



COURT OF APPEAL FOR ONTARIO

CITATION: Sim (Re), 2020 ONCA 563

DATE: 20200910

DOCKET: C67639

Strathy C.J.O., Gillese and Watt
    JJ.A.

IN THE MATTER OF: Donovan Sim

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant,
    Donovan Sim

Elena Middelkamp, for the respondent, the
    Attorney General of Ontario

Marie-Pierre T. Pilon, for the
    respondent, the Person in Charge for the Brockville Mental Health Centre

Heard: July 24, 2020 by video
    conference

On appeal from the disposition of the
    Ontario Review Board, dated October 9, 2019, with reasons dated October 21,
    2019.

Strathy C.J.O.:


[1]

On September 13, 2019, this court allowed Mr.
    Sims appeal from a disposition of the Ontario Review Board (the Board), dated
    November 8, 2018 (the 2018 Disposition), which had rejected Mr. Sims request
    for an absolute discharge and continued his conditional discharge on reduced
    conditions: see
Sim (Re.)
, 2019 ONCA 719. This court found that the
    Boards decision was unreasonable and ordered a new hearing 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. This court ordered that the new hearing
    proceed either before or together with Mr. Sims scheduled annual review
    hearing on October 7, 2019.

[2]

The Board duly conducted a single hearing on
    that date, with the evidence applying to both the hearing ordered by this court,
    and the annual review hearing under s. 672.81(1) of the
Criminal Code
.
    In its disposition, dated October 21, 2019 (the 2019 Disposition), the Board
    continued Mr. Sims conditional discharge and reinstated the condition that he
    abstain absolutely from the non-medical use of drugs, including cannabis and
    alcohol.

[3]

Mr. Sim appeals against the 2019 Disposition,
    asking this court to set it aside and to grant him an absolute discharge. For
    the reasons that follow, I would allow the appeal, set aside the 2019
    Disposition, and order that the appellant be discharged absolutely.

A.

background

(1)

Mr. Sims circumstances

[4]

Mr. Sim is fifty years old. He has lived with
    mental illness for most of his adult life. For the past 20 years, he has been
    subject to a disposition of the Board.

[5]

To understand Mr. Sims present circumstances,
    one must understand his past. He is of Cree and Irish descent. He had an
    exceptionally difficult early life, marked by the separation of his parents,
    the death of his mother when he was two years old, and physical abuse by his
    father. He was placed in foster care at age 11. Between the ages of 11 and 15, he
    lived in 12 different foster homes. His behavioural challenges exhibited themselves
    in fighting, truancy, elopement, and crime. He left school at age 14, after
    grade 8.

[6]

Beginning at age 16, he developed a lengthy and
    serious criminal record. Between 1986 and 2000, when he was first found not
    criminally responsible on account of a mental disorder (NCR), he was
    convicted of some forty offences: assault (eight convictions, including assault
    causing bodily harm, assault with a weapon, and assaulting a police officer), property-related
    offences (sixteen or seventeen convictions), narcotics and alcohol-related offences
    (four convictions), break and enter, mischief endangering life, dangerous
    operation of a motor vehicle, and breaching court orders.

(2)

The index offences

[7]

Mr. Sim was diagnosed with schizoaffective
    disorder in 1997 and was admitted to the London Psychiatric Hospital in 1999. Shortly
    after his admission, he committed the first index offence. He stole a car from an
    acquaintance, abandoned it when it ran out of gas, and returned to the owners
    home with the car keys. He told police where to find the car and it was
    recovered without damage. No violence was involved. He was charged with theft under
    and was found NCR. That was in November 2000, twenty years ago. Since that time,
    he has been subject to the Boards jurisdiction in a succession of hospitals,
    including the St. Thomas Psychiatric Hospital, the Penetanguishene Mental
    Health Centre, the Centre for Addiction and Mental Health (CAMH), and currently
    Brockville Mental Health Centre.

[8]

The second index offence occurred in 2007, while
    Mr. Sim was a patient at CAMH. He eloped to Saskatchewan for two months. While
    he was at large, he binged on cannabis, methamphetamines, cocaine, and alcohol.
    He was apprehended in Saskatoon pursuant to the Saskatchewan
Mental Health
    Services Act
, SS 1984-85-86, c M-13.1. He was returned to CAMH and was
    described as being in a very decompensated state, voicing confused, delusional
    beliefs.

[9]

One month after his return to CAMH, while still
    in a decompensated state, Mr. Sim committed the second index offence,
    assaulting two male nurses. In one case, the victim suffered fractures to his jaw,
    palate and teeth that required corrective surgery. Mr. Sim was again found NCR.

(3)

Mr. Sims progress under the Board

[10]

In the 13 years since the second index offence, Mr. Sim has made
    steady progress due to his own efforts, and the support of the medical staff
    and his treatment team, with whom he has had a good relationship.

[11]

His diagnosis is schizoaffective disorder (treatment resistant, with
    residual symptoms), polysubstance dependence, and antisocial personality
    disorder.

[12]

Over the past ten years, except for one three or four-day AWOL
    incident in 2012, his condition has been stable, and he has not presented any
    significant behavioural or management problems. There have been no reports that
    he has been physically aggressive or physically threatening to any person. He
    is described as well-liked by the staff and other members of the community. He
    has been consistently compliant with his prescribed medications, notably
    Clozapine and Risperidone, and has been cooperative with his treatment team. He
    has been largely abstinent from the consumption of illicit drugs
[1]
, other than cannabis, which is
    discussed below.

