


COURT OF APPEAL FOR ONTARIO

CITATION: Sim (Re), 2019 ONCA 719

DATE: 20190913

DOCKET: C66359

Pardu, Brown and Trotter JJ.A.

IN THE MATTER OF: Donovan Ray Sim

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Megan Petrie, for the respondent, Attorney
    General of Ontario

Marie-Pierre T. Pilon, for the respondent,
    the Person in Charge of the Royal Ottawa Health Care Group

Heard: September 6, 2019

On appeal against the disposition of the
    Ontario Review Board, dated November 8, 2018, with reasons dated December 19,
    2018.

REASONS FOR DECISION

OVERVIEW

[1]

Mr. Donovan Sim appeals from the November 8,
    2018 disposition of the Ontario Review Board (the Board) that continued his
    conditional discharge, with reduced conditions. He submits the Board erred in
    holding that he continues to pose a significant risk to the safety of the
    public. Mr. Sim asks this court to set aside the Boards disposition and grant
    an absolute discharge. In the alternative, he seeks a new hearing before a
    differently constituted Board panel.

[2]

For the reasons set out below, we allow the appeal
    and direct the Board to hold a new hearing before a differently constituted
    panel.

BACKGROUND FACTS

[3]

Mr. Sim is 49 years old.

[4]

He has a long history of mental illness; his
    first admission to a psychiatric facility was in 1999. At the time of the Board
    hearing, his diagnosis was: schizoaffective disorder  treatment resistant with
    residual symptoms including positive symptoms; polysubstance dependence, which
    was in remission in a controlled environment; antisocial personality
    disorder; and schizoid traits. At the time of the hearing he was taking several
    medications, including Clozapine.

[5]

Mr. Sim has a long history of substance abuse
    involving alcohol, cannabis, and methamphetamine. Some of his criminal conduct
    was associated with his addiction to methamphetamine. Prior to his first index
    offence in 2000, Mr. Sim had accumulated over 30 convictions, seven of them for
    assaultive behaviour.

[6]

In 2000, he was found not criminally responsible
    on account of mental disorder on a charge of theft under $5,000 involving a
    car. He was detained in a series of hospitals. In 2007, he left a hospital
    without authorization, decompensated and, upon his admission to CAMH in
    November 2007, seriously assaulted nursing staff. This led to a second NCR
    verdict in 2008.

[7]

From November 2007 until October 2009, Mr. Sim
    was detained at Oak Ridge. He was then transferred to the Brockville Mental
    Health Centre (Brockville). In August 2012, Mr. Sim went AWOL for several
    days; at the time of his return to Brockville he was labouring under
    significant delusions.

[8]

Thereafter, Mr. Sim was cooperative with his
    treatment team and compliant with his prescribed medication. In July 2014, he
    was discharged to reside in a 24-hour supervised group home. In September 2015,
    he moved to an 8-hour supervised residence. In September 2016, he moved into
    co-op shared accommodation, where he was living at the time of his 2018
    hearing.

[9]

In March 2017, Mr. Sim used cannabis with his
    apartment mate over a weekend. This was his first relapse into substance use after
    several years of abstinence. At the end of the weekend, Mr. Sim voluntarily
    went to the hospital and disclosed his use of cannabis. No changes were
    observed in his mental condition at that time.

[10]

In January 2018, Mr. Sim graduated from high
    school. According to the Boards reasons, during the review period Mr. Sim
    maintained his mental health stability and did not present with any evidence of
    psychosis.

RECENT BOARD DISPOSITIONS

2016

[11]

In its December 2016 disposition, the Board
    ordered Mr. Sim detained in the secure forensic unit of Brockville, with
    privileges that included living in approved outside accommodation.

2017

[12]

In its November 2017 disposition, the Board
    granted Mr. Sim a conditional discharge. In its reasons, the Board stated, at
    para. 50:

[Mr. Sim] has continued to make progress both
    in hospital and since his discharge into the community in July 2014. Living in
    the shared apartment setting now for over a year, he has remained well, despite
    one-time use of marijuana over three days in March 2017. Apart from that
    incident, the Board agrees with counsel when he submits that the accused has
    done everything required of him.

[13]

In assessing the issue of significant risk to
    the safety of the public, the Board noted that it was critical that Mr. Sim
    come to a more complete understanding of the harm that would result from
    resuming substance use.

2018

[14]

In its December 19, 2018 disposition, the Board
    continued Mr. Sims conditional discharge but removed one of the conditions
    contained in the 2017 disposition: to abstain absolutely from the non-medical
    use of alcohol or drugs or any other intoxicant.

[15]

The Board concluded that it had no difficulty
    in concluding that Mr. Sim continued to represent a significant risk to the
    community:

[Mr. Sim] suffers from a long-standing mental
    illness in which he stills lacks good insight. He has a long history of
    substance use which was a factor in some of the index offences and other
    assaultive behaviour in his significant criminal record.

