



COURT OF APPEAL FOR ONTARIO

CITATION: Gibson (Re), 2021 ONCA 710

DATE: 20211013

DOCKET: C69023

MacPherson, Roberts and
    Miller JJ.A.

IN THE MATTER OF: Matthew
    Gibson

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Anita Szigeti and Maya Kotob, for the appellant

Catherine Weiler, for the respondent, Attorney General
    of Ontario

No one appearing for the
    respondent, Person in Charge of the St. Josephs Healthcare Hamilton

Heard: October 1, 2021 by video conference

On appeal against the disposition
    of the Ontario Review Board dated, December 8, 2020, with reasons dated January
    5, 2021.

REASONS FOR DECISION

[1]

Matthew Gibson has been under the supervision of
    the Ontario Review Board (the Board) since he was found not criminally
    responsible (NCR) on January 31, 2006, for the offences of breach of
    recognizance and criminal harassment. He appeals from the Boards December 8,
    2020 disposition that he be discharged under the same conditions as the
    September 17, 2019 disposition. These conditions include that he report monthly
    and abstain from non-medical use of drugs and alcohol.

[2]

There is only one issue on this appeal. Mr.
    Gibson submits that the Board erred in concluding that he continues to pose a significant
    threat to the safety of the public. He makes two points to support this
    submission. First, he contends that the Boards finding of significant risk is
    unreasonable because it is the product of an uneven analysis of Mr. Gibsons own
    evidence and the other protective factors that belie the Boards finding. Second,
    even taken at its highest, Mr. Gibson argues, the evidence does not support a
    finding of significant risk. He says that if the Board had not erred in its
    assessment of significant risk, he would have been granted an absolute
    discharge.

[3]

Specifically, Mr. Gibson highlights the evidence
    that he has not engaged in any incidents of violence or aggression for many
    years since he has been subject to the Boards supervision. Over the last
    reporting year, he has been compliant with his prescribed oral and injectable medication,
    co-operative with his hospital outpatient and community treatment teams, and
    his four hospital admissions were voluntary. During the annual hearing, he acknowledged
    that he has a mental illness, schizophrenia, and testified that he would
    continue taking his antipsychotic medication for the rest of his life and seek
    counselling and social work from his community treatment team from which he said
    he benefits. He enjoys a stable, loving, and supportive relationship with his
    mother and sister, with whom he has resided for the last several years.

[4]

An appellate court may allow an appeal from the Boards
    disposition under s. 672.78(1) of the
Criminal Code
, R.S.C. 1985,
    c. C-46, where the Boards disposition is unreasonable or cannot be supported
    by the evidence; it is based on a wrong decision on a question of law; or there
    was a miscarriage of justice.

[5]

We see no error here that would justify
    appellate intervention.

[6]

The Board applied the correct test to Mr.
    Gibsons circumstances. It is clear from a functional review of the Boards
    reasons that they assessed whether Mr. Gibson posed a real risk of
    serious physical or psychological harm to members of the public  resulting
    from conduct that is criminal in nature but not necessarily violent: s.
    672.5401 of the
Criminal Code
. The Board found that there was a high
    or real risk of serious harm to the public:
Winko

v. British
    Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625, at para.
    57.

[7]

We disagree with Mr. Gibsons submission that
    the Board focused unduly on his lack of insight into his medical condition and
    need for treatment and medication. In assessing the issue of significant risk,
    the Board considered well‑established risk factors to determine if Mr.
    Gibson poses a real risk of serious harm. The Board did not limit these risk factors
    to Mr. Gibsons lack of insight into his illness, need for treatment, and
    responsibility for the index offences. As required under s. 672.54 of the
Criminal
    Code
, the Board conducted a broad inquiry, including the constellation of
    factors reviewed by the Supreme Court in
Winko
, at para. 61:

the circumstances of the original offence, 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, perhaps
    most importantly, the recommendations provided by experts who have examined the
    NCR accused.

[8]

We are not persuaded that the Board failed to
    review the entirety of the evidence in an even-handed way. The Boards reasons
    demonstrate that the Board considered the protective factors identified by Mr.
    Gibson but was not satisfied that they outweighed the factors that led to the Boards
    decision that Mr. Gibson continues to pose a significant risk to public
    safety and that this risk can be managed only by a discharge order with
    conditions. The Boards decision reflected Mr. Gibsons evidence and was also amply
    supported by the evidence as set out in the Hospital Report, the evidence of
    Mr. Gibsons outpatient psychiatrist, Dr. Y. Naidoo, and the Psychological Risk
    Assessment Report completed by Dr. Peter Sheridan, which the Board was
    entitled to accept. While Dr. Sheridan prepared his most recent report based on
    a paper record, his identification of risk factors and opinion of significant
    risk align with Dr. Naidoos evidence and conclusions.

