehl, for the appellant

Janice Blackburn, for St. Joseph’s Health Care Hamilton

Brock Jones, for the Attorney General of Ontario

Heard and released orally: May 10, 2016

On appeal against the disposition of the Ontario Review Board dated November 2, 2015.

ENDORSEMENT

[1] The appellant has been under the jurisdiction of the Ontario Review Board since January 31, 2006, when he was found Not Criminally Responsible on charges of breach of recognizance and criminal harassment. He continues to suffer from schizophrenia with persecutorial delusions. He has been on a conditional discharge since at least November 14, 2013 and has lived at the Perkins Centre in Hamilton.

[2] The appellant appeals the Board’s Disposition Order dated October 22, 2015, ordering a continuation of the conditional discharge, with minor amendments that are not the subject of this appeal.

[3] The appellant contends that (i) the Board’s finding that he continues to pose a significant threat to the public’s safety is unreasonable; and (ii) the Board’s decision is based upon a wrong question of law because, if residual risk can be managed by use of provisions in the Mental Health Act, R.S.O. 1990, c. M.7., then a significant threat has not been demonstrated. The appellant requests that the conditional discharge the Board imposed be vacated and replaced by an absolute discharge.

[4] The appellant relies on the following. He has incurred no further charges and has not been physically violent since the index offences in 2006. The Board’s reasons refer to Dr. Sheridan’s Psychological Risk Assessment but do not refer to Dr. Sheridan’s caution that the risk assessment “is limited by the absence of psychological testing. It should be interpreted with caution as it may not fully or accurately reflect Mr. Gibson’s risk of violence.” And there is no evidence that the appellant’s repeated consistent drug use has resulted in conduct that constitutes either threats or assaults.

[5] In essence, the appellant submits that the Board’s decision was unreasonable because it relied on an unreasonable conclusion tendered by the expert Dr. Chauhan.

[6] We do not agree with these submissions. The Board’s decision was reasonable and fully supported by the evidence. That evidence included the appellant’s lack of insight into his illness, his assertion that he would not take medication and, would use cannabis regularly if granted an absolute discharge, together with expert testimony that if the appellant stopped taking medication and continued using cannabis he would become more acutely psychotic and could be at risk of physical aggression. The Board also considered Dr. Sheridan’s psychological risk assessment which contributed to the unanimous view of the appellant’s treatment team that absent the control offered by a conditional discharge the appellant would become a significant risk to individuals in the community. The Board was not required to set out all aspects of Dr. Sheridan’s assessment, including the caution.

[7] A conditional discharge was justified when the Board arrived at the view that the appellant represented a significant threat to public safety. The Board’s Disposition provided the least onerous and least restrictive option in accordance with the test set out in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625.

[8] On this record the Board’s disposition was reasonable and we see no basis for interfering.

[9] The appeal is therefore dismissed.

"Gloria Epstein J.A.”

“S.E. Pepall J.A.”

“K.M. van Rensburg J.A.”