COURT OF APPEAL FOR ONTARIO

CITATION: Sim (Re), 2020 ONCA 563

DATE: 20200910

DOCKET: C67639

Strathy C.J.O., Gillese and Watt JJ.A.

IN THE MATTER OF: Donovan Sim

AN APPEAL UNDER PART XX.1 OF THE CODE

Anita Szigeti, for the appellant, Donovan Sim

Elena Middelkamp, for the respondent, the Attorney General of Ontario

Marie-Pierre T. Pilon, for the respondent, the Person in Charge for the Brockville Mental Health Centre

Heard: July 24, 2020 by video conference

On appeal from the disposition of the Ontario Review Board, dated October 9, 2019, with reasons dated October 21, 2019.

Strathy C.J.O.:

[1] On September 13, 2019, this court allowed Mr. Sim’s appeal from a disposition of the Ontario Review Board (the “Board”), dated November 8, 2018 (the “2018 Disposition”), which had rejected Mr. Sim’s request for an absolute discharge and continued his conditional discharge on reduced conditions: see Sim (Re.), 2019 ONCA 719. This court found that the Board’s decision was unreasonable and ordered a new hearing 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.” This court ordered that the new hearing proceed either before or together with Mr. Sim’s scheduled annual review hearing on October 7, 2019.

[2] The Board duly conducted a single hearing on that date, with the evidence applying to both the hearing ordered by this court, and the annual review hearing under s. 672.81(1) of the Criminal Code. In its disposition, dated October 21, 2019 (the “2019 Disposition”), the Board continued Mr. Sim’s conditional discharge and reinstated the condition that he abstain absolutely from the non-medical use of drugs, including cannabis and alcohol.

[3] Mr. Sim appeals against the 2019 Disposition, asking this court to set it aside and to grant him an absolute discharge. For the reasons that follow, I would allow the appeal, set aside the 2019 Disposition, and order that the appellant be discharged absolutely.

A. background

(1) Mr. Sim’s circumstances

[4] Mr. Sim is fifty years old. He has lived with mental illness for most of his adult life. For the past 20 years, he has been subject to a disposition of the Board.

[5] To understand Mr. Sim’s present circumstances, one must understand his past. He is of Cree and Irish descent. He had an exceptionally difficult early life, marked by the separation of his parents, the death of his mother when he was two years old, and physical abuse by his father. He was placed in foster care at age 11. Between the ages of 11 and 15, he lived in 12 different foster homes. His behavioural challenges exhibited themselves in fighting, truancy, elopement, and crime. He left school at age 14, after grade 8.

[6] Beginning at age 16, he developed a lengthy and serious criminal record. Between 1986 and 2000, when he was first found not criminally responsible on account of a mental disorder (“NCR”), he was convicted of some forty offences: assault (eight convictions, including assault causing bodily harm, assault with a weapon, and assaulting a police officer), property-related offences (sixteen or seventeen convictions), narcotics and alcohol-related offences (four convictions), break and enter, mischief endangering life, dangerous operation of a motor vehicle, and breaching court orders.

(2) The index offences

[7] Mr. Sim was diagnosed with schizoaffective disorder in 1997 and was admitted to the London Psychiatric Hospital in 1999. Shortly after his admission, he committed the first index offence. He stole a car from an acquaintance, abandoned it when it ran out of gas, and returned to the owner’s home with the car keys. He told police where to find the car and it was recovered without damage. No violence was involved. He was charged with “theft under” and was found NCR. That was in November 2000, twenty years ago. Since that time, he has been subject to the Board’s jurisdiction in a succession of hospitals, including the St. Thomas Psychiatric Hospital, the Penetanguishene Mental Health Centre, the Centre for Addiction and Mental Health (“CAMH”), and currently Brockville Mental Health Centre.

[8] The second index offence occurred in 2007, while Mr. Sim was a patient at CAMH. He eloped to Saskatchewan for two months. While he was at large, he binged on cannabis, methamphetamines, cocaine, and alcohol. He was apprehended in Saskatoon pursuant to the Saskatchewan Mental Health Services Act, SS 1984-85-86, c M-13.1. He was returned to CAMH and was described as being in a very decompensated state, voicing confused, delusional beliefs.

[9] One month after his return to CAMH, while still in a decompensated state, Mr. Sim committed the second index offence, assaulting two male nurses. In one case, the victim suffered fractures to his jaw, palate and teeth that required corrective surgery. Mr. Sim was again found NCR.

(3) Mr. Sim’s progress under the Board

[10] In the 13 years since the second index offence, Mr. Sim has made steady progress due to his own efforts, and the support of the medical staff and his treatment team, with whom he has had a good relationship.

[11] His diagnosis is schizoaffective disorder (treatment resistant, with residual symptoms), polysubstance dependence, and antisocial personality disorder.

[12] Over the past ten years, except for one three or four-day AWOL incident in 2012, his condition has been stable, and he has not presented any significant behavioural or management problems. There have been no reports that he has been physically aggressive or physically threatening to any person. He is described as well-liked by the staff and other members of the community. He has been consistently compliant with his prescribed medications, notably Clozapine and Risperidone, and has been cooperative with his treatment team. He has been largely abstinent from the consumption of illicit drugs[^1], other than cannabis, which is discussed below.