[13]

Mr. Sim has gradually progressed up the hospital privileges ladder,
    moving into a 24-hour a day supervised group home in July 2014; an 8-hour a day
    supervised residence in October of the same year; shared accommodation in
    September 2016; and into a one-bedroom bachelor apartment in March 2019. He is
    reported to have done well in his residences and no concerns have been
    expressed about his behaviour, other than his occasional use of cannabis.

[14]

Mr. Sim has demonstrated a long-term commitment to gainful
    employment, even while at Penetanguishene, where he worked in the re-upholstery
    shop and was regarded as a trustworthy, diligent, and skillful worker who was a
    pleasure to work with. He has had regular employment for the past eight or nine
    years at the car wash associated with the Brockville Mental Health Centre,
    where he is very well regarded. More recently, he has also worked five days a
    week from 4 p.m. to 7 p.m. at a car detailing business.

[15]

Mr. Sim has worked hard to complete his education. He took high
    school courses and graduated from high school in 2018. He bought himself a home
    computer with money he saved from his work at the car wash. He had a successful
    one-week visit with his sister who lives in Nova Scotia and with whom he has a supportive
    relationship.

[16]

Mr. Sim has made exceptionally good progress over the years due to
    his own personal commitment and the support of the hospital, his psychiatrist,
    and his treatment team. At this time, there seems to be only one thing standing
    in the way of an absolute discharge for Mr. Sim: he smokes cannabis from time
    to time and insists that he will continue to do so, in spite of strong advice to
    the contrary from his psychiatrist, Dr. Gulati.

(4)

Mr. Sims use of illicit drugs

[17]

The hospital report indicates that Mr. Sim had a lengthy history of
    illicit drug use, beginning at about age 10. He reported that he began to use
    cannabis regularly at 14 and began abusing alcohol in his twenties. By age 25,
    he was consuming more than 24 bottles of beer a day. Many of his criminal
    activities were apparently perpetrated to support his drug and alcohol habits.

[18]

Mr. Sim reported that at the time of the first index offence (2000),
    he was buying drugs on a daily basis and had used methamphetamines daily until
    one week before the offence. He reported that at various times he had also used
    LSD, mushrooms, valium, intravenous amphetamines, and morphine.

[19]

In November 2003, he eloped from CAMH during an outing and was not
    returned to the hospital for about six months. He reported that he used
    marijuana and amphetamines, did not receive medication while he was in custody
    pending his return to Ontario, and felt himself becoming psychotic. He was
    charged with break and enter, and assault during this period.

[20]

In February 2007, while detained at CAMH, Mr. Sim reported that he
    had smoked a marijuana joint and had become paranoid. He apparently stated that
    he should have known better, but was described as saying this without much
    conviction.

[21]

As noted above, in August 2007, Mr. Sim eloped from CAMH. On the
    date that he did so, his urine test was positive for cannabinoids. A few days
    later, he called the unit and advised staff that he was out of the province. Two
    months later, he was apprehended by police in Saskatchewan and was returned to
    CAMH. He reported that he had used cannabis while in Saskatchewan, smoking 10
    or 12 joints every two days, and that he had used methamphetamine on 8 or 9
    occasions. He also used crack cocaine, and drank beer and whiskey, stating that
    he seemed to have bought out the Crown Royal [Rye Whiskey] Corporation. He
    presented as delusional, agitated and threatening towards staff. The second
    index offence occurred in November 2007, about a month after his return from
    Saskatchewan.

[22]

Medical reports after his return from Saskatchewan indicated that
    his relapses into the use of substances were concurrent with his decision to
    stop taking his oral medication and his subsequent decompensation into a psychotic
    state.

[23]

From 2009 to 2012, Mr. Sim consistently participated in various
    therapeutic and rehabilitative programs. In the 2009 Illness Management and
    Recovery Group, for example, he has been described as an active participant in
    group discussion, and as showing a good understanding of the material. He
    recognized the importance of taking his medication to reduce his symptoms and
    to reduce the risk of relapse. He also demonstrated an awareness of the role
    that illicit drugs and alcohol can play in increasing active symptoms and
    relapse.

[24]

In 2012, Mr. Sim went AWOL for three or four days and was returned
    to the hospital in a disheveled and delusional condition. He was also verbally
    abusive to staff.

[25]

It appears that Mr. Sim was generally abstinent from the use of
    cannabis for several years thereafter. However, he used cannabis with his
    apartment mate over a weekend in March 2017. He voluntarily presented himself
    at the hospital after the weekend, but no change was observed in his mental
    condition and he did not present any increased psychotic symptoms.

[26]

Mr. Sims use of cannabis during the year covered by the Boards
    2019 Disposition is discussed below.

(5)

The 2018 Disposition and this courts order

[27]

This appeal must be situated in the context of both this courts
    2019 order setting aside the 2018 Disposition, and the 2019 Disposition that is
    the basis of Mr. Sims present appeal.

[28]

In the 2018 Disposition, the Board found that Mr. Sim has a
    long-standing mental illness into which he lacks good insight. He had 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. While he was
    doing well in a closely-monitored context, the Board was concerned that he
    would stop taking his medication if he used cannabis or other substances: 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.

