Re: James Gushue
ORB File No: 5298
Hearing held on: Tuesday, August 12, 2025
Place of hearing: Waypoint Centre for Mental Health Care (Via Zoom Video Conference)
Pursuant to: Section 672.81(2.1) of the Criminal Code
Before:
Alternate Chairperson: Mr. J. Goldenberg
Members: Dr. R. Wood Hill Dr. T. Stirpe Ms. K. Weisbaum 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. J. Armenise
REASONS FOR DECISION
(Dated August 26, 2025)
Mr. Gushue is subject to a Disposition of the Ontario Review Board dated April 16, 2025, by which he was ordered to be detained at the Waypoint Centre for Mental Health Care (“Waypoint”).
By letter dated May 16, 2025, Ms. Borneman wrote to the Ontario Review Board advising that “Mr. James Gushue has been secluded for a period greater than 7 days. He entered seclusion on May 8, 2025”. As a result of the Waypoint letter, the Ontario Review Board convened a hearing on Tuesday, August 12, 2025, and conducted a Restriction of Liberty hearing.
Position of the Parties
At the outset of the hearing, the parties were canvassed as to their recommendations to the Board.
Mr. Thomson appeared for Waypoint. He advised of Waypoint’s position that there was a restriction. He advised further of Waypoint’s position that the restriction that occurred on May 8 was warranted and that Mr. Gushue’s ongoing stay in seclusion from May 8 to May 28 remained the least onerous and least restrictive decision consistent with public safety available to the hospital.
Ms. Armenise appeared for the Crown. Ms. Armenise agreed with the hospital’s position.
Mr. McIver appeared for Mr. Gushue. In response to a question from the Alternate Chair, Dr. Ismail made inquiries and advised that Mr. Gushue was not feeling well, and he would not be attending at this hearing.
Mr. McIver understood that his client may have received an ECT treatment this morning and that would be responsible for his client not feeling well. Mr. McIver advised that he was prepared to proceed in his client’s absence to deal with the Restriction of Liberty between May 8 and May 28. Accordingly, the Board exercised its discretion under s. 672.5(10)(a) and permitted Mr. Gushue to be absent from this hearing.
Mr. McIver then stated his position that there was a restriction but that the restriction was not warranted and did not represent the least onerous and least restrictive decision available to the hospital.
Evidence at Hearing:
The Board admitted into evidence the correspondence between Waypoint and the Ontario Review Board. We also put into evidence the Restriction of Liberty Report dated June 5, 2025, and for completeness, we also put into evidence the most recent annual Hospital Report which was dated February 27, 2025. We note ultimately that no party referred to the contents of the annual report.
Dr. Ismail testified. He first noted that Mr. Gushue remains an “ultra-treatment resistant patient.” That is the opinion of the clinical team at Waypoint and is also the opinion of the Centre for Addiction and Mental Health (CAMH) who had been consulted by Waypoint concerning Mr. Gushue.
Dr. Ismail advised that after Mr. Gushue was placed in seclusion, there was a consultation by another psychiatrist at day 1, a consultation by a psychiatrist other than Dr. Ismail after 72 hours and after seven days and there would have been one after 28 days. The psychiatrists who reviewed this matter all agreed that seclusion remained necessary.
Dr. Ismail advised that the event that led to Mr. Gushue’s seclusion was Mr. Gushue’s attempt to attack a staff member. Dr. Ismail understands that there had been no overt symptoms displayed by Mr. Gushue prior to his attempt to hit a staff member. On the other hand, it was clear to Dr. Ismail and the team that this patient had not been doing well for a period of time up to May 8.
Dr. Ismail noted that his patient is deemed incapable of making treatment decisions. Mr. Gushue’s mother is his Substitute Decision Maker. Dr. Ismail had been treating Mr. Gushue with clozapine and a course of ECT. The doctor and the team recommended Mr. Gushue receive ECT three times per week. The SDM, however, gave her consent to only once per week.
The clinical team had been treating Mr. Gushue with both ECT and clozapine. Apparently, Mr. Gushue stopped taking his medication. The SDM was advised and took the position that she would not “burden” her son with treatment of clozapine.
The doctor then noted that Mr. Gushue was given treatment relief on a number of occasions when it was safe and appropriate to do so.