[13] Mr. Sim has gradually progressed up the hospital privileges ladder, moving into a 24-hour a day supervised group home in July 2014; an 8-hour a day supervised residence in October of the same year; shared accommodation in September 2016; and into a one-bedroom bachelor apartment in March 2019. He is reported to have done well in his residences and no concerns have been expressed about his behaviour, other than his occasional use of cannabis.

[14] Mr. Sim has demonstrated a long-term commitment to gainful employment, even while at Penetanguishene, where he worked in the re-upholstery shop and was regarded as a trustworthy, diligent, and skillful worker who was a pleasure to work with. He has had regular employment for the past eight or nine years at the car wash associated with the Brockville Mental Health Centre, where he is very well regarded. More recently, he has also worked five days a week from 4 p.m. to 7 p.m. at a car detailing business.

[15] Mr. Sim has worked hard to complete his education. He took high school courses and graduated from high school in 2018. He bought himself a home computer with money he saved from his work at the car wash. He had a successful one-week visit with his sister who lives in Nova Scotia and with whom he has a supportive relationship.

[16] Mr. Sim has made exceptionally good progress over the years due to his own personal commitment and the support of the hospital, his psychiatrist, and his treatment team. At this time, there seems to be only one thing standing in the way of an absolute discharge for Mr. Sim: he smokes cannabis from time to time and insists that he will continue to do so, in spite of strong advice to the contrary from his psychiatrist, Dr. Gulati.

(4) Mr. Sim’s use of illicit drugs

[17] The hospital report indicates that Mr. Sim had a lengthy history of illicit drug use, beginning at about age 10. He reported that he began to use cannabis regularly at 14 and began abusing alcohol in his twenties. By age 25, he was consuming more than 24 bottles of beer a day. Many of his criminal activities were apparently perpetrated to support his drug and alcohol habits.

[18] Mr. Sim reported that at the time of the first index offence (2000), he was buying drugs on a daily basis and had used methamphetamines daily until one week before the offence. He reported that at various times he had also used LSD, mushrooms, valium, intravenous amphetamines, and morphine.

[19] In November 2003, he eloped from CAMH during an outing and was not returned to the hospital for about six months. He reported that he used marijuana and amphetamines, did not receive medication while he was in custody pending his return to Ontario, and felt himself becoming psychotic. He was charged with break and enter, and assault during this period.

[20] In February 2007, while detained at CAMH, Mr. Sim reported that he had smoked a marijuana joint and had become paranoid. He apparently stated that he “should have known better”, but was described as saying this without much conviction.

[21] As noted above, in August 2007, Mr. Sim eloped from CAMH. On the date that he did so, his urine test was positive for cannabinoids. A few days later, he called the unit and advised staff that he was out of the province. Two months later, he was apprehended by police in Saskatchewan and was returned to CAMH. He reported that he had used cannabis while in Saskatchewan, smoking 10 or 12 joints every two days, and that he had used methamphetamine on 8 or 9 occasions. He also used crack cocaine, and drank beer and whiskey, stating that he seemed to have “bought out the Crown Royal [Rye Whiskey] Corporation.” He presented as delusional, agitated and threatening towards staff. The second index offence occurred in November 2007, about a month after his return from Saskatchewan.

[22] Medical reports after his return from Saskatchewan indicated that his relapses into the use of substances were concurrent with his decision to stop taking his oral medication and his subsequent decompensation into a psychotic state.

[23] From 2009 to 2012, Mr. Sim consistently participated in various therapeutic and rehabilitative programs. In the 2009 Illness Management and Recovery Group, for example, he has been described as an active participant in group discussion, and as showing a good understanding of the material. He recognized the importance of taking his medication to reduce his symptoms and to reduce the risk of relapse. He also demonstrated an awareness of the role that illicit drugs and alcohol can play in increasing active symptoms and relapse.

[24] In 2012, Mr. Sim went AWOL for three or four days and was returned to the hospital in a disheveled and delusional condition. He was also verbally abusive to staff.

[25] It appears that Mr. Sim was generally abstinent from the use of cannabis for several years thereafter. However, he used cannabis with his apartment mate over a weekend in March 2017. He voluntarily presented himself at the hospital after the weekend, but no change was observed in his mental condition and he did not present any increased psychotic symptoms.

[26] Mr. Sim’s use of cannabis during the year covered by the Board’s 2019 Disposition is discussed below.

(5) The 2018 Disposition and this court’s order

[27] This appeal must be situated in the context of both this court’s 2019 order setting aside the 2018 Disposition, and the 2019 Disposition that is the basis of Mr. Sim’s present appeal.

[28] In the 2018 Disposition, the Board found that Mr. Sim has a long-standing mental illness into which he “lacks good insight”. He had 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.” While he was doing well in a closely-monitored context, the Board was concerned that he would stop taking his medication if he used cannabis or other substances: “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.”

