The Yukon Review Board had no basis to find that a schizophrenic man still posed a significant threat to the public, the Yukon Court of Appeal has ruled.

In its March 3 ruling, the court struck down restrictive measures the review board had put in place, pointing to the lack of evidence supporting their decision.

Marlon Arscott, 56, was found not criminally responsible by reason of mental disorder in 2004 for assaulting a police officer.

The Criminal Code provides that if a person couldn’t understand the wrongness of their actions due to mental illness at the time they committed an offence, they should be found not criminally responsible.

It’s then up to the Yukon Review Board to decide whether the individual can be managed in the community with a set of conditions to follow or has to be committed to a psychiatric facility.

Arscott was ordered into a facility in 2012, then released to the community in 2013.

Since 2013, the board had gradually lessened the conditions on Arscott, eventually removing the requirement to submit to random drug testing.

Arscott had previously been found not criminally responsible in 1997 on charges of manslaughter in B.C.

The three judges of the appeal court noted that the review board had to have evidence Arscott posed a significant threat to the public in order to impose conditions – not mere suspicions.

There is no “presumption of dangerousness” the Supreme Court of Canada ruled in 1999.

In striking down the board’s decision, the court granted Arscott an absolute discharge, meaning he won’t be under the care of the board anymore.

Two medical experts had recommended to the review board that Arscott be granted an absolute discharge. The Yukon government and the federal Crown prosecutor agreed.

But the review board disagreed. The Court of Appeal, however, found there was little to no evidence to support the board decision.

The board’s concerns centred around Arscott’s use of illegal drugs – which had led to crisis in the past – and the possibility he might stop taking his medication.

Arscott testified he had been abstinent for 2 1/2 years, which was corroborated by drug testing.

The board accepted that evidence, but then went on to conclude that Arscott did use cannabis recently and was likely to continue again.

“There was no evidence from which it could be concluded there had been recent drug use,” Justice Karan Shaner wrote on behalf of herself and the two other judges.

“There was, however, a significant amount of evidence, including the results of random drugs tests, to support the conclusion Mr. Arscott had not been using illegal drugs, even in the absence of conditions requiring him to abstain.”

A report prepared by a Craig Dempsey, a clinician with Yukon Mental Health Services, concluded Arscott “was in the low-risk category for future violence.” A second report by Dr. Leo Elwell, who had been treating Arscott for 18 months when he filed the report in June 2015, concurred with Dempsey’s findings.

The board also heavily relied on a three-year-old report to make the findings, when it had access to Dempsey’s and Elwell’s reports, the court found.

“Neither (doctors) expressed an opinion that Mr. Arscott was likely to start using illegal drugs and alcohol if he received an absolute discharge,” the court wrote.

Justice Mary Saunders and Harvey Groberman concurred with the decision.