



COURT OF APPEAL FOR ONTARIO

CITATION: Gibson (Re), 2020 ONCA 619

DATE: 20201002

DOCKET: C67781

Tulloch, Paciocco and Harvison
    Young JJ.A.

IN THE MATTER OF:  Matthew Gibson

AN APPEAL UNDER PART XX.1 OF THE
CODE

Stephen Gehl, for the appellant

Chloe Hendrie
, for the Attorney General
    of Ontario

Michele Warner, Person in Charge of Centre
    for Addiction and Mental Health

Heard: August 18, 2020 by
    video conference

On appeal from the disposition of the
    Ontario Review Board dated September 17, 2019, with reasons dated October 21,
    2019.

REASONS FOR DECISION

[1]

The appellant, Matthew Gibson, appeals the order of the Ontario Review
    Board (the Board), dated September 17, 2019, following his annual review
    hearing. The Board ordered the continuation of a conditional discharge and
    declined to grant an absolute discharge as the appellant sought. The appellant
    argues that the Boards decision was unreasonable and that there is no evidence
    to support the conclusion that he continues to pose a significant risk to the
    safety of the public. He asks to have the Boards decision set aside and seeks
    an absolute discharge.

Background Facts

[2]

At the age of 15, Mr. Gibson suffered a serious closed head injury as a
    passenger in a motorcycle accident. During his 20s, he began to experience
    delusions. He has since been diagnosed with schizophrenia. In recent years,
    when the appellant is on anti-psychotic medication and not abusing substances,
    his mental state is stable and his delusions appear to be encased in the past.
    However, when the appellants mental condition deteriorates because he is not
    on medication and/or he is abusing substances, his delusions expand to
    incorporate others in his present environment, such as
neighbours
,
    other patients, or members of his treatment team.

[3]

In addition to schizophrenia, the appellant suffers from a long-standing
    cannabis use disorder. He believes that it is the only thing that alleviates
    his chronic pain. As the hospital reports indicate, cannabis in itself may
    precipitate psychosis, especially in people with a psychotic illness like the
    appellants. Various clinicians have observed that the appellants cannabis use
    can lead to the deterioration of his mental status. It can increase his
    irritability and make his mood more labile. Cannabis worsens his psychosis and
    delusional preoccupations.

(1)

The index offence

[4]

The appellant has been subject to the jurisdiction of the Board since he
    was found not criminally responsible on account of mental disorder of breach of
    probation in 2006. He was 36 years old at the time. The probation in issue had
    been imposed as a sentence following Mr. Gibsons conviction on charges of
    criminal harassment, assault with a weapon and possession of weapons dangerous
    relating to his
neighbour
and his daughters. The
    appellant believed that the
neighbours

teenaged daughters were involved in a conspiracy to ruin his
    life and had raped him two years earlier. He left threatening letters addressed
    to the girls on their family car. When he was subsequently approached by the
    girls father about the letters, the appellant threatened him with an 11-inch
    knife, saying dont fuck with me. The presiding judge suspended the passing
    of sentence and imposed a probation order that included a term prohibiting him
    from contacting the
neighbours
.

[5]

The index offence took place two weeks after the probation order was
    imposed. It followed a series of incidents which culminated with the appellant
    standing on his lawn, yelling in a fit of rage and shouting obscenities about
    the
neighbour
and his daughter. He was not taking any
    anti-psychotic medication at the time.

(2)

The 2019 disposition

[6]

The evidence before the Board included the hospital report, Dr. Naidoos
    testimony, the appellants testimony and a four-page handwritten letter the
    appellant wrote to the Board.

[7]

Dr. Naidoo testified that the appellant has a continuing, fixed
    conviction that he is not mentally ill. Without oversight from the Board, Dr.
    Naidoo concluded that it is highly likely that the appellant would stop his
    medication and become increasingly symptomatic. The appellants mental status
    has deteriorated during the latest reporting period. His paranoia has
    intensified and he has had beliefs about intruders entering his home and
    stealing family belongings. Dr. Naidoo stated that there was evidence that the
    appellant made efforts to conceal his cannabis use by diluting his urine
    samples. There was also evidence that he was non-compliant with his medication.

[8]

Dr. Naidoo testified that all the risk factors that were present at the
    appellants last review hearing have persisted in the current reporting period:
    the appellant continues to show no insight into his illness or into his
    potential for violence; the appellant remains incapable of consenting to
    treatment; and the appellant still experiences active delusional thinking and
    beliefs of persecution. Dr. Naidoos opinion was that the appellants
    persecutory beliefs were more concerning because they have expanded to
    include novel stimuli and subjects, specifically his
neighbours
.

[9]

Dr. Naidoo also testified that two additional risk factors arose during
    the reporting period: the appellant used cannabis on multiple occasions and the
    appellant had difficulty with rule adherence, specifically with respect to
    hiding substance use from staff and non-compliance with his medication on several
    occasions.

[10]

The
    appellant was voluntarily admitted to the hospital on two occasions during the reporting
    period:

·

Admission #1 (June 11  25, 2019):

This
    admission occurred after hospital staff became concerned about the appellant
    tampering with urine samples and consuming cannabis. Before his admission, the
    appellant left increasingly intense voicemails for Dr. Naidoo and another
    member of his treatment team. He was tearful and sad about being in the
    forensic system and expressed concerns about his neighbours making threats and
    intruders entering his home and stealing his belongings. The appellant consumed
    cannabis and alcohol on the day he was admitted. He was prescribed Risperidone,
    an oral anti-psychotic, which caused his mood to settle and his paranoid
    ideations to decrease.