[29]

The Board felt that it was essential that Mr. Sim develop a good
    understanding of the negative consequences of substance use on his mental
    illness and that he internalize his commitment to remaining abstinent. The
    Board continued Mr. Sims conditional discharge, but removed the condition that
    he abstain absolutely from the non-medical use of alcohol, drugs or other
    intoxicants. The Board believed that removal of the condition prohibiting
    substance use would be a good way to determine whether he would abstain. While
    the Board recognized that the presence or absence of insight was not the test
    of significant risk, Mr. Sim would have to develop an understanding of how
    cannabis use could lead to a decompensation of his mental illness and make him
    an increased risk to the community. Without that insight, he would require the
    continued support and monitoring of his condition.

[30]

This court found that the Boards 2018 Disposition was unreasonable.
    It allowed Mr. Sims appeal from that disposition and ordered a new hearing
    before a differently constituted panel.

[31]

There were two reasons for the finding that the 2018 Disposition was
    unreasonable. 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? While the Board acknowledged that the
    presence or absence of insight is not the test, insight became the major focus
    of the Boards analysis and overshadowed the necessary consideration of other evidence
    relevant to the statutory inquiry.

[32]

In this regard, the court noted that there was considerable evidence
    relevant to the statutory test, none of which found express treatment in the
    analysis portion of the Boards reasons. This court noted, at para. 25, that this
    evidence included:

[T]he 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.

[33]

The second reason for the 2018 Disposition being found unreasonable
    was the inadequacy of the Boards evidentiary analysis, which, on its face, was
    not an even-handed assessment of Mr. Sims evidence. Mr. Sim previously
    testified that he did not intend to use cannabis if he were granted an absolute
    discharge, because it will make me sick again. He also testified that he knew
    he would have to take Clozapine for the rest of his life, because he would get
    sick if he did not. The Board failed to explain why Mr. Sims evidence did not
    display appropriate insight into his condition and why it preferred his
    psychiatrists evidence instead.

[34]

This court concluded:

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.

[35]

Against this background, I turn to the evidence at the Boards re-hearing
    in 2019, the 2019 Disposition, and the Boards reasons.

B.

evidence at the RE-hearing

[36]

Originally, a five-member panel was convened to conduct the
    re-hearing ordered by this court. Regrettably, one of the five members
    scheduled to conduct the re-hearing had been a member of the 2018 panel. As a
    result, the re-hearing proceeded before only three members.

[37]

There were only two witnesses at the re-hearing: Dr. Gulati, Mr.
    Sims attending psychiatrist, and Mr. Mark Dickey, the supervisor at the
    hospital car wash where Mr. Sim worked.

(1)

Dr. Gulatis evidence

[38]

Dr. Gulatis evidence concerning Mr. Sims progress in the hospital
    was generally very positive. Dr. Gulati noted that Mr. Sim had done well in the
    reporting period: he was living in a bachelor apartment, he had been an
    extraordinary worker at the car wash, and he had a close relationship with his
    treatment team. There had been the odd use of cannabis before the current
    year, but by and large he had been abstinent.

[39]

However, Mr. Sim took literally the provision of the 2018
    Disposition that had removed the prohibition against the use of illicit drugs
    and alcohol, and began to use cannabis on and off during the reporting period.
    Dr. Gulati discussed the issue with Mr. Sim, explaining the negative impact on
    his mental health. Dr. Gulati testified:

[M]r. Sim did not take that quite well. He did
    become upset and angry, although not threatening in any way whatsoever, but he
    was almost in a hurry to leave the conference room; and he said that it was
    legal and he will do what he wants and smoke it when he wants; he put it quite
    bluntly there.

[40]

Dr. Gulatis evidence then turned to the issue of Mr. Sims work at
    the car wash. He stated that, according to the supervisor, Mr. Sim had been a
    good employee at the car wash, but there had been a deterioration in the
    quality of his work and there were complaints about it. His focus and
    concentration were not there. Dr. Gulati attributed these reports to Mr. Sims
    mental health issues reasserting themselves and he had concerns about further
    deterioration. It does not appear that Dr. Gulati had spoken directly to the
    supervisor, but rather was referring to a single complaint relayed by the
    supervisor to hospital staff, which in turn, had been reported to him.

[41]

Dr. Gulati conceded that Mr. Sim continued to comply with his
    medication regime and that he had acknowledged the need to take his medication
    because he knew he would get sick without it. Mr. Sim had tested negative for
    other illicit substances, but Dr. Gulati expressed the opinion that he had
    limited insight into the effect of drugs on his mental health.

[42]

Dr. Gulatis concern was that at the time of the second index
    offence in 2007, Mr. Sim had engaged in cannabis use and:

[N]ow currently he is reverting back to that
    drug-taking behaviour, the concern is that once his mental health deteriorates
    further, already we are seeing signs of that; his work has deteriorated; if he
    wants to engage in other substances such as methamphetamines or alcohol, then
    there is a significant risk that he will become non-compliant with medication;
    we have a history of non-compliance with medication in the past which were
    followed by the emergence of breakthrough psychotic symptoms in the form of
    paranoia and persecutory delusions which resulted in the index offence.

[43]

Dr. Gulati testified that without appropriate conditions attached to
    a disposition, there was a risk that Mr. Sim would elope, use other drugs, and become
    non-compliant with his medication. If he began to experience active symptoms
    while on an absolute discharge and not being screened for drugs or not being
    required to report, he was likely to engage in other drug taking behaviour. If
    he stopped taking his medication, something similar to the second index offence
    might occur: Based on his history I believe that there is a likelihood of him
    becoming unwell and it might increase his substance misuse and put him at much
    higher risk of relapse.