[29] The Board felt that it was essential that Mr. Sim develop a good understanding of the negative consequences of substance use on his mental illness and that he “internalize” his commitment to remaining abstinent. The Board continued Mr. Sim’s conditional discharge, but removed the condition that he abstain absolutely from the non-medical use of alcohol, drugs or other intoxicants. The Board believed that removal of the condition prohibiting substance use would be a good way to determine whether he would abstain. While the Board recognized that the presence or absence of insight was not the test of significant risk, Mr. Sim would have to develop an understanding of how cannabis use could lead to a decompensation of his mental illness and make him an increased risk to the community. Without that insight, he would require the continued support and monitoring of his condition.

[30] This court found that the Board’s 2018 Disposition was unreasonable. It allowed Mr. Sim’s appeal from that disposition and ordered a new hearing before a differently constituted panel.

[31] There were two reasons for the finding that the 2018 Disposition was unreasonable. 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?” While the Board acknowledged that the presence or absence of insight is not the test, insight became the major focus of the Board’s analysis and overshadowed the necessary consideration of other evidence relevant to the statutory inquiry.

[32] In this regard, the court noted that there was considerable evidence relevant to the statutory test, none of which found express treatment in the analysis portion of the Board’s reasons. This court noted, at para. 25, that this evidence included:

[T]he 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.

[33] The second reason for the 2018 Disposition being found unreasonable was the inadequacy of the Board’s evidentiary analysis, which, on its face, was not an even-handed assessment of Mr. Sim’s evidence. Mr. Sim previously testified that he did not intend to use cannabis if he were granted an absolute discharge, “because it will make me sick again.” He also testified that he knew he would have to take Clozapine for the rest of his life, because he would get sick if he did not. The Board failed to explain why Mr. Sim’s evidence did not display appropriate insight into his condition and why it preferred his psychiatrist’s evidence instead.

[34] This court concluded:

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.

[35] Against this background, I turn to the evidence at the Board’s re-hearing in 2019, the 2019 Disposition, and the Board’s reasons.

B. evidence at the RE-hearing

[36] Originally, a five-member panel was convened to conduct the re-hearing ordered by this court. Regrettably, one of the five members scheduled to conduct the re-hearing had been a member of the 2018 panel. As a result, the re-hearing proceeded before only three members.

[37] There were only two witnesses at the re-hearing: Dr. Gulati, Mr. Sim’s attending psychiatrist, and Mr. Mark Dickey, the supervisor at the hospital car wash where Mr. Sim worked.

(1) Dr. Gulati’s evidence

[38] Dr. Gulati’s evidence concerning Mr. Sim’s progress in the hospital was generally very positive. Dr. Gulati noted that Mr. Sim had done well in the reporting period: he was living in a bachelor apartment, he had been an extraordinary worker at the car wash, and he had a close relationship with his treatment team. There had been the “odd use of cannabis” before the current year, but by and large he had been abstinent.

[39] However, Mr. Sim took literally the provision of the 2018 Disposition that had removed the prohibition against the use of illicit drugs and alcohol, and began to use cannabis “on and off” during the reporting period. Dr. Gulati discussed the issue with Mr. Sim, explaining the negative impact on his mental health. Dr. Gulati testified:

[M]r. Sim did not take that quite well. He did become upset and angry, although not threatening in any way whatsoever, but he was almost in a hurry to leave the conference room; and he said that it was legal and he will do what he wants and smoke it when he wants; he put it quite bluntly there.

[40] Dr. Gulati’s evidence then turned to the issue of Mr. Sim’s work at the car wash. He stated that, according to the supervisor, Mr. Sim had been a good employee at the car wash, but there had been a deterioration in the quality of his work and there were complaints about it. His focus and concentration were not there. Dr. Gulati attributed these reports to Mr. Sim’s mental health issues reasserting themselves and he had concerns about further deterioration. It does not appear that Dr. Gulati had spoken directly to the supervisor, but rather was referring to a single complaint relayed by the supervisor to hospital staff, which in turn, had been reported to him.

[41] Dr. Gulati conceded that Mr. Sim continued to comply with his medication regime and that he had acknowledged the need to take his medication because he knew he would get sick without it. Mr. Sim had tested negative for other illicit substances, but Dr. Gulati expressed the opinion that he had limited insight into the effect of drugs on his mental health.

[42] Dr. Gulati’s concern was that at the time of the second index offence in 2007, Mr. Sim had engaged in cannabis use and:

[N]ow currently he is reverting back to that drug-taking behaviour, the concern is that once his mental health deteriorates further, already we are seeing signs of that; his work has deteriorated; if he wants to engage in other substances such as methamphetamines or alcohol, then there is a significant risk that he will become non-compliant with medication; we have a history of non-compliance with medication in the past which were followed by the emergence of breakthrough psychotic symptoms in the form of paranoia and persecutory delusions which resulted in the index offence.

[43] Dr. Gulati testified that without appropriate conditions attached to a disposition, there was a risk that Mr. Sim would elope, use other drugs, and become non-compliant with his medication. If he began to experience active symptoms while on an absolute discharge and not being screened for drugs or not being required to report, he was likely to engage in “other drug taking behaviour”. If he stopped taking his medication, something similar to the second index offence might occur: “Based on his history I believe that there is a likelihood of him becoming unwell and it might increase his substance misuse and put him at much higher risk of relapse.”