·

Admission #2 (July 12  August 7, 2019):

The
    appellant was readmitted a few weeks later after his treatment team noticed his
    increasing instability. In the intervening period, the appellant used cannabis
    and his sisters Tylenol 3s. His urine screens were negative for Risperidone. Dr.
    Naidoo believed that the appellant was taking the Risperidone to
some
degree
    but was not fully compliant with his medication. The appellant was placed on a
    higher dosage of Risperidone.

[11]

Dr.
    Naidoo testified that the frequency of the appellants voicemails decreased
    following the second hospitalization, but that he continued to have concerns
    about the appellants cannabis use, tampered urine samples and overall
    decompensation post-discharge.

[12]

The
    appellant testified that he had been misdiagnosed and mistreated, and that the
    authorities failed him by not investigating his claims. He stated that, if
    absolutely discharged, he would like to get off the needle, but would
    continue to take pill medication. He provided the Board with a handwritten
    statement. According to the Board, its contents demonstrate that Mr. Gibson
    still firmly holds the paranoid beliefs that gave rise to the commission of the
    index offences.

[13]

The
    Board accepted Dr. Naidoos evidence and the evidence in the Report that the
    appellant remained a significant threat to the safety of the public. The Board
    concluded that the appellant would likely discontinue treatment if discharged,
    which could cause his delusions to intensify, and as a result, he would engage
    in psychologically or physically harmful criminal behaviour. The Board stated
    that [t]his conclusion isnot speculative but represents the only reasonable
    conclusion on the evidence before us. An absolute discharge was therefore not
    available.

[14]

The
    Board found that the increased reporting period requested by the Hospital and
    the Crown was not necessary or appropriate because the appellant had complied
    with the Hospitals requests to attend. The monthly reporting period was
    maintained, as were the existing conditions on the conditional discharge, save
    for an amended residential term that included Waterloo, Hamilton, or Toronto.
    The Board also ordered the appellants requested transfer to the Centre for Addiction
    and Mental Health and expressed hope that the transfer could yield positive
    change for the appellant and the public.

(3)

Standard of Review

[15]

There
    is no dispute that the applicable standard of review is reasonableness.  A
    reasonable decision is one that, having regard to the reasoning process and the
    outcome of the decision, properly reflects an internally coherent and rational
    chain of analysis that is justified in relation to the facts and law:
Canada
    (Minister of Citizenship and Immigration) v. Vavilov
, 2019 SCC 65, 441
    D.L.R. (4th) 1.

Analysis

[16]

The
    Board applied the correct legal test pursuant to s. 672.54 of the
Criminal
    Code
, R.S.C. 1985, c. C-46. It considered whether there was evidence to
    support the hospitals submission that the appellant presented a significant
    risk according to
Winko v. British Columbia (Forensic Psychiatric
    Institute)
, [1999] 2 S.C.R. 625, and it considered the least onerous
    disposition necessary to manage that risk.

[17]

The
    heart of the appellants argument is that there was no evidence to support the
    finding of significant risk and therefore this finding is unreasonable as it cannot
    be justified in fact and/or law. The appellant states that there is no evidence
    that he has acted in a criminal way since the index offence. He also states
    that there is no evidence that his use of marijuana causes a deterioration of
    his mental state, or that his marijuana use triggers violent or criminal
behaviour
. We do not agree.

[18]

To
    begin with, the Board carefully considered the evidence before it. The hospital
    report was comprised largely of Dr. Naidoos evidence, who has been Mr.
    Gibsons treating psychiatrist for a number of years.

[19]

The
    Boards decision is rational, transparent and coherent. The Boards analysis
    was clear and grounded in the record and Dr. Naidoos evidence. The Board
    relied on evidence that the appellants persecutory delusions persist, and that
    there were heightened risk concerns not present at last years hearing.

[20]

The
    appellant submits that the most recent psychological harm inflicted by the
    appellant was the index offence, despite the fact that he has been living in
    the community (under the jurisdiction of the Board) since 2010.

[21]

The
    absence of violence  is relevant to, but not determinative of, the question of
    significant threat. Evidence of lack of insight into mental illness and
    concerns about discontinuing medication and substance abuse can also support a
    finding of significant risk:
Krist (Re)
, 2019 ONCA 802, at para. 15.

[22]

Those
    factors existed here, notwithstanding the appellants lack of violence.  Dr.
    Naidoos evidence was that an absolute discharge was not available due to the
    risk of the appellant discontinuing his medication. The Boards finding that this
    was likely to occur was well grounded in the evidence.

[23]

This
    case is distinguishable from
Ferguson (Re)
, 2010 ONCA 810, 264 C.C.C.
    (3d) 451. In
Ferguson
, the expert was uncertain as to whether the
    appellant posed a significant threat to the public. The appellants psychiatric
    history and the nature of the index offences did not suggest that the appellant
    posed a significant threat to the public. As a result, the record could not
    reasonably support a finding that the appellant posed a significant threat to
    the public: at paras. 40-44.

[24]

In
    this case, there was ample evidence to support the Boards significant threat
    finding. This finding was not speculative or unsubstantiated:
Winko
at
    para. 57. There was evidence of the future risk of harm in the event of an absolute
    discharge: the appellant would stop medication and would start substance abuse.
    His persecutory delusions would worsen such that he would be likely to engage
    in criminal
behaviour
causing serious psychological or
    physical harm. In addition, we note that the Boards refusal to increase the
    frequency of the appellants reporting requirements as the hospital requested
    shows that the Board was alive to the need to make the least onerous
    disposition necessary to manage the risk to public safety.

Disposition

[25]

The
    Boards decision was reasonable. The appeal is dismissed.

M.H.
    Tulloch J.A.

David
    M. Paciocco J.A.

A.
    Harvison Young J.A.