[9]

Tragically, Mr. Gibson suffered a severe head
    injury as a teenager in a 1984 motorcycle accident. He has serious mental
    health issues that first manifested in 1994. Since 2018, he has been incapable
    of consenting to psychiatric treatment and his mother is his substitute
    decision maker. His current diagnosis includes schizophrenia (undifferentiated type),
    closed head injury, and cannabis use disorder. According to Dr. Naidoo, Mr.
    Gibsons schizophrenia includes fixed false beliefs, which have been
    entrenched for many years. His psychotic symptoms and persecutory delusions are
    active, and he maintains the unshakeable but false belief that he is the victim
    of countless druggings, poisonings, home invasions, and physical and sexual
    assaults. He continues to incorporate new individuals into his delusions and
    focus on those whom he believes have wronged him. While he has not acted
    violently in relation to his delusions, he is not passive about them: he
    becomes agitated when referring to them and acts out on them by accusing those
    whom he believes are responsible.

[10]

Mr. Gibson has little insight into his medical
    condition and the need for medication and treatment nor into the adverse effects
    medication non-compliance and substance use have on his mental state. Mr.
    Gibson does not acknowledge that he had a mental illness prior to his
    supervision by the Board; rather, he believes the Boards supervision caused
    him to become schizophrenic and dependent on medication. While he is at present
    compliant with medication and treatment, Dr. Naidoo opined that if granted an
    absolute discharge, it is highly likely that Mr. Gibson would discontinue
    psychiatric follow-up as well as his prescribed medications. Dr. Sheridans
    view was that it was certain he would do so. The Hospital Report supports their
    opinion: until the 2020 hearing, Mr. Gibson regularly stated that he would
    discontinue his medication if absolutely discharged. He demonstrates no insight
    into his chronic cannabis use that, according to Dr. Naidoo, Dr. Sheridan,
    and the other evidence contained in the Hospital Report, destabilizes his
    mental state and intensifies his symptoms of psychosis and delusions. Mr.
    Gibson testified at the hearing that chances are, he would continue to use
    cannabis if he obtains an absolute discharge because he believes that it
    alleviates his somatic pain for which investigations have not found a
    physiological cause.

[11]

Mr. Gibson demonstrates extremely limited
    insight into the index offences, emphasizing that he was arrested for crimes he
    did not commit. The offences leading up to the NCR determination were very
    serious. Mr. Gibson left notes accusing teenaged neighbours of having sexually
    assaulted him and threatened their father with a knife when he confronted him
    about the notes. He breached his recognizance by harassing and threatening
    these neighbours, sending them parcels and cursing them on their front lawn. He
    is fixed in his belief that the victims assaulted him. The 2020 Psychological Risk
    Assessment Report noted his mental status remains unchanged since his last
    assessment in 2015 and his risk for future violence is high absent the
    professional supports and oversight provided by the conditions of his
    disposition.

[12]

Mr. Gibsons mental state significantly
    fluctuated and worsened over the reporting year prior to the Boards December 8,
    2020 disposition. Unfortunately, his symptoms remain poorly managed. He continues
    to focus on those whom he considers have wronged him and becomes agitated about
    the wrongs that continue to form part of his delusional ideation. Mr. Gibsons
    cannabis use has increased over the past year. Out of 51 urine screens in the
    past year, only two were negative for cannabis. Dr. Naidoo maintained that
    during the periods that Mr. Gibson reported increasing his cannabis use,
    his psychosis intensified. He had four voluntary admissions into hospital
    because of his deteriorating mental state. The evidence of Drs. Naidoo and
    Sheridan was that the volunteer hospital admissions likely precluded
    significant destabilization that mirrored his mental state before the index
    offences and could have resulted in serious consequences to public safety.

[13]

Despite the many difficulties that Mr. Gibson
    experienced in the past reporting year, there has been much to commend, as the
    Board also noted in its reasons. Mr. Gibson continues to benefit from the love
    and stability of his family relationships and he is compliant with medications
    and treatment. However, the absence of violent or aggressive behaviour by Mr.
    Gibson does not serve by itself to eliminate the risk of significant harm to
    the public given the other serious risk factors demonstrated by the evidence
    and accepted by the Board. As this court stated in
Krist (Re)
, 2019
    ONCA 802, at para. 15:

Evidence of the potential for physical or psychological
    violence, such as a lack of insight into the index offences and mental illness,
    and concerns over discontinuing medication and substance abuse, which could
    result in decompensation and psychosis, like in the present case, may support a
    finding of significant risk to the public: see e.g.,
Abdikarim (Re)
,
    2017 ONCA 793, at paras. 6-7, 16;
Beam (Re)
, 2018 ONCA 532, at paras.
    5-9; and
Mott (Re)
, 2019 ONCA 560, at para. 10.

[14]

As a result, we see no error in the Boards
    analysis or conclusion that based on the entirety of the evidence they
    considered and in accordance with s. 672.54 of the
Criminal Code
, Mr.
    Gibson continues to pose a significant threat to the safety of the public.
    The Boards decision was reasonable in the circumstances. There is no basis to
    intervene.

Disposition

[15]

Accordingly, we dismiss the appeal.

J.C.
    MacPherson J.A.

L.B.
    Roberts J.A.

B.W.
    Miller J.A.