Although Mr. Sim is doing well now, this is in
    the context of close monitoring of his condition and the imposition of
    conditions including the prohibition from using substances. The evidence before
    the Board is that should Mr. Sim use Cannabis, or other substances, there is a
    high likelihood that he would stop taking his medication. Until he started
    taking Clozapine, he had continued to present with psychosis. The fact that Mr.
    Sim used Cannabis last year and the fact that he does not recognize that
    substance use would have a significant impact on his mental illness raises
    significant concern. He has said that he does not believe that using Cannabis
    would change anything. He has also said that he might have a party and use
    Cannabis now that it is legal to do so.

The Board agrees with Dr. Ahmed that it will
    be crucial that Mr. Sim develop a good understanding of the negative
    consequences of substance use on his mental illness and that he internalizes
    his commitment to remaining abstinent. Removing the condition in the Board
    disposition prohibiting substance use could be a good way of determining if Mr.
    Sim will abstain from substances without such a condition.

The Board agrees that the presence, or
    absence, of insight is not the test to determine if significant risk continues
    to exist. On the other hand, the Board is convinced that unless Mr. Sim can
    develop an understanding that Cannabis use could lead to a decompensation of
    his mental illness and an increased risk to the community, he will continue to
    require support and monitoring of his condition. While AWOL in 2007, he used
    cannabis. This contributed to a serious mental deterioration that culminated in
    the assault on the male nurse at CAMH which caused serious physical injury. He
    should be able to recognize that substance use had been a factor in several
    incidents of assaultive behaviour including some of the index offences.

The Board is convinced that the maintenance of
    a conditional discharge remains necessary in this case.

ANALYSIS

[16]

Mr. Sim submits that the Boards disposition was
    unreasonable because it failed to conduct a proper assessment of whether he was
    a significant threat to the safety of the public. Instead, the Board focused
    on whether he possessed sufficient insight into the effect of cannabis use on
    his mental condition, letting that condition improperly dominate its analysis.

[17]

We accept Mr. Sims submission.

[18]

Under s. 672.54 of the
Criminal Code
,
    on an annual review the Board must inquire into and determine whether an NCR
    accused is a significant threat to the safety of the public. Where it
    determines he is not, the Board must direct an absolute discharge. The meaning
    of the phrase significant threat to the safety of the public is well settled.
    It was summarized in
R. v. Ferguson
, 2010 ONCA 810, 264 C.C.C. (3d)
    451, at para. 8:

The phrase refers to a foreseeable and
    substantial risk of physical or psychological harm to members of the public
    that is serious and beyond the trivial or annoying.  A very small risk of
    even grave harm will not suffice.  A high risk of relatively trivial harm
    will also not meet the substantial harm standard.  While the conduct must
    be criminal in nature, not all criminal conduct will suffice to establish a
    substantial risk.  There must be a risk that the NCR accused will commit a
    serious criminal offence.

[19]

In conducting its inquiry, the Board may have
    recourse to a broad range of evidence, including: the past and expected course
    of the NCR accuseds treatment, if any; the present state of the NCR accuseds
    medical condition; the NCR accuseds own plans for the future; the support
    services existing for the NCR accused in the community; and the assessments
    provided by experts who have examined the NCR accused:
Winko v. British
    Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625, at para.
    62(5).

[20]

As part of its examination of the present state
    of the NCR accuseds medical condition, the Board is entitled to consider
    evidence concerning the accuseds understanding of or insight into his medical
    condition. As this court stated in
Woods (Re)
, 2019 ONCA 87, at para.
    17: Lack of insight has its place in the overall clinical picture.

[21]

However, evidence regarding an NCR accuseds
    insight must be assessed in the context of the entirety of the record before
    the Board. To use the language of
Woods
, evidence of insight should
    not dominate the significant threat analysis: at para. 17. Instead, it forms
    part of the broad range of evidence before the Board. The Board must
    sensitively evaluate 
all
the relevant factors on
    an ongoing basis (emphasis added) and make, as best it can, an assessment of
    whether the NCR accused poses a significant threat to the safety of the
    public:
Winko
, at para. 59.

[22]

This court repeated the point recently in
Kalra
    (Re
), 2018 ONCA 833, at para. 52:

It bears stating that
    lack of insight is not of itself a basis to deny an absolute discharge
. As the Supreme Court instructs, the mentally ill are not
    inherently dangerous:
Winko
, at para. 35.
Whether
    an NCR accused has insight into his or her mental illness, and the extent of
    that insight, is only part of the analysis in determining if there is a
    significant threat to the safety of the public
. While insight is a
    treatment goal, it is one some persons living with mental illness may be unable
    to fully achieve. In some instances, particularly where the contemplated harm
    falls at the lower end of the spectrum, it may be unreasonable to require, as
    the Board did here, that an NCR accuseds insight into his or her illness be
    entrenched on his consciousness in order to obtain an absolute discharge. [Emphasis
    added.]

[23]

In the present case, the disposition reached by
    the Board was unreasonable for two reasons.

[24]

First, the Board lost sight of the key issue:
    Did the evidence, as a whole, demonstrate that Mr. Sim presented a foreseeable
    and substantial risk of physical or psychological harm to members of the public
    that is serious and beyond the trivial or annoying? Instead, the Board focused
    on the degree of Mr. Sims insight into his medical condition. Although in its
    reasons the Board expressly agreed that the presence, or absence, of insight
    is not the test to determine if significant risk continues to exist, a reading
    of its reasons leads to the conclusion that in fact it was the major focus of
    the Boards analysis, overshadowing the required consideration of the rest of
    the evidence relevant to the statutory inquiry of whether Mr. Sim posed a
    significant threat to the safety of the public.

