Court of Appeal for Ontario

Date: 20221019 Docket: C70217

Judges: Simmons, Paciocco and Zarnett JJ.A.

In the Matter of: Christopher Ducharme

An Appeal Under Part XX.1 of the Code

Counsel: Anita Szigeti, for the appellant Stephanie A. Lewis, for the respondent His Majesty the King Julia L. Lefebvre, for the respondent Person in Charge of Waypoint Centre for Mental Health Care

Heard: October 7, 2022

On appeal from the disposition of the Ontario Review Board dated December 14, 2021, with reasons dated January 4, 2022.

Reasons for Decision

[1] The appellant appeals from a disposition of the Ontario Review Board (the “Board”) ordering that he be detained at the High Secure Provincial Forensic Programs Division of Waypoint Centre for Mental Health Care (“Waypoint”). At the appellant's request, the Board also recommended [1] that he be transferred to the Institute Philippe-Pinel de Montreal (“Philippe-Pinel”), a forensic facility in Quebec with a high security division, under the jurisdiction of the Quebec Review Board.

[2] The Board rejected the appellant's further request that he be transferred to any medium secure forensic facility in Ontario other than Ontario Shores Centre for Mental Health Sciences (“Ontario Shores”) pending his potential transfer to Quebec. The Board stated at para. 67, “the risk to the public of transferring [the appellant] to a less secure setting is unacceptably high.”

[3] A minority of the Board would have ordered a review of the Waypoint detention decision within six months.

[4] There is no issue on appeal concerning the Board’s findings that the appellant continues to pose a significant threat to the safety of the public and that he should be subject to a detention order. The sole issue is whether the Board's refusal to transfer the appellant to a medium secure forensic facility in Ontario pending his potential transfer to Quebec was unreasonable.

[5] For the reasons that follow, we dismiss the appeal.

Background

[6] The appellant was found not criminally responsible on account of mental disorder (“NCR”) in Quebec on two occasions: March 2, 2015 and December 5, 2016. The 2015 NCR finding related to several offences arising from an attempt to hijack a taxicab while armed with a steak knife. The 2016 NCR finding related to an assault on a health care attendant.

[7] During the course of the proceedings involving the 2015 index offences, the appellant was admitted to Philippe-Pinel twice: first, to ensure his fitness to stand trial, and second for an assessment of whether he was criminally responsible. Following the assessment, the differential diagnosis pointed to schizophrenia or a drug induced psychosis.

[8] Between committing the 2015 and 2016 index offences, the appellant had various hospital stays in both Ontario and Quebec. He eloped from hospital on at least three occasions and during this interval often presented with violent, aggressive, threatening and sexually inappropriate behaviours. Following a lengthy elopement to Ontario, the appellant was returned to the Montreal General Hospital where he committed the second index offence in September 2016. He was then transferred to Philippe-Pinel for a third time. In December 2016, the Quebec Review Board ordered the appellant’s continued detention at Philippe‑Pinel where he gradually began to engage in therapeutic programming and stabilize. With the consent of the Attorney General of Ontario, he was transferred to Ontario Shores, a medium secure facility under the jurisdiction of the Board on February 15, 2018.

[9] Soon after his transfer, the appellant eloped from Ontario Shores. Following his return to Ontario Shores, he refused to continue taking his antipsychotic medication. After various incidents of assaultive and threatening behaviour against staff and fellow patients, as well as attempts to fashion weapons, the appellant was transferred to Waypoint on October 11, 2018 under s. 29 of the Mental Health Act, R.S.O. 1990, c. M.7. Within two weeks of his transfer, the appellant attempted to elope from Waypoint. The Board subsequently confirmed that the appellant should be detained at Waypoint rather than being returned to Ontario Shores.

[10] In November 2018, the appellant was convicted of several criminal offences and sentenced to a period of incarceration arising from an October 5, 2018 incident of violence at Ontario Shores. He was readmitted to Waypoint on December 30, 2018. Upon his return, he was placed in seclusion, where he remained until June 12, 2019. While in seclusion, the appellant continued to exhibit significant behavioural instability, including violent behaviour towards himself and staff and smearing feces in his room.