[44] However, when asked whether Mr. Sim had any positive symptoms of his mental disorder, Dr. Gulati stated:

Currently Mr. Sim denies any such symptoms and to this point he has been doing well and we have not observed him to be responding to his symptoms. [Emphasis added.]

(2) Mr. Dickey’s evidence

[45] The other witness at the Board hearing was Mark Dickey, the supervisor of the hospital car wash, who was called by Mr. Sim’s counsel. Mr. Dickey testified that Mr. Sim had been a very dependable worker at the car wash for some eight or nine years. He did other jobs through the hospital’s vocational support team, including lawn maintenance and moving work in the community. Mr. Sim was “meticulous” in his work and “people wanted to book him” to clean their cars because he did “an awesome job”.

[46] Mr. Dickey testified that Mr. Sim had recently obtained a second job, doing car detailing “five nights a week”. Over the last few months he had observed that the quality of Mr. Sim’s work was not quite as good as it had been previously. A customer complained that Mr. Sim had “missed spots” and brought his car back for a wash. Other customers had also called in with similar complaints. Mr. Dickey said that he had a discussion with Mr. Sim and explained the importance of going over the vehicle with the customer after the job was done, to ensure that the customer was happy with the job before he or she drove away. He testified that Mr. Sim listened to him and things had improved.

[47] Mr. Dickey agreed with counsel’s suggestion that Mr. Sim had been more tired in the last month or so and attributed it to fatigue caused by “working nights” at his second job.

[48] Mr. Dickey also mentioned, in cross-examination by counsel for the Attorney General, that there were always two people who worked on a car and you could not blame Mr. Sim because both workers were supposed to check the work before the owner drove away.

[49] When asked by counsel for the hospital whether he had any concern that Mr. Sim’s lack of concentration or fatigue could be due to a potential increase in cannabis use, Mr. Dickey said:

It could be, but I’ve never noticed him smoking around the hospital grounds, so I don’t know for a fact that he’s smoking; you know what I mean? So it could be, but I can’t say that for sure. All I know is he’s tired; he’s tired some of the time. I can’t nail it down for that.”

[50] When pressed by counsel for the hospital about his uncertainty on whether the tiredness was due to Mr. Sim’s other job or cannabis use, Mr. Dickey replied:

No, I think it’s the other job; he was working too much, but I can’t really discern between the two of them because … I’m not an addiction counsellor so I can’t really go into the side effects of marijuana and that kind of stuff; it could be part of it, you know, I don’t know.

C. THE BOARD’S 2019 DISPOSITION

[51] After reviewing the background, including Mr. Sim’s history, the Board set out its finding that Mr. Sim remains a significant threat to public safety. It found that “he continues to experience symptoms” and that “[s]igns and symptoms include his irritability and anger, when being counselled by Dr. Gulati to discontinue the use of cannabis and the decline of his good work at the car wash.”

[52] The Board noted that Mr. Sim’s supports in the community were limited and if he were granted an absolute discharge forensic outpatients services and the ACT (“Assertive Community Treatment”) team would only be available to him on a voluntary basis – he could not be compelled to accept them.

[53] The Board noted that at the previous year’s hearing, Mr. Sim had said that he did not intend to use cannabis if he were granted an absolute discharge because it would make him sick. The 2018 panel had decided to remove the requirement that he abstain absolutely from the non-medical use of drugs, including cannabis and alcohol, in response to which he proceeded to use marijuana “on more than several occasions.” When advised against this by Dr. Gulati, he became very defensive, and stated that he had never heard of anyone experiencing a negative effect on their mental health as a result of cannabis use. The Board held that there was a correlation between his violent behaviour, like that of the second index offence, and his use of marijuana. The Board stated that “[i]t would be most unsafe to the public were he to be permitted to regress, become assaultive, and end up in the same place where he was some 12 years ago – in the most secure forensic facility in the province [Waypoint, formerly Oak Ridges/Pentang].”

[54] The Board placed little weight on Mr. Sim’s statements to the treatment team that he would continue to take his medication as prescribed. It reasoned that he had told the Board in 2018 that he would not use marijuana and he had gone ahead and done so, so how could his assurances be believed?

[55] The Board set out Mr. Sim’s risks scores, criminal record and the circumstances of the 2007 index offence. The Board then adopted Dr. Gulati’s opinion that Mr. Sim’s insight was limited with respect to the impact of cannabis on his mental health. It also concluded that his engagement with his treatment and his treatment team were limited.

[56] The Board concluded that the entirety of the evidence showed that Mr. Sim represents a foreseeable and substantial risk of physical or psychological harm to members of the public that is serious beyond the trivial or annoying. It concluded its findings as follows:

In making this disposition, we have considered Mr. Sim’s current living arrangements and encourage him to maintain them. He has progressed to almost independent living. However, we also conclude that without the constant support, guidance and monitoring of the Forensic Outpatient Team and the ACT Team, he would not be able to be in the community. We do not believe that, left to his own devises [sic] that he will take his medication for his mental illness. We do not believe his assurances that he will take medication. He stated that he will not use cannabis and did so at the first opportunity and now refuses to take advice from the treatment team on this issue. We conclude that we can place little weight on Mr. Sim’s statements.

