Re: Andrew W. Davidson
ORB File No: 8180
Hearing held on: Friday, January 17, 2025
Place of hearing: Ontario Shores Centre for Mental Health Sciences
Pursuant to: Section 672.81(1) of the Criminal Code
Before: Alternate Chairperson: Mr. C. MacIntyre, K.C. Members: Dr. K. Patel Dr. W. Loza Ms. C. Murray Mr. S. Duffy
Parties Appearing: Accused: Andrew W. Davidson Counsel: Ms. C. Francis (via Zoom)
The person in charge of hospital: Counsel: Ms. A. Marshall
Attorney General of Ontario: Counsel: Ms. N. MacDonald
REASONS FOR DISPOSITION
(Dated February 26, 2025)
Introduction
On November 9, 2022, Andrew Davidson was found not criminally responsible on account of mental disorder on charges of failure to comply with probation order (x3); common nuisance – endangers the lives, safety or health of the public, arson: reckless disregard for human life, assault and assault with a weapon, all contrary to the Criminal Code.
Mr. Davidson is currently subject to an Ontario Review Board disposition of February 7, 2024, which orders him detained within the Forensic Service of the Ontario Shores Centre for Mental Health Sciences or at the Secure Forensic Unit of Ontario Shores or, in the discretion of the person in charge, be transferred to the General Forensic Unit of Ontario Shores, should the person in charge conclude that the accused’s condition has clinically improved to the extent of justifying such a transfer.
Mr. Davidson’s privileges include up to living in the community in accommodation approved by the person in charge.
On January 17, 2025, the Ontario Review Board convened at Ontario Shores Centre for Mental Health Sciences (“Ontario Shores”) to conduct Mr. Davidson’s annual review and to make a disposition further to s. 672.81(1) of the Criminal Code.
At the outset of the hearing the parties were canvassed for their preliminary positions. The hospital proposed that there be no change in Mr. Davidson’s disposition order except for the addition of a privilege of unaccompanied passes for up to seven days into the community for purpose of discharge planning, approved in advance by the person in charge.
The Crown Attorney expected to agree with the hospital’s proposal. At the end of the evidence the Crown Attorney did endorse the hospital’s recommendation.
On behalf of Mr. Davidson, Ms. Francis agreed with the proposal of the hospital though her client would like to have the prohibition at 4(a) of the disposition (for non-medical use of alcohol or drugs or other intoxicant, including cannabinoids), to be amended to drop cannabinoids from the prohibition.
Ms. Francis also indicated that her client does not agree with the description of some of the reported incidents contained in the hospital report and she expected he would be called as a witness to explain his position.
Index Offences
- Last year's Reasons for Disposition contain the following description of the index offences as taken from the then filed hospital report:
“On January 27, 2022, while inside the TD Bank located on Sheppard Ave E, in Toronto, Mr. Davidson approached Victim #1 and his actions caused the victim’s hat to catch fire. There is some discrepancy as to how the hat was set aflame —with the synopsis suggesting that Mr. Davidson first lit a piece of garbage on fire and then threw it at the Victim #1, while victim statements and surveillance footage captures Mr. Davidson approaching the victim from behind and held a lighter to her hat—all accounts suggest that the clothing did catch fire.
Mr. Davidson then proceeded to walk east on Sheppard Ave to the Agincourt mall located on Sheppard Ave E. Mr. Davidson was yelling out loud and randomly kicking numerous patrons. Mr. Davidson entered the Walmart store located within the mall and approached Victim #2, and began kicking him in the back of the legs. The victim called for help at which point Mr. Davidson held a lighter up to the victim's face. Police were called and attended a short time later and Mr. Davidson was arrested.
At the time of the index offences, Mr. Davidson was bound by three separate probation orders with terms to keep the peace and be of good behaviour, and not possess any weapons as defined by the Criminal Code of Canada.”
Background
The current hospital report of December 13, 2024, was filed at today's hearing as Exhibit 1. The report contains considerable detail regarding Mr. Davidson's history, in particular it outlines a record of the many hospital admissions or visits made by Mr. Davidson from November 2011 through to January 2022, thirty in number. Bipolar disorder or schizoaffective disorder (bipolar subtype) were common discharge diagnoses and cannabis use disorder and antisocial personality traits and schizophrenia were also noted.
Mr. Davidson began using substances at the age of 16 and has had an extensive history of polysubstance use including alcohol, cannabis, heroin, and mushrooms.
Mr. Davidson's young life did not begin easily. He was apprehended by the Children's Aid Society when he was a baby. He was eventually adopted by his foster parents at the age of 5. From an early time, he lacked motivation to do schoolwork. When he was 12 years old, he was diagnosed with attention deficit disorder and treated with medication, however, this did not stop his ADD symptoms.