[11] The appellant continued to refuse treatment with antipsychotic medications at Waypoint. Between June 12, 2019, and June 11, 2020, further periods of seclusion were required arising from the appellant’s unstable mental status and violent and aggressive behaviours. On June 11, 2020, he began a further prolonged period of seclusion, which lasted until April 24, 2021.

[12] On June 25, 2020, the appellant’s attending psychiatrist, Dr. Hudson, found the appellant had deteriorated to the point that he was incapable of making treatment decisions. The appellant appealed this decision to the Consent and Capacity Board, and ultimately to both the Superior Court and this court. While the appeal to the Superior Court was pending, Dr. Hudson obtained an interim order on February 18, 2021, permitting him, as the designated treatment provider, to treat the appellant with anti-psychotic drugs with the appellant’s substitute decision maker’s consent: Ducharme v. Hudson, 2021 ONSC 1286, 155 O.R. (3d) 25.

[13] Dr. Hudson began treating the appellant with intra-muscular injections of paliperidone, a long-acting anti-psychotic drug, on March 2, 2021. This resulted in improvements in the appellant’s mental status and behaviour. However, at the request of the appellant’s substitute decision-maker, Dr. Hudson changed the medication to risperidone, which resulted in a period of relapse and seclusion between July and October 2021, while the change of medication was made.

[14] The appellant’s current diagnosis is:

• Unspecified Schizophrenia spectrum and other psychotic disorder;
• Cannabis use disorder (in remission in a controlled environment).

[15] At the Board hearing held on November 29, 2021, Dr. Hudson testified that the appellant has shown significant improvements in his mental health as a result of being treated with the antipsychotic medication to the point that he had been transferred from a highly structured unit at Waypoint to a more privileged unit and deemed safe to be out of his unit without restraints. The appellant’s last period of seclusion, prior to the Board hearing was on November 5, 2021. In his evidence, Dr. Hudson described the appellant as a “model patient since the time seclusion has been relieved.”

[16] However, although he described the appellant’s prognosis as “quite good”, Dr. Hudson did not consider the appellant a suitable candidate for a transfer to a medium secure facility at the time of the hearing. He described the situation as “early days” and noted the concern that should the appellant become capable of consenting, he would likely stop the antipsychotic medication, decompensate to a psychotic state and resume his violent behaviour. A similar result could occur if the appellant acquired access to illicit drugs in a medium secure facility.

[17] During cross-examination by appellant’s counsel, Dr. Hudson acknowledged that the appellant is “not very happy” at Waypoint. The lengthy periods of seclusion the appellant endured, and the forced administration of intramuscular antipsychotic medications, were both significantly traumatizing for him. Further, while secluded, the appellant often had to be moved to a different location in restraints while his room was being cleaned and sanitized. Given this history, it would be very difficult for Dr. Hudson to establish a good therapeutic relationship with the appellant. But Dr. Hudson also agreed that so long as medication administration could be assured and substance abuse prevented, the appellant could be managed in a medium secure facility in his current clinical state.

The Appellant’s Position

[18] The appellant submits that the Board’s decision not to transfer him to a medium secure facility in Ontario pending his potential transfer to Quebec is unreasonable because it is not the least onerous, least restrictive disposition that could have been made while also minimizing his risk to the safety of the public. He submits that the same reasoning that supported the Board’s recommendation that he be transferred to Quebec supports his transfer to a medium secure facility – namely, the appellant’s difficult history at Waypoint and the challenges this presents to his future treatment.

[19] In reaching the decision to recommend a transfer to Quebec, the Board acknowledged that a rift had developed between Waypoint, Dr. Hudson and the appellant. Because of that rift, a good therapeutic relationship between doctor and patient, which is an “important factor in the patient’s treatment”, would be difficult to develop. In all the circumstances, the Board recognized “the possible therapeutic benefit of a reset” for the appellant and endorsed his request to recommend a transfer to Quebec. However, it is undisputed that such a transfer is not a certainty and could involve a lengthy process of at least one to two years.