[57] The Board continued its analysis of the evidence in the next section of its decision, entitled “Disposition”. It referred to the evidence of Mr. Dickey who had observed Mr. Sim to be more tired, which he attributed to Mr. Sim’s extra job with the car detailing. Mr. Dickey said, however, that he was not an addiction counsellor and could not specify why Mr. Sim’s work had not been as good as usual. The Board preferred the interpretation of the evidence of Dr. Gulati who, it said, regarded Mr. Sim’s fatigue as “preliminary evidence of decompensation.”

[58] The Board observed that Dr. Gulati noted “other evidence of decompensation” when Mr. Sim appeared “upset and angry” in response to being advised against the use of cannabis. It accepted Dr. Gulati’s evidence that Mr. Sim was “undermining” the risk of relapse and the potential impact on his mental health through the misuse of cannabis. In Dr. Gulati’s opinion:

[M]r. Sim is at increased risk of relapse. Whether he will relapse in the short-term or somewhat longer period is hard to comment but clearly cannabis was one of the factors that was involved in the relapse of the illness resulting in the index offence, I would strongly (continue to do so) advise him against the use of cannabis.

[59] The Board reinstated the condition that Mr. Sim be required to abstain absolutely from the non-medical use of drugs, including cannabis and alcohol. It reasoned that the 2018 Disposition had given him an opportunity to prove that he could do so, but he had “proven” that he was not only unable to abstain but that he intended to use cannabis. This increased his risk to the public, given his history. The Board determined that the reinstatement of the condition was necessary and appropriate in light of Mr. Sim’s history using cannabis and other illicit substances (for example, prior to the second set of index offences in 2007). The disposition was necessary and appropriate to “protect the public from the further commission of serious criminal offences.”

D. THE PARTIES’ SUBMISSIONS

(1) The Appellant

[60] Ms. Szigeti, on behalf of Mr. Sim, submits that the Board’s finding of significant risk was unreasonable. Ms. Szigeti argues that the Board erred in its application of the “significant risk” test, letting Mr. Sim’s insight about the effect of cannabis on his mental health dominate its analysis. In particular, the Board was fixated on Mr. Sim’s marijuana use, despite the evidence being scant and based on Mr. Sim’s own self-reports. The Board also failed to consider other evidence relevant to the statutory test, such as Mr. Sim’s compliance with his medication for many years; the fact that Mr. Sim has not displayed any recent assaultive behaviour; and Mr. Sim’s successful re-integration into the community. The Board’s reliance on the alleged evidence of marijuana use, decompensation, and risk of violent behaviour was unreasonable and unfair to Mr. Sim.

(2) The Respondent

[61] Counsel on behalf of the Attorney General acknowledges that the only issue on appeal is the reasonableness of the Board’s finding that Mr. Sim remains a significant risk to the public. She submits that the Board properly considered Mr. Sim’s statements about using cannabis when he wants to; his lack of insight into the relationship between cannabis use and his mental condition; and the evidence on his current use of cannabis to reach its conclusion. The Board found that these factors gave rise to a cascading risk of other factors emerging, such as the use of other illicit drugs, withdrawal from his medications, and a deterioration of his mental condition.

E. ANALYSIS

[62] The sole issue before this court is whether the Board’s disposition was unreasonable.

(1) Significant threat to the safety of the public

[63] Section 672.54(a) of the Criminal Code provides that if the Board determines that an NCR accused is not a significant threat to the safety of the public, he or she must be discharged absolutely. The test of “significant threat to the safety of the public” is expressed in s. 672.5401 as “a risk of serious physical or psychological harm to members of the public … resulting from conduct that is criminal in nature but not necessarily violent.” This court explained the statutory test in R. v. Ferguson, 2010 ONCA 810, 264 C.C.C. (3d) 451, at para. 8:

The meaning of the phrase “significant threat to the safety of the public” has been authoritatively set down in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at paras. 49-62, 69. 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”.

[64] In applying the statutory test, the Board is required to consider both the likelihood of the risk materializing and the seriousness of the harm that might occur: Kassa (Re.), 2019 ONCA 313, at para. 33, referring to Wall (Re.), 2017 ONCA 713, 417 D.L.R. (4^th) 124, at para. 13; Carrick (Re.), 2015 ONCA 866, 128 O.R. (3d) 209, at para. 16.

