Absolute discharge reasonable if accused isn't 'significant threat': Ontario Court of Appeal

The Ontario Court of Appeal has ordered an absolute discharge of an accused who did not pose a “significant threat” to public safety, despite the finding that he had limited insight into his mental illness.

In Gibson (Re), 2022 ONCA 527, Matthew Gibson appealed an Ontario Review Board order that he remain subject to a conditional discharge because he continued to be a significant threat to public safety. In 1984, Gibson was involved in a serious motorcycle accident which left him with a number of mental health issues, including schizophrenia and cannabis use disorder. Gibson had been under the review board’s jurisdiction since 2006, when he was found not criminally responsible (NCR) of breach of recognizance and criminal harassment.

In dealing with an NCR accused, the appeal court noted that the review board is charged with the responsibility of determining the necessary and appropriate disposition, meaning the least onerous and least restrictive disposition necessary to protect the public.  Further, the court also emphasized that if the individual is ‘not a significant threat to the safety of the public,’ the board shall order that the person be discharged absolutely.

The appeal court also noted that in Carrick (Re), 2015 ONCA 866, “the ‘significant threat’ standard is an onerous one. The board must be satisfied as to both the existence and gravity of the risk of physical or psychological harm posed by the appellant in order to deny him an absolute discharge.”

Limited insight into mental illness

The review board found that Gibson’s insight into his mental illness and need for medication remained limited. The board also considered a hospital report which stated that Gibson’s risk for future violence was moderate while under the board’s jurisdiction and would be high otherwise. The board further found that Gibson required readmission into the hospital three times in the past year, his housing was unstable, and his threat to public safety was moderate-to-high absent the oversight of the forensic system. Based on these findings, the board concluded that Gibson continued to represent a significant threat to the safety of the public and ordered him to be discharged conditionally.

‘Significant threat’ standard

The appeal court disagreed with the board’s findings. The court said that “the board’s approach did not take seriously that the ‘significant threat’ standard is an onerous one” and noted that the board downplayed the evidence that showed Gibson’s ability to cope with his disease.

The appeal court did not find any record since 2005 that Gibson had made threats or been violent, even during times when he was in psychosis. He had lived successfully in the community for years and without incident, he had complied with his medication requirements, and he voluntarily sought assistance when he was decompensating. He formed a durable relationship with a non-forensic treatment team and complied with their advice. The court noted that this team would serve in place of the forensic team.

Gibson had also demonstrated his ability to consume medical cannabis as needed for medicinal reasons, and this had lessened his use of street cannabis with high-THC content that can provoke psychosis.

The board primarily relied on Gibson’s limited insight as justification for his continued conditional discharge. The appeal court, however, emphasized that a limited insight is not sufficient to establish a significant threat to public safety. The court pointed out that despite Gibson’s limited insight, he had advised his treatment team and the board that he will continue to take his medications after discharge. He self-administered his oral antipsychotic medications and reminded the treatment team to renew his prescription when his supply was low. The court found that this showed that his limited insight was adequate.

The court concluded that the evidence failed to meet the onerous “significant threat” standard. As a result, the court ordered Gibson to be absolutely discharged.