Despite his adoptive mother arranging for private tutoring and enrolling him in a special school he could not keep up with his classes and dropped out of school before completing grade 9. He may have completed some credits later.
There is no record of Mr. Davidson ever being employed.
Mr. Davidson had a history of violence, particularly directed towards his father. In 2014 he had severely assaulted a young woman in the community believing she had an “evil aura” about her. Indeed, many of Mr. Davidson's hospital admissions were as a result of paranoid thoughts that people were trying to harm him. Daily cannabis use was common throughout these years. Noncompliance with antipsychotic medication was common throughout.
Mr. Davidson's criminal record of convictions between 2018 and 2021 includes uttering threats, assaults with weapon, assault, and failure to comply with probation orders.
At last year's annual review, the Board heard evidence that Mr. Davidson’s insight into his mental illness is underdeveloped. He disagreed with the diagnosis of schizoaffective disorder although he acknowledged experiencing psychotic symptoms.
He had been compliant with antipsychotic medication; however, he has been spiritually preoccupied. In general, he presented with limited insight.
Last year his diagnoses were schizoaffective disorder and cannabis use disorder. According to the hospital report (exhibit 1), he now has an added diagnosis of unspecified personality disorder (antisocial and paranoid traits).
Evidence at Hearing
Within the terms of last year's hybrid disposition, Mr. Davidson was transferred from the secure forensic rehabilitation unit (FRU) to the general forensic psychiatric rehabilitation unit (FPRU). This took place on April 18, 2024.
Mr. Davidson continues to be seen as being only marginally capable of consenting to his own psychiatric treatment. Following his move to the general unit, Dr. Wong and the hospital team recorded some challenging behaviour by Mr. Davidson. This type of behaviour had been observed on the secure unit but more so on the general unit since his transfer there.
This behaviour includes continued substance use, in particular cannabis, a litany of complaints or grievances against healthcare staff and the hospital about its rules and policies and of the expectations required of him. In October 2024, he unilaterally stopped his medications.
In Dr. Wong’s testimony before the Review Board, he endorsed the contents of the filed hospital report which he authored. Added to Mr. Davidson's diagnoses this year is unspecified personality disorder (antisocial and paranoid traits). In the hospital report Dr. Wong states:
“Overall, Mr. Davidson struggled with his rehabilitation over the past reporting year, mostly owing to substantial antisocial attitudes and behaviours, “injustice collecting”, and duplicity (as will be articulated below). ... To his credit, he did not engage in any serious physical aggression over the past reporting year.”
Since Mr. Davidson’s transfer to the general unit there have been incidents of confirmed or suspected cannabis use nearly every one to two weeks. Confirmed or suspected contaminated urine samples or refusal to provide a urine sample were included in these incidents. His participation in substance treatment was challenging. He had been terminated from group treatment owing to disruptive behaviours and espousing pro-substance behaviours. He ultimately agreed to meet with an individual addictions’ counselor.
Following each cannabis use or suspected cannabis use, Mr. Davidson's privileges were held from one to two weeks. The hospital sees cannabis use as having an affect on his mental state. Historically cannabis use has made a direct contribution to his violence and a predictable re-offence scenario for Mr. Davidson would be an increase in psychotic symptoms precipitated by substance use or compromised medication adherence.
Dr. Wong observes that when cannabis use was detected or suspected and Mr. Davidson's passes were placed on hold, this pattern of management managed to avoid a relapse or breakdown in Mr. Davidson's mental state. Dr. Wong attributes the hospital’s oversight in this regard for the absence of observed substantive mental destabilization. He adds that many external motivating factors are required to keep Mr. Davidson complying with medication and one of these is control and monitoring of his cannabis use.
Compliance is an ongoing concern for the hospital currently and for the future and has been a sustained focus of the team to attempt to maintain his compliance. His noncompliance is attributable partly to his lack of insight, internal motivating factors and is sometimes coincident with substance use.
During the previous reporting year, Mr. Davidson was placed on a list for Ballantyne House, a small 24-hour supervised home with a maximum of four residents. Ballantyne House used to have a strict no-substance rule, and although this has shifted somewhat, Dr. Wong considers that there is a chance that they would not accept an individual such as Mr. Davidson who uses cannabis regularly.
To date Ballantyne House has not spoken out about Mr. Davidson’s current cannabis use, however, if it did the hospital will have to look elsewhere for a community placement. Dr. Wong remains guardedly optimistic that Ballantyne House would accept Mr. Davidson.
Mr. Davidson has continued to use cannabis while under the Board’s jurisdiction and he now wishes to have its prohibition removed from his disposition. It is the hospital team’s opinion that it is likely that he would increase his use of cannabis were he living in the community.
