COURT OF APPEAL FOR ONTARIO

CITATION: Gibson (Re), 2020 ONCA 619

DATE: 20201002

DOCKET: C67781

Tulloch, Paciocco and Harvison Young JJ.A.

IN THE MATTER OF: Matthew Gibson

AN APPEAL UNDER PART XX.1 OF THE CODE

Stephen Gehl, for the appellant

Chloe Hendrie, for the Attorney General of Ontario

Michele Warner, Person in Charge of Centre for Addiction and Mental Health

Heard: August 18, 2020 by video conference

On appeal from the disposition of the Ontario Review Board dated September 17, 2019, with reasons dated October 21, 2019.

REASONS FOR DECISION

[1] The appellant, Matthew Gibson, appeals the order of the Ontario Review Board (the “Board”), dated September 17, 2019, following his annual review hearing. The Board ordered the continuation of a conditional discharge and declined to grant an absolute discharge as the appellant sought. The appellant argues that the Board’s decision was unreasonable and that there is no evidence to support the conclusion that he continues to pose a significant risk to the safety of the public. He asks to have the Board’s decision set aside and seeks an absolute discharge.

Background Facts

[2] At the age of 15, Mr. Gibson suffered a serious closed head injury as a passenger in a motorcycle accident. During his 20s, he began to experience delusions. He has since been diagnosed with schizophrenia. In recent years, when the appellant is on anti-psychotic medication and not abusing substances, his mental state is stable and his delusions appear to be encased in the past. However, when the appellant’s mental condition deteriorates because he is not on medication and/or he is abusing substances, his delusions expand to incorporate others in his present environment, such as neighbours, other patients, or members of his treatment team.

[3] In addition to schizophrenia, the appellant suffers from a long-standing cannabis use disorder. He believes that it is the only thing that alleviates his chronic pain. As the hospital reports indicate, cannabis in itself may precipitate psychosis, especially in people with a psychotic illness like the appellant’s. Various clinicians have observed that the appellant’s cannabis use can lead to the deterioration of his mental status. It can increase his irritability and make his mood more labile. Cannabis worsens his psychosis and delusional preoccupations.

(1) The index offence

[4] The appellant has been subject to the jurisdiction of the Board since he was found not criminally responsible on account of mental disorder of breach of probation in 2006. He was 36 years old at the time. The probation in issue had been imposed as a sentence following Mr. Gibsons’ conviction on charges of criminal harassment, assault with a weapon and possession of weapons dangerous relating to his neighbour and his daughters. The appellant believed that the neighbours’ teenaged daughters were involved in a conspiracy to ruin his life and had raped him two years earlier. He left threatening letters addressed to the girls on their family car. When he was subsequently approached by the girls’ father about the letters, the appellant threatened him with an 11-inch knife, saying “don’t fuck with me.” The presiding judge suspended the passing of sentence and imposed a probation order that included a term prohibiting him from contacting the neighbours.

[5] The index offence took place two weeks after the probation order was imposed. It followed a series of incidents which culminated with the appellant standing on his lawn, yelling in a fit of rage and shouting obscenities about the neighbour and his daughter. He was not taking any anti-psychotic medication at the time.

(2) The 2019 disposition

[6] The evidence before the Board included the hospital report, Dr. Naidoo’s testimony, the appellant’s testimony and a four-page handwritten letter the appellant wrote to the Board.

[7] Dr. Naidoo testified that the appellant has a continuing, fixed conviction that he is not mentally ill. Without oversight from the Board, Dr. Naidoo concluded that it is highly likely that the appellant would stop his medication and become increasingly symptomatic. The appellant’s mental status has deteriorated during the latest reporting period. His paranoia has intensified and he has had beliefs about intruders entering his home and stealing family belongings. Dr. Naidoo stated that there was evidence that the appellant made efforts to conceal his cannabis use by diluting his urine samples. There was also evidence that he was non-compliant with his medication.

[8] Dr. Naidoo testified that all the risk factors that were present at the appellant’s last review hearing have persisted in the current reporting period: the appellant continues to show no insight into his illness or into his potential for violence; the appellant remains incapable of consenting to treatment; and the appellant still experiences active delusional thinking and beliefs of persecution. Dr. Naidoo’s opinion was that the appellant’s persecutory beliefs were “more concerning” because they have expanded to include novel stimuli and subjects, specifically his neighbours.

[9] Dr. Naidoo also testified that two additional risk factors arose during the reporting period: the appellant used cannabis on multiple occasions and the appellant had difficulty with rule adherence, specifically with respect to hiding substance use from staff and non-compliance with his medication on several occasions.

[10] The appellant was voluntarily admitted to the hospital on two occasions during the reporting period:

• Admission #1 (June 11 – 25, 2019): This admission occurred after hospital staff became concerned about the appellant tampering with urine samples and consuming cannabis. Before his admission, the appellant left increasingly intense voicemails for Dr. Naidoo and another member of his treatment team. He was tearful and sad about being in the forensic system and expressed concerns about his neighbours making threats and intruders entering his home and stealing his belongings. The appellant consumed cannabis and alcohol on the day he was admitted. He was prescribed Risperidone, an oral anti-psychotic, which caused his mood to settle and his paranoid ideations to decrease.