[65] The following principles have been expressed in the authorities in relation to the application of the statutory test:

• The “significant threat” threshold involves an onerous standard – the Board must be satisfied as to both the existence and gravity of physical or psychological harm posed by an NCR accused: Hammoud (Re.), 2018 ONCA 317, at para. 7; Carrick (Re.), at para. 17;

• “[T]he only justification there can be for the criminal law detaining a person who has [been found NCR] is maintaining public safety. Once an NCR accused is no longer a significant threat to public safety, the criminal justice system has no further application.”: Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at para. 33;

• There is an obligation to accord maximum liberty to offenders, compatible with the goals of public protection and fairness to the NCR accused: Wall (Re.), at para. 9;

• An NCR accused is not presumed to be dangerous and bears no burden of proof in proceedings before the Board: Wall (Re.), at para. 10;

• Ongoing mental health issues are relevant considerations for the Board, but they are not determinative of risk: Carrick (Re.), 2018 ONCA 752, at para. 19, referring to Wall (Re.), at paras. 25, 29; and

• An absolute discharge may not and need not be in the best interest of an NCR accused, but this does not justify the imposition on the appellant’s liberty in the absence of a reasonable finding of significant threat: Ferguson (Re.), at para. 45.

(2) The standard of review

[66] Section 672.78(1) of the Criminal Code sets out the standard of review to be applied by this court on an appeal from a disposition of the Board. An appeal against a disposition may be allowed where the court is of the opinion that (a) it is unreasonable and cannot be supported by the evidence; (b) it is based on a wrong decision on a question of law; or (c) there was a miscarriage of justice.

[67] The decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov instructs us that “a reasonable decision is one where the Board’s reasoning process and the outcome” reflects “an internally coherent and rational chain of analysis … that is justified in relation to the facts and the law”: Nguyen (Re.), 2020 ONCA 247, at para. 28, referring to Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, at para. 85. A proper appreciation of the evidence is related to whether the resulting decision is reasonable and “[t]he reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it.”: Vavilov, at para. 126.

[68] The application of the reasonableness test in s. 672.78(1)(a) requires careful attention to the evidence before the Board and its reasoning process as expressed in its reasons. It demands “respectful attention” to the decision-maker’s decision, the justification, transparency and intelligibility of the decision-making process, and whether the decision falls within the range of possible outcomes: Vavilov, at paras. 84, 86. The Board’s reasons must be able to withstand a “somewhat probing examination” to determine whether the decision is justifiable, transparent, and intelligible: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 33. Deference is owed if the decision is internally coherent, demonstrates a rational chain of analysis and is justified in relation to the facts and the law: Vavilov, at para. 85.

(3) Was the 2019 Disposition unreasonable?

[69] The Board’s analysis does not meet the Vavilov standard of justification, transparency and intelligibility and it is unreasonable. I say this for several reasons.

(a) The Board failed to analyze and account for the evidence before it

[70] Winko directs that the regime established under Part XX.1 is inquisitorial: “It places the burden of reviewing all relevant evidence on both sides of the case on the court or Review Board” (emphasis added): Winko, at para. 54. The Supreme Court continued:

The court or Review Board has a duty not only to search out and consider evidence favouring restricting NCR accused, but also to search out and consider evidence favouring his or her absolute discharge or release subject to the minimal necessary restraint, regardless of whether the NCR accused is even present.

[71] In its 2019 decision, this court made it clear that the Board’s analysis in the 2018 Disposition did not meet the rigorous standard set out in Winko. That standard requires attention to more than the evidence that supports the Board’s disposition. It requires exposition and analysis of all cogent evidence before the Board including, in particular, evidence that supports the disposition sought by the NCR accused. At para. 25 of its reasons, referred to earlier, this court identified a body of evidence relevant to the statutory test that the Board had failed to consider in its 2018 Disposition.

[72] The Board’s 2019 Disposition repeats this failure. The findings and disposition sections of its reasons focus almost exclusively on the evidence supporting the continued restrictions on Mr. Sim’s liberty and contain virtually no analysis of the evidence, either at the 2018 hearing or the 2019 hearing, that supported Mr. Sim’s request for an absolute discharge.

[73] While the Board acknowledged Mr. Sim’s increasingly independent living arrangements identified by this court, it concluded that without constant support from the Outpatient Team and the ACT Team and “left to his own devices”, he would not take his medication. Because he said he would not use cannabis and “did so at the first opportunity”, the Board did not believe his assurances that he would take his medication.

[74] Leaving aside for the moment the favourable evidence that the Board ignored, it was unfair to state that Mr. Sim used cannabis “at the first opportunity”. There was no evidence to that effect. Indeed, there was no evidence before the Board as to when Mr. Sim started to use cannabis or how frequently Mr. Sim had actually used cannabis during the relevant periods other than, according to the Board, “on more than several occasions”.

[75] In addressing the crucial question of whether Mr. Sim would continue to take his medication if granted an absolute discharge, the Board was required to do more than simply say, in effect, “you didn’t keep your promise about not using cannabis, so why should we believe that you will take your medication?” In its analysis of the evidence, the Board failed to give any consideration to factors that could reasonably have reduced the risk of significant threat, including:

• the dated nature of the index offences (2000 and 2007), the absence of any evidence of any physically violent or aggressive conduct for at least ten years, and the very positive evidence concerning Mr. Sim’s conduct over those years;

• the fact that, at least from time to time over the years, and more so in the 2019 year, Mr. Sim had used cannabis without recurrence of his symptoms and without any evidence of aggressive or violent behaviour;

• the absence of any evidence in either the Medical Report or Dr. Gulati’s testimony that Mr. Sim had demonstrated any symptoms of his mental illness in the 2018 and 2019 review periods, notwithstanding his cannabis use;

• Mr. Sim’s long history of medication compliance, notwithstanding his apparent use of cannabis, and his commitment to continue using his medication because he understood he would get sick without it;

• the absence of any evidence that Mr. Sim had used other illicit drugs since 2012, notwithstanding that he had continued to use cannabis;

• the evidence of Dr. Gulati that were an absolute discharge to be granted, there would be ongoing support available to Mr. Sim through the hospital, his treatment team and the ACT team, albeit on a voluntary basis; and

• the evidence of Mr. Sim’s longstanding positive relationship with his treatment team.