[20] The appellant submits that the need for an immediate transfer away from Waypoint was more urgent because of the traumatizing impact of the seclusion and forced administration of antipsychotic drugs the appellant had experienced at Waypoint. That impact was apparent not only from Hospital Report and the testimony of Dr. Hudson. The appellant was unable to endure being present at the hearing where he would have heard recounted his treatment at Waypoint. His emotional demeanour reflected the significant traumatizing impact on him of such treatment.

[21] The appellant submits that while it is clear that public safety is the paramount consideration when crafting a disposition under s. 672.54 of the Criminal Code, R.S.C., 1985, c. C-46, the Board is still required to balance public safety against: i) the mental condition of the accused; ii) the reintegration of the accused into society; and iii) the other needs of the accused. Here, says the appellant, the Board failed to conduct that balancing and deprived him of the ability to progress on a path to wellness when the Board could have crafted a disposition that would have protected the public while also taking his needs into consideration.

Discussion

[22] We do not accept the appellant’s submissions. The Board gave thorough reasons in which it recognized the appellant’s difficult history at Waypoint while he remained untreated and the challenges to his future treatment that history has created. However, the Board’s findings that the appellant remained a significant threat to public safety and that there was no air of reality to the possibility of a conditional discharge at the time of hearing are unchallenged. Moreover, the Board was entitled to accept Dr. Hudson’s opinion that, at the time of the hearing, the appellant was not suitable for a transfer to a medium secure unit. It is undisputed that Waypoint is the only forensic hospital in Ontario with a high secure unit.

[23] Dr. Hudson’s opinion was premised on several components. First, the appellant’s recent improvement as the result of treatment with antipsychotic drugs reflected “early days” in that it had not yet been tested in the environment of enhanced privileges. Second, in the event the appellant regained competency, he would likely discontinue antipsychotic medications and very likely revert to a psychotic state and violent behaviours. Third, the same decompensation would likely occur in the event the appellant was able to obtain and use illicit drugs in a medium secure unit albeit his ability to obtain such drugs could likely be managed.

[24] The Board also noted that the appellant had a history of elopement from even secure facilities.

[25] In all the circumstances, it was not unreasonable for the Board to conclude that the necessary and appropriate disposition was that the appellant be detained at Waypoint, the only high secure forensic facility in Ontario. The appellant’s history makes clear he presents a high level of risk while untreated and that, in that condition, he is difficult to manage even in a high secure environment. At the time of the hearing, the appellant was receiving antipsychotic medication critical to his mental health under an interim treatment order dependent on his inability to consent. Although his attitude is beginning to soften, he still lacks insight into his illness and need for medication. The Board was entitled to accept Dr. Hudson’s opinion that if the appellant regained the capacity to consent, he would likely decline antipsychotic medication.

[26] Overall, we are satisfied that the Board’s decision to detain the appellant at Waypoint but recommend a transfer to Philippe-Pinel, which has a high security unit, reflected an appreciation of the appellant’s needs for a possible reset while at the same time respecting the paramount goal of protecting public safety.

[27] That said, although not in issue on appeal, we are mindful of the Board minority’s reasons that would have ordered a review of the Waypoint detention decision after six months. The Board majority was of the view that such a term was not necessary and appropriate because Waypoint had the right to request an early review under s. 672.82(1) of the Criminal Code in the event its clinical view of risk changed and because a restriction of liberties hearing was upcoming in relation to Waypoint’s failure to seek a further hearing during the appellant’s lengthy seclusions. We understand the latter hearing resulted in a finding that Waypoint should have sought a restriction of liberties hearing. We observe that it is incumbent on Waypoint to monitor the appellant’s ongoing progress and seek an early review as soon at that becomes appropriate.

“Janet Simmons J.A.”

“David M. Paciocco J.A.”

“B. Zarnett J.A.”

[1] The Board does not have jurisdiction to order such a transfer as it requires the consent of the Attorney Generals for both Ontario and Quebec and the Quebec Review Board.