In general, Mr. Davidson's insight about his major mental illness is considered marginal at best. He has strong doubts that such an illness exists. He sometimes says that his behaviour is due to trauma of his past, but his mental health history is well documented.
In the past, Mr. Davidson has asked for a reduction in his medication. This year, as above noted, he simply stopped his medication and in the following week changes in his mental state were observed. He told his treatment team that he did not need medication despite a review of his history of deterioration following non-adherence with medication. He would not accept this saying that “…it’s not the complete picture ... I'm used to being right even when 99.9999 percent of people say otherwise”. Dr. Wong observes that this attitude, i.e. that he is always right, is mostly characterological and not a result of psychosis.
Although acknowledging that there are instances where the use of cannabis could be supported to relieve stress or anxiety associated with PTSD, Dr. Wong testified that more typically, the approach would be to attend various programs to assist.
In that regard over the past reporting year Mr. Davidson’s engagement in programming was deemed to be poor to partial and his attendance and engagement became worse after being transferred to the general forensic unit.
His use of passes over the past year has been limited by them being withheld due to repeated breaches for cannabis or contraband use. Up to the time of the completion of the hospital report he had only earned one hour of unaccompanied hospital grounds passes.
An occupational performance assessment took place to determine Mr. Davidson's ability to live independently. He was deemed not to be “discharge ready.” This will have to be discussed with housing staff at Ballantyne House during any transition period should he be accepted there.
Dr. Wong was questioned about the testing routine and pass suspension routine following cannabis use by Mr. Davidson. A positive test would result in Mr. Davidson's passes being held a week. If Mr. Davidson continued to be positive after one week it could indicate either that he had initially ingested a larger amount of cannabis or that he had used again during the period of his privilege suspension.
Dr. Wong and the hospital team are not optimistic that Mr. Davidson would move to housing in the coming year. As above noted, there is some concern that Mr. Davidson's cannabis use would preclude him from ultimately being accepted Ballantyne House, but in any event, his unsatisfactory participation and engagement in programming would indicate that he is not ready. Dr. Wong describes Mr. Davidson as just “spinning his wheels.”
Dr. Wong testified that given Mr. Davidson's problematic course since being transferred to the general unit, the hospital team has had some informal discussion about returning him to a secure unit. There are concerns that he is not being adequately managed in the general unit.
Mr. Davidson presents as an antagonistic individual, subject to frustration and low tolerance. Dr. Wong agrees that it may be less disruptive for him on a secure unit with less access to cannabis.
Mr. Davidson testified. He described his music and his wish to have a room to himself as a motivating factor for a move from the hospital. He is looking forward to a move to Ballantyne House as this would seem to satisfy these wishes.
He stated that if his use of cannabis would affect the house dynamics at Ballantyne House he would stop and would be able to stop. Mr. Davidson describes himself as a private person and that having his own space is important to him.
With respect to the hospital's description of his grievances and threats, Mr. Davidson says he has never filed any lawsuits but was only thinking about it and that he received advice that he could not initiate these lawsuits until he was discharged.
Mr. Davidson further disagrees with the hospital describing it as a bizarre act when he was discovered lying face down on the floor. Mr. Davidson believes in yoga-type exercises and suggests that this was one of these.
Mr. Davidson does not recall professing any wish to purchase a gun licence.
Mr. Davidson testified that he is taking addictions counseling now, but not psychotherapy which he says he needs. He has not rejected psychological help as suggest by the hospital, but when he did see a psychologist, he was told to return to her if something bothered him. He has recently asked for these sessions to be resumed but says he has never had an answer to his request.
It was because he did not get this help that Mr. Davidson says he then resorted back to cannabis as he was having a difficult time.
Mr. Davidson is advocating for cannabis use in moderation as it would be positive for his creativity and in dealing with stress associated with his previous trauma.
Mr. Davison advised that he has completed a music album and has performed songs at the hospital with a favourable response from the audience and that someone from CTV has reached out to help with his music product.
In response to Ms. Marshall’s questions, Mr. Davidson testified that he takes cannabis roughly once a week on average and that he has evaded detection from time-to-time. Since the Ballantyne House has become potentially available to him, he has felt it okay to stop cannabis and thereby not hamper his progress. Currently, he states he has had no cannabis for about one month, illustrating that he can definitely stop its use if he wished.
In their submissions the hospital submitted that a continuation of the prohibition on the use of cannabis is appropriate and necessary. In the first place it is a handicap to his securing a community placement and more significantly, it negatively affects his illness of schizophrenia.
Crown counsel adopted the hospital’s position. Ms. Francis submitted that her client agrees with the finding of significant threat and that his disposition order continue for the coming year except that the prohibition on cannabis should be removed as there is no evidence that Mr. Davidson's mental health had deteriorated with cannabis use in the past year.
