Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20211013 DOCKET: C69023

MacPherson, Roberts and Miller JJ.A.

IN THE MATTER OF: Matthew Gibson AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel: Anita Szigeti and Maya Kotob, for the appellant Catherine Weiler, for the respondent, Attorney General of Ontario No one appearing for the respondent, Person in Charge of the St. Joseph’s Healthcare Hamilton

Heard: October 1, 2021 by video conference

On appeal against the disposition of the Ontario Review Board dated, December 8, 2020, with reasons dated January 5, 2021.

Reasons for Decision

[1] Matthew Gibson has been under the supervision of the Ontario Review Board (“the Board”) since he was found not criminally responsible (“NCR”) on January 31, 2006, for the offences of breach of recognizance and criminal harassment. He appeals from the Board’s December 8, 2020 disposition that he be discharged under the same conditions as the September 17, 2019 disposition. These conditions include that he report monthly and abstain from non-medical use of drugs and alcohol.

[2] There is only one issue on this appeal. Mr. Gibson submits that the Board erred in concluding that he continues to pose a significant threat to the safety of the public. He makes two points to support this submission. First, he contends that the Board’s finding of significant risk is unreasonable because it is the product of an uneven analysis of Mr. Gibson’s own evidence and the other protective factors that belie the Board’s finding. Second, even taken at its highest, Mr. Gibson argues, the evidence does not support a finding of significant risk. He says that if the Board had not erred in its assessment of significant risk, he would have been granted an absolute discharge.

[3] Specifically, Mr. Gibson highlights the evidence that he has not engaged in any incidents of violence or aggression for many years since he has been subject to the Board’s supervision. Over the last reporting year, he has been compliant with his prescribed oral and injectable medication, co-operative with his hospital outpatient and community treatment teams, and his four hospital admissions were voluntary. During the annual hearing, he acknowledged that he has a mental illness, schizophrenia, and testified that he would continue taking his antipsychotic medication for the rest of his life and seek counselling and social work from his community treatment team from which he said he benefits. He enjoys a stable, loving, and supportive relationship with his mother and sister, with whom he has resided for the last several years.

[4] An appellate court may allow an appeal from the Board’s disposition under s. 672.78(1) of the Criminal Code, R.S.C. 1985, c. C-46, where the Board’s disposition is unreasonable or cannot be supported by the evidence; it is based on a wrong decision on a question of law; or there was a miscarriage of justice.

[5] We see no error here that would justify appellate intervention.

[6] The Board applied the correct test to Mr. Gibson’s circumstances. It is clear from a functional review of the Board’s reasons that they assessed whether Mr. Gibson posed a real “risk of serious physical or psychological harm to members of the public … resulting from conduct that is criminal in nature but not necessarily violent”: s. 672.5401 of the Criminal Code. The Board found that there was a high or real risk of serious harm to the public: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 57.

[7] We disagree with Mr. Gibson’s submission that the Board focused unduly on his lack of insight into his medical condition and need for treatment and medication. In assessing the issue of significant risk, the Board considered well‑established risk factors to determine if Mr. Gibson poses a real risk of serious harm. The Board did not limit these risk factors to Mr. Gibson’s lack of insight into his illness, need for treatment, and responsibility for the index offences. As required under s. 672.54 of the Criminal Code, the Board conducted a broad inquiry, including the constellation of factors reviewed by the Supreme Court in Winko, at para. 61:

the circumstances of the original offence, 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, perhaps most importantly, the recommendations provided by experts who have examined the NCR accused.

[8] We are not persuaded that the Board failed to review the entirety of the evidence in an even-handed way. The Board’s reasons demonstrate that the Board considered the protective factors identified by Mr. Gibson but was not satisfied that they outweighed the factors that led to the Board’s decision that Mr. Gibson continues to pose a significant risk to public safety and that this risk can be managed only by a discharge order with conditions. The Board’s decision reflected Mr. Gibson’s evidence and was also amply supported by the evidence as set out in the Hospital Report, the evidence of Mr. Gibson’s outpatient psychiatrist, Dr. Y. Naidoo, and the Psychological Risk Assessment Report completed by Dr. Peter Sheridan, which the Board was entitled to accept. While Dr. Sheridan prepared his most recent report based on a paper record, his identification of risk factors and opinion of significant risk align with Dr. Naidoo’s evidence and conclusions.