[76] All this evidence would support the conclusion that Mr. Sim was capable of controlling his marijuana use while at the same time maintaining his medication regime, as he apparently had during the 2019 year.

[77] Accordingly, while the Board understood the need to consider all of the evidence, its conclusion at para. 74 of its reasons that “the entirety of the evidence shows that Mr. Sim represents [a substantial risk] …” was not based on an assessment of all the evidence.

(b) The Board failed to conduct an even-handed analysis of the evidence

[78] The Board also repeated the second error identified in the court’s 2019 reasons: it did not conduct an even-handed analysis of the evidence.

[79] The findings and disposition sections of the Board’s reasons focus almost exclusively on the relationship between Mr. Sim’s use of cannabis (and his stated intention to continue using it) and the risk that he would use other drugs, stop taking his medication, and engage in conduct that would be a significant threat to the safety of the public.

[80] The Board’s first finding was that “[h]e continues to experience symptoms. Signs and symptoms include his irritability and anger, when counselled by Dr. Gulati to discontinue the use of cannabis and the decline of his good work at the car wash.” Later, the Board treated this conduct as evidence of “decompensation” in Mr. Sim’s mental state.

[81] The Board’s use of the word “include” mis-stated the evidence, because there was no other evidence that Mr. Sim continued to experience symptoms of his mental illness. The only “signs” and “symptoms” the Board identified were: (i) Mr. Sim got angry at Dr. Gulati when they were discussing his cannabis use; and (ii) Mr. Sim’s normally “awesome” work at the car wash had been sloppy for a period of time with the cause being at least open to debate. The Board’s reliance on these two incidents, which became the focus of the disposition section of the reasons, reflected a misapprehension of the evidence.

[82] Nowhere in Dr. Gulati’s evidence did he state that Mr. Sim had decompensated as a result of his marijuana use. Dr. Gulati testified that there is currently no observable paranoia or evidence of psychosis and that Mr. Sim exhibits no other symptoms. When asked by counsel for the hospital whether Mr. Sim’s marijuana use had affected his medication compliance, Dr. Gulati responded: “Not so far, no; he continues to comply with medication.” In fact, at para. 42 of the Board’s reasons, it acknowledged that “[a]lthough Dr. Gulati is unable to state that Mr. Sim has recently decompensated as a result of the use of marijuana, historically Mr. Sim has done exactly that” (emphasis added).

[83] The words “historically Mr. Sim has done exactly that” are either a misapprehension of the evidence or unfair to Mr. Sim, because his historical decompensation, notably at the time of the second index offence in 2007, was associated not only with cannabis but also other illicit drugs and alcohol. The 2000 index offence was associated with his use of methamphetamines. The Board repeatedly referred to his decompensation as a result of the use of marijuana at the time of the second index offence, without acknowledging that he was also abusing other drugs and alcohol. There was no effort by the Board or by Dr. Gulati to assess whether Mr. Sim’s risk would be reduced if he only used cannabis. They appear to have assumed that his consumption of cannabis would inevitably lead to the consumption of other drugs, simply because that had occurred in the past. They made no assessment, however, of the risk of that occurring in light of the many positive factors in Mr. Sim’s favour.

[84] With respect to the first incident, Dr. Gulati simply stated that when he was explaining to Mr. Sim the negative effect that cannabis might have on his mental health, Mr. Sim became “upset and angry” and was “almost in a hurry to leave”.

[85] Dr. Gulati also noted this incident in the medical report, but did not identify it as evidence of symptoms. In fact, Dr. Gulati mentioned Mr. Sim’s contention that “he will not have a relapse simply because he has not had a relapse despite of [sic] smoking cannabis on and off during the reporting period.” Dr. Gulati’s concern was the “increased risk of relapse”. He stated:

In my opinion, Mr. Sim is at an increased risk of relapse. Whether he will relapse in the short term or somewhat longer period is hard to comment but clearly cannabis was one of the factors that was involved in the illness resulting in the index offence, I would strongly (continue to do so) advise him against the use of cannabis. [Emphasis added.]

[86] People with mental illness are entitled to become irritated, upset, impatient and angry without their conduct being pathologized as symptomatic. Mr. Sim’s response to Dr. Gulati was not irrational: he was forty-nine years old (at the time), living independently, holding down two jobs, getting along well with people, and was a part of the community. Cannabis was legal, he liked it, and he was not symptomatic in spite of smoking it on and off.

