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REVIEW BOARDS - Dispositions - Conditional discharge

Friday, October 16, 2020 @ 7:27 AM  


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Appeal by a detainee, Sim, from an Ontario Review Board disposition decision. The appellant, age 50, suffered from longstanding mental health issues. Between 1986 and 2000, he amassed convictions for approximately 40 offences. The appellant was diagnosed with schizoaffective disorder, polysubstance dependence, and antisocial personality disorder. He was under the Board’s jurisdiction from 2000 onward following NCR findings in connection with a car theft and elopement from a psychiatric hospital in 2000, and the subsequent assault of two male nurses in 2007. Thereafter, the appellant made progress and his condition stabilized. He completed his high school education, demonstrated a commitment to employment, and graduated from residing in a supervised residence to independent living. The remaining obstacle to an absolute discharge was the appellant’s occasional cannabis use despite strong advice to the contrary from his psychiatrist. In 2018, the Board continued the appellant’s conditional discharge. The Court of Appeal found that the decision was unreasonable, as the Board placed undue weight on the issue of the appellant’s insight into his illness and engaged in inadequate evidentiary analysis regarding risk. Following a rehearing in 2019, the Board continued the appellant’s conditional discharge and reinstated a previously removed condition requiring abstinence from drugs and alcohol. Sim appealed.

HELD: Appeal allowed. The Board’s disposition was unreasonable, as its analysis failed to meet the standards related to justification, transparency and intelligibility. The Board failed to analyze and account for the evidence before it by placing undue weight on the evidence supporting continued restriction of the appellant’s liberty and failing to sufficiently consider evidence supporting his absolute discharge. In addition, the Board misconstrued and misapprehended the evidence regarding the appellant’s cannabis use and thus failed to consider evidence of reduced risk of threat to the public through medication compliance and the absence of observable symptoms. The Board overstated the significance of a relatively trivial workplace incident as evidence of decompensation. The analysis of significant risk was inadequate. The Board’s disposition was set aside and replaced with an order for an absolute discharge.

Sim (Re), [2020] O.J. No. 3808, Ontario Court of Appeal, G.R. Strathy C.J.O., E.E. Gillese and D. Watt JJ.A., September 10, 2020. Digest No. TLD-October122020007