• Admission #2 (July 12 – August 7, 2019): The appellant was readmitted a few weeks later after his treatment team noticed his increasing instability. In the intervening period, the appellant used cannabis and his sister’s Tylenol 3s. His urine screens were negative for Risperidone. Dr. Naidoo believed that the appellant was taking the Risperidone to some degree but was not fully compliant with his medication. The appellant was placed on a higher dosage of Risperidone.

[11] Dr. Naidoo testified that the frequency of the appellant’s voicemails decreased following the second hospitalization, but that he continued to have concerns about the appellant’s cannabis use, tampered urine samples and overall decompensation post-discharge.

[12] The appellant testified that he had been misdiagnosed and mistreated, and that the authorities failed him by not investigating his claims. He stated that, if absolutely discharged, he would like to “get off the needle,” but would continue to take pill medication. He provided the Board with a handwritten statement. According to the Board, its contents “demonstrate that Mr. Gibson still firmly holds the paranoid beliefs that gave rise to the commission of the index offences”.

[13] The Board accepted Dr. Naidoo’s evidence and the evidence in the Report that the appellant remained a significant threat to the safety of the public. The Board concluded that the appellant would likely discontinue treatment if discharged, which could cause his delusions to intensify, and as a result, he would engage in psychologically or physically harmful criminal behaviour. The Board stated that “[t]his conclusion is…not speculative but represents the only reasonable conclusion on the evidence before us.” An absolute discharge was therefore not available.

[14] The Board found that the increased reporting period requested by the Hospital and the Crown was not necessary or appropriate because the appellant had complied with the Hospital’s requests to attend. The monthly reporting period was maintained, as were the existing conditions on the conditional discharge, save for an amended residential term that included Waterloo, Hamilton, or Toronto. The Board also ordered the appellant’s requested transfer to the Centre for Addiction and Mental Health and expressed hope that the transfer could yield positive change for the appellant and the public.

(3) Standard of Review

[15] There is no dispute that the applicable standard of review is reasonableness. A reasonable decision is one that, having regard to the reasoning process and the outcome of the decision, properly reflects an internally coherent and rational chain of analysis that is justified in relation to the facts and law: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1.

Analysis

[16] The Board applied the correct legal test pursuant to s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46. It considered whether there was evidence to support the hospital’s submission that the appellant presented a significant risk according to Winko v. British Columbia (Forensic Psychiatric Institute), 1999 694 (SCC), [1999] 2 S.C.R. 625, and it considered the least onerous disposition necessary to manage that risk.

[17] The heart of the appellant’s argument is that there was no evidence to support the finding of significant risk and therefore this finding is unreasonable as it cannot be justified in fact and/or law. The appellant states that there is no evidence that he has acted in a criminal way since the index offence. He also states that there is no evidence that his use of marijuana causes a deterioration of his mental state, or that his marijuana use triggers violent or criminal behaviour. We do not agree.

[18] To begin with, the Board carefully considered the evidence before it. The hospital report was comprised largely of Dr. Naidoo’s evidence, who has been Mr. Gibson’s treating psychiatrist for a number of years.

[19] The Board’s decision is rational, transparent and coherent. The Board’s analysis was clear and grounded in the record and Dr. Naidoo’s evidence. The Board relied on evidence that the appellant’s persecutory delusions persist, and that there were heightened risk concerns not present at last year’s hearing.

[20] The appellant submits that the most recent psychological harm inflicted by the appellant was the index offence, despite the fact that he has been living in the community (under the jurisdiction of the Board) since 2010.

[21] The absence of violence is relevant to, but not determinative of, the question of significant threat. Evidence of lack of insight into mental illness and concerns about discontinuing medication and substance abuse can also support a finding of significant risk: Krist (Re), 2019 ONCA 802, at para. 15.

[22] Those factors existed here, notwithstanding the appellant’s lack of violence. Dr. Naidoo’s evidence was that an absolute discharge was not available due to the risk of the appellant discontinuing his medication. The Board’s finding that this was likely to occur was well grounded in the evidence.

[23] This case is distinguishable from Ferguson (Re), 2010 ONCA 810, 264 C.C.C. (3d) 451. In Ferguson, the expert was uncertain as to whether the appellant posed a significant threat to the public. The appellant’s psychiatric history and the nature of the index offences did not suggest that the appellant posed a significant threat to the public. As a result, the record could not reasonably support a finding that the appellant posed a significant threat to the public: at paras. 40-44.

[24] In this case, there was ample evidence to support the Board’s significant threat finding. This finding was not speculative or unsubstantiated: Winko at para. 57. There was evidence of the future risk of harm in the event of an absolute discharge: the appellant would stop medication and would start substance abuse. His persecutory delusions would worsen such that he would be likely to engage in criminal behaviour causing serious psychological or physical harm. In addition, we note that the Board’s refusal to increase the frequency of the appellant’s reporting requirements as the hospital requested shows that the Board was alive to the need to make the least onerous disposition necessary to manage the risk to public safety.

Disposition

[25] The Board’s decision was reasonable. The appeal is dismissed.

“M.H. Tulloch J.A.”

“David M. Paciocco J.A.”

“A. Harvison Young J.A.”