A tribunal in B.C.’s highest court dismissed the custody appeal of a Prince George man found not criminally responsible on account of mental disorder (NCRMD) on four occasions.
David Walter Cuthbert’s case was heard Tuesday, Dec. 17 in BC Court of Appeal against the Adult Forensic Psychiatric Services and Attorney General of BC His lawyer, Katherine Kirkpatrick, unsuccessfully asked appeal court judges to replace a custody order with a conditional discharge or have the matter sent back to the Review Board for reconsideration.
“The Review Board’s conclusion that the appellant’s continued detention was necessary was reasonable and supported by the evidence,” said the ruling, written by Justice Nitya Iyer with agreement from Justices Lauri Ann Fenlon and Karen Horsman. “In arriving at its conclusion, the board considered all of the appellant’s risk factors, which included, but was not restricted to, the need for an expeditious return to hospital if he discontinued his medications.”
Iyer’s decision said Cuthbert has a lengthy history of mental illness, including schizoaffective disorder, that contributed to violence.
In 1990, Cuthbert appeared at an RCMP detachment with an axe or tire iron while suffering a manic episode with psychosis.
Cuthbert was deemed NCRMD on three occasions in the 1990s, when he attempted to kill people at a gas station and stab himself (1992), stalked a woman (1995) and fled a boarding house and broke into a residence (1998).
He received absolute discharge in 2000 on the latter two cases, but has been readmitted to hospital after failing to take his prescribed medications on several occasions.
In 2020, Cuthbert shoved a man into a Prince George apartment, locked the door, choked the victim and hit him over the head repeatedly with a beer bottle. He was charged with unlawful confinement, assault by choking, suffocating or strangling and assault with a weapon, but declared not criminally responsible in 2021.
Cuthbert was detained at the Forensic Psychiatric Hospital in Coquitlam, where the Review Board decided he should remain in 2022 and 2023.
Last May 29, a majority of the board ordered a custodial disposition, reviewable within 12 months. Their decision would permit Cuthbert to have consecutive overnight stays in the community of up to 28 days.
His psychiatrist said Cuthbert was “currently stable and was responding well to treatment and supervision,” but the board decided he still poses a significant threat to the public and rejected an absolute discharge. It noted that Cuthbert had been driving a vehicle contrary to conditions, skipped some midday check-ins in favour of swimming and continued to rent an apartment in the Prince George building where the 2020 attack took place.
The board considered “the least onerous and least restrictive” disposition — to allow overnight stays in the community of up to 28 days, only at a transitional facility in Prince George.
Cuthbert’s lawyer argued the custodial order was not justified because the majority found that he was not a risk to the public while residing in the community under conditions.