[44]

However, when asked whether Mr. Sim had any positive symptoms of his
    mental disorder, Dr. Gulati stated:

Currently Mr. Sim denies any such symptoms and
    to this point he
has been doing well and we have not
    observed him to be responding to his symptoms
. [Emphasis added.]

(2)

Mr. Dickeys evidence

[45]

The other witness at the Board hearing was Mark Dickey, the
    supervisor of the hospital car wash, who was called by Mr. Sims counsel. Mr.
    Dickey testified that Mr. Sim had been a very dependable worker at the car wash
    for some eight or nine years. He did other jobs through the hospitals
    vocational support team, including lawn maintenance and moving work in the
    community. Mr. Sim was meticulous in his work and people wanted to book him
    to clean their cars because he did an awesome job.

[46]

Mr. Dickey testified that Mr. Sim had recently obtained a second
    job, doing car detailing five nights a week. Over the last few months he had
    observed that the quality of Mr. Sims work was not quite as good as it had
    been previously. A customer complained that Mr. Sim had missed spots and
    brought his car back for a wash. Other customers had also called in with
    similar complaints. Mr. Dickey said that he had a discussion with Mr. Sim and
    explained the importance of going over the vehicle with the customer after the
    job was done, to ensure that the customer was happy with the job before he or
    she drove away. He testified that Mr. Sim listened to him and things had
    improved.

[47]

Mr. Dickey agreed with counsels suggestion that Mr. Sim had been
    more tired in the last month or so and attributed it to fatigue caused by
    working nights at his second job.

[48]

Mr. Dickey also mentioned, in cross-examination by counsel for the
    Attorney General, that there were always two people who worked on a car and you
    could not blame Mr. Sim because both workers were supposed to check the work
    before the owner drove away.

[49]

When asked by counsel for the hospital whether he had any concern
    that Mr. Sims lack of concentration or fatigue could be due to a potential
    increase in cannabis use, Mr. Dickey said:

It could be, but Ive never noticed him
    smoking around the hospital grounds, so I dont know for a fact that hes
    smoking; you know what I mean? So it could be, but I cant say that for sure.
    All I know is hes tired; hes tired some of the time. I cant nail it down for
    that.

[50]

When pressed by counsel for the hospital about his uncertainty on whether
    the tiredness was due to Mr. Sims other job or cannabis use, Mr. Dickey
    replied:

No, I think its the other job; he was working
    too much, but I cant really discern between the two of them because  Im not
    an addiction counsellor so I cant really go into the side effects of marijuana
    and that kind of stuff; it could be part of it, you know, I dont know.

C.

THE BOARDS 2019 DISPOSITION

[51]

After reviewing the background, including Mr. Sims history, the
    Board set out its finding that Mr. Sim remains a significant threat to public
    safety. It found that he continues to experience symptoms and that [s]igns
    and symptoms include his irritability and anger, when being counselled by Dr.
    Gulati to discontinue the use of cannabis and the decline of his good work at
    the car wash.

[52]

The Board noted that Mr. Sims supports in the community were
    limited and if he were granted an absolute discharge forensic outpatients
    services and the ACT (Assertive Community Treatment) team would only be
    available to him on a voluntary basis  he could not be compelled to accept them.

[53]

The Board noted that at the previous years hearing, Mr. Sim had
    said that he did not intend to use cannabis if he were granted an absolute
    discharge because it would make him sick. The 2018 panel had decided to remove
    the requirement that he abstain absolutely from the non-medical use of drugs,
    including cannabis and alcohol, in response to which he proceeded to use
    marijuana on more than several occasions. When advised against this by Dr.
    Gulati, he became very defensive, and stated that he had never heard of anyone experiencing
    a negative effect on their mental health as a result of cannabis use. The Board
    held that there was a correlation between his violent behaviour, like that of
    the second index offence, and his use of marijuana. The Board stated that [i]t
    would be most unsafe to the public were he to be permitted to regress, become
    assaultive, and end up in the same place where he was some 12 years ago  in
    the most secure forensic facility in the province [Waypoint, formerly Oak
    Ridges/Pentang].

[54]

The Board placed little weight on Mr. Sims statements to the
    treatment team that he would continue to take his medication as prescribed. It
    reasoned that he had told the Board in 2018 that he would not use marijuana and
    he had gone ahead and done so, so how could his assurances be believed?

[55]

The Board set out Mr. Sims risks scores, criminal record and the
    circumstances of the 2007 index offence. The Board then adopted Dr. Gulatis
    opinion that Mr. Sims insight was limited with respect to the impact of
    cannabis on his mental health. It also concluded that his engagement with his
    treatment and his treatment team were limited.

[56]

The Board concluded that the entirety of the evidence showed that
    Mr. Sim represents a foreseeable and substantial risk of physical or
    psychological harm to members of the public that is serious beyond the trivial
    or annoying. It concluded its findings as follows:

In making this disposition, we have considered
    Mr. Sims current living arrangements and encourage him to maintain them. He
    has progressed to almost independent living. However, we also conclude that
    without the constant support, guidance and monitoring of the Forensic
    Outpatient Team and the ACT Team, he would not be able to be in the community.
    We do not believe that, left to his own devises [sic] that he will take his
    medication for his mental illness. We do not believe his assurances that he
    will take medication. He stated that he will not use cannabis and did so at the
    first opportunity and now refuses to take advice from the treatment team on
    this issue. We conclude that we can place little weight on Mr. Sims
    statements.