[87] Yet the Board in its reasons treated this rather trivial incident as “evidence of decompensation.” Dr. Gulati did not characterize it as such and, in my view, there was no evidence to support the Board’s conclusion.

[88] The second piece of evidence relied upon by the Board to support its conclusion was the evidence of the car wash supervisor, Mr. Dickey, and of Dr. Gulati’s thoughts on this issue. In my view, this is another case in which the Board pathologized trivial conduct.

[89] I have set out Mr. Dickey’s evidence above. He believed that Mr. Sim’s sloppiness was due to fatigue, but he spoke to him about it and things improved. The Board did not mention this.

[90] Instead, the Board preferred the evidence of Dr. Gulati. It said, “Dr. Gulati is of the view that this is likely preliminary evidence of decompensation”.

[91] Dr. Gulati testified before Mr. Dickey. He had apparently heard reports about Mr. Sim’s recent performance at the car wash, but there is no reference to it at all in the Hospital Report. In questioning by counsel for the Attorney General, Dr. Gulati said that Mr. Sim’s lack of attention to his work was likely evidence that his mental illness was reasserting itself due to cannabis use. Dr. Gulati was apparently unaware of Mr. Dickey’s opinion that the decline in Mr. Sim’s work was due to fatigue and that Mr. Sim’s work had improved since Mr. Dickey spoke to him.

[92] In my view, the Board overstated the significance of the car wash evidence, particularly in light of the absence of any reference to the emergence of other symptoms of mental illness in either the Medical Report or Dr. Gulati’s evidence. While it was entitled to prefer the evidence of Dr. Gulati to that of Mr. Dickey on psychiatric matters, I am not sure that a psychiatrist or a car wash supervisor is better positioned to opine on the cause of apparently isolated and transitory sloppy washing and polishing jobs.

[93] When one considers its failure to analyze a significant body of evidence relevant to the statutory test, the Board’s analysis of these two trivial incidents does not do the heavy lifting required to meet the onerous standard of significant risk.

[94] Finally, as I have noted, the Board in 2019 placed great emphasis on Mr. Sim’s failure to abstain from the use of cannabis during the relevant period. It said, “[t]he 2018 panel of the ORB gave Mr. Sim the opportunity to prove that he could continue to abstain from the use of marijuana and other substances. He has proven that he is not only unable to abstain, but that he positively intends to use cannabis as he chooses.”

[95] Mr. Sim has demonstrated that he is able to abstain from the use of other substances. The Board failed to give him any credit for his abstinence over many years from other illicit drugs and alcohol.

(c) The Board’s analysis of significant risk was inadequate

[96] The Board accepted Dr. Gulati’s evidence, at para. 79 of its reasons, that “Mr. Sim is at an increased risk of relapse” due to his consumption of cannabis. Dr. Gulati could not say whether that would occur in the short term, but he noted that cannabis use was one of the factors involved in the relapse and the ensuing index offences. For that reason, he had strongly advised Mr. Sim against the use of cannabis. Dr. Gulati’s reasoning process was that of a cascading risk: that Mr. Sim would consume cannabis; this would lead to the consumption of other drugs; this would lead Mr. Sim failing to take his medication; this would lead to a recurrence of his symptoms; and this would lead to the commission of a serious criminal offence.

[97] Nowhere did the Board analyze the likely occurrence of each of the steps in Dr. Gulati’s cascading risk scenario having regard to all the evidence, notably (a) the fact that the index offences were related to more than just cannabis; (b) his extraordinary progress over the last ten years; (c) his apparent abstinence from any drug other than cannabis; (d) his long-standing commitment to taking his medications; (e) his strong relationship with his support team and Dr. Gulati’s evidence that if he were granted an absolute discharge, Mr. Sim could continue to be involved with the ACT, which would monitor his medication compliance; (f) his stable work environment; (g) his friendships in the community; and (h) his family support. The Board simply accepted that Mr. Sim’s consumption of cannabis would inevitably give rise to a substantial risk of serious harm to the public and that “[h]e must remain on a disposition in order to protect the public from the further commission of serious criminal offences.”

[98] For these reasons, the Board’s 2019 Disposition is unreasonable, and I would set it aside and order an absolute discharge. In coming to this conclusion, I am mindful that Winko cautions appellate judges to consider the broad ranging nature of the Board’s inquiries, its familiarity with the situation of the particular NCR accused, and the difficulty in applying the “significant threat” test: Winko, at para. 61. I also recognize the significance of the opinion of psychiatrists who have been treating Mr. Sim for several years.

[99] However, in each of the past two years, the Board has failed to consider all the evidence and has failed to articulate a coherent and rational basis for Mr. Sim’s continued detention. I am not satisfied that it is able to do so on the evidence before it.

F. disposition

[100] For these reasons, I would allow the appeal, set aside the Board’s disposition, and substitute an absolute discharge.

Released: “G.R.S.” SEP 10 2020

“George R. Strathy C.J.O.”

“I agree. E.E. Gillese J.A.”

“I agree. David Watt J.A.”

[^1]: The Hospital Report indicates that Mr. Sim tested positive for methadone in April 2012. There is no other evidence that he has consumed any other illicit drug, other than marijuana, since that date.