Court File and Parties

Court: COURT OF APPEAL FOR ONTARIO Date: 2022-02-01 Docket: C69605

Before: Strathy C.J.O., Harvison Young and Zarnett JJ.A.

In the Matter of: Bernard Durant

An Appeal Under: Part XX.1 of the Code

Counsel: Jeff Marshman, for the appellant Jacob Millns, for the Attorney General of Ontario Gavin S. MacKenzie, for Ontario Shores Centre for Mental Health Sciences

Heard: January 19, 2022 by video conference

On appeal against: the disposition of the Ontario Review Board, dated June 23, 2021.

Reasons for Decision

Overview

[1] This is an appeal from the disposition of the Ontario Review Board [the “Board”] dated June 2, 2021, ordering the appellant Bernard Durant’s continued detention in forensic custody at the Ontario Shores Centre for Mental Health Services [the “Hospital”]. The only disputed issue between the parties before the Board was whether Mr. Durant’s detention order should include the possibility that community living privileges could be extended to him in the course of the 2021-2022 reporting year at the discretion of the Hospital.

[2] The appellant argues that the Board’s refusal to include such a provision was unreasonable and a reversible error because it resulted in a disposition that was neither the least onerous nor the least restrictive one available. The respondent, on the other hand, submits that given the record before the Board and the recommendations of the treatment team, the disposition was reasonable and is owed significant deference. For the reasons that follow, we are of the view that the Board’s decision was reasonable, and the appeal should be dismissed.

[3] Bernard Durant was 31 years old at the time of the subject hearing. He has been under the jurisdiction of the Board since being found not criminally responsible on account of mental disorder (“NCR”) on May 27, 2013, of a number of charges. These charges all arose as a result of a series of incidents over about 6 hours, including the robbery of a convenience store while threatening to kill the attendant, stealing a car after threatening the driver, driving erratically and colliding with a parked car, and evading the police and ramming a number of police vehicles when he was boxed in. He was finally apprehended after being shot in the leg.

[4] The appellant has been diagnosed with schizophrenia and a polysubstance abuse disorder, including cocaine, marijuana and alcohol. In early 2020, he was also diagnosed with borderline personality disorder. Although he has been under the jurisdiction of the board since 2013 when he was found NCR in relation to the index offences, he has not been continuously subject to a detention order.

[5] After he began taking medication to manage his schizophrenia, his condition rapidly improved. He began living in the community in May 2015, first in a group home, and later in an independent Canadian Mental Health Association (“CMHA”) apartment. He was conditionally discharged in 2016, but after a period of decompensation the Board ordered his detention in November 2018. He was charged with assault and assault with a weapon after he had engaged in an altercation with a friend, hitting him over the head with a television. He has remained in detention at the Hospital since. It is clear from both the Hospital report and the Board decision that the appellant’s treatment team has, and continues to, work with him toward the goal of community reintegration.

[6] The last reporting year was not a good one for Mr. Durant. In October 2020, he eloped from a sleep clinic while alone in his room. He called the police and was returned to the institution a number of hours later, having consumed both cocaine and alcohol in the meantime. In April 2021, he eloped a second time, this time barging through the unit door, attempting to steal a vehicle, stealing a bicycle and assaulting a security guard who was trying to stop him after he rode it to the nearby GO station. Mr Durant continued to hit the guard, having pinned him against a car with the bicycle, until he was tasered by police.

[7] The appellant acknowledges that he presents a significant risk to the safety of the public and needs to remain detained at this point at the Hospital. The sole dispute is whether the Board erred by failing to include a provision in the detention order permitting the Hospital to grant the appellant community living privileges over the current reporting period if it becomes feasible.

[8] On his behalf, Mr. Marshman argues that such a disposition would have had the benefit of rendering it possible during the 2021-2022 reporting year that in the event of dramatic improvement, the appellant could be granted some community living privileges. This would be entirely within the discretion of the Hospital. He also argues that this would have been beneficial because a community living provision would have provided the appellant with some hope as well as an incentive to work toward this goal. This would alleviate the appellant’s sense of frustration, which has, he submits, contributed to his elopement attempts. He submits that because of the failure to include the possibility of community living, the Board failed in its duty to make the least onerous and least restrictive disposition possible.

[9] We disagree. The Board carefully reviewed the appellant’s personal, psychiatric and criminal history, considering the incidents occurring within that context. It began by accepting the undisputed position of all parties that the appellant remained a significant risk to the safety of the public, going on the state that the risk flows from his diagnosis of a major mental illness (schizophrenia), substance use disorder, and his personality disorder. When he decompensates, he is prone to environmental aggression as the incidents occurring in the previous year illustrated.

[10] The Board relied on the uncontroverted and expert medical opinion of Dr. Chapman, whose opinion was that the appellant requires an inpatient admission at this time and that a conditional discharge would be premature. The Board accepted the Hospital’s view that his ongoing elopement risk required his continuing detention within the forensic program.

[11] In addition, the Board credited the appellant with the positive steps he has been taking recently, noting his willingness to participate in and contribute to various therapy programs. It also commended him for his insight into his illness and his recognition of the fact that his illness requires that he take his medication in perpetuity.

[12] In considering the appellant’s request for a community living provision, and in view of the record before it, the Board found no air of reality to the possibility that the appellant could be an appropriate candidate for community living within the current reporting year. That was because of the ongoing elopement risk and associated risks of substance abuse and decompensation. It noted that if his clinical presentation were to improve significantly, an early hearing could, and should, be convened. His next annual hearing has been scheduled to take place in June 2022.

[13] Moreover, there was no evidence to support the appellant’s argument that a community living provision would help alleviate his ongoing frustration and provide an incentive for him in the course of the current reporting year. Rather, the only evidence on the point was specifically provided by Dr. Chapman at the hearing in which he disagreed with the appellant’s submission on this point:

[A] committee recommendation, (indiscernible) that’s not going to happen, will only increase his frustration, and therefore also increase the tendency to take advantage of a situation where he can elope.

[14] In short, the Board’s refusal to include a community living privilege provision in its disposition was amply grounded in the record before it, as was its conclusion that its disposition was the least onerous and least restrictive appropriate at this time. The decision was reasonable, and the appeal is therefore dismissed.

“G.R. Strathy C.J.O.” “A. Harvison Young J.A.” “B. Zarnett J.A.”