[57]

The Board continued its analysis of the evidence in the next section
    of its decision, entitled Disposition. It referred to the evidence of Mr. Dickey
    who had observed Mr. Sim to be more tired, which he attributed to Mr. Sims extra
    job with the car detailing. Mr. Dickey said, however, that he was not an
    addiction counsellor and could not specify why Mr. Sims work had not been as
    good as usual. The Board preferred the interpretation of the evidence of Dr.
    Gulati who, it said, regarded Mr. Sims fatigue as preliminary evidence of
    decompensation.

[58]

The Board observed that Dr. Gulati noted other evidence of
    decompensation when Mr. Sim appeared upset and angry in response to being
    advised against the use of cannabis. It accepted Dr. Gulatis evidence that Mr.
    Sim was undermining the risk of relapse and the potential impact on his
    mental health through the misuse of cannabis. In Dr. Gulatis opinion:

[M]r. Sim is at increased risk of relapse.
    Whether he will relapse in the short-term or somewhat longer period is hard to
    comment but clearly cannabis was one of the factors that was involved in the
    relapse of the illness resulting in the index offence, I would strongly (continue
    to do so) advise him against the use of cannabis.

[59]

The Board reinstated the condition that Mr. Sim be required to abstain
    absolutely from the non-medical use of drugs, including cannabis and alcohol. It
    reasoned that the 2018 Disposition had given him an opportunity to prove that
    he could do so, but he had proven that he was not only unable to abstain but
    that he intended to use cannabis. This increased his risk to the public, given
    his history. The Board determined that the reinstatement of the condition was
    necessary and appropriate in light of Mr. Sims history using cannabis and
    other illicit substances (for example, prior to the second set of index
    offences in 2007). The disposition was necessary and appropriate to protect
    the public from the further commission of serious criminal offences.

D.

THE PARTIES SUBMISSIONS

(1)

The Appellant

[60]

Ms. Szigeti, on behalf of Mr. Sim, submits that the Boards finding
    of significant risk was unreasonable. Ms. Szigeti argues that the Board erred
    in its application of the significant risk test, letting Mr. Sims insight
    about the effect of cannabis on his mental health dominate its analysis. In
    particular, the Board was fixated on Mr. Sims marijuana use, despite the
    evidence being scant and based on Mr. Sims own self-reports. The Board also
    failed to consider other evidence relevant to the statutory test, such as Mr.
    Sims compliance with his medication for many years; the fact that Mr. Sim has
    not displayed any recent assaultive behaviour; and Mr. Sims successful
    re-integration into the community. The Boards reliance on the alleged evidence
    of marijuana use, decompensation, and risk of violent behaviour was
    unreasonable and unfair to Mr. Sim.

(2)

The Respondent

[61]

Counsel on behalf of the Attorney General acknowledges that the only
    issue on appeal is the reasonableness of the Boards finding that Mr. Sim
    remains a significant risk to the public. She submits that the Board properly
    considered Mr. Sims statements about using cannabis when he wants to; his lack
    of insight into the relationship between cannabis use and his mental condition;
    and the evidence on his current use of cannabis to reach its conclusion. The
    Board found that these factors gave rise to a cascading risk of other factors
    emerging, such as the use of other illicit drugs, withdrawal from his
    medications, and a deterioration of his mental condition.

E.

ANALYSIS

[62]

The sole issue before this court is whether the Boards disposition
    was unreasonable.

(1)

Significant threat to the safety of the public

[63]

Section 672.54(a) of the
Criminal Code
provides that if the
    Board determines that an NCR accused is not a significant threat to the safety
    of the public, he or she
must
be discharged
    absolutely. The test of significant threat to the safety of the public is
    expressed in s. 672.5401 as a risk of serious physical or psychological harm
    to members of the public  resulting from conduct that is criminal in nature
    but not necessarily violent. This court explained the statutory test in
R.
    v. Ferguson
, 2010 ONCA 810, 264 C.C.C. (3d) 451, at para. 8:

The meaning of the phrase significant threat
    to the safety of the public has been authoritatively set down in
Winko v.
    British Columbia (Forensic Psychiatric Institute)
, 1999 CanLII 694 (SCC), [1999]
    2 S.C.R. 625, at paras. 49-62, 69. 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.

[64]

In applying the statutory test, the Board is required to consider
both
the
likelihood of the risk
materializing and the
seriousness of the harm
that
    might occur:
Kassa (Re.)
, 2019 ONCA 313, at para. 33, referring to
Wall
    (Re.)
, 2017 ONCA 713, 417 D.L.R. (4
th
) 124, at para. 13;
Carrick
    (Re.)
, 2015 ONCA 866, 128 O.R. (3d) 209, at para. 16.

[65]

The following principles have been expressed in the authorities in
    relation to the application of the statutory test:

·

The significant threat threshold involves an
    onerous standard  the Board must be satisfied as to both the existence and
    gravity of physical or psychological harm posed by an NCR accused:
Hammoud
    (Re.)
, 2018 ONCA 317, at para. 7;
Carrick (Re.)
, at para. 17;

·

[T]he only justification there can be for the
    criminal law detaining a person who has [been found NCR] is maintaining public
    safety. Once an NCR accused is no longer a significant threat to public safety,
    the criminal justice system has no further application.:
Winko v. British
    Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625, at para.
    33;

·

There is an obligation to accord maximum liberty
    to offenders, compatible with the goals of public protection and fairness to
    the NCR accused:
Wall (Re.)
, at para. 9;

·

An NCR accused is not presumed to be dangerous
    and bears no burden of proof in proceedings before the Board:
Wall (Re.)
,
    at para. 10;

·

Ongoing mental health issues are relevant
    considerations for the Board, but they are not determinative of risk:
Carrick
    (Re.)
, 2018 ONCA 752, at para. 19, referring to
Wall (Re.)
, at
    paras. 25, 29; and

·

An absolute discharge may not and need not be in
    the best interest of an NCR accused, but this does not justify the imposition
    on the appellants liberty in the absence of a reasonable finding of
    significant threat:
Ferguson (Re.)
, at para. 45.

