Ontario Review Board
Re: James Gushue
ORB File No: 5298
Hearing held on: Wednesday, May 7, 2025
Place of hearing: Waypoint Centre for Mental Health Care 500 Church Street, Penetanguishene
Pursuant to: Section 672.81(2.1) of the Criminal Code
Before:
Alternate Chairperson: Mr. M. Segal
Members: Dr. K. Hand
Dr. L.O. Lightfoot
Ms. M. Chamberlain
Mr. J. Cyr
Parties Appearing:
Accused: James Gushue
Counsel: Mr. T. McIver
The person in charge of hospital: Counsel: Mr. J. Thomson
Attorney General of Ontario: Counsel: Ms. S. Curry
REASONS FOR DECISION
(Dated June 10, 2025)
On March 10, 2009, James Gushue was found not criminally responsible on account of mental disorder on a charge of attempt murder, contrary to the Criminal Code of Canada (the "Criminal Code").
Mr. Gushue is currently subject to a Disposition of the Ontario Review Board dated April 16, 2025, detaining him at the Waypoint Centre for Mental Health Care – High Secure Provincial Forensic Programs Division, Penetanguishene (“Waypoint”), with hospital grounds privileges beyond the secure perimeter, escorted by staff.
By letter dated April 17, 2025, Waypoint notified the Board that Mr. Gushue’s liberty had been restricted.
On Wednesday, May 7, 2025, the Ontario Review Board convened a hearing at Waypoint to review the restriction of Mr. Gushue’s liberty, pursuant to s. 672.81(2.1) of the Criminal Code. Mr. Gushue was in attendance and was represented by his counsel, Mr. McIver.
Position of the Parties
- At the commencement of the hearing, counsel for the Hospital submitted that the restriction on Mr. Gushue’s liberty was necessary and appropriate, and the least onerous and least restrictive measure on April 9, 2025, at the time it was imposed and continued to be until it was discontinued on April 23, 2025. Counsel for the Attorney General agreed with the Hospital’s submission. Counsel for Mr. Gushue took no position on the invocation of the seclusion but felt that it had been unnecessarily long.
Index Offences:
- The circumstances of the index offences are taken from the Hospital Report dated February 27, 2025, as follows:
“On the 20 Sept 08 at approximately 1305 hrs, the accused was in a bedroom of his uncle’s (Gary O’Brien) apartment. Gushue exited the bedroom and quietly walked to the kitchen where he picked up a paring knife. Gushue then turned into the living room where Gary O’Brien was talking with his brother Philip O’Brien. Gushue approached Philip and began stabbing and cutting him with the paring knife. Gary O’Brien witnesses this incident but he was initially unaware of the knife. Gary had thought that Gushue was fighting with Philip and came to Philip’s rescue. It was at this time that Philip yelled, “He’s got a knife.” Gary assisted Philip in holding Gushue down until police arrived.
Police opened the door and then located Gary and Philip O’Brien holding Gushue down on the couch in the living room. There was a large quantity of blood present on all three parties. Police quickly learned that Gary had taken the knife from Gushue and he was presently unarmed. Gushue was handcuffed. At this time, Philip O’Brien stepped aside and disclosed a number of injuries to his person caused by Gushue with a paring knife. Gushue was calm and noncommunicative throughout the arrest.”
Evidence at the Hearing:
- The Board received documentary evidence in the form of a Hospital Report dated February 27, 2025, and a Restriction of Liberty (ROL) Report dated April 28, 2025, marked as Exhibits 1 and 2, respectively. The Board also heard viva voce testimony from Dr. Ismail, Mr. Gushue’s treating psychiatrist.
Restriction of Liberty:
On April 9, 2025, Mr. Gushue was placed in seclusion. Staff documented Mr. Gushue in the dining room finishing breakfast, when he got up, he attempted to assault a staff member, by raising his fist and swinging his arm in an attempt to punch them. The staff member was able to deflect Mr. Gushue’s hand and other staff were able to quickly intervene and restrain him.
The Restriction of Liberty Report notes that:
Mr. Gushue was assessed for and provided with seclusion relief near daily. During relief periods, he engaged in activities such as showering, watching television, and utilizing the phone. Mr. Gushue has a Crisis Prevention plan that outlines a step-wise de-restraint process. Step 1 occurs via the use of bilateral wrist/waist Pinel restraints; Step 2, with his non-dominant hand free of restraints, and Step 3, 1:1 with staff and no restraints. On April 18, 2025, Mr. Gushue progressed to Step 2 of the de-restraint plan and on April 23, 2025, the seclusion was discontinued.
Testimony of Dr. Ismail:
Dr. Ismail testified that Mr. Gushue has had a number of medication changes over the past few months. Despite these changes, he has remained psychotic, responds to internal stimuli and is aggressive. He noted that this had been Mr. Gushue’s second seclusion this year and it was especially concerning as he attempted to assault a staff member.