[25]

There was considerable evidence relevant to the
    statutory test: the evidence of Mr. Sims continued progression; his
    increasingly independent living arrangements; his long-standing compliance with
    his medication regime; a dated history of violent conduct; his limited use of
    marijuana; the self-reporting of his March 2017 marijuana use; and the lack of
    any change in his medical condition stemming from that use. None of that
    evidence finds express treatment in the Boards analysis in the Conclusion and
    Disposition section of its reasons. At most, that evidence is subsumed in the
    Boards seven-word phrase: Although Mr. Sim is doing well now ... With
    respect, that does not constitute the depth of evidentiary analysis required by
Winko
to support a disposition that can be justified as a reasonable
    one.

[26]

The second reason why the Boards disposition is
    unreasonable also concerns the inadequacy of its evidentiary analysis. On the
    face of its reasons, the Board did not conduct an even-handed assessment of Mr.
    Sims evidence. The Boards disposition was driven primarily by its conclusion
    that Mr. Sim did not recognize that substance use would have a significant
    impact on his mental health. The Board stated: [Mr. Sim] has said that he does
    not believe that using Cannabis would change anything. He has also said that he
    might have a party and use Cannabis now that it is legal to do so.

[27]

That part of the Boards reasons was based on a
    statement attributed to Mr. Sim in the hospital record. However, the Board was
    selective in its use of that part of the hospital record. The Board failed to
    recite the complete statement attributed to Mr. Sim. The hospital record
    stated: With regards to Mr. Sims insight into cannabis use, however, he
    stated that cannabis is soon going to be legalI may just have one party at least
but its almost zero
 (emphasis added). The Board
    neglected to include the qualifier  but its almost zero  in its
    consideration of Mr. Sims statement.

[28]

As well, the analysis section of the Boards
    reasons failed to address how Mr. Sims direct evidence at the hearing about
    his insight factored into its determination. In his evidence-in-chief, Mr. Sim
    testified about his insight into his medical condition, stating that he did not
    intend to use cannabis if granted an absolute discharge. His counsel asked him
    why. Mr. Sim answered: Because it will make me sick again  I dont want to
    get sick; I hate it. Mr. Sims evidence continued:

Mr. Brodsky: And the last thing I wanted to
    ask you is, in terms of the  we heard Clozapine is something that youre taking
    for your psychiatric condition. The medication that youre taking for your
    psychiatric condition, whatever it is at the time, how long do you think you
    need to be taking that medication?

Mr. Sim: For the rest of my life.

Mr. Brodsky: Okay. Why?

Mr. Sim: Because Ill get sick.

[29]

Although the Board referred to Mr. Sims
    evidence in the early section of its reasons setting out the evidence given at
    the hearing, the Board made no use of it in its analysis section.

[30]

In the result, the Board agreed with Dr. Ahmed,
    Mr. Sims attending psychiatrist, that it would be crucial that Mr. Sim
    develop a good understanding of the negative consequences of substance use on
    his mental illness and that he internalizes his commitment to remaining
    abstinent. Yet, the Board did not explain why Mr. Sims evidence-in-chief did
    not display precisely such an understanding. Put another way, on the issue of
    Mr. Sims insight into his medical condition that played the determinative role
    in the Boards analysis  at least on the face of its reasons  the Board
    provided no explanation about why it preferred Dr. Ahmeds evidence over that
    of Mr. Sim.

[31]

Absent such an explanation, the Boards
    disposition, based as it was on Mr. Sims lack of insight, is not supported by
    the evidence:
Sheikh (Re)
, 2019 ONCA 692, at para. 35, citing s.
    672.78(1) of the
Criminal Code
.

[32]

The failure of the Board to deal expressly with
    the conflicting evidence on the critical issue of insight, when coupled with
    its losing sight of the statutory test, renders its decision unreasonable. The
    Board did not conduct the careful assessment of the level of risk required by
    the onerous standard set out in s. 672.5401 of the
Criminal Code
, the
    same deficiency in reasons identified last year in two decisions of this court:
Marchese (Re)
, 2018 ONCA 307, 359 C.C.C. (3d) 408, at para. 8; and
Hammoud
    (Re)
, 2018 ONCA 317, at para. 9.

DISPOSITION

[33]

For the reasons set out above, we allow the
    appeal, set aside the November 8, 2018 disposition, and remit the matter to the
    Board for a new hearing as soon as possible before a differently constituted
    panel to determine whether there was sufficient evidence for the review period
    to satisfy the Board that Mr. Sim posed a significant threat to public safety.

[34]

According to counsel, Mr. Sims next annual
    review is scheduled for October 7, 2019. The new hearing that we have directed
    should be heard either before or together with that scheduled annual review.

G.
    Pardu J.A.

David
    Brown J.A.

Gary
    Trotter J.A.