Dr. Ismail advised that the experts they consulted recommend treatment with both clozapine and ECT three times per week.
The doctor noted that seclusion is in Mr. Gushue’s room on the unit. He has his own bed, desk, and books that remained available to him while under that period of seclusion.
The doctor noted that Mr. Gushue was seriously disorganized for some of the days he was in seclusion. For example, on more than one occasion, Mr. Gushue took off all of his clothing.
In response to questions from Crown counsel, Dr. Ismail repeated that there was no warning prior to Mr. Gushue’s attempt to strike a staff member.
The doctor advised there are 20 patients on this unit and many of them are quite vulnerable.
In response to questions from Mr. McIver, Dr. Ismail reviewed a note that indicated “the patient raised his hand to strike staff.” The doctor did not know whether the hand was open or was a closed fist. The doctor referred to a further note that said, “he attempted to punch the writer with his right hand.” The doctor provided Mr. McIver with the name of the author of the note. The doctor had no information as to whether the author had said anything to Mr. Gushue.
Again, in response to questions from Mr. McIver, Dr. Ismail provided Mr. McIver with the names of the doctors who conducted the first review, the 24-hour review, the 72-hour review and the seven-day review.
Again, in response to questions from Mr. McIver, Dr. Ismail simply noted that Mr. Gushue did not give any reason to the doctor why he would no longer be prepared to be treated with clozapine. The doctor repeated his understanding that there was simply no trigger and no provocation that led to Mr. Gushue’s seclusion.
In response to a question from a Board member, Dr. Ismail noted that as a result of the CAMH consultation, the clinical team had been treating Mr. Gushue with both clozapine and with ECT. Once again, the doctor repeated the recommendation that ECT should be given three times per week, but the Substitute Decision Maker would only consent to ECT once per week.
No other evidence was heard at this hearing.
Final Submissions:
Mr. Thomson asked the Board to accept Dr. Ismail’s evidence, and the evidence contained in the ROL Report.
Ms. Armenise agreed with Mr. Thomson’s submissions.
Mr. McIver did not agree. Mr. McIver noted that there was no evidence whether there had been any provocation that led to the events of May 8. Mr. McIver noted that there was no evidence on that particular point. Mr. McIver urged the panel to find that seclusion was not required on May 8 and, also, that the ongoing seclusion was not required.
Findings of the Board:
- The Board accepts the evidence of Dr. Ismail, and the evidence contained in the ROL Report. We note the following from the ROL Report:
“On May 8, 2025, seclusion was initiated. Staff documented Mr. Gushue attended the on-unit book club group and was observed mumbling to himself. He then got up from his chair and appeared to be leaving the room, however abruptly attempted to strike staff who were sitting by the door. Staff were required to utilize CPI techniques to restrain him, and an injection of Loxapine 25mg was administered; he was returned back to his room. The duty doctor was contacted, and a seclusion order obtained.”
The panel also agrees that seclusion relief was provided on a number of occasions when it was safe to do so. There were times when seclusion relief was offered but Mr. Gushue chose not to participate.
We also note from the Hospital Report the following:
“On May 22, 2025, Mr. Gushue was heard screaming down the corridor. When staff approached, him he was found naked in the fetal position in the corner of his room.
Staff inquired with him, however he glared at them and responded, “I’ll fucking kill you! Fuck off!”
This panel is satisfied that the decision to place Mr. Gushue in seclusion was warranted and his ongoing stay in seclusion from May 8 to May 28 remained the least onerous and least restrictive decision available to the hospital.
We note for the record that on June 6, Waypoint wrote to the Board making reference to a seclusion commencing on May 29, 2025. We also note the last sentence in the letter, “Waypoint does not consider that this seclusion is a reportable restriction of liberty pursuant to s. 672.56(2) of the Criminal Code”. Finally, we note for the record the response from the ORB acknowledging the June 6, 2025, letter, and that “The Board will take no further action at this time”. The hearing today focused entirely on the seclusion between May 8 and May 28 and did not hear any comments or submissions arising from the Waypoint June 6 letter and the ORB response of June 10.
DATED this 26th day of August 2025, at the City of Toronto, in the Toronto Region.
Mr. J. Goldenberg
Alternate Chairperson
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Office of the Registrar
Ontario Review Board