[9] Tragically, Mr. Gibson suffered a severe head injury as a teenager in a 1984 motorcycle accident. He has serious mental health issues that first manifested in 1994. Since 2018, he has been incapable of consenting to psychiatric treatment and his mother is his substitute decision maker. His current diagnosis includes schizophrenia (undifferentiated type), closed head injury, and cannabis use disorder. According to Dr. Naidoo, Mr. Gibson’s schizophrenia includes “fixed false beliefs”, which have been entrenched for many years. His psychotic symptoms and persecutory delusions are active, and he maintains the unshakeable but false belief that he is the victim of countless druggings, poisonings, home invasions, and physical and sexual assaults. He continues to incorporate new individuals into his delusions and focus on those whom he believes have wronged him. While he has not acted violently in relation to his delusions, he is not passive about them: he becomes agitated when referring to them and acts out on them by accusing those whom he believes are responsible.

[10] Mr. Gibson has little insight into his medical condition and the need for medication and treatment nor into the adverse effects medication non-compliance and substance use have on his mental state. Mr. Gibson does not acknowledge that he had a mental illness prior to his supervision by the Board; rather, he believes the Board’s supervision caused him to become schizophrenic and dependent on medication. While he is at present compliant with medication and treatment, Dr. Naidoo opined that if granted an absolute discharge, it is highly likely that Mr. Gibson would discontinue psychiatric follow-up as well as his prescribed medications. Dr. Sheridan’s view was that it was certain he would do so. The Hospital Report supports their opinion: until the 2020 hearing, Mr. Gibson regularly stated that he would discontinue his medication if absolutely discharged. He demonstrates no insight into his chronic cannabis use that, according to Dr. Naidoo, Dr. Sheridan, and the other evidence contained in the Hospital Report, destabilizes his mental state and intensifies his symptoms of psychosis and delusions. Mr. Gibson testified at the hearing that “chances are”, he would continue to use cannabis if he obtains an absolute discharge because he believes that it alleviates his somatic pain for which investigations have not found a physiological cause.

[11] Mr. Gibson demonstrates extremely limited insight into the index offences, emphasizing that he was arrested for crimes he did not commit. The offences leading up to the NCR determination were very serious. Mr. Gibson left notes accusing teenaged neighbours of having sexually assaulted him and threatened their father with a knife when he confronted him about the notes. He breached his recognizance by harassing and threatening these neighbours, sending them parcels and cursing them on their front lawn. He is fixed in his belief that the victims assaulted him. The 2020 Psychological Risk Assessment Report noted his mental status remains unchanged since his last assessment in 2015 and his risk for future violence is high absent the professional supports and oversight provided by the conditions of his disposition.

[12] Mr. Gibson’s mental state significantly fluctuated and worsened over the reporting year prior to the Board’s December 8, 2020 disposition. Unfortunately, his symptoms remain poorly managed. He continues to focus on those whom he considers have wronged him and becomes agitated about the wrongs that continue to form part of his delusional ideation. Mr. Gibson’s cannabis use has increased over the past year. Out of 51 urine screens in the past year, only two were negative for cannabis. Dr. Naidoo maintained that during the periods that Mr. Gibson reported increasing his cannabis use, his psychosis intensified. He had four voluntary admissions into hospital because of his deteriorating mental state. The evidence of Drs. Naidoo and Sheridan was that the volunteer hospital admissions likely precluded significant destabilization that mirrored his mental state before the index offences and could have resulted in serious consequences to public safety.

[13] Despite the many difficulties that Mr. Gibson experienced in the past reporting year, there has been much to commend, as the Board also noted in its reasons. Mr. Gibson continues to benefit from the love and stability of his family relationships and he is compliant with medications and treatment. However, the absence of violent or aggressive behaviour by Mr. Gibson does not serve by itself to eliminate the risk of significant harm to the public given the other serious risk factors demonstrated by the evidence and accepted by the Board. As this court stated in Krist (Re), 2019 ONCA 802, at para. 15:

Evidence of the potential for physical or psychological violence, such as a lack of insight into the index offences and mental illness, and concerns over discontinuing medication and substance abuse, which could result in decompensation and psychosis, like in the present case, may support a finding of significant risk to the public: see e.g., Abdikarim (Re), 2017 ONCA 793, at paras. 6-7, 16; Beam (Re), 2018 ONCA 532, at paras. 5-9; and Mott (Re), 2019 ONCA 560, at para. 10.

[14] As a result, we see no error in the Board’s analysis or conclusion that based on the entirety of the evidence they considered and in accordance with s. 672.54 of the Criminal Code, Mr. Gibson continues to pose “a significant threat to the safety of the public.” The Board’s decision was reasonable in the circumstances. There is no basis to intervene.

Disposition

[15] Accordingly, we dismiss the appeal.

“J.C. MacPherson J.A.”

“L.B. Roberts J.A.”

“B.W. Miller J.A.”