(2)

The standard of review

[66]

Section 672.78(1) of the
Criminal Code
sets out the
    standard of review to be applied by this court on an appeal from a disposition
    of the Board. An appeal against a disposition may be allowed where the court is
    of the opinion that (a) it is unreasonable and cannot be supported by the
    evidence; (b) it is based on a wrong decision on a question of law; or (c)
    there was a miscarriage of justice.

[67]

The decision of the Supreme Court of Canada in
Canada (Minister
    of Citizenship and Immigration) v. Vavilov
instructs us that a reasonable
    decision is one where the Boards reasoning process and the outcome reflects
    an internally coherent and rational chain of analysis  that is justified in
    relation to the facts and the law:
Nguyen (Re.)
, 2020 ONCA 247, at
    para. 28, referring to
Vavilov
, 2019 SCC 65, 441 D.L.R. (4th) 1, at
    para. 85. A proper appreciation of the evidence is related to whether the
    resulting decision is reasonable and [t]he reasonableness of a decision may be
    jeopardized where the decision maker has fundamentally misapprehended or failed
    to account for the evidence before it.:
Vavilov
, at para. 126.

[68]

The application of the reasonableness test in s. 672.78(1)(a)
    requires careful attention to the evidence before the Board and its reasoning
    process as expressed in its reasons. It demands respectful attention to the
    decision-makers decision, the justification, transparency and intelligibility
    of the decision-making process, and whether the decision falls within the range
    of possible outcomes:
Vavilov
, at paras. 84, 86. The Boards reasons
    must be able to withstand a somewhat probing examination to determine whether
    the decision is justifiable, transparent, and intelligible:
R. v. Owen
,
    2003 SCC 33, [2003] 1 S.C.R. 779, at para. 33. Deference is owed if the
    decision is internally coherent, demonstrates a rational chain of analysis and
    is justified in relation to the facts and the law:
Vavilov
, at para.
    85.

(3)

Was the 2019 Disposition unreasonable?

[69]

The Boards analysis does not meet the
Vavilov
standard of
    justification, transparency and intelligibility and it is unreasonable. I say
    this for several reasons.

(a)

The Board failed to analyze and account for the
    evidence before it

[70]

Winko
directs that the regime
    established under Part XX.1 is
inquisitorial
: It
    places the burden of reviewing
all
relevant
    evidence
on both sides of the case
on the court or
    Review Board (emphasis added):
Winko
, at para. 54. The Supreme Court
    continued:

The court or Review Board has a duty not only
    to search out and consider evidence favouring restricting NCR accused, but also
    to search out and consider evidence favouring his or her absolute discharge or
    release subject to the minimal necessary restraint, regardless of whether the
    NCR accused is even present.

[71]

In its 2019 decision, this court made it clear that the Boards
    analysis in the 2018 Disposition did not meet the rigorous standard set out in
Winko
.
    That standard requires attention to more than the evidence that
supports
the Boards disposition. It requires exposition
    and analysis of all cogent evidence before the Board including, in particular,
    evidence that supports the disposition sought by the NCR accused. At para. 25
    of its reasons, referred to earlier, this court identified a body of evidence
    relevant to the statutory test that the Board had failed to consider in its 2018
    Disposition.

[72]

The Boards 2019 Disposition repeats this failure. The findings and
    disposition sections of its reasons focus almost exclusively on the evidence
    supporting the continued restrictions on Mr. Sims liberty and contain virtually
    no analysis of the evidence, either at the 2018 hearing or the 2019 hearing,
    that supported Mr. Sims request for an absolute discharge.

[73]

While the Board acknowledged Mr. Sims increasingly independent
    living arrangements identified by this court, it concluded that without
    constant support from the Outpatient Team and the ACT Team and left to his own
    devices, he would not take his medication. Because he said he would not use
    cannabis and did so at the first opportunity, the Board did not believe his
    assurances that he would take his medication.

[74]

Leaving aside for the moment the favourable evidence that the Board
    ignored, it was unfair to state that Mr. Sim used cannabis at the first
    opportunity. There was no evidence to that effect. Indeed, there was no
    evidence before the Board as to when Mr. Sim started to use cannabis or how
    frequently Mr. Sim had actually used cannabis during the relevant periods other
    than, according to the Board, on more than several occasions.

