Court of Appeal for Ontario

Date: 2018-06-08 Docket: C64526

Judges: Lauwers, Benotto and Miller JJ.A.

In the Matter of: Matthew Gibson

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• Stephen F. Gehl, for the appellant, Matthew Gibson
• Catherine Weiler, for the respondent, Attorney General for Ontario

Heard: June 7, 2018

On appeal against the disposition of the Ontario Review Board dated September 25, 2017, with reasons dated October 20, 2017.

Reasons for Decision

[1] The appellant appeals a disposition of the Ontario Review Board, in which the Board found the appellant to remain a significant threat to the safety of the public and ordered the appellant discharged subject to certain conditions, including monthly reporting. This most recent disposition discharged him from a number of more restrictive conditions. The appellant, however, seeks an absolute discharge.

[2] For the reasons that follow, we do not agree that the Board's finding was unreasonable and we dismiss the appeal.

Background

[3] The appellant was convicted in 2005 of criminal harassment of his neighbours. He received a suspended sentence and probation order prohibiting contact. He breached the probation order within weeks, and was found not criminally responsible (NCR).

[4] The appellant has been diagnosed with schizophrenia, and holds persecutory delusions. He has no insight into his illness, and if discharged absolutely intends to discontinue treatment and self-medicate with cannabis.

[5] The appellant has progressed from initial detention in a maximum secure unit to minimum secure units to supervised community living in 2009. Since 2013, he has been subject to a conditional discharge, and has been re-admitted four times due to deterioration in his mental state and to cannabis use.

Medical Evidence

[6] The evidence of his treating psychiatrist is that his persecutory delusions – which included a belief that he has been the victim of sexual assaults by neighbours, co-patients, strangers, and others – have persisted. When he is on medication and not using cannabis, his mental state is stable and his delusions are encased in the past. When his mental state deteriorates, his delusions expand to incorporate persons currently in his life, such as neighbours, patients and persons on his treatment team.

[7] The appellant denies he has a mental illness, and has stated that he would discontinue medication immediately if granted an absolute discharge. A further problem is the appellant's cannabis use, which clinicians have observed leads to a deterioration in the appellant's mental status. The appellant has indicated that if discharged absolutely, he would self-medicate with cannabis.

Board's Reasoning

[8] Accordingly, the Board concluded that were the appellant to be discharged absolutely, he would likely discontinue medication and increase his use of cannabis. This would, the Board concluded, precipitate decompensation and an increased risk of threatening behaviour, a significant threat to the safety of the public.

Analysis

[9] The appellant argues that the Board's conclusion is not supported by evidence and therefore unreasonable. Mr. Gehl argues on behalf of the appellant that even though the appellant has been living in the community for nearly ten years, has used marijuana, and maintains persistent persecutory delusions, he nevertheless has not been violent since the index offence. This, he argues, means it is unreasonable to conclude that he presents a significant threat to the safety of the public.

[10] We do not agree. The evidence before the Board is that the appellant intends to discontinue medication if he receives an absolute discharge. The appellant has not, since the index offence, been in a circumstance where he has completely ceased medication. On those occasions when, on his request, his medication has been reduced, his circle of persecutory delusions has widened, encompassing new people. It is not unreasonable for the Board to have concluded, on the evidence before it, that should the appellant be discharged absolutely, he would cease medication entirely, decompensate, and be at increased risk of engaging in threatening behaviour.

[11] The Board's conclusion that the appellant remains a serious risk of harm to public safety, and that a conditional discharge is the least onerous disposition available to protect against that risk, is reasonable and entitled to deference.

Disposition

[12] The appeal is dismissed.

P. Lauwers J.A. M.L. Benotto J.A. B.W. Miller J.A.