Court of Appeal for Ontario

CITATION: Duquette (Re), 2013 ONCA 489

DATE: 20130722

DOCKET: C56577

Laskin, Gillese and Strathy JJ.A.

HER MAJESTY THE QUEEN AND PERSON IN CHARGE OF REGIONAL MENTAL HEALTH CARE ST. THOMAS

Respondents

and

DANIEL DUQUETTE

Appellant

Daniel G. Duquette, in person

Jill R. Presser and Lucy Saunders, amicus curiae

Erin Winocur, for the Attorney General

Julie A. Zamprogna-Balles, for the person in charge of Regional Mental Health Care St. Thomas

Heard: July 17, 2013

On appeal from the disposition of the Ontario Review Board dated January 15, 2013.

ENDORSEMENT

[1] Daniel Duquette has been detained under the jurisdiction of the Ontario Review Board since 2010, after having been found not criminally responsible in respect of two charges of uttering a threat to cause bodily harm. He has been diagnosed with schizophrenia, a history of alcohol abuse, and a personality disorder with paranoid features. In addition to the index offences, he has a history of violence that includes threatening behaviour towards family members and hospital staff, and destroying furniture and other property at his family’s home.

[2] Mr. Duquette’s most recent review hearing took place on January 14, 2013. The Board had before it documentary evidence, as well as direct oral evidence from Mr. Duquette and his treating psychiatrist, Dr. Prakash.

[3] On January 15, 2013, the Board issued its disposition and reasons for that disposition. It found that Mr. Duquette remained a significant threat to the safety of the public. It based its conclusion on the medical evidence, including that of Dr. Prakash whose expert opinion was that Mr. Duquette was not ready for a conditional discharge, and on Mr. Duquette’s lack of insight into the nature of his illness and the requirement that he take medication for it for the foreseeable future. Without medication, the Board found strong evidence that Mr. Duquette would experience increasing symptoms with the significant risk that he would act out violently.

[4] Nonetheless, the Board recognized that Mr. Duquette had made progress. It continued the detention order but varied it so that Mr. Duquette would be detained at the General Forensic Unit, instead of the Secure Forensic Unit. The detention order was also varied so that Mr. Duquette may be permitted to enter the community of southwestern Ontario, indirectly supervised; may be permitted passes into the community of southwestern Ontario of up to 48 hours, up to 12 times a year, accompanied by an approved person; and may now access the internet for any purpose other than using email.

[5] Mr. Duquette appeals, asking for an absolute discharge.

[6] Amicus curiae joins in asking that the appeal be allowed but submits that a conditional discharge is the appropriate order.

[7] We see no basis on which to interfere with the Board’s order.

[8] Mr. Duquette does not accept his medical diagnosis. He believes that he suffers from post-traumatic stress disorder. However, the evidence before the Board clearly confirms the medical diagnosis. While the evidence before the Board showed that Mr. Duquette is making improvements, it reveals that he continues to have breakthrough symptoms of his illness, particularly of paranoia. It is to be noted that at the end of the Board hearing, after hearing Mr. Duquette’s responses to Board questioning, Dr. Prakash withdrew his opinion that the intensity of Mr. Duquette’s symptoms was reduced and that he was getting better. Nonetheless, he remained of the view that it was reasonable to move Mr. Duquette to the general forensic unit.

[9] The evidence before the Board shows that Mr. Duquette has a history of non-compliance with taking his medication. He has taken his medications only when under the authority of the Board. Dr. Prakash testified that it was unlikely that Mr. Duquette would continue to take his medication if he were conditionally discharged.

[10] The Board accepted this evidence and concluded that without medication, Mr. Duquette would decompensate, resulting in the significant risk that he would act out violently.

[11] The Board fully considered the evidence before reasonably concluding that a detention order was the least onerous and restrictive disposition. The fact that Mr. Duquette disagreed with his medical diagnosis was not the reason for the Board’s conclusion. Rather, his disagreement with the medical diagnosis was significant because it showed his lack of insight into his illness and explained why it was likely that he would stop taking his medication were he to be conditionally discharged.

[12] In light of the Board’s findings, there was no air of reality to a conditional discharge. Accordingly, the Board did not need to go further and consider whether Mr. Duquette would consent to take medication or the adequacy of the available mechanisms to return him to hospital. In this regard we would note as well that Mr. Duquette lacks the capacity to consent to take medication and thus such an inquiry was not appropriate or necessary.

[13] Accordingly, the appeal is dismissed.

“John Laskin J.A.”

“E.E. Gillese J.A.”

“G.R. Strathy J.A.”