[75]

In addressing the crucial question of whether Mr. Sim would continue
    to take his medication if granted an absolute discharge, the Board was required
    to do more than simply say, in effect, you didnt keep your promise about not
    using cannabis, so why should we believe that you will take your medication?
    In its analysis of the evidence, the Board failed to give
any
consideration to factors that could reasonably have
    reduced the risk of significant threat, including:

·

the dated nature of the index offences (2000 and
    2007), the absence of
any evidence
of any physically
    violent or aggressive conduct for at least ten years, and the very positive
    evidence concerning Mr. Sims conduct over those years;

·

the fact that, at least from time to time over
    the years, and more so in the 2019 year, Mr. Sim had used cannabis without recurrence
    of his symptoms and without any evidence of aggressive or violent behaviour;

·

the absence of any evidence in either the
    Medical Report or Dr. Gulatis testimony that Mr. Sim had demonstrated
any symptoms
of his mental illness in the 2018 and 2019
    review periods, notwithstanding his cannabis use;

·

Mr. Sims long history of medication compliance,
    notwithstanding his apparent use of cannabis, and his commitment to continue using
    his medication because he understood he would get sick without it;

·

the absence of any evidence that Mr. Sim had
    used other illicit drugs since 2012, notwithstanding that he had continued to
    use cannabis;

·

the evidence of Dr. Gulati that were an absolute
    discharge to be granted, there would be ongoing support available to Mr. Sim
    through the hospital, his treatment team and the ACT team, albeit on a voluntary
    basis; and

·

the evidence of Mr. Sims longstanding positive
    relationship with his treatment team.

[76]

All this evidence would support the conclusion that Mr. Sim was
    capable of controlling his marijuana use while at the same time maintaining his
    medication regime, as he apparently had during the 2019 year.

[77]

Accordingly, while the Board understood the need to consider all of the
    evidence, its conclusion at para. 74 of its reasons that the entirety of the
    evidence shows that Mr. Sim represents [a substantial risk]  was not based on
    an assessment of all the evidence.

(b)

The Board failed to conduct an even-handed
    analysis of the evidence

[78]

The Board also repeated the second error identified in the courts
    2019 reasons: it did not conduct an even-handed analysis of the evidence.

[79]

The findings and disposition sections of the Boards reasons focus
    almost exclusively on the relationship between Mr. Sims use of cannabis (and
    his stated intention to continue using it) and the risk that he would use other
    drugs, stop taking his medication, and engage in conduct that would be a
    significant threat to the safety of the public.

[80]

The Boards first finding was that [h]e continues to experience symptoms.
    Signs and symptoms
include
his irritability and
    anger, when counselled by Dr. Gulati to discontinue the use of cannabis and the
    decline of his good work at the car wash. Later, the Board treated this
    conduct as evidence of decompensation in Mr. Sims mental state.

[81]

The Boards use of the word include mis-stated the evidence,
    because there was
no other evidence
that Mr. Sim
    continued to experience symptoms of his mental illness. The
only
signs and symptoms the Board identified were:
    (i) Mr. Sim got angry at Dr. Gulati when they were discussing his cannabis use;
    and (ii) Mr. Sims normally awesome work at the car wash had been sloppy for
    a period of time with the cause being at least open to debate. The Boards
    reliance on these two incidents, which became the focus of the disposition
    section of the reasons, reflected a misapprehension of the evidence.

[82]

Nowhere in Dr. Gulatis evidence did he state that Mr. Sim had
    decompensated as a result of his marijuana use. Dr. Gulati testified that there
    is currently no observable paranoia or evidence of psychosis and that Mr. Sim
    exhibits no other symptoms. When asked by counsel for the hospital whether Mr.
    Sims marijuana use had affected his medication compliance, Dr. Gulati
    responded: Not so far, no; he continues to comply with medication. In fact,
    at para. 42 of the Boards reasons, it acknowledged that [a]lthough
Dr. Gulati is unable to state that Mr. Sim has recently
    decompensated as a result of the use of marijuana
, historically Mr. Sim
    has done exactly that (emphasis added).

[83]

The words historically Mr. Sim has done exactly that are either a
    misapprehension of the evidence or unfair to Mr. Sim, because his historical
    decompensation, notably at the time of the second index offence in 2007, was
    associated not only with cannabis but also other illicit drugs and alcohol. The
    2000 index offence was associated with his use of methamphetamines. The Board repeatedly
    referred to his decompensation as a result of the use of marijuana at the time
    of the second index offence, without acknowledging that he was also abusing
    other drugs and alcohol. There was no effort by the Board or by Dr. Gulati to assess
    whether Mr. Sims risk would be reduced if he only used cannabis. They appear
    to have assumed that his consumption of cannabis would inevitably lead to the
    consumption of other drugs, simply because that had occurred in the past. They
    made no assessment, however, of the risk of that occurring in light of the many
    positive factors in Mr. Sims favour.

[84]

With respect to the first incident, Dr. Gulati simply stated that
    when he was explaining to Mr. Sim the negative effect that cannabis might have
    on his mental health, Mr. Sim became upset and angry and was almost in a
    hurry to leave.

[85]

Dr. Gulati also noted this incident in the medical report, but did
    not identify it as evidence of symptoms. In fact, Dr. Gulati mentioned Mr.
    Sims contention that he will not have a relapse simply because he has not had
    a relapse despite of [sic] smoking cannabis on and off during the reporting
    period. Dr. Gulatis concern was the increased risk of relapse. He stated:

In my opinion, Mr. Sim is at an increased risk
    of relapse. Whether he will relapse in the short term or somewhat longer period
    is hard to comment but clearly cannabis was
one of the
    factors
that was involved in the illness resulting in the index offence,
    I would strongly (continue to do so) advise him against the use of cannabis. [Emphasis
    added.]

[86]

People with mental illness are entitled to become irritated, upset,
    impatient and angry without their conduct being pathologized as symptomatic.
    Mr. Sims response to Dr. Gulati was not irrational: he was forty-nine years
    old (at the time), living independently, holding down two jobs, getting along
    well with people, and was a part of the community. Cannabis was legal, he liked
    it, and he was not symptomatic in spite of smoking it on and off.

