This is a solid comprehensive piece with expert commentary on this important case and some comments by me about its relevance and impact as well. It is one to celebrate.
The hope and the expectation is that that case will have broad-reaching benefit for all NCR accused under the Review Board’s jurisdiction on an enduring basis.
The text of the piece:
Appeal Court ruling provides ‘clarity’ to review board on how to adjudicate matters: lawyer
Wednesday, September 16, 2020 @ 10:13 AM | By Michael McKiernan
The Court of Appeal for Ontario has granted an absolute discharge to a man living with mental illness after finding the Ontario Review Board (ORB) unreasonably concluded he posed a “significant threat to public safety” for a second consecutive year.
In 2019, almost two decades after he was found not criminally responsible (NCR) on a charge of theft under $5,000, Donovan Sim won a fresh hearing of his annual review under s. 672.54 of the Criminal Code when the Appeal Court panel in Sim (Re) 2019 ONCA 719 found deficiencies in the ORB’s approach to risk assessment rendered its decision to continue his conditional discharge unreasonable.
But in Sim (Re) 2020 ONCA 563, Chief Justice George Strathy went a step further, substituting an absolute discharge for the disposition reached by a new ORB panel that he found repeated the same errors in its rehearing of Sim’s case.
“[I]n 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. Sim’s continued detention. I am not satisfied that it is able to do so on the evidence before it,” wrote Chief Justice Strathy in his Sept. 10 judgment, with Justices Eileen Gillese and David Watt in concurrence.
Anita Szigeti “It’s a judgment that is validating and affirming for clients with mental health issues,” said Anita Szigeti, Sim’s counsel on appeal. “The language of the decision is noteworthy not just for the forceful clarity it gives to the review board on how to adjudicate matters before it, but also for the respect that the chief justice of Ontario gives to Donovan Sim and to accused persons found not criminally responsible.”
“That’s the language that will be an enduring benefit going forward,” she added.
Szigeti, who recently co-wrote the textbook A Guide to Mental Disorder Law in Canadian Criminal Justice, said the call to let her client know that he was free from the jurisdiction of the ORB after 20 years was a “happy one to make.”
“He told me he was going to celebrate by going to work,” Szigeti said.
Meaghan McMahon, a criminal defence lawyer with Ottawa firm Davies Barristers who frequently represents clients at the ORB, explained that the board is known for the conservatism of its decision making.
“To be fair to the board, its paramount concern is public safety, but the problem is their tendency to be overly risk averse,” she said.
Since the subjects of ORB dispositions have a direct right of appeal to the province’s top court, McMahon says many NCR accused individuals have appeared multiple times before appeal court panels. A smaller percentage achieve incremental success.
“Occasionally, as we see with Sim, you get something that sends a clearer message,” McMahon said. “This is a very stark reminder to the board of its duties. They can’t just recite and acknowledge the evidence that supports its disposition, while ignoring facts that favour the liberty of the accused.”
Before his diagnosis with schizoaffective disorder and admission to a psychiatric hospital in the late 1990s, Sim had already collected a long list of criminal convictions for assault, property and drug related offences.
He was first found NCR in 2000 on a charge of theft under $5,000 for stealing an acquaintance’s car, with a second NCR finding following in 2007 when he assaulted two nurses at the mental health hospital where he was a patient while in a “decompensated state” brought on by a drugs and alcohol binge.
However, the ruling says that the 50-year-old has displayed marked and steady progress over the last 13 years, noting that by the time of his appeal, Sim lived alone, had steady work and had recently graduated from high school.
Sim first asked for an absolute discharge at his 2018 annual ORB hearing, but the board instead continued his conditional discharge. That disposition was set aside as unreasonable by the Appeal Court in its 2019 ruling, which concluded the board erroneously focused its assessment on Sim’s insight into his condition and the effect his use of cannabis might have on it, rather than whether he posed a significant risk to the safety of the public. In addition, the board failed to conduct an even-handed assessment of Sim’s evidence, the Appeal Court found.
In the Appeal Court’s more recent ruling dealing with the ORB’s ordered rehearing, Chef Justice Strathy found the board repeated its failure to properly assess the evidence before it, devoting virtually none of its analysis to evidence that supported Sim’s case.
“The Board also repeated the second error identified in the court’s 2019 reasons: it did not conduct an even-handed analysis of the evidence,” Chief Justice Strathy went on, pointing to the board’s mischaracterization of an incident in which Sim reacted badly to his psychiatrist’s negativity about cannabis use as “evidence of decompensation.”
“People with mental illness are entitled to become irritated, upset, impatient and angry without their conduct being pathologized as symptomatic,” Chief Justice Strathy wrote.
Suzan Fraser Suzan Fraser, a lawyer whose practice focuses on the rights of vulnerable and marginalized people, said these remarks reflect the complaints of the clients she represents at the ORB.
“Every behaviour is seen as something bad that flows somehow from their illness, so for the chief justice to recognize that is real progress,” said Fraser, founder of Fraser Advocacy. “The board has got to stop looking at everyday emotions, frustration and anger as representative of some sort of symptom, when it’s just a person being human.”
The chief justice’s comments have already generated quite a buzz among lawyers on social media, and while Szigeti is pleased to see the legal community so energized, she has mixed feelings about the reaction.
“The court’s comments are not revolutionary or novel ideas, and I think we need to ask ourselves why people are so shocked by such a simple statement — that people with mental health issues can also experience emotions and be human,” Szigeti says. “It gives you an idea of how deeply ingrained these prejudices are and how pervasive the stigma is against people with mental health problems.”
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