Decision
The Review Board accepts the joint submission of the parties that Mr. Davidson remains a significant threat to the safety of the public and that for the most part his disposition should be maintained for the coming year. The exception to the joint submission is that the accused wishes to have the prohibition on cannabis removed. The Board finds in this regard that Mr. Davidson should abstain absolutely from the non-medical use of cannabis as is framed in his current disposition.
The hospital report, supplemented by Dr. Wong’s evidence, as the author of the final section in the hospital report, provides ample evidence of the threat that Mr. Davidson poses to members of the public to a degree that is significant. The Board accepts the evidence of Dr. Wong and as contained in the hospital report in that respect. In particular, the Board adopts the risk factors that have been relevant in this past reporting year outlined as follows:
History of violence
Presence of a major mental illness, that when unwell, has directly contributed to violence
History of cannabis use that has directly contributed to a deterioration into his mental status, to which he has occasionally acknowledged to be a destabilizing factor
Significant antisocial and paranoid personality traits, which remain active risk factors in contributing to ongoing breaches and antagonism.
History of medication non-adherence with subsequent psychotic deterioration.
Limited insight into his illness and substance use
Overall, poor engagement in psychoeducational programming over the past reporting year
Poor personal supports
Poor distress tolerance”
With respect to Mr. Davidson request to amend the disposition to permit cannabis use, the Review Board unanimously agrees that the provision requiring him to abstain from cannabis use should remain. The evidence is quite clear that cannabis played a significant role in all or almost all of Mr. Davidson's criminal and psychiatric hospital history.
Dr. Wong has testified that cannabis use in an individual with a diagnosis of schizophrenia should be avoided. Mr. Davidson has acknowledged that cannabis use has affected his psychotic thoughts in the past.
The Board finds that cannabis use has been so inextricably connected with Mr. Davidson’s schizophrenia and his non-adherence to medication for his mental illness that to remove the prohibition on cannabis use would result in a likely increased use of cannabis which would hinder or neutralize efforts to treat his major mental illness and to adequately control the risks that he poses to members of the public.
The evidence of Dr. Wong, as well as a review of the hospital report, supports that Mr. Davidson's behaviour and response to treatment recommendations and rules of the unit have been more problematic in the hospital’s general unit than it had been while he was on the secure unit.
The Board supports the hospital’s considering that a transfer of Mr. Davidson back to the secure unit might well be a more appropriate placement for him in the hospital.
In the year prior to his transfer to this general unit, Mr. Davidson’s involvement with a number of programs was very positive. His attendance and engagement and participation were all encouraging. Conversely, since being moved to the hospital’s general unit, his programming engagement was limited and considered poor.
Mr. Davidson's increased use of cannabis and hostility towards hospital staff and the hospital were a marked departure from the prior year when he was placed in the forensic secure unit.
In the context of Mr. Davidson's cannabis use, the Board also notes the accused’s abandonment of his stated commitment to stay off substances made in the prior year. In fact, it is Mr. Davidson's wish to continue to use cannabis. The Board expresses some concern about the testing for cannabis process. It appears that Mr. Davidson is being deceptive about some of his samples. The hospital is not clear whether after a urine positive test he actually accesses cannabis while his privileges are suspended or whether the samples, he presents are even his.
The Board suggests that perhaps the hospital should consider more random testing and testing sooner after a positive test result and ensuring that Mr. Davidson is observed while he provides the sample. It is suggested that this would better monitor the extent of Mr. Davidson's cannabis use.
The Board has some reservations about the addition of a seven-day pass which is designed to enable potential visits to Ballantyne House in preparation for a discharge there. The evidence presented at today's hearing would support that Mr. Davidson is not ready for discharge in the coming year or that Ballantyne House might not have room for him or that Mr. Davidson's cannabis use would be an obstacle to Ballantyne House accepting him as a resident.
Nonetheless, the hospital wishes to maintain the community living provision. It is very clear from Mr. Davidson’s own evidence that this is a desired goal of his, particularly if it involves having a single room. Accordingly, the Board agrees that the pass privilege is consistent with the community living privilege and ought to be added to Mr. Davidson's disposition notwithstanding the doubts about a discharge in the coming reporting year.
Mr. Davidson’s presentation and behaviour in the next few months will likely affect the hospital’s decision whether to keep Mr. Davidson on the general unit or move him back to the secure unit. At the present time, the Board is content that the current disposition remain in place as the necessary and appropriate order which takes Mr. Davidson’s treatment, rehabilitation, and reintegration into account as well as the safety interests of members of the public.
DATED this 26^th^ day of February, 2025, at the City of Toronto, in the Toronto Region.
Mr. C. MacIntyre, K.C. Alternate Chairperson