[87]

Yet the Board in its reasons treated this rather trivial incident as
    evidence of decompensation. Dr. Gulati did not characterize it as such and,
    in my view, there was no evidence to support the Boards conclusion.

[88]

The second piece of evidence relied upon by the Board to support its
    conclusion was the evidence of the car wash supervisor, Mr. Dickey, and of Dr.
    Gulatis thoughts on this issue. In my view, this is another case in which the
    Board pathologized trivial conduct.

[89]

I have set out Mr. Dickeys evidence above. He believed that Mr.
    Sims sloppiness was due to fatigue, but he spoke to him about it and things
    improved. The Board did not mention this.

[90]

Instead, the Board preferred the evidence of Dr. Gulati. It said,
    Dr. Gulati is of the view that this is likely preliminary evidence of
    decompensation.

[91]

Dr. Gulati testified before Mr. Dickey. He had apparently heard
    reports about Mr. Sims recent performance at the car wash, but there is no
    reference to it at all in the Hospital Report. In questioning by counsel for the
    Attorney General, Dr. Gulati said that Mr. Sims lack of attention to his work
    was likely evidence that his mental illness was reasserting itself due to
    cannabis use. Dr. Gulati was apparently unaware of Mr. Dickeys opinion that
    the decline in Mr. Sims work was due to fatigue and that Mr. Sims work had
    improved since Mr. Dickey spoke to him.

[92]

In my view, the Board overstated the significance of the car wash
    evidence, particularly in light of the absence of any reference to the
    emergence of other symptoms of mental illness in either the Medical Report or
    Dr. Gulatis evidence. While it was entitled to prefer the evidence of Dr.
    Gulati to that of Mr. Dickey on psychiatric matters, I am not sure that a
    psychiatrist or a car wash supervisor is better positioned to opine on the
    cause of apparently isolated and transitory sloppy washing and polishing jobs.

[93]

When one considers its failure to analyze a significant body of
    evidence relevant to the statutory test, the Boards analysis of these two
    trivial incidents does not do the heavy lifting required to meet the onerous
    standard of significant risk.

[94]

Finally, as I have noted, the Board in 2019 placed great emphasis on
    Mr. Sims failure to abstain from the use of cannabis during the relevant
    period. It said, [t]he 2018 panel of the ORB gave Mr. Sim the opportunity to
    prove that he could continue to abstain from the use of marijuana
and other substances
. He has proven that he is not only
    unable to abstain, but that he positively intends to use cannabis as he
    chooses.

[95]

Mr. Sim has demonstrated that he is able to abstain from the use of
    other substances. The Board failed to give him any credit for his abstinence over
    many years from other illicit drugs and alcohol.

(c)

The Boards analysis of significant risk was
    inadequate

[96]

The Board accepted Dr. Gulatis evidence, at para. 79 of its
    reasons, that Mr. Sim is at an increased risk of relapse due to his consumption
    of cannabis. Dr. Gulati could not say whether that would occur in the short
    term, but he noted that cannabis use was one of the factors involved in the
    relapse and the ensuing index offences. For that reason, he had strongly
    advised Mr. Sim against the use of cannabis. Dr. Gulatis reasoning process was
    that of a cascading risk: that Mr. Sim would consume cannabis; this would lead
    to the consumption of other drugs; this would lead Mr. Sim failing to take his
    medication; this would lead to a recurrence of his symptoms; and this would
    lead to the commission of a serious criminal offence.

[97]

Nowhere did the Board analyze the likely occurrence of each of the
    steps in Dr. Gulatis cascading risk scenario having regard to all the
    evidence, notably (a) the fact that the index offences were related to more
    than just cannabis; (b) his extraordinary progress over the last ten years; (c)
    his apparent abstinence from any drug other than cannabis; (d) his
    long-standing commitment to taking his medications; (e) his strong relationship
    with his support team and Dr. Gulatis evidence that if he were granted an
    absolute discharge, Mr. Sim could continue to be involved with the ACT, which
    would monitor his medication compliance; (f) his stable work environment; (g)
    his friendships in the community; and (h) his family support. The Board simply
    accepted that Mr. Sims consumption of cannabis would inevitably give rise to a
    substantial risk of serious harm to the public and that [h]e must remain on a
    disposition in order to protect the public from the further commission of
    serious criminal offences.

[98]

For these reasons, the Boards 2019 Disposition is unreasonable, and
    I would set it aside and order an absolute discharge. In coming to this
    conclusion, I am mindful that
Winko
cautions appellate judges to consider
    the broad ranging nature of the Boards inquiries, its familiarity with the
    situation of the particular NCR accused, and the difficulty in applying the
    significant threat test:
Winko
, at para. 61. I also recognize the
    significance of the opinion of psychiatrists who have been treating Mr. Sim for
    several years.

[99]

However, in each of the past two years, the Board has failed to consider
    all the evidence and has failed to articulate a coherent and rational basis for
    Mr. Sims continued detention. I am not satisfied that it is able to do so on
    the evidence before it.

F.

disposition

[100]

For these reasons, I would allow the appeal, set aside the Boards
    disposition, and substitute an absolute discharge.

Released: G.R.S.          SEP 10 2020

George
    R. Strathy C.J.O.

I
    agree. E.E. Gillese J.A.

I
    agree. David Watt J.A.





[1]

The Hospital Report indicates that Mr. Sim tested positive
    for methadone in April 2012. There is no other evidence that he has consumed
    any other illicit drug, other than marijuana, since that date.


