Court of Appeal for Ontario

Date: 2018-04-12 Docket: C63784

Judges: Feldman and Benotto JJ.A. and Sachs J. (ad hoc)

In the Matter of: Daniel Duquette

An Appeal Under Part XX.1 of the Code

Appellant: Daniel G. Duquette, acting in person

Amicus Curiae: Suzan E. Fraser

Counsel for the Ministry of the Attorney General: Peter Fraser

Counsel for the Southwest Centre for Forensic Mental Health Care: J. Zamprogna

Heard: March 29, 2018

On appeal against: The disposition of the Ontario Review Board, dated May 9, 2017, as amended by the order of the Ontario Review Board, dated May 26, 2017.

Reasons for Decision

[1] In 2010, the appellant was found not criminally responsible on account of mental disorder on two charges of uttering a threat to cause death or bodily harm. The appellant is diagnosed with delusional disorder, persecutory type, and alcohol use disorder in sustained remission. Following his annual review hearing on May 1, 2017, the Ontario Review Board found that he continues to represent a significant threat to the safety of the public. It continued his existing disposition detaining him at Southwest Centre for Forensic Mental Health Care, modifying it only to increase the reporting requirement should the appellant ultimately return to the community.

[2] The appellant appeals the Board's disposition and seeks an absolute discharge. He and the amicus submit that: (i) there was no evidence the appellant posed a significant threat to the safety of the public; (ii) the Board's reasons are insufficient because they fail to articulate its reasons for finding the appellant posed a significant threat to the safety of the public; and (iii) the appellant has been off his medication for over a year and has not issued threats similar to those underlying the index offences.[1]

[3] The index offences arose out of a series of 153 emails. The emails contained both idle and criminal threats, some of which were disturbing and graphic. The emails were turned over to the police and two became the subject of the charges.

[4] For the two years preceding this Board hearing, the appellant resided on his own. In January or February 2016, he discontinued his treatment sessions with his psychologist, reported that he had stopped taking his antipsychotic medication and began demonstrating an increase in delusional-based conversations. He was readmitted to hospital on October 20, 2016. The appellant continued to be hospitalized at the time of the May 1, 2017 hearing.

[5] We do not agree that there was no evidence the appellant posed a significant threat to the safety of the public. Dr. Prakash, the psychiatrist responsible for the appellant's daily clinical management, testified that the appellant continued to demonstrate symptoms of his mental illness. He stated that the appellant's symptoms had worsened, and they now approached the severity of his symptoms at the time he first entered the forensic system. Dr. Prakash explained that the appellant's decompensation over the last year (which resulted in his re-hospitalization) was likely the result of the appellant stopping his medications.

[6] Dr. Prakash recognized that the appellant had not been physically violent. However, he stated that the appellant's conduct, while not criminal, was threatening. This conduct involved intimidation using threats to sue and issue complaints to professional organizations. Dr. Prakash testified that the appellant's risk to the public had increased from low to moderate in 2015 and from moderate to high in 2016. He described the risk the appellant posed as being psychological in nature and stated the re-offence scenario would be similar to the index offences.

[7] It was reasonable for the Board to rely on this evidence to find that the appellant posed a significant threat to the safety of the public. To accept the appellant's submission that his current situation did not pose a risk of significant psychological harm would be to conclude that his threatening conduct at the time of the index offences did not pose a risk of such harm (which, given the nature of the emails that were sent, we do not accept).

[8] Similarly, the Board's reasons are not insufficient. They demonstrate that the Board relied on the evidence of Dr. Prakash and the hospital to conclude that the appellant's continued decline posed a moderate to high risk of psychological harm to others, which was criminal in nature.

[9] Lastly, we address the appellant's submission that he has been off his medication for over a year and has not resumed his prior conduct. In his evidence, Dr. Prakash acknowledged that the hospital had not been contacted regarding any letters sent by the appellant during the year he has been untreated, and that he expected the hospital would be contacted if the appellant was sending letters of a criminal nature. While it may have been preferable for the Board to engage more fully with Dr. Prakash concerning the ongoing likelihood of the appellant causing significant psychological harm given the passage of time without incident, its acceptance of Dr. Prakash's evidence without doing so did not constitute a legal error and was not unreasonable: see Medcof (Re), 2018 ONCA 299, at para. 55. However, at the next annual review hearing, currently scheduled for April 19, 2018, it would be helpful for the evidence and the reasons to more clearly address this issue.

[10] For these reasons, the appeal is dismissed.

K. Feldman J.A. M.L. Benotto J.A. Sachs J.

Footnote

[1] The parties agree on the standard of review applicable on appeal. According to s. 672.78(1) of the Criminal Code, this court may allow an appeal against a disposition of the Board where it is of the opinion that the disposition is unreasonable or cannot be supported by the evidence, is based on a wrong decision on a question of law, or there was a miscarriage of justice.