Throughout the time that Mr. Gushue was in seclusion, the Hospital regularly provided him with seclusion relief. Mr. Gushue has a Crisis Prevention Plan which includes a three-step process to remove his restrictions. The doctor noted that Mr. Gushue had moved through these steps quite quickly. Dr. Ismail noted that Mr. Gushue has remained out of seclusion since this last incident.
The doctor stated that the treatment team considered Mr. Gushue ultra treatment resistant. The Hospital has consulted the Centre for Addiction and Mental Health’s (CAMH) Medication Assessment Program for Schizophrenia (MAPS) clinic on three separate occasions with little success. The most recent consultation has resulted in a reduction of Mr. Gushue’s medication. There has been no improvement nor has there been a worsening of symptoms.
Mr. Gushue also receives electroconvulsive therapy (ECT) every Tuesday. Dr. Ismail did not think that the treatment that Mr. Gushue received on Tuesday April 8^th^ would have had any impact on the incident that took place on the following day.
The doctor was asked why Mr. Gushue remained in seclusion for 15 days. Dr. Ismail stated that this is how long it took him to go through the three-step process. On a number of days, Mr. Gushue was not able to have seclusion relief as he was unable to follow directions from the staff. This was taken as an indication that he was not doing well and he was returned to the seclusion room. Mr. Gushue also was aware that he was not ready for seclusion relief at times. On April 15^th^, he informed the staff that he was not in a good place and did not want to participate in seclusion relief. The doctor stated that he was having a particularly bad day that day.
The Law
The analytical framework established by Campbell (Re), 2018 ONCA requires the Board to consider the liberty norm and the liberty status of an accused on a restriction. The liberty norm and liberty status for each restriction must be examined to determine the significance of the increase (if any) on the restriction of an accused’s liberty caused by the restriction. In determining the liberty norm of an accused at the outset of each period of restriction, the Board must “take a contextual approach, one that considers the individual’s pattern of liberty in the recent past.” ((Re) Campbell, para. 66). The liberty she/he was actually experiencing (rather than what she/he was entitled to) at the time of the increase is what the Board is to consider, and that “liberty must be of sufficient duration to have become, objectively speaking, the NCR accused’s norm” ((Re) Campbell, para. 65).
The test to be applied to significant increases in the restriction of liberty is the same as is required for Dispositions, that is, whether the significant increase is necessary and appropriate to protect the safety of the public.
Findings of the Board:
Prior to his seclusion, Mr. Gushue had been residing in the general Waypoint patient population. He had attained a security level of C2, meaning that his privileges included on-unit access, where he could attend the lounge areas, corridors, dining room, courtyard and socialize with co-patients at his discretion, and accompanied off-unit access, where he could attend the recreation centre and canteen. For this reason, the Board finds that at the time of his seclusion, Mr. Gushue’s liberty norm was level C2 privileges.
Once in seclusion, Mr. Gushue did not have the ability to leave the seclusion room unless seclusion relief was offered to him and only then in the company of the seclusion relief staff. The Board finds that the inability to leave the seclusion room at will represented a significant increase in the restrictions on Mr. Gushue’s liberty.
The Board further finds that the unprovoked attempted assault on a staff member by Mr. Gushue was serious and that it was necessaary to seclude him from the general patient population to ensure the safety of both co-patients and staff. For these reasons, the Board finds that the significant restriction on Mr. Gushue’s liberty was necessary and appropriate at the time it was imposed.
The ROL Report indicates that Mr. Gushue was provided with seclusion relief regularly but was often not able to manage safely outside of his room. The treatment team developed a three-step process to allow Mr. Gushue to have sucessful periods of seclusion relief and he moved through this process over the time that he was in seclusion. Once he was able to demonstrate that he was capable of being in the general patient population, his seclusion was ended.
Mr. Gushue’s seclusion was reviewed daily by the duty doctor and reviewed by an independant psychiatrist (other than Dr. Ismail) at 24 hours, 72 hours and seven days at the initiation of seclusion. Mr. Gushue was offered seculsion relief regularly. As such, the Board finds that the Hospital was aware of its responsibility to impose the least restrictive conditions on Mr. Gushue, co-existent with public safety, and acted according to this principle throughout Mr. Gushue’s time in seclusion.
For these reasons, the Board finds that the significant increase in the restriction of Mr. Gushue’s liberty was necessary and appropriate and the least onerous and least restrictive at the time it was imposed until its conclusion on April 23, 2025.
DATED this 10^th^ day of June, 2025, at the City of Toronto, in the Toronto Region.
Ms. M. Chamberlain
Legal Member
Office of the Registrar
Ontario Review Board